Legislative Control over Administration: Conferring, Confining and Scrutinising Administrative Power

The legislature controls the administration at three moments. It controls at the point of conferring power, by deciding what may be done, by whom, on what conditions and with what procedure, and by retaining the essential policy choices for itself. It controls after the power is exercised, by requiring rules to be laid before it, by referring them to a committee, and by questioning the Minister. And it controls through the purse, since nothing can be done without money the legislature has voted. Each of these is real, and each has a characteristic weakness: the first is undermined by wide delegation, the second by want of time, and the third by the scale of modern expenditure. This topic sets out the mechanisms and assesses them.

1. Control at the Point of Conferment

The most effective control the legislature exercises is the one it exercises before any administrative power exists. A carefully drafted statute confines the administration far more reliably than any subsequent scrutiny, because it fixes the purposes for which power may be used, the conditions on which it arises, the procedure to be followed and the remedies available. The doctrines of excessive delegation and of essential legislative function exist to prevent the legislature abandoning this control.

📖 Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. v. Assistant Commissioner of Sales Tax, (1974) 4 SCC 98

Facts: A provision of the Central Sales Tax Act fixed the rate of tax on inter-State sales of goods by reference to the rate applicable to the sale of such goods inside the appropriate State, so that the rate in a given case would vary according to what each State legislature chose to prescribe for local sales. It was contended that Parliament had abdicated its function by leaving the rate of a central tax to be determined by the choices of State legislatures, and that this amounted to excessive delegation.

Held: The Supreme Court upheld the provision. It held that the legislature must retain in its own hands the essential legislative function, which consists in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law; what can be delegated is the task of subordinate legislation necessary for carrying the policy into effect. Applying that test, the Court held that Parliament had itself made the policy choice, namely that inter-State sales should bear the same rate as local sales in the appropriate State, and had not abdicated anything: the rate was determined by a principle Parliament had laid down, even though its arithmetical result depended on facts outside Parliament's control. The Court noted the differing views on whether the presence of a legislative policy or the availability of legislative control is the true safeguard, and preferred the requirement that the policy be laid down by the legislature itself.

Ratio: The legislature must retain the essential legislative function by declaring the policy and the standard; what is delegated must be the working out of that policy. A provision that applies a principle chosen by the legislature is not excessive delegation merely because its operation depends on external facts.

2. Control after the Power Is Exercised

📖 Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196

Facts: An order made under the Essential Commodities Act was challenged on the ground that it had not been laid before both Houses of Parliament as section 3(6) of the Act required. The question was whether the laying requirement was mandatory, so that non-compliance invalidated the order, or directory, so that the order remained effective.

Held: The Supreme Court held the requirement to be directory. It examined the three forms of laying: simple laying, which requires only that the rule be placed before the House; laying subject to negative resolution, under which the rule operates unless annulled or modified; and laying subject to affirmative resolution, under which the rule does not come into force, or ceases to have effect, unless approved. The Court held that where the provision merely requires laying and attaches no consequence to non-compliance, and does not make the operation of the rule conditional on approval, the requirement is directory: non-compliance does not render the rule void, though the failure may be brought to the notice of the House. Where, by contrast, the statute provides that the rule shall have effect only on approval, the requirement is mandatory.

Ratio: A simple laying provision is directory, so non-compliance does not invalidate the rule; an affirmative resolution requirement, which makes operation conditional on approval, is mandatory.

Mechanism	What it achieves	Its weakness
Laying of rules	Brings subordinate legislation to the notice of the House	Simple laying is directory; rules operate whether or not laid (Atlas Cycle)
Negative resolution	Permits annulment or modification within a period	Motions are rarely moved and still more rarely carried
Affirmative resolution	Makes operation conditional on approval	Used sparingly, chiefly for taxing and penal provisions
Committee on Subordinate Legislation	Expert scrutiny of every rule for conformity and propriety	Reports are recommendatory and often acted on slowly
Questions to the Minister	Elicits information and fixes political responsibility	Answers may be formal, and the time available is limited
Debates and motions	Public examination of administrative conduct	Constrained by party discipline and the Government's majority
Financial control	Nothing may be spent without a vote	The volume of demands makes item-wise scrutiny impossible
Audit and the Public Accounts Committee	Post-expenditure examination of propriety and economy	Operates long after the event and its findings bind nobody

