📖 Hukam Chand v. Union of India, (1972) 2 SCC 601

Facts: Rules framed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 were given retrospective operation, and the question was whether the rule-making authority could do so. The parent Act conferred a general power to make rules for carrying out the purposes of the Act but said nothing about retrospectivity.

Held: The Supreme Court held that the rules could not operate retrospectively. It held that the power to make subordinate legislation derives from the enabling Act, and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of the authority conferred. Unless the enabling Act expressly or by necessary implication confers the power to make rules with retrospective effect, the rule-making authority has no such power, because the making of a rule that operates from a past date affects vested rights and is a substantial exercise of legislative power which the legislature has not conferred. A rule cannot therefore be given retrospective operation merely because the authority considers it convenient.

Ratio: A rule-making authority cannot make rules with retrospective effect unless the parent Act expressly or by necessary implication authorises it. This is one of the standing criteria on which the Committee examines every rule.

📖 Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, (1985) 1 SCC 641

Facts: Customs duty on imported newsprint was levied and the exemptions previously available were modified, and newspaper publishers challenged the notifications, contending that the levy imposed a burden on the press which affected the freedom of expression under Article 19(1)(a), and that the exercise of the power had been arbitrary and unreasonable.

Held: The Supreme Court set out the grounds on which subordinate legislation may be challenged, and they extend beyond those applicable to a statute. Subordinate legislation may be questioned on the ground that it is contrary to the parent statute or to any other statute, that it is contrary to the Constitution, that it offends the fundamental rights, that it was made without following the procedure prescribed, and that it is manifestly arbitrary or unreasonable. The Court held that a piece of subordinate legislation does not carry the same degree of immunity as a statute, since it is made by a body which is not directly answerable to the electorate, and that the court may examine whether relevant considerations were taken into account, though it will not substitute its own view on the rate of duty, which is a matter of fiscal policy.

Ratio: Subordinate legislation may be challenged on wider grounds than a statute, including manifest arbitrariness and unreasonableness, because its maker is not directly answerable to the electorate. The same absence of direct accountability is the reason for committee scrutiny.

Receipt

Every order, rule, regulation, bye-law or notification laid before the House stands referred to the Committee

Preliminary examination

The secretariat scrutinises each instrument against the criteria and identifies those needing attention

Memorandum from the ministry

The ministry is asked to explain the provisions questioned and to state the authority relied on

Evidence

Officials may be summoned and examined, and papers called for

Report to the House

Recommendations for amendment, withdrawal, or the framing of better rules, and comment on delay in laying

Action taken

The ministry reports what it has done, and the Committee may pursue the matter in a further report

Follow-up on delay

The Committee separately monitors delay in framing rules under Acts already in force, and delay in laying

Every instrument is examined, which the House itself could never do

Reports are recommendatory; the Committee cannot annul a rule

Small, expert and non-partisan in practice

Capacity is limited against the volume of subordinate legislation

Sits between sessions, so scrutiny is continuous

Scrutiny is after the rule is already in operation

Can summon officials and call for papers

Depends on the ministry's cooperation in furnishing material

Its criteria are settled and predictable, which disciplines drafting in advance

Ministries may accept a recommendation in principle and delay acting on it

Reports are public and available to the courts and the press

The House rarely debates the reports

⚠ The Committee is the only part of legislative control that actually reads the rules

It is worth being clear about the division of labour in the control of delegated legislation. The laying requirement makes a rule available to the House but produces no scrutiny by itself, and where laying is simple it is directory, so a breach does not even affect the rule's validity. The House has neither the time nor the technical capacity to examine thousands of instruments. The courts examine only what a litigant brings to them, and only for legality. The Committee is therefore the single mechanism that looks at every rule, and looks at it for propriety as well as legality: it can say that a rule ought to have been in the Act, that it makes an unexpected use of the power, or that it was laid two years late, none of which a court would entertain. Its recommendations bind nobody, but the scrutiny itself exists nowhere else.