This article is written by Shivam Sharma
Like most democratic states, the Indian Constitution vested the power to enact laws with the Parliament. Similar to Westminster practice, it is an accepted fact that parliament cannot legislate in a detailed manner for matters that come before it. Numerous facets make up for this restriction, like the crunch of time, dearth of technical knowledge, the complexity of the subject coupled with the need for adaptability and a dearth of room for experimentation.
In lieu of these facts, the parliament in India merely outlines the policy and delegates the power to put flesh on the bones of such enactment upon the executive. As pointed out by the Committee on Minister’s Power in England, there are definite advantages of such a mechanism if performed in the right way.
Delegated legislation refers to the practice whereby the legislators transfer their lawmaking powers to the administrators of the law. It cannot be denied that subordinate legislation has become an imperative technique of modern governance. However, the inevitable delegation of rulemaking power does not justify ad-hoc, unproductive and counterintuitive practices on part of the executive.
Numerous times the principles of legal statutes, good governance and rule of law are thrown to the wind as the delegated legislation shreds away citizen’s rights and liberties. Hence sprouts the need to control these practices. One such control is the publication of delegated legislation.
What amounts to publication? What is the degree of publicity and know-ability that is required to meet the standards of publication? There is no established authority for the same. Hence it is submitted that publication shall simply mean to undertake all reasonable steps under the prevailing circumstance to make the law known to the people it concerns.
There are numerous checks and balances in place for laws enacted by the parliament but there exists a gargantuan void when it comes to subordinate legislation.
Laws are usually published in the Government Gazettes which are not easily accessible. The inaccessibility is highlighted when the law in question is an outcome of secretive undertakings inside opaque bureaucratic chambers. In addition countries like India struggles with illiteracy on a mass scale and legal literacy is even worse. An ineffective and inefficient attempt at the publication of the laws is an unaffordable luxury.
The mayhem is further triggered by a lack of clearly defined and explicitly stated statutes. Consider the question as to when shall a rule, order or bylaw be considered to come into force? Some scholars vehemently suggest that a delegated legislation comes into effect, not from the date on which it is published but rather the date on which it is made.
Which further creates a turf between an ‘ignorance of the law’ on part of the citizens and a ‘retrospective execution of law’ by the subordinate legislative authority. This dilemma will be explored in detail in part one of this article.
Legislatures in a democracy are elected by the people and hence are the voice of the people. The policies that the Parliament sets are expressions of the masses who elected the members of the Parliament.
But when the authority and autonomy to enact laws is vested in the administrative wing, should not the public be allowed to forward their inputs. Administrators after all are not elected by the people. Previous publication is a way that enables this proactive participation. The achievements and perils of this will be explored in part two of this article.
Publication of Subordinate Legislations
The task of regulating the publication of rules comes under the statute Federal Register Act 1935 (see here). There exists a Federal Register which sees to the publication of all documents that has general legal effect. One important provision of this statute is that it makes any law invalid against any person who did not have an actual knowledge of such regulation ‘until it has actually been filed for publication’ (as per § 1507, Federal Register Act 1935.).
In the 19th century UK, subordinate legislation was available via parliamentary papers, departmental documents and the London Gazette. There was no proper system in place until new legislation undid the mayhem. The Rules Publication Act 1893 primarily established the system for registration and publication of rules and orders.
It’s follow up, the Statutory Instruments Act, 1946 provides for the publication, printing and sale of statutory instruments. The law in England dictates that once a rule has been made, it shall be immediately be sent to the Queen’s Printer (as per Section 2, Statutory Instruments Act; Section 3, Rules Publication Act 1893.)
There, the statutory rule will be numbered and its copies will be made available for sale. Additionally, it has been made the mandate of the government department to label the instrument either as ‘local’ or as ‘general’. The segregation depends upon the subject matter of the statue.
An important takeaway from the British jurisprudence is that an order does not come into effect until it is published. This was set forth in Johnson v Sargant where an order was made on May 16 but was published on May 17. Bailhache J. held that in all such cases the order becomes effective from the date of publication and not otherwise.
Though confirming to both, the Rule of Law and common sense, this decision is deemed doubtful and even incorrect. In Jones v Robson, it was held that the non-service of notice of an order under a statute does not make it invalid. Even if the statute itself provides for the service of notice, such provisions are merely discretionary.
Again, in Blackpool Corpn v Locker the court opined that the provisions for publication were not applicable to sub-delegated legislation and there exists no common law to guide the Ministries on the same.
