C h a p t e r VI

OTHER CONTROLS ON DELEGATED LEGISLATION

The ambit and nature of judicial control of delegated legislation would have become clear from the materials contained in the last chapter. It would appear that this kind of control does not go very deep, that it is somewhat superficial, touches only a few, and not all aspects of delegated legislation, and that it scrupulously avoids going into questions of policy. The power of delegated legislation is being exercised on a very extensive scale. Legislatures in India indulge in very broad delegation of legislative power and the judicially created doctrine of “Policy” has not been very much effective in controlling the delegation. Moreover, in the modern society which is undergoing a kind of socio-economic evolution, and is constantly facing emergencies, domestic and international, there is bound to be broad delegation of legislative power on the administration by the legislature. But this makes the problem of control and supervision of the exercise of power of delegated legislation a desideratum. The power which musi, more and more be lodged in administrative experts, like all power, is prone to abuse unless its exercise is properly and zealously scrutinized. As the Committee on Ministers' Powers itself admitted, safeguards are required, if the country is to continue to enjoy the advantages of the practice of delegated legislation without suffering from its inherent dangers. The departmental officials who make the bulk of delegated legislation are neither subject to any political control nor they function openly. The civil servants enjoy a security of tenure and they work remote from the light of public criticism, There are, therefore, risks that the power of delegated legislation may not be properly exercised. The judicial control having its limits, it becomes extremely necessary to devise other ways ^nd means to supervise and control the exercise of legislative powers by the administration. 368 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

SECTION 1. PUBLICATION OF DELEGATED LEGISLATION

The maxim that ignorance of law is no excuse can be tolerable only when proper steps are taken to publicise the law. It will be unjust to impute knowledge of the law, and thus punish the people for its breach, if the law remains a sealed book and no efforts are made to bring the same to the notice of the people who are required to observe it and no means are provided to them to ascertain what the law is in case they care to find it out. The problem arises in the area of delegated legislation much more acutely than it does in the case of legislative enactments. The reason is that in the latter case, the process of legislation is overt, direct and open, and a lot of publicity takes place through the press aind the radio even before, and also at the time the legislature proceeds to enact a law. Legislation is a highly formal procedure and there are several stages through which a bill must pass before it can become an Act. There is, however, no such pubUcity or formality in the case of delegated legislation which is made by bureaucracy, mostly out of the public gaze, and even, out of their knowledge. Therefore, while knowledge of legislation can be imputed, the same is not possible, consistent with the requirements of justice, in case of administrative rule-making unless some machinery is created for publicising the same so that it may be readily available to those affected. Furthermore, publication of rules, it is hoped, will act as a restraint on the legislative power of the administration. With the above considerations in view, each democratic country has evolved some procedures, rules and machinery facilitating publication of delegated legislation.

Publication may either be antecedent and/or posterior, i.e., ante­ natal and post-natal which means delegated legislation may be publicised before it is formally made, and/or after it i§ formally made. It would appear that the latter is absolutely essential, while the former, though desirable, may not be regarded as absolutely essential. It is just to inform the people as to what the law is; it may be politic to warn them beforehand as to what the law is going to be. Until January 1, 1948, in ^iigland, section 1 of the Rules Publication Act, 1893, provided for ante-natal publication of rules, subject to certain exceptions. The Committee on Ministers’ Powers recommended that these exceptions may be abolished so that the provisions as to antecedent publicity might apply to every exercise of a law-making power conferred by Parliament. The same Act also SECTION 1 J OTHER CONTROLS ON DELEGATED LEGISLATION 369 provided for post-natal publicity of the rules. In 1946, the Statutory Instruments Act repealed the Rules Publication Act, While eliminating ante-natal publicity the Statutory Instruments Act provides only for post-natal publicity. The relevant provisions of the two Acts are given below.

RULES PUBLICATION ACT, 1893. An Act for the Publication of Statutory Rules (2Jst DECEMBER 1893.)

1 —(I.) At least forty days before making any statutory rules to which this section applies, notice of the proposal to make the rules, and of the place where copies of the draft rules may be obtained, shall be published in the London Gazette..,.

(4.) The statutory rules to which this section applies are those made in pursuance of any Act of Parliament w^hich directs the statutory rules to be laid before Parliament, but do not include any statutory rules if the same or a draft chereof are required to be laid before Parliament for any period before the rules come into operation, nor do they include rules made by the Local Government Board for England or Ireland, the Board of Trade, or the Revenue Departments, or by or for the purposes of the Post Office; nor rules made by the Board of Agriculture under the Contagious Diseases (Animals) Act, 1878, and the A cts amending the same.

(5.) This section shall not apply to Scotland.

(6.) In the case of any rules which it is proposed shall extend to Ireland, publication in the Dublin Gazette of the notice required by this section shall be requisite in addition to, or, if they extend to Ireland only, in lieu of, publication in the London Gazette.

2. Where a rule-making authority certifies that on account of urgency or any special reason any rule should come into immediate operation, it shall be lawful for such authority to make any such rules to come into operation forthwith as provisional rules, but such provisional rules shall only continue in force until rules have been made in accordance with the foregoing provisions of this Act.

3.—(1.) All statutory rules made after the thirty-first day of December next after the passing of this A ct shall forthwith after they are made be sent to the Queen’s printer of A cts of Pg.rliament, and 370 INDIAN ADMINISTRATIVE'LAW [ CHAPTER 6 shall, in accordance with regulations made by the treasury with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, be numbered, and (save as provided by the regulations) printed, and sold by him. (2.) Any statutory rules may, without prejudice to any other mode of citation, be cited by the number so given as above mentioned and the calendar year. (3.) Where any statutory rules are required by any Act to be published or notified in the London, Edinburgh, or Dublin Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with the said requirement. (4.) Regulations under this section may provide for the different treatment of statutory rules which are of the nature of public Acts, and of those which are of the nature of local and personal or private Acts; and may determine the classes of cases in which the exercise of a statutory power by any rule-making authority constitutes or does not constitute the making of a statutory rule within the meaning of this section, and may provide for the exemption from this section of any such classes. (5.) In the making of such regulations, each Government department concerned shall be consulted, and due regard had to the views of that department.

JONES v. ROBSON (1901) 1 K. B. 673

[Section 6 of the Coal Mines Regulation Act, 1896, ran as; “A Secretary of State, on being satisfied that an explosive is or is likely to become dangerous, may, by order, of which notice shall be given in such manner as he may direct, prohibit the use thereof in any mine or in any class of mines either absolutely or subject to conditions...."

On the hearing of a summons against the manager of a mine for contravention of an order purporting to be made by a Secretary of State under the above section, a ‘Queen’s Printers’ copy of the order was put in evidence; but no evidence was given of any notice by the Secretary of State of the making of the order or of any direction by him as to the manner in which notice of the order should be given.] SECTION 1 ] OTHER CONTROL ON DELEGATED LEGISLATION 371

Bruce, J. :

....The main point relied upon for the appellant was that there was no evidence that any notice had been given by the Secretary of State of the order or that any direction had been given as to the manner in which the notice should be published. I am not satisfied, after considering the evidence on behalf of the respondent, that any notice was given by the Secretary of State, or that he did direct in what manner the notice should be published, and therefore, I am driven to consider whether the giving of the notice and the publication of the notcie by the Secretary of State is or is not a condition precedent to the order coming into force. I think it is not. I think that the directions contained in the section about notice are directory only; that the order comes into force when it is made by the Secretary of State, and although power is given to him to give notice of the order and to direct how notice shall be given of the order, yet that is not essential to the order coming into operation, but is merely directory, and the fact that no notice is given does not prevent the order having effect. Therefore I have come to the conclusion that the order was good and valid, although there is no evidence before us of any notice given by the Secretary of State, or of any direction as to how the notice should be given.

JOHNSON V. SARGANT & SONS (1918) 1 K.B. 101

[ The plaintiff agreed to buy on c.ii. terms from the defendants one thousand bags of beans shipped for London and forming part of a cargo being imported by Methuen & Sons. That firm sold two thousand bags to another firm who sold them to the defendants who resold one thousand bags to the plaintiff. On May 16 the defendants gave and the plaintiff accepted, a delivery order for the beans and the plaintiff paid the invoice price. On the same day the Beans, Peas and Pulse (Requisition) Order, 1917, was made by the Food Controller under Regulation 2F of the Defence of the Realm Regulations. The Order provided :

‘ 1, All persons owning or having power to sell or dispose of any beans, peas or pulse suitable for human food whkh have arrived in the United Kingdom or which shall hereafter arrive (except beans, peas and pulse arrived which have been 372 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

sold by the original consignees and paid for by the purchasers) shall place and hold such beans, peas and pulse at the disposal of the Food Controller. “2. The beans, peas and pulse are taken over by the Food Controller from the original consignees and the Food Controller will subsequently communicate to them the prices which he will he prepared to pay for the same.

“3. Except as otherwise determined by the Food Controller in any particular case all contracts made by the original consignees or any persons claiming under them for the sale of any beans, peas and pulse taken over under this Order are cancelled, and sellers and/or buyers are to stand released from all liability as to brokerage.”

The above Order was first made known to the various parties and the public generally by an announcement in the newspapers on the morning of May 17.

The plaintiff said that as none of the purchasers from Methuen & Sons had paid for the beans before May 16 the beans did not come within the exception in paragraph 1 of the Order, and that by virtue of that Order they were taken over by the Food Controller, and all contracts in relation thereto were cancelled. The plaintiff accordingly asked for a declaration that his contract was cancelled, and claimed repayment of the amount paid by him as on a total failure of consideration, or as money had and received to his use.]

Bailhache, J. :

....The question is whether these beans come within the exception or not. The order is dated May 16, 1917; the goods were paid for by the three people concerned, within the banking hours, on May 16, 1917, although at what precise time on that day is not known. Nor do we known at what time on May 16 the Food Controller signed the Order. This however, we do know, that the effect of the Order was published on May 17, and in all probability was well known to all persons interested in the trade on that date. I have no reason to suppose that any one in the trade knew about it on May 16. Being dated May 16, it is said for the plaintiff that it took effect from the earliest moment of that day by analogy to the rule with regard to the construction of statutes. While I agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or which it is declared to come into operation, there is about statutes SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 373 a publicity even before they come into operation which is absent in the case of many Orders such as that with which we are now deaUng; indeed, if certain Orders are to be effective at all. it is essential that they should not be known until they are actually published. In the absence of authority upon the point I am unable to hold that this Order came into operation before it was known, and, as I have said, it was not known until the morning of May 17.1 am therefore obliged to hold that this transaction comes within the exception in para. 1 of the Order as relating to “beans.... arrived which have been sold by the original consignees and paid for by the purchasers.” The result is that the action fails and there must be judgment for the defendants with costs.

STATUTORY INSTRUMENTS ACT, 1946.

An Act to repeal the Rules Publication Act, 1893, and to make further provision as to the instruments by which statutory powers to make orders, rules, regulations and other subordinate legislations are exercised. (26th March, 1946.) 1.—(1) Where by this Act or any Act passed after the commencement of this Act power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then, if the power is expressed— (a) in the case of a power conferred on His Majesty, to be exercisable by Order in Council; (b) in the case of a power conferred on a Minister of the Crown, to be exercisable by statutory instrument, any document by which that power is exercised shall be known as a “statutory instrument” and the provisions of this Act shall apply thereto accordingly. (2) Where by any Act passed before the commencement of this Act power to make statutory rules within the meaning of the Rules Publication Act, 1893, was conferred on any rule-making authority within the meaning of that Act, any document by which that power is exercised after the commencement of this Act shall, save as is otherwise provided by regulations made under this Act, be known as a "statutory instrument" and the provisions of this Act shall apply thereto accordingly. 2.— (1) Immediately after the making of any statutory instrument, it shall be sent to the King's printer of Acts of Parliament and 374 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 numbered in accordance with regulations made under this Act, and except in such cases as may be provided by any Act passed after the commencement of this Act or prescribed by regulations made under this Act, copies thereof shall as soon as possible be printed and sold by the King’s printer of Acts of Parliament. (2) Any statutory instrument may, without prejudice to any other mode of citation, be cited by the number given to it in accordance with the provisions of this section, and the calendar year. 3.—(1) Regulations made for the purposes of this A ct shall make provision for the publication by His Majesty’s Stationery Office of lists showing the date upon which every statutory instrument printed and sold by the King’s printer of Acts of Parliament was first issued by that office; and in any legal proceedings a copy of any list so published purporting to bear the imprint of the King’s printer shall be received in evidence as a true copy, and an entry therein shall be conclusive evidence of the date on which any statutory instrument was first issued by His Majesty’s Stationery Office. (2) In any proceedings against any person for an offence consist­ ing of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged. (3) Save as therein otherwise expressly provided, nothing in this section shall affect any enactment or rule of law relating to the time at which any statutory instrument comes into operation. 12. (1) The Rules Publication A ct, 1893, is hereby repealed. (2) The publication in the London, Edinburgh or Belfast Gazette of a notice stating that a statutory instrument has been made, and specifying the place where copies thereof may be purchased, shall be sufficient compliance with the provisions of any enactment, whether passed before or after the commencement of this Act, requiring that instrument to be published or notified in that Gazette.

In consequence of section 2(1) of the Statutory Instruments Act, 1946, certain regulations have been made, the gist of which is as follow s; SECTION 1 J OTHER CONTROLS ON DELEGATED LEGISLATION 375

Regulation 3: All statutory instruments received by the King's Printer must be allocated to the series of the calendar year in which they are made and must, as a general rule, be numbered in that series consecutively as nearly as may be in the order in which they are received.

Regulation 4: The Government Department responsible for sending a statutory instrument to the King’s Printer has to certify it as local or general according to its subject-matter.

Regulation 5 ; The following statutory instruments shall, unless the Reference Committee in any particular case otherwise direct under these Regulations, be exempt from the requirements of sub­ section (1) of Section 2 of the Principal Act with respect to the printing and sale of copies, that is to say— (a) any local instrument, and

(b) any general instrument certified by the responsible authority to be of a class of documents which is or will be otherwise regularly printed as a series and made available to persons affected thereby; Provided that the responsible authority niay on sending to the Queen’s printer of Acts of Parliament any statutory instrument certified by that authority as local, request him to comply with the requirements aforesaid. Regulation 9: His Majesty’s Stationery Office has from time to time to publish a list, known as the Statutory Instrument List, showing the serial number and short title of each statutory instrument which has been issued for,th e first time by that office during the period to which the list related and the date on which each such instrument was so issued. Regulation 10: Further, at the end of each calendar year the treasury is responsible for seeing that an annual edition of statutory instruments is prepared containing specified matter. Regulation 11: A committee known as the Statutory Instruments Reference Committee has been set up, and it is to this committee that notification must be given by the Government Department concerned should the Department consider that the printing and sale of copies of a statutory instrument, or agency schedule or document referred to in the statutory instrument will only be in force for a short time or that the schedule or document is, for example, bulky; 376 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Regulation 11(3) : The committee has power to override the wishes of the department and can direct that printing and sale shall be done in the ordinary way.

REGINA V. SHEER METALCRAFT LD. (1954) 1 Q.B. 586

[The accused, Sheer Metalcraft Ld., and their managing director, were charged for violation of the Iron and Steel Prices Order, 1951. It was contended on behalf of the accused that this was not a valid statutory instrument in that the schedules thereto, which were an integral part of it, had not been printed with the instrument when it was printed by the Queen’s Printer, as required by the Statutory Instruments Act, 1946, section 2(1), although the Minister had not certified under regulation 7 of the Statutory Instruments Regulations, 1947, that such printing was unnecessary. It was submitted for the Crown that omission did not invalidate the instrument but merely required the Crown to prove that the purport of the instrument had been brought to the notice of the public or of those likely to be affected by it or of the person charged.]

Streatfeild, J. : This matter comes before the court in the form of an objection to the admissibility in evidence of a statutory instrument known as the Iron and Steel Prices Order, 1951. It appears that part and parcel of that instrument consisted of certain deposited schedules in which maximum prices for different commodities of steel were set out. The instrument is said to have been made by the Minister of Supply on February 16, 1951; laid before Parliament on February 20, 1951, and to have come into operation on February 21, 1951. It is under that statutory instrument that the present charges are made against the two defendants in this case. The point which has been taken is that by reason of the deposited schedules not having been printed and not having been certified by the Minister as being exempt from printing, the instrument is not a vahd instrument under the Statutory Instruments Act, 1946. That point was taken in Simmonds v. Newell, but it was expressly left open in view of a certain admission then made by the SoHcitor-General,, which, however, does not apply to the present case. The point arises in this way: under regulation 55AB of the Defence (General) SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 377

Regulations, 1939, as amended, a competent authority, which in this case is the Minister of Supply, may by statutory instrument provide for controlling the prices to be charged for goods of any description or the charges to be made for services of any description, and for any incidental and supplementary matters for which the competent authority thinks it expedient for the purposes of the instrument to provide. It is said in the statutory instrument here that it was made in exercise of the powers conferred upon the Minister by regulations 55AB and 98 of the Defence ( General) Regulations, and other statutory authorities.

The contention is that the making of that instrument is governed by the provisions of the Statutory Instruments Act, 1946, which repeals and simpHfies the more cumbrous procedure under the Rules Publication A ct, 1893.

[His Lordship read sections 1 and 2 of the Act of 1946 and regulation 7 of the Statutory Instruments Regulations, 1947, and continued:] Section 1 visualizes the making of what is called a statutory instrument by a Minister of the Crown; section 2 visualizes that after the making of a statutory instrument it shall be sent to the King’s Printer to be printed, except in so far as under regulations made under the Act it may be unnecessary to have it printed. It is said here that the Minister did not certify that the printing of these very bulky deposited schedules was unnecessary within the meaning of regulation 7. It is contended, therefore, that as he did not so certify it, it became an obligation under the Act that the deposited schedules as well as the instrument itself should be printed under section 2 of the Act of 1946, and in the absence of their having been printed as part of the instrument, the instrument cannot be regarded as being validly made.

To test that matter it is necessary to examine section 3 of the Act of 1946. By sub section (1) : '‘Regulations made for the purposes of this Act shall make provision for the publication by His Majesty's Stationery Office of lists showing the date upon which every statutory instrument printed and sold by the King’s printer of Acts of Parliament was first issued by that office....” There does not appear to be any definition of what is meant by “issue,” but presumably it does mean some act by the Queen’s Printer of Acts of Parliament which follows the printing of the instrument. That section, therefore, requires that the Queen’s Printer shall keep lists showing the date upon which statutory instruments are printed and issued. 378 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Subsection (2) is important and provides : “In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged,”

It seems to follow from the wording of this subsection that the making of an instrument is one thing and the issue of it is another. If it is made it can be contravened; if it has not been issued then that provides a defence to a person charged with its contravention. It is then upon the Crown to prove that, although it has not been issued, reasonable steps have been taken for bringing the instrument to the notice of the public or persons likely to be affected by it,

I do not think that it can be said that to make a valid statutory instrument it is required that all of these stages should be gone through; namely, the making, the laying before Parliament, the printing and the certification of that part of it which it might be unnecessary to have printed. In judgment the making of an instrument is complete when it is first of all made by the Minister concerned and after it has been laid before Parliament. When that has been done it then becomes a valid statutory instrument, totally made under the provisions of the Act.

