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Sunday, August 29, 2010

Administrative Law - Control of Delegation

Control of Delegated Legislation
Essential legislative functions are also generally delegated but a more efficient way is to have control at the time of exercise of Delegated powers.

Committee on Ministers Powers :- Agreed that the delegated legislation has its definite advantage provided that powers are exercised in the right way.  Risks of abuse are incidental, & safeguards are required.

Arguments Against delegations
1)         Important matters are left to executive and it endangers the civil and personal liberties.
2)         Inadequate scrutiny by parliament of rules and regulations framed.
3)         Full publicity & commutation with affected was not always practicable.

Publication of Delegated Legislation:
A piece of delegated legislation must be published and people must have access to it, as ignorance of law is no excuse.
Also one thing to be kept in mind is that the rules should not be made in secret chambers of administration/bureaucracy. 

Position in the USA:
Provisions for Publication of rules have been made in the "Federal Register Act, 1935"
Antenatal Publicity is most beneficial in practice because those subject to administrative regulations tend to be members of trade performing the routine task of scanning the Federal Register.
Sec. 4 of Federal Administrative. Procedure Act, 1946 - Provides for publication of the proposed rules in Federal register
Opportunity to the interested persons to participate in administrative rule making, is made possible through submissions.
Exception : a rule may not be published in case of impracticality, if unnecessary,  or against public interest.
Position in England :
5.2 o the statutory lustrument Act. 1946 provides that immediately after a statutory rule has been made it shall be sent to the Queen's Priuter to be membered in accordance with the regulations made under the Act.
No general requirement for anteceedent publicity, however in individual cases, Parliament ma provide for antendatal publicity & prior consultation (The Factories Act, 1961)
Position in India:
There is no separate law governing the procedure of administrative rule making. The parent act may or may not provide or procedural requirements.
Certain cases where parent act provides for antenatal or (pre) publication: S. 30 (3) of the Chartered Accountants Act, 1949, S. 15 of the Central Tea Board Act, 1949 etc.
S. 23 of General Clauses Act, 1897 (Previous Publication)
1)         Rules be published in draft form in the Gazette.
2)         That objections and suggestions be invited by a specific date mentioned
3)         Those objection be considered
Administrative rule making under any other name other than rule regulation & by laws may not have applications u/s 23

The Committees on Subordinate Legislations (Appointed by Lok Sabha- Made efforts to secure improvement in the publication of rules in the Gazette so that they became known to the people.
It recommended that:
-           Amended version of the rules should be reported.
-           Explanatory notes not forming part of rules and amendments should be appended to explain their general purport.
-           Name of authority under which the rules have been made should be cited.
The Committees recommended publication on the line of UK’s annual publication of statutory instruments   .

Consultations with affected person
 It Democratizes the Administrative rule making & increases its acceptability and effectivity as there is no General Law and it is the parent which provides for the same.
In Hindustan Zinc Ltd. V. A.P.S.E.B. (1991)3SCC 299 Section 16 (5) of the Electricity (Supply) Act 1948 was under consideration as it made provision for the consultation with the state Electricity consultative before raising tariffs.
The Supreme Court held that “It is not mandatory and failure to consult does not make the exercise of power invalid because there was provision for laying the annual financial statement before the legislature and thereby there is sufficient  control.

Official consultation:  Act may provide consultations with a named body (eg. :- Banking companies Act : Provides RBI)
Consultation with the Board created by statute dealing with a particular subject  (eg. Govt. to make rules after consolations with Tea Board)
With Administrative Board :- The Act may set up Board to advice the Govt. (eg. :- Mines Act 1901)
With Interested persons :- To invite people participations
There may be Acts which Provide that affected parties may themselves prepare the rules (eg :- Mine Act, wherein the owners of mines draft rule for safety in mines)

Banwarilal Agarwal  v. State of Bihar AIR 1961 SC 849
In this case it was held that the Provision under the mines Act of 1952 requiring Consultations with the mining boards before framing regulations was mandatory. And it also held that consultation was essential in the interest of public welfare.

P.V. S. Kivarajan v.  UOI AIR 1959 SC 556 in this it was laid down by the apex court that Where the rule making authority is required to consult a committee before making the rules, it is enough if such a committee is consulted but the rule making authority is not bound to abide by its recommendations .
In a conflict between Administrative exception and Individnal Interest  Consultation should be the rule and not exception and a sufficient time should be allowed.

