Control Mechanism Of Administrative Rule-Making Power

By | December 23, 2019
Control Mechanism Of Administrative Rule-Making Power

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Control Mechanism Of Administrative Rule-Making Power | Overview

Administrative rulemaking is the functions and actions performed by administrative agencies. IN both national and state levels, the administrative agencies aim to reform procedures and provide legislative supervision and guidance.

In spite of there not being a Constitutional requirement for having rigid controls on the administrative rulemaking, but when delegating these powers, it is usually laid down by the branch that delegates them, a certain procedure or rules that direct. In current society, the elements of the state are complex.

In this time, the modern state is viewed as the caretaker of social welfare and subsequently, there is certifiably not any type of activity that is liberated or that doesn’t fall under the immediate or indirect impedance by the state. Alongside obligations and forces, the state needs to bear new duties. The development in the scope of obligations of the state, therefore, introduced an authoritative age and a period of Administrative law.

PROCEDURAL CONTROL

Despite the fact that thinkers mainly identified Administrative rulemaking with mainly two functions that of regulation and security, but later on it was understood that due to its unique nature, it was also a procedural branch function, the specificity of which were substantive rules of various sectors like land, finance, labour, business, environment, etc.[1]

Administrative agencies also help form procedural rules for modern also known as “administrative procedure”. Procedure includes the presence of a well-established model and its attributes are as follows: compliance with regulatory model enshrined in the legal act, the existence of certain regulatory limits ‘impact’ procedural rules does not apply to the content, internal aspects of the basic rules and only provide for external application process, and the emergence of the basic rules immediately accepted and procedural norm that ensures the continuity of law-making and law implementation.[2]

There is no specified procedure until the legislature makes it mandatory for the executive and other agencies to follow a pre-determined set of rules and regulations in rulemaking. There are three components that have to be followed under the Parent Act that is the main act under which procedure is followed.

First being the pre-publication or consultation with a specialist, secondly, publication of delegated legislation and finally, the laying of rules. To be either Mandatory or Directory (which means either mandatory and compulsory or suggestive) the parameters are the scheme of the Act, intention of the Legislature, language used for drafting purposes and inconvenience caused to the public at large scale. [3]

Administrative procedure is used in the public sphere to regulate the procedure of implementation processes and strengthen the method and choices by the authorities regarding utilisation of their lawful prerequisites so that the executives activities include a positive direction and set up specific systems of specific activities, distinction between the specialists of all, identifying potential exceptions to it, to fix administrative, regulatory and procedural guidelines, which thus direct the use of substantive administration in different parts of law and hence manage the action of approved agencies and authorities.

Procedural due process in rulemaking is not usually given importance in comparison to the importance given to the substance of the rules. This imbalance of importance will result in legislative oversight and placing the emphasis where it does not belong. Thus comes in the role of the high-level of authority in the administrative agencies.

LEGISLATIVE CONTROL

In some Constitutions, it is clearly mentioned that all legislative powers must compulsorily be vested in the Legislature, although this is not the case in India. In spite of such a provision, the legislature continues to delegate law-making powers and other administrative functions to Administrative agencies. The courts have too, gone along to uphold this delegation and not opposed it directly, thus changing the basic functioning of governments.

Even if this has not caused any major harm or cause of alarm yet, but this delegated power to the administrative is ever-increasing and has become of wide proportions and substantive importance, that in some cases, legislatures have sensed a loss of their Constitutional powers and directive to make all the laws since now administrative rulemaking is given enough discretion so as to have the same impact and implementation as the legislature itself.

Under the traditional legislative control, it is within the powers of the state legislature to react to what it believes is an abuse of the rulemaking power that they have delegated and control the administration through traditional mechanisms.

These traditional mechanisms could include the penalizing of an agency which adopts an offensive rule by for example repealing the rule expressly, repealing the agency’s authority to make the rule, reducing the agency’s appropriation, refusing approval of nominees for agency positions, reorganizing or abolishing the agency or investigating of the agency.[4]

But in modern interpretation, these are considered to be drastic, hostile and retaliatory nature of remedies, only if they are used non-judiciously. In modern controls, most legislative authorities understand the importance of providing flexibility and expertness in administration and relieving itself from burdensome, detail work.

They do not wish to hinder and obstruct unnecessarily but at the same time control specific actions and discretionary powers. If it is to be asked of the administrative authority to approve all rules through the legislature then it gives them direct control, and such a requirement would mean that the point of the sub-delegation is lost if eventually, it is the legislature itself that has to take the burden of approval and details. Such a requirement, modern mechanisms, believe that should be restricted only to certain fields where legislative control is of utmost importance, and such a legislative clearance and review will bring up any constitutional problems if any.

In respect to rulemaking, the state legislatures can control rulemaking by specifying requirements and regulations that are uniform and general for all for the procedure of making rules. The legislature can also stay at the top of understanding of administrative authorities by having good hearing and publication processes.

This is a shortcoming of the administration when it comes to legislative competence, which is its lack of systematic publication of rules. The major features of publication of rules are for : reliability, convenience to the user and flexibility.[5] It is also necessary for the legislature to bring forth this publication of rules that are enforced as laws.

