Procedural Control on delegated legislation

Theoretical overview

Procedural control is also known as administrative or executive control on delegated legislation. It states that under parent act, certain guidelines are given which are needed to be followed by the authorities while making the rules. Rules become invalid on the ground of non-compliance with the prescribed procedure only if such procedure is mandatory and if such procedure is directory, then it does not get invalid. So, one has to see whether the procedure is mandatory or directory.

It runs in four components: –

1. Drafting

• Drafting by an expert draftsman
• Such a person is in the position to advise whether the proposed rules and regulation are intra vires or ultra vires.

2. Pre-publication- it is done through draft form and objectives and suggestions are invited before finalizing. According to section 23 of the general clause act 1887, the effect of pre- publication is that

• Rules should be published in draft form in gazette.
• It should be invited by a specific date
• These objections and suggestions should be considered by the rule making authority

Procedure prescribed in general clause act applies to rule, regulations and by-laws and administrative rule making under any other name is not governed by this act.

3. Consultation by effected person – in India no general rule is there to provide for prior consultation. Therefore, this provision is sometimes provided in the enabling act itself. It can be mandatory and non-mandatory which affects its validity.
4. Post natal publication (post-publication) – it is based on the fact that ignorance of law is no excuse and law should be accessible to all. In India, no provision or general rule is there which states the modes of publication of rules and it differs from statute to statute. In some cases, it is asked to publish in an official gazette while in others, administrative authority is left free to choose. Rule-making authority laid down a date on which it should come into force.

Important sections/articles

Section 23 of the general clause act which states the effect of pre-publication.

Most important case laws

1. Anuradha Bhasin vs Union of India – the supreme court held that government orders demanding compliance on part of people must be notified directly or reliably. This is regardless of whether the parent statute or the relevant rule prescribe the same or not. 
2. Harla vs. state of Rajasthan – the supreme court held that a law cannot be enforced unless published.

Important legal maxims

1. Intra vires – within the legal power or authority or a person or official or body etc.
2. Ultra vires – it means beyond the powers.

Points to remember

• Procedural control is also known as administrative or executive control on delegated legislation
• Drafting by an expert draftsman
• Pre-publication
• Consultation by effected person
• Post natal publication (post-publication) – it is based on the  fact that ignorance of law is no excuse and law should be accessible to all