Position in England :-
There the Statutory instruments Act 1996 does not mandate prior consultation and public participation is provided by the techniques of consulting statutory advisory agencies  which are supposed to reflect public opinion.
            (eg :- Tribunal & Inquiries Act 1958 - Prior Consultations with council on Tribunals before the procedural rule are made for Tribunals )
Position in the USA :- S. 4    of Administrative Procedure Act,  1946 gives opportunity to submit view, but does not give any oral hearing. But generally the statute themselves provide for hearing over above the minimum laid down in the 1946 Act.
 If the parent act prescribes a mode then it must be followed. But if parent act is silent then the rules by administrative authority may prescribe the manner of publications(should  be sufficient and reasonable)
If the rules do not prescribe a mode or if the rule prescribe unreasonable mode then the rules shall take effect only when published through the customary recognized official channel i.e. official gazette or some other reasonable mode.
The questions whether mode of publications prescribed is mandatory or discretionary cannot be answered by applying a fixed formula it would depend on -
-           Language of the static
-           Purpose for which the provisions was make
-           Intentions of the Legislative
-           Injustice to public
-           Relation of a particular provision to other provisions dealing with the same subject other commiserations
Raza Buland Suger Co. v. Rampur Municipality AIR 1965 SC 895 in this it was held that If the publication is vague and then the persons affected, could not properly avail the right of representative then it is invalid.
In Harla v. State of Rajasthan AIR 1951 SC 467 Jaipur Opium Act was in question as it was never published in any form and Harla was prosecuted for the possession of  the of opium in quantity more than permitted. It was held by the court that a law can not be enforced unless published.

Coming into force of a rule :-
If date is not laid down then a rule will come into force on the date of publication.
Except the Service rules.
In Banarani Das v. U.P. AIR 1959 All 393 it was held by the court that service rules come in to force from the date they are made.

Retrospective operation of Rules :-
-           General Presumption :- Rule making delegated by the Legislative does not include the power to make rules with retrospective effect, unless the legislature has expressly given such power.
-           Committee on subordinating Legislations: - If in any particular case, the rule had to be given retrospective effect, in view of unavoidable circumstances, a clarification should be given by way of an explanation in the rules. The authority must show that there was sufficient, reasonable and rational justification for applying the rules retrospectively

B.S. Yadav v. Stare of Haryana AIR 1981 SC 561
The Governor of Punjab u/a 309 amended the seniority rules on 31st Dec. 76, but gave them retrospective operation from 9th April 76.
The retrospective operation disturbed the seniority of many persons. The Supreme Court struck down the retrospective operation the ground that there was no nexus between the rule and its retrospectivity .

Raj Soni v.  Air Officer, Incharge  Administration (1990)3 SC 261 it reiterated the rule laid dowin in the B. S. Yadav case.

In Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee AIR 1976 SC 263
In the erstwhile composite state of Bombay there was in operation an Act called the Bombay Agricultural Produce Markets Act, 22 of 1939. On the bifurcation of that State on May 1, 1960 the new State of Gujarat was formed. The Bombay Act of 1939 was extended by an appropriate order to the State of Gujarat by the Government of that State. That Act remained in operation in Gujarat till September 1, 1964 on which date the Gujarat Agricultural Produce Markets Act, 20 of 1964, came into force.
Section 4 of the Act empowers the State Government to appoint an officer to be the Director of Agricultural Marketing and Rural Finance. Sections 5, 6(1) and 6(5) of the Act read thus :
5. Declaration of intention of regulating purchase and sale of agricultural produce in specified area. - (1) The Director may, by notification in the official Gazette, declare his intention of regulating the purchase and sale of such agricultural produce and in such area, as may be specified therein. Such notification shall also be published in Gujarati in a newspaper having circulation in the area and in such other manner as may be prescribed.
(2) Such notification shall state that any objection or suggestion received by the director within the period specified in the notification which shall not be less than one month from the date of the publication of the notification, shall be considered by the Director.
(3) The Director shall also send a copy of the notification to each of the local authorities functioning in the area specified in the notification with a request to submit its objections and suggestions if any, in writing to the Director within the period specified in the notification.
6. Declaration of market areas. (1) After the expiry of the period specified in the notification issued under Section 5 (hereinafter referred to in this section as the said notification'), and after considering the objections and suggestions received before its expiry and holding such inquiry as may be necessary, the Director may, by notification in the Official Gazette, declare the area specified in the said notification or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification. A notification under this section shall also be published in Gujarati in a newspaper having circulation in the said area and in such other manner, as may be prescribed.
  *  *  *  *
  *  *  *  *
(5) After declaring in the manner specified in Section 5 his intention of so doing, and following the procedure therein, the Director may, at any time by notification in the Official Gazette, exclude any area from a market area specified in a notification issued under sub-section (1), or include any area therein and exclude from or add to the kinds of agricultural produce so specified any kind of agricultural produce.
Rule 3 of the Gujarat Agricultural Produce Markets Rules, 1965 provides that a notification under Section 5(1) or Section 6(1) shall also be published by affixing a copy thereof at some conspicuous place in the office of each of the local authorities functioning in the area specified in the notification.
The issue raised was whether the notification issued under Section 6(5) of the Act, covering additional varieties of agricultural produce like ginger and onion, must not only be published in the official gazette but must also be published in Gujarati in a newspaper. The concluding sentence of Section 6(1) says that a notification under "this section" "shall also be published in Gujarati in a newspaper" having circulation in the particular area The argument of the appellant is twofold : Firstly, that "this section" means "this sub-section" so that the procedure in regard to publication which is laid down in sub-section (1) of Section 6 must be restricted to notifications issued under that sub-section and cannot be extended to those issued under sub-section (5) of Section 6; and secondly, assuming that the words "this section" are wide enough to cover ever sub-section of Section 6, the word "shall" ought to be read as "may".
It was held by the court that It is not reasonable to assume in the legislature an ignorance of the distinction between "section" & " Sub section"
 It further laid down that in case of ambiguity  “Apply rules of interpretation to unravel the mind of the law makers
The court placed reliance on the case of Shriram v. State of Bombay AIR 1961 SC 674 wherein it was held that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.
The additional mode of publication prescribed by law must, in the absence of anything to the contrary appearing from the context of the provision or its object, be assumed to have a meaning and a purpose. In Khub Chand v. State of Rajasthan AIR 1967 SC 1074 it was observed that :
The term 'shall' in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the Legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations.

The same principle was expressed thus in Haridwar Singh v. Bagun Sumbrui AIR 1972 SC 1242 as Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured.
Held :- The requirement to publish in Gujarati newspaper is "Mandatory". It is a matter of common knowledge that publication in a newspaper attract greater public attention than publication in the Official Gazette. That is why the Legislature has taken care to direct that the notification shall also be published in Gujarati in a newspaper. A violation of this requirement is likely to affect valuable right of traders and agriculturists because in the absence of proper and adequate publicity, their right of trade and business shall have been hampered without affording to them an opportunity to offer objections and suggestions, an opportunity which the statute clearly deems so desirable.
Also penal sanction under section 8 and 36 means that the notification must receive due publicity and since the statute itself has provided adequate means of publicity there is no reason to permit a departure.
Municipal Board, Hapur V Raghuvendra Kripal AIR 1966 SC 693
In this case it was laid down that provisions prescribing the manner of previous publication are directory and if there was substantial compliance with the publications requirement, a mere teaching flow in the manner of publication would not make the rule invalid.
M/s Sanik Industries, Rajkot v. Rajkot Municipality AIR 1986 SC 1518
In this case a Rule were published in a Gujarati local newspaper in draft  form and after considering the objections the final rules were placed at the central office of the Municipality for inspection by people.
The court in this case laid down that the requirement of Publication is mandatory; the mode of such publication was directory. And held that no lapse was committed just because the find rules were not published in the same newspaper.

D.B. Raju v.  H.J. Katharaj (1990) 4 SCC 178
In this case the court laid down that where a law demanded compliance those who were governed must be notified directly and reliably of the law & all the changes and additional made to if by various processes. Unlike parliamentary Legislation which  is publicly made, delegated  legislation is often made secretly in  the chambers of executive, it is necessary that delegated legislation in order to be effective must be published or promulgated  in some suitable manner whether such publications was prescribed by the parent Act or not.

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