The remaining provisions to which my attention has been drawn, in my view, are purely procedure for the issue of an instrument vahdly made—namely, that in the first instance it must be printed by the Queen’s Printer unless it is certified to be unnecessary to print it; it must then be included in a list pubHshed by H er M ajesty’s Stationery Office showing the dates when it is issued and it may be issued by the Queen’s Printer of Acts of Parliament. Those matters, in my judgment, are matters of procedure. If they were not and if they were stages in the perfection of a valid statutory instrumemt, I cannot see that section 3(2) would be necessary, because if each one of those stages were necessary to make a statutory instrument vaHd, it would follow that there could be no infringement of an unissued instrument and therefore it would be quite unnecessary to provide a defence to a contravention of any such instrument. In my view the very fact that subsection (2) of section 3 refers to a defence that the instrument has not been issued postulates that the instrument must SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 379 have been validly made in the first place otherwise it could never have been contravened. In those circumstances I hold that this instrument was validly made and approved and that it was made by or signed on behalf of the Minister on its being laid before Parliament; that so appears on the face of the instrument itself. In my view, the fact that the Minister failed to certify under regulation 7 does not invalidate the instrument as an instrument but lays the burden upon the Crown to prove that at the date of the alleged contraventions reasonable steps had been taken for bringing the instrument to the notice of the public or persons likely to be affected by it. I, therefore, rule that this is admissible. [When evidence of the steps taken to bring the instrument to the notice of the public and of the contravention of it by the accused had been given, His Lordship summed up and the jury, after a retirement of two minutes, found both the accused guilty on all counts.]

NOTE

In the United States, till 1935, the need to publcise administrative legislation in a form accessible to citizens and lawyers was completely ignored, “despite the precedent established in Britain by the Rules Publication Act, 1893.’' The result was that persons affected by rules and regulations often remained uninformed as to their content The unsatisfactory state of affairs was forcefully exposed in the Panama case when the Supreme Court found that because of inadequate publicity the industry men, the enforcement officials and the lower courts were all unaware that an NR A regulation on which the proceedings were based had been revoked. This led to an uproar^ and the Congress consequently passed the Federal Register Act, in 1935 requiring that all regulations be formally published.

SCHWARTZ, AMERICAN ADMINISTRATIVE LAW 71-72 (1962)

....[I]t was not until 1935 that any machinery for publishing delegated legislation was established in the United States. In that

1. Griswold, “ Government in Ignorance of the Law,” 48 Harv. L. Rev. 198 (1934-5). 380 INDIAN ADMINISTRATim LAW [ CHAPTER 6 year the Congress enacted the Federal Register Act, whose provisions are largely modelled upon the system of publication of delegated legislation provided for under the British Rules Publication Act. The American Act provides for the establishment of an official publication called the Federal Register, which is published daily in Washington, in which all rules, regulations, and orders of “ general appHcability and legal effect” are published. At the end of each year, the Register issues are bound and indexed, and there is published, in addition, the Code of Federal Regulations, compilation'in logical order of the rules and regulations currently in effect in the different federal agencies. Under the provisions of the Federal Register Act, it is expressly provided that no document required to be published under the Act “shall be valid as against any person who has not had actual knowledge thereof” until it has actually been filed for publication. What this provision means in practice is shown by a recent federal case where a criminal conviction was reversed becausc the regulation which defendant had violated had never been published in the Federal Register. “ The terms of the Federal Register Act, ’’ said the Court, “ must be followed in order for agency rulings to be given the force of law. Unless the prescribed procedures are complied with, the agency (or administrative) rule has not been legally issued, and consequently it is ineffective.’’^ At the same time, it follows that, once a valid administrative regulation has been published in the Register, it is legally binding upon subject to it, even though they may in fact be wholly ignorant of its existence. This is clear from an important Supreme Court decision holding a farmer strictly to the terms of a published regulation governing his right to crop insurance—and this in spite of the conceded fact that the farmer knew nothing about the regulation in question. It may well be, as Justice Jackson pointed out in a dissent, that this result is unfair to the individual farmer. “To my mind,” said he, “it is an absurdity to hold that every farmer who insures his crops knows what the Federal Register contains or even knows that there is such a pubHcation. If he were to pursue this voluminous and dull publication as it is issued from time to time in order to make sure whether anything has been promulgated that affects his rights, he would never need crop insurance, for he would never get time to plant any crops.What Justice Jackson says is

2. Hotch V . United States, 212 F. 2d 280, 283 (9th Cr. 1954). 3, Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 387(1947). SECTION 1 1 OTHER CONTROLS ON DELEGATED LEGISLATION 381 doubtless true. It is difficult, however, to see how the Court could have reached a different result in such a case. All that we can require is that delegated legislation, like statutes themselves, be published in a form readily accessible to the public and the bar that advises them. When that is done, the basic principle must be the maxim that applies to statutes, i.e. ignorantia juris excusat neminem.

NOTE

The provisions for delegated legislation were further strengthened in United States by the Administrative Procedure Act, 1946, which now provides for ante—as well as post-natal publicity. The relevant provisions of the A. P. A. are reproduced below. In this connection, Section 4(® is important. It requires publication of administrative regulations at least thirty days before they are to be effective. It permits adequate time to the people concerned to gather necessary information about the rules likely to affect them so that they are not caught unawares.

THE ADMINISTRATIVE PROCEDURE ACT, 1946.

PUBLIC INFORMATION

Sec. 3. Except to the extent that there is involved (1) any function of the United States requiring secrecy in the public interest or (2) any matter relating solely to the internal management of an agency— (a) Rules.—Every agency shall separately state and currently publish in the Federal Register (1) descriptions of its central and field organization including delegations by the agency of final authority and the established places at which; and methods whereby, the public may secure information or make submittals or requests; (2) statements of the general course and method by which its functions are channelled and determined, including the nature and requirements of all formal or informal procedures available as well as forms and instructions as to the scope and contents of all papers, reports, or examinations; and (3) substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guidance of the public, but not rules ad^,pssed to and 382 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 served upon named persons in accordance with law. No person shall in any matter be required to resort to organization or procedure not so published. (b) Opinions and Orders.—Every agency shall publish or, in accordance with published rule, make available to public inspection all final opinions or orders in the adjudicaLion of cases (except those required for good cause to be held confidential and not cited as precedents) and all rules. (c) Public Records.— Save as otherwise required by statute, matters of official record shall in accordance with published rule be made available to persons properly and directly concerned except information held confidential for good cause found.

RULE MAKING

Sec. 4. Except to the extent that there is involved (1) any military, naval, or foreign affairs function of the United States or (2) any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts— (a) Notice— General notice of proposed rule making shall be published in the Federal Register (unless all persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law) and shall include (1) a statement of .the time, place, and nature of public rule making proceedings; (2) reference to the authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except where notice or hearing is required by statute, this sub-section shall not apply to interpretative rules, general statements of policy, rules of agency organization, procedure, or practice, or in any situation in which the agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest....

(c) Effective Bates. The required publication or service of any substantive rule (other than one granting or recognizing exemption or relieving restriction or interpretative rules and statements of policy) shall be made not less than thirty days prior to the effective date thereof except as otherwise provided by the agency upon good cause found and published with the rule. SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 383

NOTE

Unlike England or the United States there is no general statutory provision in India regulating or requiring publication of delegated legislation. Nevertheless, the publication of delegated legislation has become an established practice. The Supreme Court has held that on grounds of natural justice, publication of rules is essential to make them legally effective (Harla v. State o f Rajasthan A LR, 1951 S.C. 467), Usually, what happens in India is that each statute delegating rule-making power requires that the rales thereunder are to be made by notification in the official Gazette. This makes notification of the rules in the Gazette mandatory without which the rules would be of no force. Even in the absence of such a statutory provision, as the cases given below will indicate, the requirement of publication of rules is mandatory for the rules to be legally enforceable. This is in consonance with natural justice as has been laid down in the Harla case, given below. The Committee on Subordinate Legislation takes care of the publication aspect. In one case where the parent Act did not stipulate publication, the Committee recommended that the A ct be suitably amended to provide for publication of rules. Besides, Rule 271 of the Rules of Procedure of the Lok Sabha prescribes that each regulation, rule, etc. framed in pursuance of legislative functions delegated by Parliament to a subordinate authority, and which is required to be laid before the House, shall be numbered centrally and published immediately after its promulgation.

In India, antecedent publicity is not the rule but rather an exception. It becomes necessary, if the parent statute prescribes previous publication as a condition precedent to making the rules. The procedure by way of previous publication has been explained under the head “cousultation of affected Interests” below. Further, statutes individually prescribe prior publication of the draft rules. The idea underlying this procedure is mostly to give an opportunity to the interests affected to make their views known to the administrative authorities before finalising the proposed rules. The matter has been considered in detail in the next section. 384 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

SHAKOOR HASAN KACHHI MEMON v. EMPEROR A.LR. 1944 l<5ag. 40 Order ...The applicant is by profession a grocer who was convicted of two offences under R. 81 (4) in respect of infringement of R. 81 (b), Defence of India Rules, for selling one bag of crystal sugar to Jagdish and four bags of the same article to Laghate at prices in excess of the maximum price of sugar fixed by the District Magistrate of Nagpur in his order of 12th June 1942 ...

In exercise of the powers conferred on the District Magistrate by the Provincial Government in pursuance of S, 2(5), Defence of India Act, the District Magistrate by an order dated 12th June 1942, fixed the wholesale price of crystal sugar at Rs. 14.12.0 per maund, sold one bag at the rate of Rs. 54 and the other four bags at the rate of Rs. 57 per bag. This he did on 16th June 1942, four days after the order was made. The applicant in his defence denied knowledge of the promulgation of the order.... The contention that is raised on behalf of the applicant is that in the absence of due publication of the District Magistrate’s order the applicant was not affected by the order and that consequently his conviction is wrong. That contention involves consideration of two points: (1) Whether the order took legal effect as soon as it was made on 12th June 1942, irrespective of its publication. (2) W hether the publication of the notice of the order was in accordance with law and effective enough to fix sugar dealers with the knowledge of it. Rule 81 (2) (b ) of the Defence of India Rules runs as follows : “(2) The Central Government or the Provincial Government so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and service essential to the life of the community, may by order provide— (b) for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates.” This power, which was conferred on the Provincial Government was by virtue of S, 2(5), Defence of India Act, delegated to the District Magistrate Nagpur, under the order already referred to above. The District Magistrate was therefore competent to make the order. Rule 81 (4) of the Defence of India Rules says: SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 385

“ If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.”

The question is: does the order come into operation and affect the person concerned even if it is not duly promulgated so as to bring it to the knowledge of the person who is accused of having contravened it? It appears to me to be highly unreasonable to assume that could be the intention of the framers of the rules. If the District Magistrate merely makes an order, leaves it on his table and[ no action is taken on it by anybody to bring it to the notice of the persons affected by that order, I do not think that the order can have any legal effect.,.. The learned Judge, who decided the case, [Jo/wson V, Sargant & Sons, supra] expressed his inability in the absence of authority to the contrary to hold that the order came into operation before it was known to the public. That seems to be the intention underlying R. 119 of the Defence of India Rules which prescribes publication of notice of such order passed by any authority, ofBcer or person competent to make the order under the Defence of India Rules.... I have therefore no hasitation in holding that any order passed, by the District Magistrate under R. 81 cannot bind the person concerned unless it is published in accordance with R. 119 of the Defence of India Rules. Rule 119 of the Defence of India Rules, runs as follows:

“Save as otherwise expressly provided in these Rules, every authority, officer or person who makes any order in writing in pursuance of any of these Rules shatl in the case of an order of a general nature or affecting a class of persons, publish notice of such order in such manner as may, in the opinion of such authority, officer or person, be best adapted for informing persons whom the order concerns and in the case of an order affecting an individual person serve or cause the order to be served on that person: (i) personally, by delivering or tendering to him the order or (ii) by post, ot (iii) ... and thereupon, the persons or person concerned shall be deemed to have been duly informed of the order.” This rule lays an obligation on the ofBcer inaking the order to publish notice of such order. The manner in which such notice is to be published is no doubt left to the discretion of that, officer. If he adopts a mode of publication however inadequate or unreasonable it 386 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 is not liable to be questioned in any Court of law. But the burden of proving publication of the notice of that order in the manner contemplated by the officer making the order lies on the prosecution. In other words it must be shown that the officer making the order himself prescribed the manner of its publication and that the publication was made in that manner. The obligation laid on the officer passing the order is a statutory obligation and it is incumbent on the prosecution to prove that the statutory obligation was duly discharged. The prosecution cannot in such a case merely rely on the presumption of S. 114 cl (e), Evidence Act, for the only reason that the making of the order and the direction to publish notice of it were ofBcial acts. If it is imperative to publish notice of the order and the order comes into operation only on such publication the prosecution must in the first instance show that all requirements of law have been carried out.... As pointed out by Woodroffe J., in 32 Cal. 1107 [Narendra Lai Khan v. Jogi Hari\ the presumption under S. 114 (e) Evidence A ct, applies when an official act is proved to have been done; it does not raise any presumption that an act was done of which there is no evidence and the proof of which is essential to the plaintiff’s case.

The prosecution was no doubt conscious of the necessity to lead evidence on the point of due publication of the District Magistrate’s order passed on 12th June 1942. The prosecution has produced the copy of the Nagpur Times issues on 14th June 1942. The copy of the order does not show the names of the persons to whom it was sent. I sent for the original office order to have it made clear. Below the order there is an endorsement made by the District Magistrate as follows:

“Copy forwarded to .... for information and (wide publicity) ( ) for editors of presses, Tahsildars and N. T. Kamptee.”

By the side of that endorsement several parties, to whom the copy was forwarded are noted as follows :

“(1) Secretary to Government, Central Provinces and Commerce and Industry Department. (2) Chief P. C. Officer. (3) Commissioner, Nagpur Division. (4) The Deputy Commissioner, Amraoti, Betul, Chhindwara, Bhandara, Chanda, Wardha. (5) District Superintendent of Police, Nagpur. (6) C. M. (7) S. D. Os. (all) (8) Tahr. (all) (9) N. T. Kamptee. (10) Reader to D. C,, Editor Nagpur Times, Hitvada, Independent, Maharashtra, Nav Bharat,” SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 387

In pencil are added Mr C. J, R. Naidu, Representative Times of India, Associated Press, Mr. Karkare and Mr. Venkat Raman, Editor New India. It is clear from the endorsement that the copies were sent to the editors of presses for wide publicity, The copy forwarded to the ofiFicers named was only for information and therefore any information received by them would be for their own guidance but it was certainly not intended that they should give wide publicity. That task was assigned to the editors of presses and the Tahsildars. Although there are number of editors and some press representatives mentioned, the prosecution has produced a copy of Nagpur Times and that too of only one date, viz,the 14th June. One fails to understand why no copy was sent to any sugar dealers although they were the persons directly affected by it. The explanation appended to the order tends to show that the District Magistrate intended that the copies of the order should be sent to the dealers in sugar as is clear from explanation (3) which says ;

“Dealers in sugar shall display or keep displayed in a conspicuous place in their shops or other places of business a copy of this order.”

The copies appear to have been issued from the office of the District Magistrate on 13th June, 1942 and it may well be presumed that they were received by the persons to whom they were addressed. But here the question arises should it be presumed that the notice of this order was published in Hitvada, Independent, Maharashtra, Nav Bharat and other newspapers ? There can be no such presumption unless the editors were, under some law or agreement with the authorities, bound to publish it. There is no such law; nor is there any evidence of any agreement with the District Magistrate whereby they were bound to publish it. In the absence of the copies of the named newspapers before me I cannot hold that the order was published in all the papers.

So the position is that while the District Magistrate thought that wide publicity to his order should be given by the notice being published in all the named papers, in fact and in truth it came to be published only in one paper and that only on one day. This cannot be regarded as a publication done in the manner intended by the District Magistrate who made the order. The trying Magistrate sought to make up the defect in publication by the assumption that the Nagpur Times is a very widely read newspaper in Nagpur and that in view of the importance of the order the news must have spread all 388 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 over the town as soon as it had appeared in the newspaper, and he thought it reasonable "to suppose that the business community who naturally are on the watch for such orders . .must have come to know of the order as soon as it appeared in the paper.” That is but an assumption, if not a mere speculation, but it is certainly not a legal inference from the evidence on the record. The Nagpur Times is published in English and the applicant does not know English. The District Magistrate rightly regarded that for wide publicity it was necessary to have the order published in Maharashtra and Navabharat which are read by non-English knowing people. There is no evidence to show that it was so published in these papers. That cannot be regarded as publicity, wide and effective enough to warrant the inference that everybody concerned in Nagpur was fully apprised of the order- Rule 119, Defence of India Rules, embodies a legal fiction in that it says that the persons concerned shall be deemed to have been duly informed of the order. The expression “deemed to be” means that whereas A is not in reality B the law requires A to be treated as if it were B; see 54 Bom. 216 at p. 223. This legal fiction can be ■ applied only when it is proved that everything that was required to be done by the authority or officer was actually done. On a strictly technical view the prosecution cannot invoke the legal fiction embodied in R. 119 in the absence of such wide publicity as was intended by the District Magistrate....

NOTE The Bombay High Court decided in Leslie Gwilt v. Emperor, A.I.R. 1945 Bom. 368 that there had not been a proper publication or notification of an order, as required by rule 119 of the Defence of India Rules and therefore the accused could not be prosecuted for violation of the said order.

BABULAL RAJOOLAL v. EMPEROR A.I.R. 1945 Nag. 218 Bose, J .:

Order: The applicant has been convicted under R. 8(4), Defence of India Rules, read with Government of India's Foodgrains Control SECTION 1 J OTHER CONTROLS ON DELEGATED LEGISLATION 389

Order of 1942 for selling masoor without a licence. An agreement to sell 250 bags was made on 16th July, 1943 and the grain was measured out on 28th July 1943 and 29th July, 1943. The Foodgrains Control Order o f 1942 was issued on 21st May, 1942. It sets out in para. 3(1) that

“No person shall engage in any undertaking which involves the purchase...sale, in wholesale quantities of any foodgrain except under and in accordance with a licence issued in that behalf by the Provincial Government or by an officer authorised by the Provincial Government in this behalf.”

“Foodgrains” is defined to mean

“such one or more of the commodities specified in Sch. 1 to this Order as the Provincial Government may from time to time by notification in the official Gazette declare to be a foodgrain to which this Order applies.”

Schedule 1 includes masoor among the foodgrains which may be notified. The cumulative effect of these provisions is that no licence to sell masoor was necessary until the Provincial Government declared by notification that masoor was a foodgrain to which the Foodgrains Control Order of 1942 applied. The first notification of the Provincial Government .was issued on 8th June, 1942. It said nothing about masoor. Accordingly no licence was required at that date for the purchase and sale of masoor. [A notification of December 30, 1942, made it compulsory to have a licence for purchase and sale of masoor. The applicant was convicted for breach of this provision. He went in revision before the High Court-]

The main question I have to decide is whether it is necessary to fix the applicant with notice of the notification of 20th December, 1942, or whether it is enough to show that it was published in the Gazette. This depends upon the interpretation of R. 119, Defence of India Rules, as also upon the general law. Rule 119 provides that....

“Save as otherwise expressly provided in these Rules, every authority,.,.who makes any order in writing in pursuance of these Rules shall, in the case of an order of a general nature or affecting a class of persons publish notice of such order in such manner as may, in the opinion of such authority....be best adopted for informing persons whom the order concerns.,,.and thereupon the persons concerned shall be deemed to have been duly informed of the order." 390 INDIAN ADMINISTRATIVE LA IV [ CHAPTER 6

Now I can see no point in this Rule unless the intention was to introduce a fiction to meet a class of cases which would not be covered by the ordinary law. If a man is guilty and punishable in any event whether the order is published or not, and whether or not the authority making the order brings his mind to bear on the question of the best means of informing those whom it is to concern about it, then what is the point of bringing in this fiction ? I can only see point in the Rule if the mere making of the order is not enough under the ordinary law to render a person who innocently or unknowingly contravenes it liable to punishment.