However, the case of R. v Sheer Metalcraft Ltd. finally settled the position in the UK. A schedule was not published as per the provisions of the Statutory Instruments Act 1946 and the defendant was charged with the violation of unpublished rules. The court held that in cases of non-publication of statues or only part publication of statues, no person can be held guilty of a violation of the unpublished part.
As pointed out, there have been numerous scholars and jurists who have opposed the decision of Jones citing it to be untrue and illogical. However, the Indian judiciary has followed its lead in the leading case of Harla v State of Rajasthan.
The Indian parliament never enacted any legislation governing the publication of sub-ordinate publications. It was the Supreme Court in Harla v Rajasthan which held that the publication is to be a mandatory undertaking in the Official Gazette.
This stance was further developed by the apex court in a case when it adjudicated that a failure to publish rules cannot be cured via a statutory provision. Further, such failures in publications are almost always challenged in the court of law. In the judgment, Bose J. observes “Natural justice requires that before a law can become operative it must be promulgated or published.”
There are also instances where the parent act itself directs for notification in the Official Gazette. In such cases, the rules come into force only after their publication in the Gazette.
However, there exists no requirement to advertise or broadcast such publication. This lacuna became apparent in the case of Pankaj Jain Agencies where the court held that the non-availability of the notification of publication is no ground to make it non-operative.
To bridge this gap some private players have mushroomed but their participation is limited to publications by Central and State governments. One of the glaring problems of the then existing model was the absence of any uniform place in the Gazette where the rules were published.
As a contemporary practice, statutory rules and orders of a general character as made by the Ministries of Central Government and authorities, are published in Part II, Section 3(s) of the Gazette of India. The ordinary issues of this part are issued every Saturday, while the extraordinary parts are issued as and when required. Those not of general character are published in Part II, Section 3(s)(ii). Parts of the Gazette in which rules are published are sold to the public. Other times, the ministries themselves provide manuals containing the relevant statutes and rules. For instance, the Income Tax manual, Central excise manual and the Election Manual.
Apart from these, there exists no centralized mechanism for publications of delegated legislations. In 1960, the Indian government undertook the publication of numerous rules in codified form. But the practice couldn’t stick and now all those publications are out of date and without any annual supplements.
Previous Publications or Antecedent Publications:
Previous Publication is the process of letting the concerned public know about legislation that is to be enacted with the objective of getting some feedback for the same. The publication is only a means to communicate the law to the people. However Previous (Antecedent) Publications is a means to proactively involve people in the law-making process.
England deems antecedent publication to be ‘undoubtedly a safeguard of the highest value’. Originally Rules Publication Act 1893 provided for a minimum notice of 40 days in the London Gazette(as per Section 1, Rules Publication Act, 1893.). Any written submission by an interested party had to take into consideration for the rules and regulations.
However, the act also provided for numerous exceptions. Additionally, the section only applied to rules which were not required to be submitted to the Parliament. The act also allowed forgoing the requirement of the notice in case there was an emergency.
Later when the Statutory Instruments Act 1946 came into effect, it omitted the provisions for antecedent publications. This development was furiously defended by the Lord Chancellor stating the practice of previous publications to be inadequate and superfluous.
For America, the Administrative Procedure Act 1946 provides for the publicity of subordinate legislation(as per Section 4, Administrative Procedure Act, 1946) It requires that a general notice should be given in the Federal Register. The tenure of the said notice should not be less than 30 days.
The said notice will give all the details of the rule-making proceedings like the time, place, the authority concerned and the issues involved. All the concerned personals contribute by submitting written data, views, etc.
There may or may not be an opportunity to present them orally. There are instances where such notice need not be given as when it is impractical, unnecessary or contrary to the public interest.
American jurisprudence has developed substantially with its elaborate procedures in consultation with interested and affected parties. There are numerous cases where a court hearing is undertaken in order to entertain the grievances against upcoming sub-ordinate legislation.
Just as in for publications, there are no statues for antecedent publications as well. There are statutes that require a previous publication. For instance, Motor Vehicles Act 1939 and the Mines Act 1952 provides explicitly for previous publication. In these cases, the procedure for pre-publication is provided for in the General Clauses Act.
However, the General Clauses Act is applicable exclusively to rules, regulations and by-laws. Orders, notifications and schemes fall outside the purview of such requirements.
As for the time period allowed for such contributions, it is largely determined by the concerned authority and varies somewhere between three to six months. However, the Committee on Subordinate Legislation in its report makes the remark that on ground level the time allowed is aggressively short.
This short duration has the effect of denying the public an opportunity to raise any objections.
Conclusion and Recommendations:
Most sub-delegated legislation is not governed by any procedural law for their publication. Still, their non-compliance can attract sanctions in the form of fines and even imprisonment. To say that the lacuna has flown under the radar of the Indian law-making authorities would be false. The Lok Sabha had established the Committee on Subordinate Legislation.
