Laying of Rules Before the Legislature: Types of Laying Clauses, Mandatory or Directory, and Case Laws

Laying is the device by which the legislature keeps sight of the law its delegates make. A statute conferring rule-making power commonly requires every rule made under it to be laid before the House, sometimes with a power in the House to modify or annul it. Laying is therefore the principal form of legislative control over delegated legislation, working alongside the Committees on Subordinate Legislation. Its practical value has often been doubted, given the volume of rules and the limited time available, and the Indian courts have generally treated laying requirements as directory, so that a failure to lay does not by itself invalidate a rule. This topic sets out the forms of laying clause, the machinery of committee scrutiny, and the case law on the consequences of non-compliance.

1. The Purpose of Laying

Delegated legislation is made under authority the legislature conferred, and the legislature retains an interest in how that authority is used. Laying serves three purposes: it informs the House of the rules made under the statutes it has passed; it creates an opportunity for control, ranging from debate to formal annulment; and it brings the rules within the reach of the scrutiny committees, which examine them systematically in a way the House as a whole cannot. The device came into Indian practice from the United Kingdom, where the Statutory Instruments Act, 1946 provides a general framework; India has no general statute of that kind, and each laying clause therefore stands on its own terms, a point the courts have repeatedly emphasised.

2. Types of Laying Clauses

The Indian formula is usually a composite one: rules are to be laid before each House while it is in session for a total period of thirty days, comprised in one or more sessions, and if both Houses agree in making a modification or in deciding that the rule should not be made, it takes effect in the modified form or ceases to have effect, as the case may be, without prejudice to the validity of anything previously done under it. That saving clause is significant: it confirms that the rule operates in the meantime and that annulment works prospectively.

3. Mandatory or Directory: The Leading Case

The question that reaches the courts is what happens when the rule is simply not laid. The Indian answer, in the ordinary case of simple laying, is that the requirement is directory.

The same conclusion had been reached in Jan Mohammad Noor Mohammad Begban v. State of Gujarat, AIR 1966 SC 385, where rules under agricultural produce markets legislation had not been placed before the legislature as required. The Supreme Court held that the rules did not become invalid on that account, since the provision did not prescribe that the rules would be of no effect unless laid, and the omission of the Government to comply did not defeat rules validly made.

4. When Laying May Be Mandatory

Atlas Cycle decides the ordinary case, not every case. Whether a laying requirement is mandatory remains a question of construction, and the following features point towards the mandatory conclusion.

1. Laying made a condition precedent. Where the statute provides that the rule shall not take effect, or shall not be made, until it has been laid or approved, compliance is a condition of the rule's operation and omission is fatal.
2. Affirmative resolution required. Where the rule ceases to have effect unless approved within a stated period, the approval requirement must be satisfied on its own terms.
3. A consequence attached to omission. Where the statute itself states what happens if the rule is not laid, that consequence follows.
4. Draft laying. Where a draft must be laid before the rule is made, the sequence prescribed must be followed, because the control is designed to operate before the rule exists.

Conversely, the features that led to the directory conclusion in Atlas Cycle, namely laying after the rule is made, no period prescribed, no consequence stated and no power of modification or annulment, will ordinarily produce the same result in other simple laying clauses.

5. The Scrutiny Committees

Laying would achieve little without a body to examine what is laid. Both Houses of Parliament have a Committee on Subordinate Legislation, and the State Legislatures have corresponding committees. Their function is to scrutinise rules, regulations and orders made under statutes and laid before the House, and to report whether the powers delegated have been properly exercised. The matters they characteristically examine include whether the rule is within the scope of the enabling Act, whether it excludes the jurisdiction of the courts, whether it imposes a tax or a penalty not authorised by the Act, whether it has retrospective effect without statutory authority, whether it involves expenditure from the Consolidated Fund, whether its publication has been unduly delayed, and whether it calls for elucidation because of obscure drafting.

The committees do not annul rules; they report, and the department responds. Their influence is therefore persuasive rather than coercive, but it is continuous and systematic in a way that debate on the floor cannot be, and the anticipation of scrutiny operates as a discipline on rule-making departments.

6. The Limits of Legislative Control

• Volume. The number of rules made each year far exceeds what any House can consider, so that most laid instruments are never discussed.
• Time and priority. Legislative time is scarce and is claimed by primary legislation and by political business; subordinate legislation rarely competes successfully.
• Absence of a general statute. India has no equivalent of the Statutory Instruments Act, 1946, so that the form and effect of laying vary from Act to Act and the courts must construe each clause separately, as Atlas Cycle noted.
• Directory character. Because simple laying is directory, the sanction for non-compliance is political rather than legal.
• Consequence for judicial review. The weakness of legislative control is one reason the courts have not treated laying, or its absence, as affecting the validity of rules, and have instead concentrated control in the ultra vires jurisdiction.

7. The Position in Summary

1. Laying is the principal form of legislative control over delegated legislation, informing the House, creating an opportunity for modification or annulment, and bringing rules within the reach of the scrutiny committees.
2. Laying clauses take four forms: simple laying, laying subject to negative resolution, laying subject to affirmative resolution, and laying in draft, with the composite thirty-day formula common in Indian statutes.
3. A simple laying clause that attaches no consequence to omission and makes laying subsequent to the making of the rule is directory; non-compliance does not invalidate the rule (Atlas Cycle; Jan Mohammad).
4. Laying is mandatory where the statute makes it a condition precedent, requires affirmative approval, attaches a consequence to omission, or requires a draft to be laid before the rule is made.
5. The Committees on Subordinate Legislation supply the systematic scrutiny the House cannot, but legislative control remains limited by volume, time and the absence of a general statute, so that the effective control of delegated legislation is judicial.

8. Related Topics and Provisions

• Publication of Delegated Legislation (Topic 38) and Requirement of Previous Publication (Topic 39): the procedural controls operating before and at the making of the rule.
• Control of Delegated Legislation: the legislative, procedural and judicial controls taken together.
• Checks and Balances (Topic 11): laying as an instance of legislative restraint on the executive.
• Doctrine of Excessive Delegation (Topic 27): the constitutional control that operates independently of laying.
• Modification and Removal of Difficulties Clauses (Topic 37): orders under such clauses are ordinarily subject to laying.
• Constitution of India: Articles 245, 246; Essential Commodities Act, 1955, section 3(6); General Clauses Act, 1897.