I can understand that it will often be necessary to render innocent (or perhaps ignorant would be a better term) persons liable to punishment if some of these Rules are to be effective. It will naturally be impossible for Government to inform every person in a large class personally every time an order is made. Therefore a wide discretion is left to the authorities to decide what will be the best and fairest means of publication in any given case so that all who take the trouble to ascertain the facts can do so without disproportionate inconvenience to themselves or detriment to their business. But that means that the intention of the Legislature was that innocent persons who did not know and who could not reasonably be expected to know about these orders should not be rendered liable to punishment until such precautions as the authority making the order considered fair and reasonable had been complied with...exists today because R.119 was amended on 6th May 1944. Another sub-rule called sub-rule 1-A was added. The amendment is as follows :

“Where any of these Rules empowers an authority, officer or person, to take action by notified order, the provision of sub-rule (1) shall not apply in relation to such order, and all persons whom the order concerns shall, upon its notification, be deemed to have been duly informed of it.”

The amendment makes it reasonably plain that notice of one sort or another is considered necessary; also that the fiction that all concerned shall be deemed to have had notice of the order whether or not the actual notice is limited to the class or case in which the Defence of India Rules authorise publication in the Gazette. Therefore it would seem that after this amendment all other orders must comply with sub-rule (1) before the fiction introduced by that sub-rule can be brought into play. But what was the point of introducing even this limited amendment if the law as it stood before SECTION 1 ] OTHER CONTROLS ON DELEGATTED LEGISLATION 391 the amendment was as wide as the Crown contends? If the mere making of the order was enough why have R. 119 at all ? If publication in the Gazette was enough why introduce this amendment ?—unless of course it be contended that the object was to Hmit a law (namely, the law for which the Crown contends), which was considered harsh and oppressive, to the cases specified in sub-r. 1-A. But if that was the case why was R. 119 made ? I am clear that the amendment shows that the law as it stood before the amendment was considered to be what Sen J. has said it was, and that it was considered desirable to modify it. If that be the position, then the law applicable to this case (which was before the amendment) is what Sen J. says it was..,.

It will be necessary to understand what these Acts and Order were before the true import of the decision can be grasped. The Goods and Services (Price Control) Act of 1941 corresponds, so far as the present matter is concerned, to our Government o£ India Foodgrains Control Order of 1942. (Our Order is set out at p.l. Central Provinces and Berar Food Manual), Section 1(1), Enghsh Act, (like para 3(1) of our Order) prohibits the sale, etc,, of price- controlled commodities at a price above the maximum price fixed for that commodity. In each case the permitted prices were to be fixed by separate Orders. The permitted price referred to in the second count was fixed by an Order of 1942 set out in that count. N o attempt was made, so far as the first count was concerned, to show what price had been fixed there nor was any Order fixing the price mentioned. It will be seen that the issue raised in the second count (apart from the question of conspiracy) was the same as the issue here. The decision regarding that issue was as follows :

“The conviction on count 1 is upheld. Both counsels stated that they drew no distinction between counts 1 and 2, and any further discussion on count 2 would be merely academic since the only penalty imposed was an order that Jacobs and Carr (two of the appellants) should each pay half the costs of the prosecution which have not been increased by the insertion of count 2. The conviction, therefore, on that count also will stand, but we think it right to say that, if count 2 had stood alone we should have required further argument as to the proof o f the illegality o f the agreement/^

The portion underlined (here italicized) is the important one for present purposes. The argument on behalf of the Crown was that it was not necessary to show that the appellants knew of the price fixed 392 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 the same argument which we have here. That was left undecided. In order to understand the rest of the decision it will be necessary to examine the facts further. The first count relates to an earlier Act, the Prices of Goods Act 1939. So far as the present matter goes, this A ct is much the same as the A ct of 1941—in fact the A ct o f 1941 was only an Amending A ct. It prohibited the sale, etc., of goods at a price in excess of the permitted price. This permitted price also had to be fixed by an Order of the Board of Trade. But—and here Hes the importance of the distinction—'the indictment makes no reference to the Order which fixed the prices in this case because it was unnecessary for the purposes of first count either to know or to prove what the permitted price was.

The reason for the distinction is this. The charge in the first count was a conspiracy to sell above the permitted prices. For the purpose of that conspiracy it was not necessary that any member of it should have known what the permitted price was at the date of the conspiracy, nor indeed need the price have been fixed at that date. The agreement was to sell above the permitted prices whatever those prices might be and it was this agreement which constituted the offence of conspiracy to which the first count related As a matter of fact, however, the purchaser Mulholland knew what the permitted price was and that was proved. He pleaded guilty and naturally did not appeal. It was also proved that he told the other three that he was wilhng to buy their goods at a price greatly in excess^ of the permitted price, and that the others agreed to sell to him on these conditions and did so. Now, on those acts, it is clear, so far as the first count is concerned, that it did not matter whether the other three knew what the permitted price was. Mulholland knew what the permitted price was (though in my opinion even that was not essential, but it was proved that he did know) and he told the others that the price he was offering was above that price. The others beheved him and agreed to sell to him at prices above the permitted price. It is clear that constitutes the offence of conspiracy.

The offence charged in the first count was the common law misdemeanour of conspiracy and not a breach of the order. The statute prohibited selling above the permitted price. The orders merely fixed the permitted prices from time to time. Any agreement to contravene a law, whether statute-made or otherwise, would be an offence in itself irrespective of whether at the date of the conspiracy the conspirators knew what permitted price was. That they could SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 393 ascertain later. This was the reason why the first count made no reference either to the Order or to the price fixed. All that had to be established under that count was that there was a law prohibiting sales above a permitted price and that there was an agreement to contravene that law. The statute proved itself, and as an Act of Parliament falls within the rule that every person must be presumed to know the law, no one could be heard to plead that he did not know about the Act. Also, in any event, it was obvious on the facts proved that the three appellants did know of the statute, though it was not proved, and not charged, that they knew what the permitted price was...

So it was the agreement to sell at an unauthorized price which constituted the crime and not an agreement to sell above any particular fixed price.

The remarks about ignorance of the law have relation to that. Once a man comes to you and tells you that he is prepared to sell you goods above the control rates you are put on your guard. The prohibition to do this was statutory and so needed no proof. The fact whether the price agreed was above the rates fixed in the Order of the Board of Trade could easily have been ascertained once the appellants were told that what Mulholland told them. Therefore, as it was necessary to prove the exact rate fixed, this plea of ignorance of the law was of no avail. In the second count the matter was otherwise. There the agreement specified in the charge was not to sell above the permitted prices generally, but to sell at an exact price X, X being above the permitted price. It had reference to a particular transaction of sale and not to a general agreement to engage in an undertaking, or undertakings, in contravention of the law. Therefore, before any conviction could be obtained on that count it would be necessary to prove that X was above the permitted rate, and as to that the Court of Appeal held they were not prepared to apply the maxim about ignorance of the law in the absence of further argument. Therefore, that case is not in point here. The next case on which the Crown relies is (1901) 1 K.B. 679 \Jones v. Robson].,,,

....It was held that...the provisions in S. 6, Coal Mines Regulation Act of 1896, ...were directory and not mandatory. I find considerable difficulty in applying this case because I do not know what Regulations the order was published under. Counsel’s argument as given in the Law Journal Report shows that it was contended by the side which won that the Order in question had the force o£ a statutory Rule 394 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 under S. 3, Rules Publication A ct of 1893. Section 3 (4) of the A ct shows that there are in England regulations providing for

“the different treatment of statutory rules which are of the nature of public Acts, and those which are of the nature of local and personal or private Acts.”

I do not know whether those regulations place such an order on the same footing as an Act of Parliament or not. If they do then it is easy to see that the provisions of S. 6 regarding notice could be regarded as directory. But however that may be I am clear that R. 119 cannot be regarded as directory. It is much fuller than S.6 of Coal Mines Regulation Act of 1896 and although a few words are the same, the language on the whole is different. Also, unless there is something special in that case it appears to conflict with other English cases. For example, there is (1918) 1 K.B. 101.... Then there is another EngHsh case dealing with a wider position, which refers to (1901) 1 K.B. 673 as also to a House of Lords case, (1895) A .C . 328, as authority for the proposition that “Orders which it is alleged do not follow the procedure necessary to their making may be challenged.”

This case is (1930) 2 K.B. 98. The passage quoted occurs at p. 172, It is a decision of the Court of Appeal. Certain observations of the learned Lords of Appeal, though made with reference to different facts, can, I think, be applied here. For example, Scrutton L. J, says at page 146:

“I decline, without clear words or authorities clearly binding on me, to hold that when Parhament delegates to a Minister the authority to deprive citizens of property without compensation on certain defined conditions, Parliament has allowed him to to make such an Order without complying with those conditions, so that Bis order shall have the effect of unquestioned law.”

Greer L. ]. said at page 156 :

“In may judgment the statute provides for conditions precedent to the making of an Order, and it is only an Order made after compliance with these conditions precedent that has effect as if enacted in the A ct.”

Slesser L. J. at page 170:

“I do not think that the mere fact that the Minister describes the Order necessarily constitutes it one.” SECTION 1 J OTHER CONTROLS ON DELEGATED LEGISLATION 395

I prefer the reasoning of these later cases to (1901) 1 K.B. 673 assuming that (1901) 1 K.B. 673 deals with the general law and not with something special to that case. So far as India is concerned the decisions are all one way. There is I.L.R. (1944) Kar. 107 which holds that before a person can be punished for an offence under the Defence of India Rules, notice as required by R. 119 must be proved. And in this Province there is the decision of Niyogi J., in I.L.R. (1944) Nag. 150. I have already referred to the decision of Sen J., in Cri. Revn. N o. 17 of 1944, and there is a previous decision of mine in Cri. Revn. N o. 75 o f 1943. I know of no other cases.

As far as I can gather from 6 Halsbury’s Laws of England (Hailsham Edition) para, 776 p. 601, footnote (a), the rule in England is that Acts of Parliament become law from the first moment of the day on which they receive the Royal Assent, but Royal Proclamations only when actually pubHshed. Now a Royal Proclamation is the highest kind of the law, other than an Act of Parliament, known to the British Constitution. But even in this august sphere it was necessary to have a special Act of Parliament to justify its becoming law by mere publication in an Official Gazette, and even then publication in the London Gazette will not make the Proclamation valid in Scotland, nor will publication in the Edinburgh Gazettee make it valid for England. That, to my mind, shows conclusively that the mere signing of Proclamation is not enough. There must be publication before it can become law, and the nature of the publication has to be prescribed by law. The Act of Parliament regulating this matter is the Crown Offi.ce Act of 1877 (40 and 41 Viet, Ch. 41). That Act, in addition to making provision for publication in certain Official Gazettes, also provides for the making of rules by Order in Council for the best means of making Proclamation known to the public.

Now I know of no decision on the point, and possibly there is none because I presume a Royal Proclamation would always be published in the Gazettes, but seeing that publication is necessary, and seeing that Parliament insists in the Crown Office Act that His Majesty in Council should carefully consider the best mode of making these Proclamations known to the public and empowers the Council to draw up rules for the same and embody them in an Order in Council, I imagine that if there is no publication in the Gazette then the Proclamation would not become law unless it was published strictly in accordance with the rules prescribed by the Order in Council. It seems absurd to me that Parliament should solemnly 396 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 constitute an authority for considering the best mode of publication (pubHcation being necessary to make the Proclamation law) and when that authority says that mode A is the best method, it will be enough if mode B is followed. Such a conclusion would mean either that the authority who prescribed mode B is substituted for the august authority prescribed by Parliament, namely His Majesty in Council, or that the Council, in defiance of what Parliament prescribes, are setting themselves up as the authority to decide what the best means of publication are in any given case. I cannot see how such a conclusion could lawfully be reached. Rule 119, Defence of India Rales, and the corresponding Orders in England, seem to follow the same general pattern. They assume that publication is necessary, and that assumption raises the question, what kind of publication ? Rule 119 leaves that to the authority making the order to decide. If he decides on mode X how can the Courts say that mode Y will do ? If the District Magistrate says that copies of his order must be given to each merchant so that the merchant will have something with him in his shop to which he can refer and which he can exhibit to the public as authoritative (that was the case Cr. Revn, No. 76 of 1943 which I decided), how can the Courts say it will be enough for a Sub-Inspector of Police merely to show the merchants a copy of the Order and take it away again? Many important matters have to be considered in these cases by the authority making the order. One is what is the fairest mode to the merchants who have to sell to the public at large. They must be inconvenienced as little as possible and their business must not be disrupted more than necessary. That is a most important consideration and involves an issue of pubHc policy; and as a matter of fact S.15, Defence of India Act, expressly enjoins that. Then the customer has to be thought of. Very few cases of breaches of these orders can be detected, and unless the customer has something authoritative he can see for himself and demand to be shown, in most cases he will not know whether he has been charged the right price or not. If then District Magistrate concludes, after weighing these and a host of other considerations, that in any particular case the best mode of publication is actually to leave a copy of his order in the shop how can the Courts go behind that and say that because a Sub-Inspector of Police, or some other authority under whose orders he acted, thought he knew better than the District Magistrate, what he has done is good enough ? That, in my opinion, does not give effect to Rule 119. SECTION 1 J OTHER CONTROLS ON DELEGATED LEGISLATION 397

I must not be regarded as suggesting that the Suh-Inspector’s method of pubHcation in the previous case was not a good and effective one. That is not the point. The District Magistrate prescribed the mode and as R.119 leaves the authority making the order to prescribe the mode the Courts cannot go behind what he prescribes. Had the District Magistrate in the previous case prescribed what the Sub-Inspector did I would have upheld the prosecution.

There is also this grave objection. Once it is conceded that these orders are discretionary and not mandatory, and can be ignored, it will be for the Courts to decide in every case what is good enough, because, as I have said, some sort of publication is necessary before the order can become law. That would lead to the utmost confusion, one Judge thinking one thing and another another. If for instance, a District Magistrate decides that in some locality like a village proclamation by beat of drum is the best mode the Courts could easily say that that is not good enough and that something more must be shown. In my opinion it would be dangerous to go behind what to me is the very evident intention of the Legislature and hold that though the Legislature says one thing in R.119 the Courts can ignore its directions and say that something else will do or what would be much more dangerous to the authorities, that something else must be done in addition to or in substitution for that which the authority empowered under R.119 to decide has prescribed.

In ail the English cases it must be remembered that therd-was publication. In (1901) 1 K.B. 673, for example, there was publication and sale of the order by the Queen’s Printer and it was proved that the appellant had actually been given a copy of it. So also in (1981) 1 K.B. 101 there was publication in all the papers though not till the day following the alleged offence. And it seems as if there are special rules in England relating to the matter of publication.

Now I do not mean to hold that if the Legislature prescribes a mode of publication as sufficient [as it now does in R.119 (1~A)] and also leaves it to the authority making the order to make such additional rules as it likes, it will be necessary to prove both methods of publication. In that sort of case obviously, or at any rate it appears obvious to me, the matter would be discretionary- If the law prescribed by the Legislature directs that publication A (e.g, publication in a Gazette) will be sufficient to make the order law, then publication in other ways becomes unnecessary however 398 INDIAN ADMINISTRATIVE LAW [CHAPTERS desirable they may be. But if the Legislature leaves this to the authority making the order and that authority prescribes a particular mode, no Court can in my opinion go behind it; and in that event it will be for the Crown to establish that the mode prescribed was strictly followed. In my judgment publication is a condition precedent. If same law prescribes the mode of publication, then all the Crown need do is to show that the mDie was observed. If, on the other hand, the matter is left to the authority maki ig the order, then it is imperativ'e that he should prescribe a mode, and then the Crown must prove both, that he prescribed a particular mode and that publication was strictly in accord with what was prescribed. Until that is done; the order will not be accepted as law. It will not be enough to say that because the matter is published in mode A (e.g., a Government Gazette) therefore it must be presumed that the authority in question thought that that was the best mode of publication. The Crown must show chat the authority applied its mind to the matter and prescribed the mode relied on. Returning now to the present case, the crucial order here is the one o f 30th December 1942. This was made by the Provincial Government and was published in the local Gazette. There is no proof that the Provincial Government applied its mind to the provisions of R. 119(1) and considered that this was the best method of publication. Therefore unless some law expressly authorises publication in this manner cannot be regarded as operative. The law relied on is the Government of India’s Foodgrains Control Order of 1942, dated 21st May 1942, which I have already quoted. It is the definition of “Foodgrains" which is said to be crucial. “Foodgrains" is defined as '‘any one or more of the commodities specified in Sch. 1 to this Order as the Provincial Government may from time to time by notification in the Official Gazette declare to be a foodgrain to which this Order applies.” Now that prescribes the mode of publication, but the mode is not prescribed by the authority making the curicial order, namely the order of 30th December 1942 made by the Provincial Government but by the authority enacting the prohibition. The question is, is that enough? There can be no doubt that the Central Government would have had power to make the Order which the Provincial Government made on 30th December 1942. In fact, instead of leaving matter to the Provincial Government, it could straightway have said in its order of 21st May 1942 that “foodgrains” means the commodities SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 399 specified in Sch. 1. But that though it had power to do this it did not do it. Instead, it left the matter to the Provincial Government. In my opinion, that is not a delegation of authority. It is only a method of prescribing how and when and where the Food grains Control Order of 1942 is to come into force. Say the Central Government had included masoor among the prohibited foodgrains from the beginning but had said that its order relating to masoor would not have effect till a certain date. Can it be pretended that would have been wrong? Say instead of prescribing a date it had made the operation of the order conditional upon the happening of an uncertain event such as the failure of the monsoons in a particular area by a specified date, and had defined failure to mean less than a given quantity of rainfall over a prescribed period. Would that have been wrong? Again, I think not. In my opinion the Central Government has done no more than that here. Instead of prescribed failure of the rains as the condition precedent to the operation of the order, it has prescribed another contingency, namely the making of an Order by a Provincial Government; and it has prescribed the mode of publication. Having done that it has complied with the law. Accordingly its Order of 21st May 1942 (the Foodgrains Control Order o f 1942) became effective with respect to masoor from 30th December 1942. I may say that the validity of the Foodgrains Control Order of 1942 was not questioned before me.

HARLA v. THE STATE OF RAJASTHAN A.I.R. 1951 S.C. 467

[The facts of the case are sufficiently clear in the judgment.] The appellant was convicted under S. 7, Jaipur Opium Act and fined Rs, 50, The case as such is trivial but the High Court of Rajasthan in Jaipur granted special leave to appeal as an important point touching the vires of the A ct arises. W e will state the facts chronologically. It is conceded that the Rulers of Jaipur had full powers of Government including those of legislation. On 7-9-1922, the late Maharaja died and at the time of his death his successor, the present Maharaja, was a minor. Accordingly, the Crown representative appointed a Council of Ministers to look after the Government and administration pf the State during the Maharaja's minority. 400 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

On 11-12-1923, this Council passed Resolution which purported to enact the Jaipur Opium Act, and the only question is whether the mere passing of the Resolution without promulgation or publication in the Gazette, or other means to make the Act known to the public, was sufficient to make it law. W e are of opinion that it was not. But before giving our reasons for so holding, we will refer to some further facts. About the same time (that is to say, in the year 1923—w e have not been given the exact date) the same Council enacted the Jaipur Laws Act, 1923. Section 3(b) of this Act provided as follows : —

“3. Subject to the prerogative of the Ruler the law to be administered by the Court of Jaipur State shall be as follow s; (b) All the regulations now in force within the said territories, and the enactments and regulations that may hereafter be passed from time to time by the State and published in the Official Gazette.” This law came into force on 1-11-1924. It is admitted that the Jaipur Opium Act was never published in the Gazette either before or after 1-11-1924. But it is contended that was not necessary because it was a “regulation” already in force on that date. The only other fact of consequence is that on 19-5-1938, S. 1, Jaipur opium Act, was amended by the addition of Sub-s. (c) which ran as follows : “(c) It shall come into force from 1-9-1924,”

The offence for which the appellant was convicted took place on 8-10-1948.