Its primary aim was to oil the mechanism of publication of subordinate legislation and make it more accessible to the parties concerned.
The suggestions provided by the committee did invoke Government actions. With effect from March 1, 1958, statutory rules and orders are serially numbered into their separate groups, with a distinctive prefix. However, there were other recommendations that never saw the light of the day. Mainly:
- One of the ardent suggestions of the Committee was to publish all the rules and orders in one section of the Gazette. Along with the publication of such notice in the Gazette, a monthly and yearly consolidated index of all such notices should be published.
- Whenever statutory rules are amended by subordinate authority, the amended version of the laws should be published as soon as viable.
- While publishing the above, the concerned department should ensure that the amended rules bear order numbers in the same sequence as the original statutory rules.
- Any corrections made to the rules need to be published within 15 days from the date on which the errors were found.
In a nutshell, all statutory rules, regulations and orders and their corrections and amendments thereof should be published on the lines of the United Kingdom’s annual publication of statutory instruments. But in spite of these efforts, the state of publications has remained largely unsatisfactory.
Most statutes do not contain provisions for publications. Where there are publications, it is plagued by unexplained and unrequired delays. Mere mechanical publication of the rules and orders in a Gazette is not enough. It must reach the people it affects. One way to further this can be an inclusion of a provision in all the statutes that would direct the issue to notices in regional languages.
The private sector has been mostly unregulated in its venture to print and sell numerous compilation manuals.
These private ventures sell these manuals at exorbitant prices. Keeping such developments in view, the High Court of Bombay in Sanjiv Gorwadkar v Maharashtra said that all delegate legislation must be readily available to the general public. Keeping in mind the Constitutional right of speech and expression, it is fair to infer that knowledge of the law is an essential facet of article 21 of the constitution. And knowledge of the law will always include the knowledge of sub-ordinate legislation.
The presumption that a rule shall only be effective once published is based on the presumption against retrospective legislation i.e., Parliament does not intend to legislate that which is unjust. In effect, there exists no difference between retrospective legislation by legislature and execution of an order by a sub-ordinate legislature which was made on January 3 but published on January 15.
Holding a man liable for the orders of January 3 when he had no means of discovering them is obnoxious, counter-intuitive and unproductive. Parliament does have the power to legislate retrospectively and can delegate this power to the subordinate authorities. In G. Nagendra v Karnataka the rules made under Article 309 of the Constitution by the President or the Governor with retrospective effect, was held to be valid.
But where Parliament has not explicitly stated this in the statute, the presumption shall stand that a sub-legislative rule will become effective only after its publication. Where it becomes unavoidable to have a delegated legislation come with retrospective effect, it should be made sure that clarification is set out.
The said clarification should be coupled with a declaration that no party will be adversely affected by such retrospective execution. Where there still occurs some unfortunate loss to a party, the provisions should allow for speedy reconciliation for the loss caused.
In Narendra Kumar v India the apex court dictated that where the parent act asks for publication of rules in the Official Gazette it must be done in order for the sub-ordinate legislation to be effective and have legal binding.
Where the provision is of a general character, it can be published as per the provisions of the General Clauses Act. Extending the scope of this judgment, making publication mandatory under the General clauses Act can be an important first step. Of course, where required there shall be exceptions to the same as was previously done in England and still practised in America.
Coming to Previous Publications, the Committee had recommended that a minimum of 30 clear days’ notice excluding the time which would be required for drafting and then dispatching the same to various parts of the country.
Considering that this time frame may not be at disposal in some emergency matters, the committee had recommended notice of fewer than 30 days. In such cases, a press release asking for objections and opinions were to be welcomed.
Although the government has accepted these suggestions, in subsequent studies it was observed that most statutes provided for less than 30 days period. In one case it was as short as 2 days in all. A major setback was due to the time required to print all the requisite copies of such notices.
In lieu of the development of the technology, it suggested that rather than depending on print for publishing, the aid of the internet should be considered. The internet of course is not at the disposal of all, but initiating the engineering of a central database that have chronological entries of all the publications will be a proactive undertaking.
The requirement is of political intervention in the legal framework with strong political will and deliberate efforts. Ignorance of the law is no excuse. Thus, it is imperative that people who are subjected to these laws have the knowledge of it. This knowledge is a presumption post-publication. As correctly said by Smith J. in Scott v Bank of New South Wales:
“Ignorance of the law does not excuse, but, on the other hand, knowledge may be material to the question whether there has been a willful or a guilty breach of the regulations.”
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