3. Financial Control

No tax without law. Article 265 provides that no tax shall be levied or collected except by authority of law, so the administration cannot raise money on its own.
No expenditure without appropriation. Article 266(3) provides that no money shall be appropriated out of the Consolidated Fund except in accordance with law, and Article 114 requires an Appropriation Act.
Demands for grants. Estimates of expenditure are submitted to the House, which may assent, refuse or reduce a demand, and cut motions permit detailed criticism.
Charged expenditure. Certain items, including the salaries of Judges, the Comptroller and Auditor General and the Public Service Commissions, are charged on the Consolidated Fund and are not votable, which secures their independence.
Audit. The Comptroller and Auditor General, whose independence is secured by Article 148, audits receipts and expenditure and reports to the legislature.
Public Accounts Committee, which examines the audit reports and asks whether money was spent for the purpose voted, with propriety and economy.

4. Control over Institutions and Appointments

Creating and abolishing bodies. Tribunals, corporations, commissions and regulators exist because a statute created them and can be reshaped by amending it.
Prescribing qualifications and tenure for the holders of statutory offices, subject to the constitutional requirements of independence where judicial functions are transferred.
Approving or annulling emergency action, including the approval of Proclamations under Articles 352 and 356 within the prescribed periods.
Removal processes in which the legislature participates, as in the removal of Judges and of the Comptroller and Auditor General.
Receiving annual reports, as from the Public Service Commissions under Article 323 and from statutory regulators, with a memorandum explaining non-acceptance of advice.
Committee scrutiny of public undertakings, which reaches bodies outside the ordinary departmental chain.

5. Assessment

The control	How effective in practice
Framing the statute narrowly	The most effective control, but increasingly avoided in favour of wide enabling provisions
The doctrine of excessive delegation	A real limit, though the policy required may be stated at a high level of generality (Gwalior Rayon)
Laying procedures	Weak where laying is simple and directory; effective where approval is a condition of operation
Committee on Subordinate Legislation	Valuable and thorough, but its capacity is small against the volume of rules
Questions	Effective at eliciting information and at political embarrassment, less so at changing decisions
Financial control	Strong in form; weakened by the scale of the budget and by guillotined debate
Audit and the Public Accounts Committee	The most searching scrutiny available, but entirely retrospective
Ministerial responsibility	Formally intact; the sanction of resignation has largely lapsed

⚠ The legislature controls best before it parts with the power

Every mechanism examined after the point of conferment is working against the odds: the volume of subordinate legislation exceeds what any committee can examine, the House lacks the technical capacity to evaluate a tariff order, and party discipline ensures that motions against the Government's rules will not be carried. The one control that is not subject to these difficulties is the drafting of the parent Act itself, where the legislature decides how much discretion to confer, what purposes to specify, what procedure to require and what safeguards to attach. That is why the doctrines of excessive delegation and essential legislative function matter out of proportion to the number of cases in which a statute is actually struck down: they are what keeps the one effective control from being given away.

6. The Position in Summary

The legislature controls the administration at the point of conferring power, after its exercise through laying and scrutiny, and continuously through the control of finance.
It must retain the essential legislative function by declaring the policy and the standard, delegating only the working out of that policy (Gwalior Rayon).
A simple laying requirement is directory and its breach does not invalidate the rule, while an affirmative resolution requirement making operation conditional on approval is mandatory (Atlas Cycle).
Financial control rests on Articles 265, 266 and 114, supported by audit under Article 148 and by the Public Accounts Committee.
The controls exercised after conferment are weakened by volume, technicality, time and party discipline, which is why the framing of the parent Act remains the most effective control available.

7. Related Topics and Provisions

Parliamentary Control over the Executive (Topic 150) and Questions, Debates and Committees (Topic 151).
Legislative Control over Delegated Legislation (Topic 42) and Laying of Rules (Topics 40 and 41).
Doctrine of Excessive Delegation (Topic 27) and Essential Legislative Function (Topic 28).
Control over Administration (Topic 148) and Administrative Accountability (Topic 147).
Delegation of Taxing Power (Topic 34): the strictest field of legislative control.
Constitution of India: Articles 107 to 117, 148, 151, 245, 246, 265, 266, 323, 352 and 356.