Dealing first with the last of these Acts, namely the one of 11-5-1938, we can put that on one side at once because, unless the Opium Act was valid when made, the mere addition of a clause fourteen years later stating that it shall come into force at a date fourteen years earher would be useless. In the year 1938, there was a law which required all enactments after 1-11-1924 to be published in the Gazette. Therefore, if the Opium Act was not a valid Act on that date, it could not be validated by the publication of only one section of it in the Gazette fourteen years later. The Jaipur Laws Act of 1923 required the whole of the enactment to be published, therefore publication of only one section would not validate it if it was not already valid. He need not consider whether a law could be SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 401

made retroactive so as to take effect from 1924 by publication in 1938 though that point was argued. That throws us back to the position in 1923 and raises the question whether a law could be brought into operation by a mere resolution of the Jaipur Council. We do not know what laws were operative in Jaipur regarding the coming into force of an enactment in that State. W e were not shown any, nor was our attention drawn to any custom which could be said to govern the matter. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v, Sargant, (1918) 1 K,B. 101 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public, and the difference between an Order of that kind and an A ct of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulagation and publication in their cases. The 402 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 inode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be. Nor is the principle peculiar to England. It was applied to France by the Code Nepoleon, the first Article of which states the laws are executory “by virtue of the promulgation thereof” and that they shall come into effect “from the moment at which their promulgation can have been known.” So also it has been applied in India in, for instance, matters arising under R. 119, Defence o f India Rules. See, for example, Crown v. Manghumal Tekumal, I.L.R. (1944) Kar. 107, Shakoor v. Emperor, I..L.R. (1944) Nag. 150 and Babulal V. King Emperor, I.L.R. (1945) Nag. 762. It is true, none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is founded on natural justice. The Council of Ministers which passed the Jaipur Opium Act was not a sovereign body nor did it function of its own right. It was brought into being by the Crown Representative, and the Jaipur Gazette Notification dated 11.8.1923 defined and limited its powers. W e are entitled therefore to import into this matter consideration of the principles and notions of natural justice which underlie the British Constitution, for, it is inconceivable that a representative of His Britannic Majesty could have contemplated the creation of a body which could wield powers so abhorrent to the fundamental principles of natural justice which all freedom loving peoples share. W e hold that, in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. It is necessary to consider another point. It was urged that S. 3 (b), Jaipur Laws A ct of 1923, saved all regulations then in force from the necessity of publication in the Gazette. That may be so, but the Act only saved laws which were valid at the time and not resolutions which had never acquired the force of law. The appeal succeeds. The conviction and sentence are set aside. The fine, if paid, will be refunded.

NOTES

1. Section 3 (2) (c) of the Essential Supplies (Temporary Powers) Act, 1946, required the publication of a notification issued SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 403

under the Act in the “official gazette”. The notification in question was however published in the District Gazette. Relying on the General Clauses Act, 1863, the Madras High Court held that the expression “official gazette” meant the Gazette of India or of Fort St. George of Madras and therefore the notification was held invalid because it had been published only in the District Gazette which was not a sufficient compliance of the A ct; In re Pesala Subramanayam}

2. Clause 4 of the Non-Ferrous Metals (C on trol) Order, 1958, prohibited acquisition of non-ferrous metal except under a permit issued by the controller “in accordance with such principles as the Central G overnm ent may from time to time specify”. The enabling section in the parent Act [S. 3] required all rules to Idc made under it to be notified and laid before both Houses of Parliament. The Central Government communicated to the Chief Industrial Adviser, the permit-issuing authority, the relevant principles in a letter. These principles were nowhere notified. The Supreme Court held that they were not legally effective : Narendra Kumar v. Union o f India.^

3. Under section 98 of the City of Bangalore Municipal Corporation Act, the procedure to levy a municipal tax is that a resolution intending to impose a tax has to be passed by the corporation; the resolution is then required to be published in the Official Gazette and in the local newspapers. The rate-payers can then submit objections and after considering the same the Corporation may by resolution determine to levy the tax Such resolution was required to be published forthwith in the Official Gazette and in the newspapers. In the instant case, all the steps were taken except the final publication in the Gazette. Was this fatal to the legality of the imposition of the tax ? Can this defect be cured by a provision such a s :

“No act done or proceeding taken under this Act shall be questioned merely on the ground of any defect or irregularity in such act or proceeding, not affecting the merits of the case” .

See Bangalore W. C. S. Mills v. Bangalore Corporation.^

4. A. I. R. 1950 Mad. 308. See The Indian Law Institute, Administrative Process under the Essential Commodities Act, 74-75 (1955). 5. A. I. R. 1960 S.C. 430. 6. A. I. R. 1962 S.C. 562. 404 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

STATE OF MAHARASHSTRA v. M. H. GEORGE A.I R. 1965 S.C. 722.

[A notification dated November 8, 1962, was published in the Gazette of India on November 24, 1962 banning the bringing of gold into India except by a passenger in transit from a place outside India to a.place similarly situated when he had declared the gold in the ship’s manifest. A passenger left Zurich on November 27, 1962 carrying gald and was arrested in Bombay on November 28. He pleaded inter alia that he had no knowledge of the said notification.]

Ayyangar, J ,: ...[T]he question would immediately arise is it to be made known ip India or throughout the world, for the argument on behalf of the respondent was that when the respondent left Geneva on November 27, he was not aware of the change in the content of the epcemption granted by the Reserve Bank . It is obvious that for an Indian Law to operate and be effective in the territory where it operates, viz., the territory of India it is not necessary that it should either be published or be made known outside the country.... [T]he tfest to find out effective publication would be publication in India, not outsidfe India so as to bring it to the notice of everyone who intends to pass through India. It was “published” and made known iti'India by publication in the Gazette on the 24th November and the ignorance of it by the respondent who is foreigner is, in our opinion, wholly irrelevant.... [T]he respondent did not have actual notice of the notification of the Reserve Bank dated November 8, 1962' but, for the reasons stated, it makes, in our opinion, no difference to his liability to be proceeded against...... Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the court holds to be mandatory, a failure to comply with those requirements might result in there being no effective order....but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form, i.e., by pubHcation within the country in such media as generally adopted to notify to all the persons concerned the making of rules. In most of the Indian statutes, including the Act now under consideration, there is'provision for the rules made being published in the Official Gazette. It, therefore, stands to reason that publication in the Official Gazette, viz., the Gazette of India is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 405 concerned.... The argument, therefore, that the notification dated November 8, 1962, was not effective, because it was not properly pablished in the sense of having been brought to the actual notice of the respondent must be rejected. ....There is undoubtedly a certain amount of uncertainty in,the law except in cases where specific provision in that behalf is made in individual statutes as to (a) when subordinate legislation could be said to have been passed and (b) when it comes into effect,. The position in England has been clarified by the Statutory Instruments A ct of 1946, though there is a slight ambiguity in the language employed in it, which has given rise to disputed .questions of construction as regards certain expressions used in the Act. W e consider that it would be conducive to clarify as well a^, tp' th,e avoidance of unnecessary technical objections giving occasion fo^y litigation if an enactment on the lines of the U. K. Statutory Instruments Act, 1946 were made in India....

JAIN, PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION Public Law (1964)

The Scrutiny Committee® has made special effort to secure' ari’ improvement in the scheme of publication of rules in the Gazette sd' that they may become known to the people and a reference to thena’ becomes easy and convenient. A major defect existing in the method of publication of rules wasl:hat not all of them were published at' one place in the Gazette and there was no uniformity in the maniief ■ of numbering them so that reference to them became difficult.•• At’ first, therefore, the Committee desired that all statutory rules-and orders be published in one section o f the Gazette and be centrall:^" numbered from year to year. The Government found it dijEficult to agree to this suggestion. The Committee then made the followiiig. suggestions : (1) the Government should ensure that their notifieafiorjs containing particular constitutional and statutory rules ,and, orders' were published in proper parts and sections of the Gazette; (2) th^t; a yearly consolidated index be issued; (3) that a monthly index hei prepared covering all notifications published in any part and section.- 7. Foot notes omitted. 8. The term Scrutiny Committee means the Committee on Subordinate Legislation of the Lok Sabha. For its composition and functions see, infra. 406 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 of the Gazette; (4) that notifications regarding rules in each part and section of the Gazette be centrally numbered from year to year with a distinctive prefix; (5) a notification regarding rules should be referred to by its central number and year of its publication. As a consequence of these suggestions, the Government has evolved the following scheme of publication of rules with effect from March 1 , 1958 : statutory rules and orders are serially numbered into three separate groups each with a distinct prefix. Statutory Rules and Orders of a general character issued by the Ministries of the central Government (other than the Ministry of Defence) and by central authorities (other than Union Territories Administration) are prefixed as G. S. R., are numbered serially and separately and are published in Part II, Section 3, sub-section (i) of the Gazette o f India, and those not of a general character are published in Part II, Section 3, sub-section (ii), are prefixed as S.O.s. and are numbered centrally and separately. Statutory rules and orders issued by the Ministry of Defence are prefi^xed as S.R.O.s. are numbered separately, serially and centrally and are contained in Part II, Section 4 of the Gazette o f India. Rules and Orders made by other officers or authorities are contained in other parts of the Gazette, Each of them is an annual series. The Scrutiny Committee has recently suggested that the Orders be given a number according to their date of publication, and not the date of issue, which could be given at the top of each order; that separate notifications be published under separate S.R.O. numbers; that several notifications should not be published under a sigle number as that is likely to cause confusion and inconvenience to everybody while making a reference to those notifications individually. Half-yearly indices of the statutory rules and orders should also be prepared.

Several other suggestions have been made by the Scrutiny Committee to improve the technique of publication of the rules so that they may be referred to conveniently, located easily and understood by the public, viz ; ( 1) As rules are amended very often, the amended version of the rules should be reprinted very frequently; ( 2) rules and amendments thereto to be given short titles in the body and at the top; (3) to make it possible to trace back the amendments, the S.R.O. numbers of the previous amendments or the original rules should be cited in the footnotes whenever rules are amended) ( 4) amendments to the same rules should be published in the Gazette bearing the Order numbers in the same sequence as are assigned to the amendments by the Ministry; (5) explanatory notes, not forming SECTION 1 ] OTHER CONTROLS ON DELEGATED LEGISLATION 407

part of the rules and amendments, should be appended to all rules and amendments in order to explain their general purport; ( 6) the precise statutory authority under which rules are made should be cited in the preamble of the rules so that all concerned may know precisely the authority under which the rules have been made; ( 7) corrigenda to the rules should be published within fifteen days of the publication of the rules in which errors are found.

Parts of the Gazette in which rules are published are sold to the pubhc. On important subjects, Ministries bring out manuals containing all relevant statutes and the rules made thereunder. Very often these manuals do not give up-to-date information about the order. There is no other official publication giving information to the public on such points as : the amendments made from time to time in the schedules to the various Acts; whether a particular rule is still in operation or not, whether it has been amended subsequently and, if so, where these amendments could be found, whether any rules have been framed at all under an Act. The Scrutiny Committee has therefore suggested that there should be some publication of statutory rules and orders, on the lines of the United Kingdom’s annual publication of Statutory Instruments, for the convenience of the public. The Government has found two difficulties in accepting the suggestion: pressure of work on the Government Press which could not undertake such a voluminous work; its utility would not be commensurate with the high cost involved and it would be obsolete in no time. Instead, the Government has agreed to bring out an up- to-date publication of general statutory rules in force soon.

Further, to give wide publicity to the rules so as to make the public aware of them, the Scrutiny Committee has suggested that advance copies of rules of a general character be sent to the state Governments which should give wide publicity to them through their gazettes and also publicise their translations in recoginsed state languages. Press communiques shuold also be issued by the Government to give publicity to the general purport and effect o f the rules. The Central Government did not favour advance publicity of the rules in the states as premature leakage of rules might be prejudicial to the public interest. The Government has therefore accepted the Committee’s suggestions subject to the rider that rules be published in the state gazettes soon after their publication at the Centre. Regarding other suggestions, the Central Government has issued the necessary directions to the state Governments. 408 INDIAN administrative LAW [ CHAPTER 6

One suggestion may however be made at this stage. It has been said earlier that there is in India no general statute requiring publicity of the rules and sub-rules. Though notification of rules and sub-rules in the Gazette is fully secured at present, yet it would improve matters a great deal if a general provision is added to the General Clauses Act in. India on the lines of the Statutory Instruments Act so as to ensure that the rules and sub-rules are properly published, are made available to the public, and that no penalty for their contravention shall be incurred unless such pubHcation is made.

SECTION 2. CONSULTATION W ITH AFFECTED INTERESTS

A modern technique to control the exercise of legislative power by the administration is through consultation with affected interests. This has been characterised as the ‘democratization of the rule- making process.’ This procedure is regarded as a valuable safeguard against misuse, wrong or ignorant use of legislative power by administrative authorities. According to Wade and Phillips, “ One way of avoiding a clash between department exercising legislative powers and the interest most likely to be affected is to provide for some form of prior consultation,”^ The modern government is very complex and the administrator may not always appreciate the impact of the proposed rule on the interests for whom the rules are designed. Even the administrator may need information or special knowledge about the affairs to be regulated. In the words of Wade and Phillips again, “Consultative bodies influence fundamental reforms, as well as serve as a source of expert knowledge on technical matters. Research and the collection of information are important functions for which departments need the assistance of outside organisations.”^ In End-and^^ the Rules Publication Act, 1893, had a general provisions [S. 1(2)] requiring that antecedent notice of forty days would have to be given for the framing of rules and during these forty days, any suggestions or representations made in writing by a public body interested to the rule making authority “shall be taken into consideration by that authority before finally settHng the rules; and on the expiration of those forty days the rules may be made by 1. Constitutional Law, 584 (6th ed. J960). 2, Id., at 280. SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 409 the rule-making authority, either as originally drawn or as amended by such authority.” But the Statutory Instruments Act, 1946, repealed this provision, the Government’s stand being that consultation with the interests has become a normal and well established practice. Besides this general consultation on a non-statutory basis is inherent in any democratic form of government, at times particular statutes prescribe specific modes of consultation. In such cases, the question of the validity of the rules made without following the prescribed procedure would depend on whether it is characterised by the court as “mandatory” or “directory”. The position in England is brought out by the following case, Fletcher v. Minister o f Town And Country Planning'^ and extracts from an article by Griffith. Some Indian cases are also discussed below.

In the United States, the procedures of consultation have become very elaborate, In the first place, section 4(b) of the Administrative Procedure Act, 1946, lays down that after notice under section 4(a) has been given,the agency concerned is bound to afford “interested persons an opportunity to participate in the rule making through, submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and, after consideration of all relevant matters presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose.” This is a general provision but then specific statutes may prescribe the rules to be made ‘ on the record after opportunity for an agency hearing". In such a case an elaborate hearing procedure laid down in sections 7 and 8 of the Administrative Procedures Act becomes applicable. Further, a statute may lay down still more elaborate consultative procedures These various aspects have been brought out by extracts from Schwartz, American Administrative Law and an article by Professor Ralph Fuchs.

In India, there is no general statutory prescription requiring consultation with, or participation of, various interests in the rule­ making process. Informal consultation, however, continually goes on. At times. Advisory Committees are nominated to give advice to the administration on specific question. Sometimes such committees are constituted under statutes, sometimes under the rules, sometimes merely by ministerial directions. The purpose of these bodies is to bring affected interests into touch with the administration. How

’ 3, (1947) 2 All, E. R. 496. 4. Supra, at 382. 410 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 many of such bodies are there, and what is their impact on the rule- making process have not yet been worked out in India and it remains a very fruitful topic for investigation. Besides, parent statute may prescribe that rules thereunder shall be made by “previous publication”. If that be the case, then the procedure laid down in section 23 of the General Clauses Act becomes operative. Furthermore, certain statutes lay down specific consultative techniques, which are described below.

FLETCHER AND OTHERS v. MINISTER OF TOWN AND COUNTRY PLANNING (1947) 2 All E.R. 496

[On July 16, 1946, the Minister of Tow n and Country Planning invited the representatives of six local authorities to a conference with regard to a new town in the Hemel Hempstead district. At that conference the Minister made a statement explaining the whole project, and then invited comments and questions from the representatives of the local authorities. After the New Towns Act, 1946, became law, the Minister published a draft order which complied with the provisions of paras 1 and 2 of schedule I to the Act. Objections were made to the Scheme and the Minister attended a private meeting of the representatives. A public local enquiry was held and subsequently the Minister passed the order designating an area of land, comprising approximately 5,910 acres, as the site of a proposed new town. An action was brought by the appellants to quash the order made by the Minister. The main contention was that the requirements of the New Towns Act, 1946, had not been complied with in relation to the making of the order and the interests of the appellants had been thereby prejudicially affected in that there was no consultation within the meaning of section 1( 1) of the Act between the Minister and the local authorities before making the order in question.]

Morris^ J. : It becomes necessary to determine whether, on the facts of the case, there was consultation between the Minister and the local authorities appearing to him to be concerned. If there was no consultation or no consultation which complied with the Act, then counsel for the appellants submits that the court should quash the SECTION 2 ] OTHER CONTROLS ON DELEGATTED LEGISLATION 411

Order on the ground that it was not within the powers of the Act in that the holding o£ consultation is a condition precedent to the making of an Order. Alternatively, he submits that it is a requirement of the Act that there should be a proper consultation with local authorities and that his clients’ interests have been substantially prejudiced by non-compliance with this requirement. The central inquiry is, therefore, whether there was a proper consultation. No question arises as to which are the local authorities concerned. It is for the Minister to decide this. On the facts the Minister considered that the authorities concerned are the Hemel Hempstead Borough Council, Hemel Hempstead Rural District Council, Hertfordshire County Council, Watford Rural District Council, Mid-West Hertfordshire Joint Planning Committee and St. Albans Rural District Council.