Another noticeable aspect is that of the legislature not giving clear instructions and them being broad and vague which may mislead and be inadequate to the administrators for the formulation of rules. Thus the periodic re-examination of the standards of the delegation of the manner in which statutory language has been used is also essential.

Lawmaking of administrative authority will go hand in hand with the basic principles of the legislative organ of the government when the legislative maintain some control of the rulemaking process.

With regard to the control of the legislature over delegated legislation, M.P. Jain states:
In a parliamentary democracy, it is the function of the legislature to legislate. If it seeks to delegate its legislative power to the executive because of some reasons, it is not only the right of the Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive carries out the agency entrusted to it.

The basic object of parliamentary control is to oversee the rulemaking of the administration and additionally to condemn them if there is a misuse of power on their part. Direct yet broad control over appointed enactment is worked out through certain ways as follows:

(a) Through the discussion and debate on the act which contains delegation. Individual members may discuss anything about the nature of the delegation, for example, need, degree, kind of assignment and the position to whom power is appointed.

(b) Through questions and issuing notices. Any authority can pose inquiries on any part of the appointment of administrative forces and whenever disappointed can withdraw from the discussion.

(c) Through passing and circulating resolutions and notifications in the house. Any member may move resolutions on the topic of discussion referred to as the motion if the issue with respect to delegation of power is critical and urgent, and in the case where the answer of the government is insufficient.

Other than these direct ways there are also Direct special control methods as follows:

i. All Acts of Parliament ought to consistently necessitate that rules be laid on the table of the House as soon as possible with utmost urgency,

ii. The laying time frame ought to consistently be thirty days from the date of final publication of rules; and,

iii. The rule will be dependent upon such alterations as the House may get see necessary to make.

The legislative control over delegated legislation has become a ‘living continuity as a constitutional necessity’.[6]

JUDICIAL CONTROL

It is necessary to control the discretionary powers of the administrative agencies. There are certain principles on which the exercise of powers can be judicially controlled and they are as follows:

– where the exercise of the discretion is in excess of the authority that is ultra vires

– where there is an abuse of the discretion or improper exercise of the discretion.

In the case of ultra vires utilization of power, it is in respect to when an authority to whom discretion is committed does not exercise it himself, where the authority acts under the influence of another agency, where the authority does something that is prohibited for them, and where the condition precedent to the exercise of discretion is not present this means that the authority lacks jurisdiction.

In the case of abuse of discretionary powers, the instances covered are: where the power has been exercised arbitrarily or capriciously, where it is exercised for an improper purpose and where it is exercised inconsistently with the spirit and purpose of the statute and other such matters.[7]

There are also 4 principal routes through which the decisions of administrative agencies come before the courts for control and review: first, the suit against the offending official for damages because it is important of actions to restrain or compel administrative action or inaction. These suits can take the form of requests as writs like Habeas corpus, mandamus, certiorari etc.

The validity of the orders against recalcitrant by the administration is also contested in these suits. And finally, the statute establishing the administrative agency in question may itself establish the right and provide means for its review.[8]

Thus judicial review is an important aspect of administrative rulemaking power and the same was reiterated in the judgment of the Hon’ble Supreme court in the case of Union of India vs. Hindustan Development Corporation.

Another example of an instance where the interference in control by Courts can be in a situation where an immigration authority refuses to admit a person claiming to be a citizen, and if the matter depends upon the proper interpretation of the Citizenship laws, the courts will review this question, as the jurisdiction of immigration administrative authorities does not encompass the exclusion of citizens.

Even though sometimes there might be a difficulty to separate a question of fact and a question of law, judicial review is essential, such that it cannot be taken away even by an amendment to the Constitution. But it is important for the judiciary to lay down proper norms to confine powers, and not to overstep its judicious powers.

Justice Frankfurter, a United States judge stated in these words that: “Judicial review is not immune against human weakness. It also must be on guard against encroaching beyond its bounds, and not the less so, since only restraint upon it is self-restraint”[9]

CONCLUSION

Administrative rulemaking powers are now considered as good as at par with the powers vested in the other three organs of the government that of Executive, Legislature and Judiciary, but yet being a sub-delegated branch of the three that does not have its direct access to power, this has to come under the purview of the bodies that give it power.

Although finally, through the study of these various controls over it, it is understood that administration has reserved some discretion with itself and eventually all the four branches work interlinked and inter-dependent on each other. But the existence of these controls keeps a sense of checks and balances which is the most essential part of a democratic state.


[1] Essence of Procedural administrative law – theoretical view by Yulia Pyrozhkova

[2] Gusarov S. Definition of administrative procedure and administrative process in administrative law Ukraine

[3] As given in Raza Buland Sugar Co Vs. Rampur Municipal Council

[4] Legislative Controls of Administrative Rule Making Author(s): Orrin L. Helstad, William W. Boyer and Jr.

[5] Wisconsin Administrative procedure Act

[6] Justice Krishna Iyer’s observation in Arvind Singh’s case

[7] ADMINISTRATIVE DISCRETION AND JUDICIAL CONTROL https://shodhganga.inflibnet.ac.in/bitstream/10603/130521/9/09_chapter%204.pdf

[8] Judicial Control of Administrative Decisions by J. Roland Pennock

[9] Trop Vs. Dulles 356 US 86 (158)


  1. Nature and Source of Administrative Rulemaking Power(Opens in a new browser tab)