Certain dates and events form the main structure of the facts are to be reviewed. On July 16,1946, a letter was addressed to the six local authorities whom I have named. The letter was in the following term s:

I am directed by the Minister of Town and Country Planning to inform you that he has under consideration the development of a new town in the neighbourhood of Hemel Hempstead. This proposal is, of course, a further step in the implementation of the policy of His Majesty's government for the planning of London and, in particular, in the execution of a programme of decentralisation from its congested inner area to the country outside the green belt ring. In the circumstances the Minister would welcome an early meeting with representatives of the local authorities primarily concerned in the proposal, and he hopes that these authorities will share his view that even at this initial stage—when, necessarily, detailed proposals cannot exist to be discussed— such a meeting would fulfil a useful purpose. At such a conference the Minister for his part would propose to outline the main factors which have led him to consider the Hemel Hempstead area especially suitable to be the site of a new town and would indicate any general considerations which have so far emerged in relation to its development. I am, accordingly, to invite your council to nominate, say, two representatives to attend a conference on this subject with the Minister, to be held in the conference room at 32, St. James’s Square, at 10.30 a. m. on July 26. 412 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

The local authorities replied that they would attend the proposed conference. The reply of the town clerk of the borough of Hemel Hempstead was as follows : Your letter of July 16 has been considered by the town council, who have asked me to inform you that, in view of the importance of the suggested conference and the fact that this corporation would appear to be the authority raost affected, the town council consider that it would be not unreasonable for them to appoiqt more than two representatives. I spoke to Mr. Tennant about this matter the other day and I gathered that there would be no objection on the part of the Minister. The town council have, accordingly, appointed the following [eight] representatives.... The conference was held on July 26, 1946, and was attended by the Minister accompanied by about 9 officials of the Ministry. About 21 persons in all attended on behalf of the sis local authorities. Notes of the proceedings were prepared both on behalf of the Ministry and on behalf of the town clerk of the borough of Hemel Hempstead. The Minister made a statement explaining the whole project, and theri invited observations from the representatives of the local authorities either by way of comments or by way of questions. On Aug. 1,1946, the New Towns Act, 1956, passed into law, and on Sept. 27,1946, the Minister published the draft of an Order and complied with the provisions contained in paras 1 and 2 of sched. 1 to the Act. The draft Order indicated an area of land comprising approximately 7,930 acres situate in the borough of Hemel Hempstead, the rural district of Hemel Hempstead, the rural district of St. Albans and the rural district of Watford. Annexed to the draft Order was a map which showed the contemplated area enclosed by a black line edged blue. The Minister also made a statement indicating the size and general character of the proposed new town. No criticism is made of that statement. Among objections that were received to the proposed Designation Order were objections from the Hemel Hempstead Borough Council, the Hemel Hempstead Rural District Council, the St. Albans Rural District Council and the Watford Rural District Council. The Hertfordshire County Council, while not objecting, reserved the right to appear at a public inquiry. Because these objections were lodged the Minister decided that he would himself meet the representatives of the local authorities. This was to be at a private meeting to be held at Hemel Hempstead town hall on Nov. 19. The Minister further arranged to address a public meeting the same night. The public meeting was for the purpose of explaining his SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 413 proposals. These meetings took place. At the meeting with the local authority representatives (at which the six authorities were represented) the Minister decided not to begin by making a speech, but thought the best procedure would be for him to invite questions with which he would endeavour to deal. That procedure was followed. On Dec, 2,3 and 5, 1946, a public local inquiry was held. The Hemel Hempstead Borough Council, the Hemel Hempstead Rural District Council and the Watford Rural District Council were objectors and were represented. On Dec. 13, 1946, the Minister received a report from the inspector who held the inquiry. On Feb. 4, 1947, the Designation Order was made. The Order designates an area of 5,910 acres as compared with one of 7,930 acres referred to in the draft Order.

These being the main facts in outline, it is submitted on behalf of the appellants that no proper consultation was ever held. It is submitted that the consultation specified in s. 1 of the Act involves an exchange of views between the Minister and those local authorities who appear to him to be concerned and the seeking by the Minister of advice from the latter in circumstances in which it is made clear, either in express terms or by necessary implication, that a consultation for the purposes of the Act is at the time intended. It is also submitted that no purported consultation taking place prior to the passing of the Act could be considered to be a consujtation as specified in s. 1 of the Act, and that, subject to its being after the Act, the logical time for such a consultation is before a draft Order is..made. Additionally, it is urged that, in regard to the private meeting of Nov. 19, there were features that suggested that the meeting was not a consultation pursuant to s. 1 of the Act. It is said that the procedure of inviting questions for answer negatives the idea of a consultation taking place; that the fact that at the meeting the Minister imposed stipulation that a note which was being made should not be used in any later proceedings also negatived the view that there was consultation; that certain topics, such as the questions of water supply and of the sewerage system for the projected new town, were either expressly or impliedly stipulated not to be for discussion, and that, accordingly, the Minister’s mind was closed in regard to these subjects, and that, if these important subjects excluded from discussion and the Minister was not welcoming or receiving advice on them, no consultation in any real and true sense was being held. Furthermore, it is said generally that, when the evidence in regard to the meeting of Nov. 19 is surveyed, the conclusion ought to be drawn 414 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 that the Mmister. was giving his conceptions in regard to new towns and was explaining the reasons why he had selected Hemel Hempstead as the site of one of them, but was not consulting the local authorities. It is also said that those who attended the meeting had no authority to express views on behalf of their local bodies, but only to attend and to listen to what was said. These are all submissions well deserving of most careful consideration, and it is the duty of the court to ensure that there is full and fair compliance with statutory requirements. The duty which is cast on the Minister to hold consultation with local authorities under s. 1 of the Act is unquestionably an important one. By the performance of it a handsome dividend of information may well be earned. As regards the time when consultation should take place, the Act, in my judgment, does no more than to prescribe that it must be before a final Order is made. It may well be that in many cases the most convenient and satisfactory time for consultation will be before a draff Order is made but it is not for the court to give any ruling in regard to this matter. If consultation precedes the making of a final Order the terms of the statute will, in my judgment, have been satisfied. The word “consultation” is one that is in general use and that is well understood. No useful purpose, would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the court to examine the facts and circumstances of the particular case and to decide consultation was, in fact, held. Consultation may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one. In deciding whether consultation has taken place, regard must, in my judgment, be paid to the substance of the events and it cannot be conclusive either way according to whether parties said in terms, that a consultation under S. 1 of the A ct was taking place, or to take place, or was intended, or whether nothing relative to this was said at all. In my judgment, the meetings o f July 26 and of Nov. 19 are closely related and must be considered together. The meeting of Nov. 19 cannot be considered in isolation. It was attended by representatives of all the six local authorities as was the meeting of July 26. The events that preceded it were in the knowledge of those present. It had been known for a period of four months that the Minister had in mind the designation of an area SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 415 at Hemel Hempstead as the site o f a new town and the exact delineation of the proposed had area been known since Sept. 27. Beacause in my judgment it is not only proper, but essential, to link meetings of July 26 and Nov. 19, the point does not really arise for decision whether, if the meeting of July 26 had stood alone, there would have been a compliance with the Act. I need say no more, therefore, than that I am not satisfied that there is any reason why a consultation taking place before Aug. 1, 1946, should, on account o f date alone, be ineligible to be regarded as a consultation satisfying statutory requirement. In my judgment, no question of the retrospec­ tive operation of a statute is involved. The facts and circumstances concerning any consultation taking place before Augt. 1, 1946, would require careful consideration, and in a given case it might be manifest that a consultation which had taken place at an early date could not in the nature of things amount to a sufficient consultation for the purposes of s. 1 of the Act. It would all depend on the precise facts. By the terms of the letter of July 16 the local authorities were clearly informed that the Minister had under consideration the’ development of a new town in the neighbourhood of Hemel Hmpstead. The criticism is made that the letter proceeds to indicate that at the suggested conference the Minister would propose to outline the main factors which had led him to consider the Hemel Hempstead area as a suitable site, but does not state that the Minister would seek at the conference the views, opinions and criticisms of the local authorities, nor that the purpose of the proposed conference was that, in accordance with the anticipated provisions of probable legislation, the Minister would actively seek the guidance of those with local knowledge so as to know whether he was on the right lines or whether he should retract his tentative ideas. The criticism is not without force and the letter might have been worded otherwise, but, in my judgment, when all the facts are examined, the criticism really resolves itself into one rather of form than of substance. There cannot have been any misapprehension, or there ought not to have been any misapprehension, as to what was under consideration. The local authorities had at all times after receipt of that letter the opportunity to consider the proposal and to give advice to the Minister on it. They had the opportunity of offering their views at the meeting on July 26, at any time thereafter by supplementing in writing what had been said at the meeting or hy asking for an interview, and they had further opportunity later at the meeting on 416 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

N ov. 19. The importance which the borough of Hemel Hempstead attached to the meeting of July 26 is shown by the terms of the letter sent on July 23. At the meeting the Minister stated that he hoped that the local authorities would approve the proposal in principle and that there would be the fullest co operation between them and the development corporation when established. The Minister asked for questions and comments. In my judgment all this shows quite clearly that local authorities were asked their views. [His Lordship observed that the submission that the representa­ tives of the Hemel Hempstead Borough Council exceeded their mandate at the meeting of July 26, concerned the internal arrangements of that council, and the coart was only concerned with the question whether the Minister had done all that he ought to have done by way of consultation. The Minister could not be expected to examine the representatives as to their mandate. HIS LORDSHIP continued :] A shorthand note of the proceedings on Nov. 19 was taken. By agreement the transcript was read at the hearing before me, but the point was still open and was taken on behalf of the appellants that the fact that at the time the Minister had stipulated that the note should not be referred to in any later proceedings demonstrated that the meeting could not be regarded as being a consultation which complied with or assisted to comply with s. 1 of the A ct. I do not accept this submission. If, by agreement in a particular case, it is decided that the proceedings should be regarded as private, the notion of a consultation is not thereby defeated. It might be that in some circumstances freedom of expression would, by such an arrangement, be encouraged and facilitated. The court is, however, not concerned with this, nor with the nature of any views expressed at a consultation. The court is only concerned to enquire whether a proper consultation did take place. It may be, of course, that, if available evidence as to what was, in fact, said at a meeting might be material in deciding whether or not the meeting par took of the nature of a consultation. The form that the private meeting on Nov. 19 took was that the Minister stated that he would not make a speech, but that he would endeavour to answer any questions raised. The proceedings must be surveyed in the light of all that had gone before. The request of the Minister on July 26 for observations, questions and comments must be regarded as one that remained continuously open at all later times. On July 26 the local authority representatives had been able to say all that they then wished to say. If at any subsequent time they had been able to offer any SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 417 helpful views, either constructive or destructive in their nature, clearly they were implicitly, if not expressly, asked to submit them. When the meeting of Nov. 19 took place, it was in a sense a resumption of the prior meeting. By Nov, 19 there had been ample time for views to crystallize and an actual draft Order with plan had been publicised. When, therefore, in those circumstances questions were invited on Nov. 19, it is, in my judgment, plain that comments and observations were still being sought and invited. There is no suggestion that anyone wished to raise points by way of making a statement rather than by putting questions or that anyone was denied any such opportunity. Those present were not persons uninstructed in public affairs or unaccustomed to pubhc speaking. They were gentlemen who were devoting time to public affairs, either as members of local authorities or as full-time officials- They must have realised that the invitation to put questions was not to be considered as a limiting or limited one, but that full opportunity was being afforded to them to say what they wished or to r& e what questions they wished at a time some four months after the matter being considered had been propounded for their consideration.

Having regard to the view which I have formed in this case, it becomes unnecessary to decide whether, if consultation were lacking, a Designation Order would be ultra vires or whether the position would be that there was non-compliance with a requirement of the Act. Nor is it necessary to consider the facts relating to the interests of the appellants. On a consideration of all the facts, it is, in my judgment, shov;n that the obligation imposed on the Minister to have consultation in accordance with the provisions of s. 1 of the Act was amply fulfilled. For these reasons this motion fails.

GRIFFITH, DELEGATED LEGISLATION—SOME RECENT DEVELOPMENTS 12 Mod. L. R. 297 (1949)

2. Consultation of Interests

Government by consent has always, no doubt, depended to some extent on direct consultation as well as on the more usual indirect consultation through Parliamentary representatives. Proposed Bills have long been discussed outside Parliament before introduction. But the importance of this practice when applied to delegated legislation 418 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 is obviously much greater, as Parliamentary consideration will not automatically follow. When this practice works well and fully, it solves much of the constitutional problem involved in the delegation of legislative power. For, to Parliament—a general body—are left those general matters for the examination of which it is both fit and has opportunity, while to the interests affected or their then representatives is left the examination of particular, specialised and technical details. The Parliamentary function is therefore doubly to ensure that no sectional interest is able to exert a disproportionate influence in any particular sphere of legislation. Since, however, in this case the function is performed when the Bill containing the power to legislate is being considered and therefore precedes the exercise of the power, it becomes clear that the central and recurrent problem of delegated legislation is how to determine what is general and therefore should be left for governmental regulation. W e cannot, however, attempt a solution to this problem in this article.

W e are not concerned here with the departmental practice of consultation. It is no doubt true as Sir W . Graham Harrison ha,s said that ‘No Minister in his senses with the fear of Parliament before his eyes would ever think of making Regulations without (where practicable) giving the persons who will be affected thereby (or their representatives) an opportunity of saying what they think about the proposal The practice is common and of the utmost importance’.® But we limit ourselves here to statutory requirements.

It has been argued that the departmental practice should be made obligatory by statute in all cases. As is well known the Rules . Publication Act, 1893, required the publication of proposed rules at ' least forty days before they were made and required the rule-making authority to consider any representations made by any public body. As is also well known, certain departments were excluded by the Act from its operation and a great number of subsequent statutes excluded their regulations. The Statutory Instruments Act, 1946, in repealing the rules Publication A ct, 1893, did not make any provision for this type of ante-natal publicity. This omission was defended by the Lord Chancellor on the ground that the development of the departmental practice made the provision both inadequate and superfluous. He said, ‘W e no longer promulgate the regulations or rules in the Gazette and wait for representations to be made. We

5. For further details of this practice, see Griffith and Street, Principles o f Adminisirativ^Law, 127-9 (1963}, (Ed.), SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 419 go to the trade or interest concerned and deal with it by getting them round the table, hearing what they have to say, and then drafting the rules after obtaining their views’. At the same time, the general requirements have reached their farthest development in the National Insurance Act, 1946, under which the Minister has to submit his regulations to a statutory advisory committee for their consideration, and in such Acts as the Dock Workers (Regulation of Employment) Act, 1946, where the legislation is proposed by those individuals whom it will affect. An account of the ordidary types of statutory requirement must, however, precede the extraordinary. The ordinary types are two. The first requires that individuals affected by the proposed instrument shall have an opportunity of stating their case to the rule-making authority. The second requires the Minister to consult specified interests, including statutory advisory bodies. (a) Individual Objections. This type of statutory requirement is well exemplified by the Factory Acts. Lord Shaftesbury’s Act of 1833 to regulate the Labour of Children and Young Persons in the Mills and Factories of the United Kingdom, empowered inspectors to make ‘all such Rules, Regulations and Orders as may be necessary for the due execution of this A ct’.... Provided, nevertheless, that any such Orders may be altered and disallowed by one of His Majesty's Principal Secretaries of State, on complaint made to him by memorial from any party interested. Again, under the Factory and Workshop Act, 1891, the chief inspector was authorised, after the Secretary of State had certified the necessity, to propose special rules in particular cases to the factory occupier, who could object within twenty-one days. If the occupier objected and the Secretary of State did not m.eet his objection, ‘the matter in difference between the Secretary of State and the occupier’ was referred to arbitration. The two arbitrators and the umpire were empowered to examine witnesses on oath and to consult counsel and any engineer or scientific person. The Act of 1895 provided that in such cases the arbitrators or umpire could on the application of workmen employed in the factory, appoint a person to represent the workmen on the same footing as the other parties. The constitutional interest of this procedure needs no stressing. Had it been developed, this idea of requiring a Minister, represented by the official, to submit to arbitration on equal footing with an individual having an interest might well have altered the whole aspect of delegated legislation. Whether it would have remained possible to conduct administration on these lines may be 420 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 doubted. At all events, the procedure did not survive. The consolidating A ct of 1901 empowered the Secretary of State to make regulations for dangerous trades. If objections were made to his proposals, a public inquiry was held. The Factories Act, 1937 has similar provisions for the making of special regulations , A modern example of this type of statutory requirement can be found in the Radioactive Substances Act, 1948, which provides for publication of the proposal to make regulations, and opportunity for objections followed by either a public inquiry or a personal hearing. This type of procedure is of course common for provisional orders, special orders and special procedures orders. {b) Consultation with specified interests. The Minister is here required to consult certain specified interests before he makes the instrument. These interests are normally either statutory advisory bodies or representatives of those likely to be affected or local authorities. The London and Home Countries Traffic Advisory Committee set up by the London Passenger Transport Act, 1933 following an earlier model, and the Merchant Shipping Advisory Committee set up under the Act of 1906 are well-known examples. Other Acts establishing similar bodies for this purpose include Importation of Plumage (Prohibition) Act, 1921, Therapeutic Substances Act, 1925, Fertilisers and Feeding Stuffs Act, 1926, Agricultural Development Act, 1939, Goods and Services (Price Control) Act, 1941, Licensing Planning (Temporary Provisions) A ct, 1954, Coal Industry Nationalisation A ct, 1966, Fire Services Act, 1947, Agriculture Act, 1947, and Radioactive Substances Act, 1948.

Before making a development council order under the Industrial Organisation and Development Act, 1947, the department concerned is required to consult any organisation appearing to be representative of substantial numbers of employers and workers in the industry. The Agriculture Act, 1947, requires the Minister to consult bodies representative of the interests of landlords and tenants before making certain regulations and orders.

Ministers are frequently required to consult local authorities before making statutory instruments. Under the Local Government Boundary Commission Act, 1945, the Minister is required to make regulations laying down general principles for the Commission after consultation with such associations of local authorities as appear to him to be concerned. Similar modern requirements are to be found SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 421 in the Tow n and Country Planning (Scotland) A ct, 1945, the Fire Services A ct, 1947, the Distribution of Industry A ct, 1945, tie Housing (Financial and Miscellaneous Provisions) A ct, 1946, and the Probation Officers (Superannuation) A ct, 1947. Where any of these statutory provisions operate, the effect is that the Minister must generally consult some body before he makes the instrument. Where that body is specified (for example, an Advisory Committee) failure to consult would invalidate the instrument. But where, as is often the case, the Act requires the Minister to consult “such bodies as appear to him to be representative of the interests concerned,” proof of failure to consult becomes difficult; when the requirement is to consult “such bodies (if any)", it becomes impossible. Section 1 (1) of the New Towns Act, 1946 provides : “If the Minister is satisfied after consultation with any local authorities who appear to him to be concerned, that it is expedient in the national interest that any area of land should be developed as new town by a corporation established under this Act, he may make an order designating that area as the site of the proposed new town.” The Minister normally holds a conference with the local authorities who appear to him to be concerned. In RoUo v. Minister o f Town and Country Planning, the conference was held before the Act had been passed by the House of Lords. Up to the date when the Minister made his final order it was open to the local authorities to put before him any matter which they thought of importance. It was held by the Court of Appeal that there had been consultation within the meaning of the Act and that the Minister was not obhged to complete the consultation stage before he published the draft order. Bucknill, L.J., stated; ‘In my view...[consultation] means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and on the other hand, a sufficient opportunity must be given to the local authority to tender advice.” It is clear that Parliament intended the Minister to decide which local authorities were concerned. In the majority of the cases where the Minister is required to consult local authorities or representatives of affected interests, no doubt the A ct is merely formalising what was already departmental practice. The greater the information obtained, the more likely is it that the regulation will achieve its purpose; the more those affected are consulted, the smoother will run the administration, provided that those affected feel that their representations have been properly considered. From this point of view, then, the reminder in the Act 422 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 does no harm and may do good. Where the affected interests can be ascertained in advance, the mandatory shall consult should replace the more usual permissive phrase; an additional general phrase would then be necessary formally to empower the Minister to consult any other interests as he thought fit. W e now pass from the ordinary to what we have called the extraordinary types of consultation. ' (c) Preparation by Affected Interests. Here the power to draft the instrument is delegated to the individual or group and the Minister becomes a confirming or approving authority. Local authorities, of course, have long exercised this power, but in this case the relationship of the local to the central authority is special and not to be compared with that of the individual to the administration. Certain Factory Acts delegated to the occupier of a factory the power of making rules to compel the observance of the requirements of the Acts regarding cleanliness, ventilation and general health matters. Marketing schemes under the Agricultural Marketing Act, 1931, and the Sea Fish Industry Act, 1938, are made by persons substantially representing the procedures of a product in an area with elaborate procedures for public inquiries and polls. Redundancy and price schemes under the Cotton Industry (Reorganisation) Act, 1939, followed a similar procedure. In these two latter A cts an Advisory Committee examines the scheme and its report is laid befor Paliament. Under the Hill Farming Act, 1946, a land improvement scheme may be submitted to the Minister by any person having an interest in the land or desiring to acquire an interest or by two or more such persons, and the Minister may approve the scheme and make grants. Perhaps, however, this is delegated administration, not legislation. W e are on different ground when we come to the Dock Workers (Regulation of Employment) Act, 1946, which provides that schemes for ensuring greater regularity of employment for dock-workers and for securing that an adequate number of dock-workers is available for the performance of their work may be prepared jointly by bodies representative of dock-workers and employers. If the Minister is satisfied with the scheme, he prepares a draft order embodying the scheme and publishes it. Instead, he may remit the scheme for reconsideration with his comments. If no objections are made to the published draft, the Minister may approve the scheme with minor modifications. If objections are made, the Minister ‘shall cause inquiries to be made' and may, after considering ‘the result of the inquiries’, make the order with modifications. SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 423

(d) Approval by statutory body. Under a few recent statutes, regulations have to be submitted to a statutory body by the Minister and the report of that body laid before Parliament. The effect is that the Minister must either accept the report with its proposed amendments or be prepared to defend his refusal to do so in Parliament. It is right that the last word should rest with the Minister who repeatedly insists on having it by refusing to accept the advice of a statutory body specially charged with advising him. Three examples of this type of consultation are to be found in the Control of Employment Act, 1939, the Requisitioned Land and War Works Act, 1945, and the National Insurance Act, 1946. W e will deal with the last and most important. The affected interest under the National Insurance Act is the whole nation. The number of categories is too large for representation on any committee. At random, we think of housewives, charwomen, students, orphans, lawyers, doctors, fishermen, airmen, public officers, school teachers, nurses, professional sportsmen, commercial travellers and so on, all of whom clearly present different problems of administration. The A ct compromises. Apart from the chairman, the authorised number is not less than four nor more than eight, including at least one woman; one of the members is to be appointed after consultation with organisations representative of employers, another after consulting workers’ organisations, a third after consulting friendly societies, and a fourth after consulting the appropriate Northern Irish authority.... The functions of the Committee are to give advice and assistance to the Minister in connection with his duties under the Act, and in particular to consider and advise him on any special matters which he refers to them. Also, before making any regulation under the Act, the Minister must submit a preliminary draft to the Committe, save in certain cases. The Committee must publish notice of the fact that a draft has been received, state where copies may be obtained and explain how and when objections may be made. The objections must be written and specify the particular alterations asked for. The Committee also hears oral evidence at its discretion. The Committee examines the draft and the objections and reports to the Minister who, having considered the report, makes the regulation. This is laid before Parliament together with the Comraittee’s report and statement by the Minister showing amendments made by him since the Committee’s report, the effect of the Committee’s recommendation and the reasons for not adopting any particular recommendation. In 424 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 cases of urgency or for any other special reason, the Minister may make the regulations before receiving Committee’s report but such provisional regulations are only valid for three months after he has received the report. Between November 14,1947 and June IS, 1948, the Committee examined seventeen sets of regulations and reported on two special questions submitted to them by the Minister.. .

The Committee recommended amendments of varying importance in all but one of the seventeen sets of regulations submitted to them. In every case, the Minister accepted all their recommendations which were unanimous, except in one instance. In addition, on occasions, undertakings were obtained from the Ministry on the strength of which amendments were not recommended. The liaison between the Committee and the Ministry obviously has to be close if the system is to work satisfactorily; it certainly apears from the reports that this is so. On more than one occasion the Committee have asked the Ministry to redraft and resubmit parts of regulations which appeared to be unnecessarily obscure and this has been done; there seems every reason to expect that the intelligibility of National Insurance regulations will as a result become a model for other departments. The number of important recommendations made and accepted as amendments is very large ...

We are not concerned in this paper with the many questions of administrative justice raised by these regulations and the recommendations of the Committee. We are concerned with its value as consultative machinery for the consideration of the proposed exercise of the delegated power to legislate. Clearly the department itself could have conducted a similar inquiry and no doubt would have done so. Had it done so, the inquiry could either have been carried out by departmental officials or by the use of a departmental committee. If the former method had been adopted, it seems unlikely that the inquiry could have been so thorough “ if only due to the pressure of other work - or so expert and impartial. It is easy and not particularly profitable to criticise the “official mind” or the “departmental approach”; but when the proposed regulations are to affect so closely the whole population of the country, it seeins reasonable to assume that a carefully picked lay co m m itte e -‘lay’ in the sense of not being composed of departmental officials-will be able more accurately to discover weaknesses in the regulations ^nd more able to assess the value of objections. It is most important to SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 425 remember that the Committee is far more than a hearing body which merely weighs evidence and evaluates objections; it frequently makes recommendations based simply on its own knowledge and all its recommendations are finally its own, however impressed it may in fact have been by a particular representation, It is, as already noted, a policy-recommending body. If, on the other hand, this Committee had been a departmental committee, much would have been lost. Its statutory origin gives it an independence and an authority of the greatest importance; so also does the provision that its report is to be laid before Parliament. That its influence is thereby greater is probably not so important - for, as we have said, the method works well, because it is based on co-operation with the Ministry and would work ill or not at all if based on conflict. But the psychological value, both to the members of the Committee and to the Committee in its relations with the public, of institutionalism is considerable. A consultative public body with a degree of forma] independence performs its functions better than a departmental body, however great its actual independence and authority, on a subject affecting every citizen. This is not to deny the value of the whole host of advisory and consultative committees and councils working under departments; the government of a modern State could not be carried on without them and in many cases to grant them formal independence would result in a loss of efficiency. But generally it is submitted that committees to examine proposed regulations gain from having an_ independent status, and that this is particularly true whsre'^'the subject-matter of the regulations is of widespread- effect. It is not always possible to rely on objections being 'made to a proposed regulation either by individuals or bodies. As already indicated, some groups affected are too large or too scattered for organisation to be possible; individuals come together into an organisation for a large number of reasons, but generally in addition to common interest there must be a special reason. Before considering the regulations relating to married women and those relating to widows and guardians the Committee gave special notice, as is their custom, to organisations which they considered might be specially interested. In the former case, three representations only were made; in the latter, noneat all. No doubt the reason why so few representations were made in these two cases is the absence of any bodies specifically concerned with the welfare of married women, widows or guardians; on the other hand, one would have thought that there were many organisations (no doubt those to whom the Committee gave notice) sufficiently connected 426 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 with these groups to be interested. From the point of view of the st-adent and the interested public, it is disappointing that the Committee does not append to its reports a list of the organisations to whom special notice, of the preliminary draft was sent or, at least, of those organisations who made representations whether or not they received special notice. The omission is clearly deliberate and no doubt a number of frivolous representations would be made if the list were published. Nevertheless, there do not seem to be reasons of sufficient weight to justify the policy of the Committee. Where a body has to make administrative decisions, procedures are often directed to ensure that it is properly informed; and here, too, it is desirable not only that the body shall, in fact, be properly informed but also that it shall appear to be. One other small related criticism may be made; the reports of the Committee are sometimes difficult to follow but the Select Committee on Statutory Instruments has suggested that the department might set out a brief tabular summary of the recommendations of the Committee and indicate, categorically, item by item, how and where the department has met them or why it has not met them. The essential differences between this Advisory Committee and those others we have noted which by statute must be consulted by a Minister before regulations are made, are first, that the detailed procedure of the Committee for its purpose of eliciting objections and representations from those affected is laid down in the Act, and secohd7--that its report must be laid before Parliament with the Minister’s explanations. The statutory obligation imposed on a Minister to consult such bodies as appear to him likely to be affected or to consult a specific advisory committee may mean much or little in practice. The requirement to consult, moreover, may be regarded on the one hand as a safeguard to ensure that the Minister has all the relevant information on which to base his decision; this is the normal purpose where committees are appointed to advise the Minister generally on a special subject, often of technical difficulty. On the other hand, where the committee is specifically appointed for the purpose of examining subordinate legislation, a different consideration is relevant. For here the committee, although it will give the Minister much valuable information, is in fact examining a legislative proposal the : substance of which Parliament has not examined and probably will not examine. This type of committee represents a constitutional development which has become necessary and desirable because of SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 427 the inevitable growth of delegated legislation. Its purpose is not therefore primarily to provide further information for the Minister but to act as a body (appointed by the Minister who rightly retains the ultimate control) in a more or less representative capacity. It is not representative as the House of Commons is representative, but it should be, and normally is composed of members who can put the point of view of the persons affected by the proposal. Where the subject-matter of the proposal is special and the number o f persons affected therefore comparatively small, these points of view will be accurately presented. But even where the subject-matter is general and the number of persons affected very large, the example of the National Insurance Advisory Committee shows how valuable can be examination by a small, well-chosen body. W e have already given our reasons for thinking that great advantages follow where the body has a statutory origin and where its reports are required to be laid before Parliament. W hen to the deliberations of such committee are added those of the Select Committee on Statutory Instruments, working within its terms of reference, the usual coustitutional objections can hardly be sustained and the development of these two types of procedure seems likely also to solve the practical difiictilties and dangers which attach to the delegation of legislative power.

SCHWARTZ, AN INTRODUCTION TO AMERICAN ADMINISTRATIVE LAW 58-68 (1962) CONSULTATIONS AND CONFERENCES

From the point o f view o f the citizen affected, the primary,,, safeguard to ensure the proper exercise of powers of delegated legislation lies in the development of adequate procedures to be followed by the administrative process in the formulation of rules and regulations. The department of such rule-making procedures has in the past been largely a matter for the administrative agency concerned. This has probably been due to the fear that the legislative prescription of procedural requirements would make it difficult to maintain that flexibility in formulation, which is one of the chief virtues of delegated legislation. The absence of express statutory requirements has not, howerver, militated against the development of specific rule-making procedures on both sides of the Atlantic. The procedures adopted have been basically similar in both countries. Their purpose, broadly speaking, has been to ensure some participation to those affected by delegated legislation in the rule-making process. 428 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

The basic problem, here, has been the democratization of the rule­ making process, “without, at the same time, impressing such burdensome reauirements that rules will either not be made or policy will be driven underground as it were, and remain inarticulate or secret.”® To this end, certain procedural techniques have been developed; and the tendency, in recent years, has been in the direction of giving them statutory articulation.

The first of these techniques, consultations and conferences with these interests to be affected by the administrative rules and regulations, is almost an inevitable consequence of the growth of delegated legislation. “As economic and other groups in the community became organized and vocal, and as legislation affecting them came more into existence, administrators, in contact with those upon whom their authority bore, turned to them for information and their points of view."’ It is natural both that those affected should seek to make their wishes known, and that officials should rely upon them for information on the-problems to be solved. ‘The complexity of these problems, under modern conditions makes consultation with those^jw|p-^re ‘on the inside’ virtually a necessity.” ®

Such consultation of interests has tended to become a regular feature of the rule-making process. This has been especially true where the interests affected are well organized and hence able to be in constant contact with the agency concerned.... This type of consultation is just as common in the American rule- making process. Few administrative agencies in the United States whose work affects organized groups, especially economic groups, fail •'to maintain fairly regular contacts with them. Where proposed regulations are framed by an agency, the practice almost uniformly is for it to submit them to a long list of interested individuals and groups for suggestion and comment. This pactice, which is common to almost all American administrative agencies, can perhaps best be illustrated with reference to the experiences of a particular agency.

The Federal Aviation Agency is entrusted with broad powers of rule-making with regard to civil aviation. For the purpose of promoting safety in aviation, it issues voluminous regulations

6. Report of the Attorney General's Committee on Administrative Procedure, 225 (1941). 7. M at 103. 8. Fuchs, “ Procedure in Administrative Rule-Making,” SlHarv. L. Rev., 259 274 (1938), Some of the footnotes have been omitted [Ed.]. SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 429 governing the construction and operation of aircraft. The primary responsibihty for the drafting of such safety rules and regulations is vested in the regulation sectioa of the agency, which is composed largely of lawyers, who are given the assistance of, and are, to a considerable extent in a field such as this, dependent upon technical staff’s. The initial impetus for a rule or an amendment to existing rules usually comes from the technical staff in the agency concerned with the subject, though many suggestions are received from interested individuals or organizations in the industry. In addition to receiving such suggestions, the consultative technique is made use of to obtain the views of the industry on proposed rules or draft rules. The most frequently used method is the submission of proposed drafts to those organisations representing the affected portions of the aviation industry. As the industry is highly organized, it is not too difficult to do this, and the g;eneral practice, indeed, goes so far as to send to the interested organizations enough copies of the proposed rules to distribute to their members. The comments which are received in reply are then considered by the regulation section and the appropriate technical units of the agency. In order to ensure a more thorough discussion than would be feasible through correspondence, meetings or conferences have sometimes been held. The notices of such meetings, which are sent to interested individuals or organizations, have been accompanied by tentative drafts of the proposed rules which would serve as a basis for discussion. Such meetings are generally informal and presided over by the members of the technical staff of the agency. A,„ stenographic record of the proceedings is made, and, upon the conference, a digest of such transcribed record is made in the appropriate technical section and is considered in the formulation of the proposed rules. This practice of holding conferences of interested parties “introduces an element of give-and-ta^e on the part of those present and affords an assurance to those in attendance that their evidence and points of view are known and will be considered.” Perhaps the most striking use of this conference technique is in the organization by the Federal Trade Commission of trad e-practice conferences of representatives of an industry. The Commission, which has been given the function of preventing “unfair methods of competition,” sought to formulate rules defining such methods with the participation of the industry concerned, and adopted the conference technique to secure such participation. 430 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

These practices of consultation and conference have tended to become standardized through the establishment of advisory committees drawn from an industry. The growing use of advisory bodies to assist the Government in the performance o f its duties has been characterized as “one of the most striking developments in British constitutional practice since 1919,” and the development here has been paralleled to some extent by that on the western side of the Atlantic. These bodies have varied from ad hoc or temporary committees formed by the agency concerned to aid it in the drafting of specific regulations to more or less permanent advisory committees, whose composition and functions are elaborately prescribed by statute. Thus, such committees have been widely utilized in the promulgation of federal game and fishery regulation by the Department of the Interior, and advisory boards on a systematized basis have been established to offer advice concerning grazing regulations issued by that Department. Perhaps the most notable •use of this technique is under the Fair Labor Standards A ct of 1938 under which minimum wages and hours are regulated by the Federal Government. That Act requires that wage orders under it, varying the statutory minimum-wage rates in particular industries, shall originate with industry advisory committees composed of “ employer,” “employee,” and “public” representatives. The value of the consultative techniques we have been discussing- and especially the use of advisory—seems obvious. As stated by Lord Haldane’s Committee on the Machinery of Government, “we think that the more they are regarded as an integral part of the normal organization of a department, the more will ministers be enabled to command the confidence of Parliament and the public in their administration of the services which seem likely in an increasing degree to affect the lives of large sections of the community.’’ Consultative techniques are, however, effective only when the interests affected are comparatively closely knit and well organized. "The consultative type of procedure obviously is inapplicable where the groups affected by regulations are very numerous or the parties are unorganized.” This is particularly true as far as the “consumer” or “public” interest is concerned. The problem of ensuring adequate participation by these interests in the rule-making process is a fundamental one, and attempts to deal with it have been along the line of appointing “consumer” or “public” representatives to the various advisory bodies which take part in rule-making. Such attempts can at best give only partial articulation to the views of SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 431 the unorganized interests affected. Thus, to cite the comments of one observer on the selection of “public representatives” for the industry committees referred to above, under the American Fair Labor Standards A ct— The Administrator has made a sincere and able effort to select... public members on the basis of merit, but merit for this rather novel function is an elusive factor. In some cases the public members are retail merchants, who are unusually conversant with technical details of the product and with the consumer's interest in its wage costs. Another main source of public members is the teaching profession.

ANTECEDENT PUBLICITY Another means of obtaining participation in the rule-making process by unorganized interests is through the device of antecedent publicity, such as that provided for in Britain in Sect. I of the Rules Publication Act, 1893. Under that section public notice was given of proposals to make “statutory rules,” and the department concerned had to consider representations or suggestions made by interested bodies, who were thus made aware'of proposed rules of which they otherwise might not have known. A similar system of antecedent publicity is provided for in the American Administrative Procedure Act, 1946, a statute which imposes certain minimal procedural requirements upon the administrative process in that country. Sect. 4 of that Act requires general notice of proposed rule-making to be published in the Federal Register, American equivalent of the Statutory Instruments which are printed and sold under Sect. 2 of the Statutory Instruments A ct, 1946, in Britain. Such notice is to include : (1 ) a statement of the time, place, and nature of the rule-making proceeding; ( 2) reference to the authority under which the rule is proposed; and (3) either the terms of substance of the proposed rule or a description of the subjects and issues involved. The agency concerned must then afford interested persons the opportunity to participate in the rule-making through submission of written data, views, or arguments, with or without opportunity to present the same orally in any manner, and all relevant matter so presented must be considered by the agency. It should not, however, be thought that the procedure prescribed by Sect. 4 of the American Act imposes upon the process of delegated legislation anything like the formal procedural requirements which, shall see, that law imposes upon administrative adjudications, 432 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Indeed, it seems clear that Sect. 4, if construed according to its terms, does not subject administrative rule-making to any real procedural burden. The only mandatory procedural requirement, in so far as that section is concerned, would appear to be that relating to the publication of general notice of proposed rule-making in the Federal Register. When the agency has published the required notice, it has done all that the Procedure A ct requires of it. It is true that there is the further affirmative duty upon the agency to ‘ afford interested persons the opportunity to participate in the rule-making through submission of written data, views, or arguments -with or without opportunity to present the same orally in any manner.” Yet, as the American Attorney General has pointed out, "the quoted language confers discretion upon the agency... to designate in each case the procedure for public participation in rule-making-” As far as the 1946 A ct is concerned, all the agency need do is to afford inter^ted persons an “opportunity’’ to participate in the rule-making. The form and extent of the participation are left entirely to the agency. Even greater leeway is given to the agency with regard to the requirement that it considers “all relevant matter presented’ by interested persons. Since “it is entirely clear.,.that Sect. 4 (b) does not require the formulation of rules upon the exclusive basis of any ‘record’ made in informal hearing proceedings,” it would seem that the statutory requirement of “consideration” does not add much. Just what, if any, effect is to be given to the representations of private persons is left entirely to the particular agency.

That the safeguards intended by Sect. 4 of the Administrative Procedure Act can prove illusory in a particular case is shown by Lansden v. Hart.^ That case arose under the Migratory Bird Treaty Act and involved the validity of a Presidential Proclamation made thereunder which prohibited the killing of wild geese in any area adjacent to an Illinois wild-life preserve. Among other things, the plaintiffs contended that the procedure by which the Proclamation was adopted did not conform to Sect. 4. It appeared that the notice of proposed rule-making had been published in the Federal Register on 19th September, 1947. Therein it was stated that the Secretary of the Interior proposed to issue a regulation intended to prohibit the killing of geese in the vicinity of the particular wild-life preserve. Plaintiffs objection to the rule-making procedure was based on the fact that the Secretary of the Interior signed the regulation on 25th September, 1947; prior to a hearing held at Chicago on 9, 168 P. 2d 409 (7th Cir. 1948), SECTION 2 J OTHER CONTROLS ON DELEGATED LEGISLATION 433

30th September, 1947. The Proclamation incorporating the regulation was signed by the President, as required by the Migratory Bird Treaty Act, on 1st October, 1947, and published in the Federal Register of 3rd October, 1947. Before Secretary of the Interior signed the Proclamation, he had before him the findings made by the Federal Wildlife Service, based upon its extensive study and investigation relating to the conservation of migratory birds in the area. •

It seems obvious that the procedure followed by the Department of Interior in the instant case left much to be desired. Of what use to interested persons was the notice published in the Federal Register when the rule was promulgated by the Secretary only six days thereafter and prior to the public hearing ? At the same time, from the point of view of validity, all that the Administrative Procedure Act requires is the publication of the general notice and the affording to private persons of an “opportunity" to present their views. That this “opportunity” is of little value in a case like the Lansclen case is apparently of no moment. Nor is the fact that the Secretary of the Interior appears to have relied wholly upon the findings made by officials in the Department and to have given no weight to matter presented by interested private persons. Under Sect, 4, all that need be done is for the agency to “consider" such matter. It is still "free to formulate rules upon the basis of materials in its files and the knowledge and experience of the agency. Thus, the court in Lansden

V . Eart found no difficulty in holding that the rule-making procedure at issue did “not violate any of the provisions of the Federal Administrative Procedure A ct." Does this mean then that the provisions of Sect. 4 are, as a practical matter, valueless in protecting private parties who are adversely affected by exercise of powers of delegated legislation? The answer to this depends upon the purpose of Sect. 4. According* to the American Attorney General, its general purpose “is to guarantee to the public an opportunity to participate in the rule- making process.” This purpose is accomplished by requiring the publication of notice in the Federal Register before rules are made. This is intended to ensure that those who will be affected will learn of the proposed rules and thus be enabled to submit their views on the matter before the rules are actually promulgated. Such “antecedent publicity,” as the report of the Committee on Ministers Powers aptly pointed out, “is undoubtedly a safeguard of the highest value particularly where it leads to consultation with the interests 434 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 concerned/’ It is true that the American Act does not go so far as actually to require such consultation, and certainly not in the form of a public oral hearing. But even the notice requirement taken alone represents a significant step in the democratization of the rule-making process. At least under the Administrative Procedure Act, affected interests can now learn of proposed rules before they are made, and may, at least in many cases, transmit their views to Washington before the administrative will has irrecoverably crystallized.

It should be noted that even the informal procedural requirements prescribed by Sect, 4 of the American Act need not invariably be followed m every case of rule-making. There are a number of exceptions specified in Sect. 4, in which not even the procedures demanded by it need be followed. The most important of these is the escape q|ause permitting agencies to dispense with the requirements of Sect. 4 where they are “impracticable, unnecessary, or contrary to the public interest.” A general exception such as this is clearly necessary to ensure that the statutory requirement does not unduly hamper administrative efficiency. Often, it may not be in the public interest that advance notice be given of regulatory rules prescribing certain types of conduct. Thus, to cite the experience of the Securities and Exchange Commission, the American agency responsible among other things for the regulation of public utiHty holding companies, that Commission has often deemed it inadvi'^able to submit a proposed regulatory rule to the industry because of the danger that certain companies might take advantage of the interim period to effect transactions which the rule is designed to prevent or control and thus escape the intended regulation of conduct altogether.

In addition, the requirements of Sect. 4 of the Administrative Procedure Act apply, in general, only to rules of a substantive character, “interpretative rules, general statements of policy, rules of agency organization, procedure, or practice” being expressly exempted. The exception of interpretative rules has given rise to several cases. This is not surprising in view of the fact that the distinction between substantive and interpretative rules is one which cannot be drawn with anything like mathematical precision. In Gibson Wine Co. v. Snyder}'^ plaintiff sought an injunction restraining defendants from prohibiting plaintiff from labelling its wine, which was produced from boysenberries, as “blackberry wine.” The

10. 194 F. 2d 329 (D.C. Cir. 1952). SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 435 relevant agency, the Alcohol Tax Unit of the Bureau of Internal Revenue, had issueda ruling that, under the sta tute and regulations concerned, it was of the opinion that wine derived wholly from boysenberries should be labelled “boysenberry wine.” Plaintiff contended that this ruling was invalid because the agency had not complied with the antecedent publicity requirements of Sect. 4 of the Administrative Procedure Act. The court held, however, that this was not a regulation but only an interpretative ruling. As such, it was not subject to the requirements of Sect. 4.

It is interesting to note that, despite the already-quoted comment of the Committee on Ministers’ Powers with regard to the value of antecedent publicity in delegated legislation, such preliminary publicity is no longer required in Britain. The Statutory Instruments A ct, 1946, which takes the place of the Rules Publication A ct, 1893, omits the “ante-natal” safeguards of the earlier statute. It may be going too far to say, as an M. P. did soon after the Statutory Instruments Act was enacted, that “from a constitutional point of view, one of the most surprising changes in the last few months has been the repeal of Sect. 1 of the Rules Publication Act.’’ All the same, its repeal strikes an outside observer as surprising. British administrative lawyers now tend to assert that the value of the machinery provided by the 1893 Act was usually overrated. **'That may be true; but the operation of the antecedent publicity machinery did, nevertheless, constitute an additional check on delegated legislation, for it elevated the safeguard of consultation to the level of a statutory requirement. The American experience, in fact, shows that the value of antecedent publicity in rule-making is much greater than present-day British jurists suppose. This writer has been informed by a leading draftsman of the Administrative Procedure Act that he has. in the years since that law has been in operation, received from people affected by administrative action more laudatory comments on the operation of Sect. 4 than on almost any other portion of the Act.

PUBLIC HEARINGS Is is to be noted that Sect. 4 of the Amercian Act does not require the agency concerned to afford an oral hearing to anyone desiring to participate in the rule-making process. The use of such hearing in rule-making has, however, become a common feature of the American administrative process in the present century. The hearing or auditive technique differs from the types of consultative techniques 436 INDIAN ADMINISTRATIVE LA W [ CHAPTER 6 we have discussed above in that such hearings are publicly announced in advance and any interested party is permitted to attend and testify. They thus enable interests who might not be reached by the techniques of consultation and conference to present their point of view with regard to proposed rules. “They are valuable to the extent that notice of them can be brought home to affected parties, that they are accessible to these parties, and that the questions inolved are susceptible to intelligent discussion by those who do appear.”

Such hearings have become quite customary in the promulgation of regulations governing safety in transportation. Many of the railroad safety regulations of the Interstate Commerce Commission are required by statute to be issued “after hearing.” They are also held in connection with similar regulations with regard to aircraft and marine navigation, although not required by statute, it being the announced policy of the agency concerned in the latter field to hold hearings upon “all regulations of extensive scope and character.” The use of public hearings has, in truth, become so common as an aid to administrative rule-making in America that even a bare Hst of the fields in which they are held would be unduly long. Suffice it to say, in the words of an important study that : Hearings are now generally held in connection with the fixing of prices and wages, the prescription of rules for the construction of vessels and other instruments of transportation, the regulation of the ingredients and physical properties of food, the prescription of commodity standards, and the regulation of competitive practices. The regulation of all of these matters bears upon economic enterprise and touches directly the financial aspects of great numbers of business affected either by imposing direct costs or by limiting opportunities for gain. Appreciation o f these effects both by businessmen and government officials seems to to be the chief cause of the incresased use of hearings in administrative rule-making.^^ The type of hearing which is held in connection with rule-making process is, in general, informal in nature. It is analogous to a hearing before a legislative committee and bears no relation to a judicial proceeding. As such, there are normally no specific issues or rules of evidence or formalites of any kind except such as are necessary to ensure order. Such hearings “are usually either investigatory or designed to permit persons who may not have been reached in a 11. Report of the Attorney General's Committee, 107, SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 437 previous process of consultation and conference to come forward with evidence or opinion. The purpose is not to try a case, but to enlighten the administrative agency and to protect private interests against uninformed or unwise action.’'

Rule-making proceedings may, all the same, often assume an “adversary” character. The proposed rules may affect defined groups with clearly competing interest, who stand to benefit or lose from their issue— Low-cost producers as against high-cost producers with respect to maximum prices or minimum wages; workers as against employers with respect to wages or working conditions; buyers as against sellers with respect to the regulation of agricultural marketing; the maker of machinery which will be barred by proposed safety regulation as against others whose product will be lawful; these are recurring divisions of interested parties which from time to time confront an administrative agency engaged in rule-making. In such cases, the hearing on proposed rules may well take on a definite “adversary” character, more like a judicial than a legis­ lative proceeding.

The use of the “adversary” hearing in American administrative rule-making seems to have fiirst crystallized in the procedure of the Interstate Commerce Commission. Most of the hearings held by that body are treated as “ adversary” in character and hence tend to be conducted along highly formal lines. Information at these heS'tings is introduced as evidences subject to refutation and often to cross- examination, and the whole procedure tends to take on the lawyer­ like atmosphere of the court-room ......

“Throughout the record are colloquies of counsel about admissibility of evidence, motions to strike statements from the record, objections to permitting a witness to state what he believes but does not know, and all that goes with the cumbersomeness and awkwardness of highly legaHstic court-room proceedings. The continual ‘May it please the court’ of an attorney in one proceeding blended with all the other trimmings.”

This type of "adversary" procedure seems to be ill adapted to the process of administrative rule-making. “ One may question whether all these methods of the adversary, legalistic, courtlike proceedings

12, W., at 108. 438 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 are best adapted to serve the purpose of getting information, perfecting proposed regulations, and satisfying parties that they have had opportunity to be heard.” The tendency in some recent federal statutes has, nevertheless, been in the direction of requiring the “adversary” type of procedure in rule-making. Under these statutes, the hearing which must be afforded prior to the promulgation of administrative rules and regulations is assimilated to that customarily required in connection with the exercise of judicial functions. Thus, the Federal Food, Drug, and Cosmetic A ct of 1938, under which regulations fixing standards of identity for foods may be issued, requires the administrative agency concerned to “hold a public hearing upon a proposal to issue, amend or repeal any regulation.” At the hearing “any interested person may be heard.” The regulations as issued must be based “only on substantial evidence of record at the hearing,” and the order promulgating them must include “ detailed findings of fact on which the order is based.” Under this, fact findings based upon the record similar to those required in judicial type decisions must appear in the order in support of the administrative regulations. In addition, statutory review proceedings are authorized, patterned after those which are normally provided for the review of administrative orders which are judicial in nature. Any person adversely affected by a regulation may secure its review on appeal to the United States Court of Appeals- On such review the administrative findings of fact “if supported by substantial evidence, shall be conclusive,” and the scope of review is similar to that available in the case of administrative adjudications.

The rule-making procedure under statutes such as this is modelled upon the normal “adversary” type encountered in connection with adjudicatory action....

The details of the hearings held under such statutory requirements are governed by the same methods and practice as those applicable in administrative adjudications. “Technical motions, discussion of legal issues, questions of the relevancy and admissibility o f evidence, the exercise of subpoena and other ancillary administrative powers, and the bases of the rule making determinations must be articulated in a supporting record so that their substantiality may be tested by reviewing court.

The type of hearing techniques which we have been discussing in connection with the rule-making process in America have no exact SECTION 2 J OTHER CONTROLS ON DELEGATED LEGISLATION 439

counterparts in British administrative practice. Consultation of interests specially affected is, it is true, relied upon to a very great extent by departments concerned in the promulgation of rules and regulations. But the practice in Britain does not reach the hearing stage which has become so common in America. In Britain, “there is no general practice of public hearings. The consultation, though genuine, is without prescribed formalities.”^® An evaluation of the efficacy of the American hearing procedures should consequently prove of value for British students of delegated legislation.

The chief value of the hearing technique lies in its ability to allow participation in the rule-making process by interests and individuals who might not otherwise be consulted, for anyone interested may appear at such hearings and express his views. In addition, the opportunity for public presentation of viewpoints and argument tends to afford to those affected a greater sense of taking part in the rule-making process than methods of informal consultation. The use of public hearings in connection with the promulgation of delegated legislation would thus seem to have a definite part to play in administrative procedure. This was, indeed, the conclusion of the United States Attorney General's Committee on Administrative procedure. "The Committee beUeves that the practice of holding public hearings in the formulation of rules.... should be continued and estabHshed as standard administrative practice to be extended as circumstances warrant into new areas of rule-makings.”

Our observations upon the usefulness of the hearing prafeedure in rule-making do not, however, apply to the type of “adversary” hearing required under such statutes as the Federal Food, Drug, and Cosmetic Act of 1933. It is doubtful whether such “adversary" procedure is well adapted to the formulation of administrative regulations.

The application of the procedures of a judicial trial to administrative rule-making is limited... by the distinctive characteristics of rule-making proceedings. The issues are normally complex and numerous; and parties may be diverse and not alignable into classes; the outcome will involve a judgment concerning the consequences of rules to be prescribed for the future and a discretion in devising measures to effectuate the policies of the statute. These factors differentiate these proceedings from the normal judicial trial in which adversary,,

13. Carr, Concerning English Administrative Law, 53, 440 INDIAN administrative LAW [ CHAPTER 6

hearings are traditionally employed and accordingly limit the possibility of defining issues in advance, of addressing evidence to them, of permitting systematic cross-examination, and of stating the findings and conclusions fully. These remarks are borne out by the actual administrative experience under statutory requirements for such “adversary” hearings. The procedure in practice has been cumbersome and expensive. Reading the lengthy records in these cases one cannot help but be struck by the waste and delay caused by conformity to legalistic procedures appropriate to the court room. These statutory procedures, superimposing as they do judicial characteristics upon what is essentially a legislative duty, tend to curb the administrative agency in the free utilization of what might otherwise be considered more useful techniques of inquiry and fact-gathering. As stated in a study on the use of such adversary procedures in the formulation of minimum-wage orders under the Federal Fair Labor Standards A ct— Presumably, absent any statutory or judicial requirements, common sense would dictate a method entirely different from that now utilized; experts—both practical and theoretical— would study the industry, consult persons who might be in a position to throw light on the problems, and then arrive at the highest minimum wage which is “economically feasible.” Such is the general approach utilized by the British minimum wage boards, as well as by similar boards in New Y ork and other American States. It is improbable that, if one were permitted to start from scratch—with statutes and judicial thunderbolts aside—one would rely heavily upon an adjudicatory technique, patterned upon a court trial, as the best and most efficient method of gaining reliable information leading to a proper order of so clearly a legislative, unparticularized nature.

FUCHS, PROCEDURE IN ADMINISTRATIVE RULE-MAKING’ ^ 52 Harv. L.R. 259

II THE BASES OF RULE-MAKING PROCEDURE Administrative rule-making procedure necessarily requires adaptation to the varying circumstances under which general regulations are prescribed by administrative action. Thus a regulation 14. Foot notes omitted. SECTION 2 ] OTHER CONTROLS ON DELEGATTED LEGISLATION 441

applying to the railroads of the United States permits, if it does not require, an antecedent procedure involving a full hearing to the affected parties, whereas a rule of the Bureau of Marine Inspection and Navigation applying to thousands of unknown owners of small boats can scarcely be preceded by an investigation of the same character. It is one thing, moreover, to lay down a simple regulation governing a particular aspect of use of streets by motorists, and quite another to prescribe the detailed accounting practices of a large group of utilities in matters of great technical difficulty affecting claims to large sums of money. There is an equally important distinction between regulations put forth with an eye single to the maintenance of a smooth-working routine in the conduct of a public service, and the highly discretionary code of financial controls by which it is sought to direct, in part, the workings of a credit economy. A single official, moreover, who perhaps is only intermittently in touch with the problem to be governed, may proceed quite differently in arriving at a regulation from the way in which aboard of experts or of representative character is likely to attack a rule-making problem. Finally, a regulation whose breach entails simply the loss of a minor privilege is quite different from one whose violation may result in a penitentiary sentence. Between the extremes which these examples represent many shades of difference may be found. The aspects of rule-making which determine the significant categories for procedural purposes may, however, be grouped under the following headings: (1 ) the character of the parties affected; (2) the nature of the problems to be dealt with; (3) the character of the administrative determination; (4*) the types of administrative agencies exercising the rule-making function; and (5) the character of enforcement which attaches to the resulting regulations. The character o f the parties a ffected ly administrative regulations varies widely, even when only those regulations that bear upon private interests are considered. It varies not only with the number and identifiability of the parties, which have obvious bearing upon the practicability of adequate notice and a full hearing to all, but, in addition, with the vast differences in the extent to which groups in the community are organized to safeguard their interests in relation to governmental action. Groups that are so organized can be heard or consulted more readily than those that are not, and of the latter, many consist of large numbers of ordinary citizens who will be unrepresented unless the governmental agency itself undertakes to 442 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 protect their interests. Consumers, farmers, small tradesmen, and those in receipt of public assistance, are notoriously in need of being protected in this manner. Group organization is especially important to the development of a consultative type of procedure whereby interests are enabled to participate in official action instead of merely being heard in regard to it. The nature o f the problems to be dealt with in administrative regulations affects procedure in evident ways. Thus in matters of governmental routine, even where private interests are affected, as they are, for example, by the hours during which public offices are open for business and by the forms prescribed for tax returns, it is evident that there is less occasion for permitting interested private parties to be heard with regard to proposed regulations than there is where rule-making operates in a regulatory manner. In the conduct of public services most of the matters that arise are also of a routine nature, but others, such as the regulations for grazing in the national forests, assume such commercial significance that some formality of rule-making procedure is called for. In governmental regulatory activities affecting health and safety, the occasional urgency of action and the technical nature of the questions arising, falling outside the competence of witnesses, tend to minimize the need of formality in rule-making procedure. Where, however, important economic groups are affected by proposed regulations of the same general character, there are strong grounds for according procedural recognition to their stake in the issues. These considerations have been recognized in the procedural provisions of the 1938 Pure Food, Drug, and Cosmetic Act^' Recently, without statutory requirement, the Bureau of Marine Inspection and Navigation, which proceeded for nearly a century to prescribe safety regulations through a purely deliberative board, held hearings upon proposed rules for the construction of tank vessels A subsequent statute covering the same matters contains a requirement for such hearings. For similar reasons,- occupational safety codes frequently are arrived at after consultation with affected groups. Where economic control of private business enterprise is the purpose of regulation, the practice of according procedural formalities to affected interests in rule-making as well as in framing orders of specific application is especially applicable. Within this broad field of government control, however, differentiations need to be made. Procedural formality may be expected to increase roughly in proportion to the directness with which economic regulation affects SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 443 the financial condition of the affected business enterprises. Hence, control of methods and practices whose bearing upon income and outgo is indirect can proceed more freely than regulation of rates and prices or of factors entering visibly into the cost of doing business. Thus, the prescription of insurance pohcy forms need have^ and to some extent does have, fewer of the aspects of a judicial proceeding than a rate-fixing order issued by the same authority. More recently the establishment of minimum wages by administrative action has called for ample notice-and-hearing procedure. The character o f the administrative determination which an authority is called upon to make, having regard to the mental processes involved, has an important effect upon the suitable procedure. Some degree of discretion, involving a choice either of the ends to be served or of the means to be employed in attaining defined ends, usually is involved in rule-making. Regulations for the routine operations of a public office, for example, involve at least an appraisal of the factors that bear upon efficiency, and the administrator who is responsible for the regulations must frame them to serve the prescribed end of effective conduct of his office. There is little occasion for obtaining facts or opinions from outside interests in the making of such determin­ ations, even where there are groups that will be affected by the regulations. The same may be said of regulations in matters of health, such as the imposition of restrictions to prevent the spread of an epidemic. Although these may bear heavily upon private interests, the deteminations involved are of so expert a character primarily a choice of means for the attainment of a definite, legally prescribed purpose, that there is little or no occasion for hearing or cortlulting affected groups. The need is rather for hewing resolutely to the line of duty regardless of the possible clamor of interests. Where official discretion in the exercise of regulatory functions involves a choice of ends to be served, however, the need for hearing or consulting affected individuals and groups is marked. Rule-making fuctions that require such choices occur in a wide variety of cricums- tances. Thus in the regulation of marketing practices a balance must be struck between the interests of buyers and those of sellers, some­ times without statutory guides as to which are to be preferred. In imposing safety regulations with respect to locomotives the Interstate Commerce Commission must decide the point at which the furtherance of safety ceases to justify additional drains upon the carriers’ incomes, without legislative direction other than that locomotives shall be “in proper condition and safe to operate.” Again 444 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 in deciding whether to autiiorize substandard wages within a sub­ division of an industry under the 1938 Wage-Hour law the Administrator must make up his mind whether to prefer the interest of competitors in maintaining the plane of competition or that of a group of producers in continuing to exist; for he is directed to give attention to both. Such weighty determinations are not to be made without procedural safeguards, and in each of the foregoing instances they have been provided by administrative action or by statute. Procedure should be adjusted also to the types o f administrative agencies exercining the rule-making functions. If a non-expert Assistant Secretary of Commerce is to recommend regulations for safety in air flight, the means by which he will inform himself of the matters he is to control are likely to differ rather widely from those employed in an analogous field by a board of inspectors who have devoted their lives to the preservation of safety in navigation. If a board or commission is to make determinations of economic consequence, a formal hearing or consultation may be an efficient means of bringing relevant factors before all of the members at the same time, whereas a single official might inform himself more easily upon the same question by means of a simple investigation. If an agency is representative of the interests affected by its acts, the need for hearing and consultations in advance of its determinations obviously is reduced or eliminated. The character o f the enforcement which attaches to a regulation also has a bearing upon the procedure which is best adapted to its formulation. If the regulation is subject to challenge in all of its aspects after its promulgation, the need of advance formalities is reduced or eliminated. If it binds the affected parties only by requiring them to comply with certain procedures in matters subsequently arising—as, for example, in future applications for licenses it is not likely to be sufificiently weighty in its effects to warrant advance hearings or consultations in regard to its content. When, however, a regulation presents affected parties with the alternative of compliance or loss of property or liberty, with only limited opportunity or none at all to challenge its correctness, the need is evidenst for an antecedent opportunity to influence its content or be heard in regard to it. Obviously an enormous number of permutations and combinations of the foregoing factors is possible. No simple rules exist or can be hoped for to serve as guides in the formulation of desirable procedures. All that can be hoped for are suggestive considerations which may SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 445 serve to present the essential procedural issues more clearly and to introduce elements of rationality and consistency into their determination. A much less self-conscious method has determined the procedures that actually prevail. Many regulatory administrative agencies, undirected and unhampered by statutory prescriptions, and unenlightened as well as undeterred by advice of counsel, have developed methods which are quite informal and which never have become involved in litigation. In many instances these have remained uncodified practice, often varying from case to case as practical ofiEcials, untrained in law, have gone about their business of getting things done as expeditiously and smoothly as possible. Attempts to crystallize the procedure of such agencies into prescribed methods might well result in lessened efficiency occasioned by unaccustomed and unnecessary attention to matters of form. In other instances, rule-making procedure has assumed a formal character with apparently an almost equal lack of design, by reason largely of association with methods employed by the same agency in the decision of cases by formal methods. Rule-making procedure is devised, however, not only in the course of administration itself but also in the drafting of legislation and in court review of administrative proceedings. Legislation and judicial review yield, on the whole, no greater evidence of calculated adaption of procedure to actual needs than is afforded by administrative practice. If a statute perchance requires that a regulation be promulgated only “after hearing,” it is almost certain not to specify what shall be the nature of the hearing afforded; and if a judicial decision attaches a specific strict requirement to rule-making procedure in a particular instance, the opinion probably will not trouble to set forth the reason for imposing it in that instance as distinguished from others or to state in what other situations it may be required. In a few recent statutes, however, which call for executive rule-making in highly controversial matters, a procedure that is designed to secure due attention to the interests of all affected parties has been prescribed with some particularity. In general, more­ over, a heightened consciousness of the importance of administrative procedure has resulted from recent pronouncements of the Supreme Court. III. TYPE OF RULE-MAIKNG PROCEDURE The administrative rule-making procedures that have grown up as a result of the interplay of the foregoing factors may be separated 446 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 for convenience into four general types. These are (1) investigational procedure, (2) consultative procedure, (3) auditive procedure, and (4) adversary procedure. The names here assigned to these types are somewhat arbitrary, but they lay stress in each instance upon the most significant aspects of the procedure designated. Roughly speaking, the four types of procedure have come into use in the order named. A ll of them prevail in various fields of administration at the present time.

The investigational procedure is analogous to that of legislatures. A legislature is theoretically competent to dispose of matters coming before it without according procedural formalities to affected interests. It is vested with full discretion and final authority, subject to constitutional limitations. Its representative character brings the community’s knowledge and wisdom into the exercise of its discretion. The parliamentary law which controls legislative proceedings is designed to secure fair discussion, adequate deliberation, and efficiency in the disposition of matters coming before legislative assemblies and not at all to accord procedural rights to outside individuals and groups.

Nevertheless, legislatures, like other bodies, find it necessary to inform themselves specially concerning particular matters with which they must deal. An elaborate process of committee investigations, hearings, and reports has been developed for this purpose. The extent to which this procedure shall be used in particular instances, however, and the degree of participation which shall be permitted |jo those concerned remain wholly within legislative control. The channels through which the legislators may obtain information and acquaint themselves with points of view in the community are unlimited. There are no procedural forms whose observance can be demanded. The investigational method may range as widely and proceed as informally as the legislature wishes.

Similar freedom prevails in the investigational activity of many administrative rule-making agencies. Performing functions which resemble the making of many statutes, they naturally employ similar investigational methods. In place of the competence which the legislature derives from its representative character, their discretion is founded upon their expertness, or at least their specialization, within designated fields of administration; and that discretion extends to their investigational methods as well as to the content of their official pronouncements, Few administrative agencies have SECTION 2 J OTHER CONTROLS ON DELEGATED LEGISLATION 447 been subjected to statutory or judicial control of any kind in regard to their rule-making procedure. Consultative rule-making procedure has grown out of the practice, to which legislatures and administrative rule-making agencies have resorted increasingly, of receiving opinions, advice, and suggestions from groups whom their work affects. It is inevitable, on the one hand, that such groups should seek to make their wishes known and* on the other hand, that officials should turn to them for information upon the problems to be solved. The complexity of these problems under modern conditions makes consultation with those who are “on the inside” virtually a necessity.

Few administrative rule-making agencies whose, work affects organized groups, especially economic groups, fail to maintain fairly regular contacts with them. The Interstate Commerce Commission, the Federal Power Commission, the Securities and Exchange Commission, the Bureau of Marine Inspection and Navigation, the Board of Governors of the Federal Reserve System, the Food and Drug Administration, and many others follow this practice. Occasionally proposed regulations are submitted to a governmental agency by an expert, interested private organization. When an administrative agency itself frames proposed regulations the practice almost uniformly is to submit them to a long list of interested individuals and groups for suggestion and comment. Thereafter, discussion and correspondence often go forward at great length. At times advisory committees, established by administrative action or by legislation, engage regularly in the review of proposedfi, regulations.

To a considerable extent in England and to a less extent in this country, the consultative method of proceeding has been standardized by the creation of statutory advisory committees These are entitled to be consulted in the rule-making process. They serve one or more of the following purposes : ( 1) to furnish information and suggestions to the administrative agency; (2) to insure the presentation of the contentions of interested groups to the responsible authorities; and (3) to “educate” the affected parties, through the members of the advisory committee, in regard to the regulations that are adopted.

The consultative type of procedure obviously is inapplicable where the groups affected by regulations are very numerous or the parties are unorganized. Auditive procedure, either by itself or 4s a supplement to the types previously described, affords an opportunity 448 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 to such interests to express their views, as well as a means whereby rule-making agencies may receive fruitful suggestions. This procedure consists of the holding of duly-announced hearings at which interested parties are permitted to appear. There are no specific issues or rules of evidence or formalities of any kind except such as are necessary to assure order. Such hearings are analogous to legislative hearings and bear no relation to court proceedings. They are valuable to the extent that notice of them can be brought home to affected parties, that they are accessible to these parties, and that the questions involved are susceptible to intelligent discussion by tbose who do appear. This auditive type of procedure is increasingly being resorted to voluntarily by administrative agencies and i^ required frequently in statutes.

To a considerable extent, however, government is not the moving force in the framing of regulatory measures or, if it is, finds itself opposed by other interests. The function of legislation in recent times has been stated to be essentially that of effecting compromises which enable society to go forward with reasonable satisfaction to contending interests, and legislative procedure has been characterized as analogous to judicial procedure, with “plaintiffs" and “defendants” presenting cases before “courts.” All the more in administrative rule-making, which frequently serves as a focus of conflict among fairly stable groups with reference to well-defined issues, do the proceedings take on an adversary character.

The adversary procedure in rule-making like so many other aspects of administrative law, seems to have crystallized first in the regulation of railroads. It is in the state utility commissions and the Interstate Commerce Commission that administrative procedure has assumed its most formal aspect. Although these bodies are freed by statute from the requirements of judicial procedure, they and their trial examiners sit as tribunals before whom affected interest and government representatives present evidence and arguments; they are required to base their factual conclusions upon “evidence” and to embody them in careful “findings”, and they maintain formal records embodying all the evidence presented at their hearings. Whether a commission may go outside the record for information, not regularly the subject of judicial notice,” upon which to base a decision, is a subject of controversy. In any event, adherence to these and other aspects of a careful, essentially adversary procedure is usual and is to a large extent judicially enforced. SECTION I ] OTHER CONTROLS ON DELEGATED LEGISLATION 449

Neither in the case of the Interstate Commerce Commission nor in that of the other federal agencies .whose procedure is fashioned more or less upon the same model is an express distinction made between proceedings involving named parties and proceedings leading to the formulation of general regulations. In the case of the Interstate Commerce Commission certain differences have been recognized between proceedings involving many parties and those concerning only a few. In the former, where the same issue relates to all the parties, the evidence upon which the result is based need not deal specifically with the affairs of each affected carrier. In proceedings affecting a host of motor carriers or involving complex matters such as accounting regulations, it is manifestly impossible to extend full rights of cross-examinatiQH to each party or to enter detailed findings to each point covered in the regulations. Especially in the early stages of a commission's work, when blanket regulations are to be prescribed, is an auditive or consultative method likely to be followed. In the main, however, the adversary type of procedure is employed, leading to a decision for or against a proposed regulation—method which is furthered by the frequent practice of entertaining petitions from interested parties for desired regulations, which are opposed by those who would be adversely affected.

It is doubtful whether the adversary procedure is well adapted to the formulation of general regulations. Even when a regulation covers only a single subject, such as the installation of power reverse gears on locomotives, the facts to which the evidence and the findings must relate are not limited in time or space or number of parties affected. They embrace such questions, for example, as the degree of hazard involved in prevailing practices and improvement to be expected from requiring a change. Multitudinous occurrences bear upon such a question and the element of judgment that enters into its determination is necessarily large. The issues to be determined are not legally defined, as are the elements considered in a public utility rate case, for example. In resolving the issues that relate to rule-making a more wide-ranging inquiry and a freer marshalling of the evidence seem necessary.

Notwithstanding these considerations, recent federal legislation has displayed a tendency to require the adversary type of procedure in rule-making and, moreover, to subject the resulting regulations to rather thorough judicial review. The Bituminous Coal Act of 1937 provides that “No order which is subject to judicial review...and no 450 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 rule or regulation which has the force and effect of law shall be made or prescribed by the Commission, unless it has given reasonable public notice of a hearing, and unless it has afforded interested parties an opportunity to be heard, and unless it has made findings of fact. Such findings, if supported by substantial evidence, shall be conclusive upon review thereof by any court of the United States.” Thus the procedure in rule-making is equated to that in the formulation of orders, with judicial review of regulations made equally as comprehensive, if not equally as available, as that which is given to orders. Regulations that have “the force and effect of law” are intended, no doubt, to include all those which are not merely procedural and which are backed by penal sanctions or by expulsion from membership in the Bituminous Coal Code, entailing the obhgation to pay a 19,5 per cent additional sales tax.

The Food, Drug, and Cosmetic Act of 1938 specifically requires not only that the issuance of regulations under it shall be preceded by notice and hearing but also that the regulations shall be accompanied by “detailed findings of fact” and shall be based “only on substantial evidence of record at the hearing.” Judicial review of questions of law involved in the issuance of regulations under the A ct and of whether the findings of fact are supported by “substantial evidence” is provided. Thus, such technical, widely-ramifying matters as standards of identity and quality for foods, the information to be conveyed by the labels on dietary products, the quantities of poisonous residues to be permitted in food products, and the habit-forming qualities of narcotic derivatives must be determined in the manner in which the conformity of a shipment of goods to specifications is tried in a law suit. The considerations entering into such determination must be segregated so that the substantiality of the supporting evidence may be tested in court. The court may then either affirm the order or “ set it aside in whole or in part, temporarily or permanently” and, if the Secretary of Agriculture should refuse to obey the court’s decree, may order him “to take action...in accordance with law.”

Under the Fair Labor Standards Act also, wage orders applying to entire industries must be based upon evidence contained in a record and may be subjected to judicial review of questions of law and of the substantiality of the supporting evidence. The judicial review, however, will extend to the validity of each order only so far “ as it is applicable to the petitioner” in the case. The issues, therefore, will be somewhat narrowed, SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 451

IV. CONCLUSION Recent developments open a new chapter in rule-making procedure. Whether the result will be a partial paralysis of administration by reason of excessive formality and litigation or an improvement in the precision with which administrative determinations are made cannot be discussed here. Probably it is too early in any event to forecast the outcome. Much will depend upon the realism with which administrators and courts differentiate the rule-making problems that confront them from the problems that arise in proceedings affecting definite parties, and upon the care with which they discriminate in the field of rule-making according to the presence of factors which have genuine procedural significance. Certainly there will never be a time when it will be possible to assert that the details of rule-making procedure, or even the “basic requirements of fair play" in such procedure, should be the same in all the varied circumstances that arise. Many regulations, even where private interests are affected, should continue to be issued on the basis of administrative knowledge or after merely informal investigation; others will call for systematic consultation with affected parties or regularized opportunities for such parties to be heard; still others, perhaps, will involve adversary proceedings in which parties are accorded virtually the status of litigants. But a particularism that regards each procedural problem as unrelated to others goes beyond the requirements of the present situation. Common factors exist amidst the prevailing diversity and may be made the basis of procedural norms, running through much administrative practice.

CONSULATION IN INDIA

PREVIOUS PUBLICATION In 1886, the Law Member of the Government of India, Sir Courtenay Ilbert, took the view that in case of delegated legislation it was important as in the case of Bills that opportunity should be given for external unofficial criticism before the rules had been finally settled.”^® Thus the procedure by way of previous publication was added in section 23 of the General clauses Act, 1897. But the procedure is not observed generally in all cases; it becomes operative when a statute delegating legislative power lays down that the rules 15. Legislative Council Proceedings, (1882) p. 463. On the question of antecedent publication see the judgment of Wanchoo, J. in Ruza Bulmd Sugar Co. Ltd. case, supra, at 337* 452 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

are to he made under it subject to the condition of “previous publication.” Section 23 of the General Clauses Act runs as follows : “Where, by any [Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely : 1. the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; 2. the publication shall be made in such manner as that authority deems to be sufficientj or, if the condition with respect to previous publication so requires, in such manner as the [Government concerned] prescribes; 3. there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; 4. the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the santion, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rule or bye-laws from any person with respect to the draft before the date so specified; 5. the publication in the official gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.’' In this procedure, there is no rule fixing the number of days for which notice has to be given. Nor has any uniformity been involved in this respect by administrative practice. The period may vary from seven days to six months. A t times, the delegating act itself may fix the period, as for instance, section 52(3) of the Banking Companies Act, 1949, requires a notice of six months. As will be seen, section 23(5) provides for a statutory presumption which renders the procedural requirement merely directory. The following extract gives a picture of the operation of this procedure. SECTION 2 J OTHER CONTROLS ON DELEGATED LEGISLATION 453

THE INDIAN LAW INSTITUTE, DELEGATED LEGISLATION IN INDIA 38-9(1964)

Accordingly, once a rule is published in the official gazette, it shall be conclusive proof that it was duly made. Being so, S. 4 of the Indian Evidence Act prohibits evidence being tendered to prove that a rule has not been duly made.^^' It may, however, be mentioned that 'the General Clauses Act was passed in 1897 by a legislature completely controlled by an executive appointed by a foreign government. No wonder therefore, that greater regard was paid to administrative convenience rather than to the rights of the subjects. But now there seems to be little justification for granting immunity from judicial review to rules which are required to be made according to the procedure prescribed by the said section. A suitable amendment in the Act is therefore desirable.

As to the practice in India of invoking the procedure outlined in S. 23 of the General Clauses Act not more than sixty central statutes existing until 1960 lay down the condition of giving antecedent publicity to the rules made thereunder. It is not possible to suggest exactly what considerations determine the inclusion in some enactments, and exclusion in others, o£ the condition of previous publicity. Is it possible to infer from the practice that the nature of the subject-matter, such as, for instance, personal and property rights of the citizens, sought to be regulated by subordinate legislation has been the basis for this distinction? The practice does not lend support to such an inference.^'^ Further, there is sufficient evidence to show that similar subjects have been treated differently. Thus, S. 6 of the Central Tea Board Act, 1949, requires the previous publication of the rules framed thereunder whereas no such condition is laid down for the rules made under S. 48 of the Coffee Market Expansion Act, 1942, S. 6 of the Cotton Industry Statistics Act, 1926 and S. 12 of the Industrial Statistics Act, 1942, which deal with similar problems; yet the former does not, and the latter does, require publicity of the rules made thereunder. Ordinarily, statutory regulations under labour enactments in India

16, Akola Municipality v. Madhava Wasudeo A. I. R. 1951 Nag. 464. 466. 17. See Defence of India Rules made under S, 2 of the Defence of India Act, 1939, or the Requisition and Acquisition of Immovable Property Act, 1952, S. 22, But see. Public Debt (Central Government) Act, 1944, S. 28 relaling to government securities subjected to the procedure of antecedent publicity. Purely procedural matter under the Births, Deaths and Marriages Registration Act, 1888, S. 36, requires antecedent publicity, See also, Tramways Act, 1886, S. 26, 454 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

are required to be made on the condition of previous publicity, but without any apparent reason, no such condition is stipulated in S, 6 of the Mica Mines Labour Welfare Fund Act, 1946. The importance of the subject matter, too, has not been a decisive criterion.

OTHER CONSULTATIVE TECHNIQUES In addition to previous publication,^® many statutes specifically provide for consultation. They fall under the following heads :—

THE INDIAN LAW INSTITUTE, DELEGATED LEGISLATION IN INDIA 42 -4 9 (1964) (i) Official Consultations In some cases, rule-making power is delegated subject to a stipulation that it is to be exercised in consultation with a named official authority or agency. Usually such a procedure is adopted for making rules concerning matters in which some independent authority, such as, for instance, a High Court or some other agency with a distinct status of its own, is also equally interested. Thus the Central Government is required to make rules under S. 52 of the Banking Companies Act, 1949, after consulting the Reserve Bank of India; under S. 28 of the Representation of the People Act, 1950, after consulting the Election Commission; under S. 10 of the Merchant Seamen (Litigation) Act, 1946, after consulting the High Courts, and under S. 9 of the Agricultural Produce Cess Act, 1940, after consulting the Imperial Council of Agriculture. The object underlying this type of consultation is not so much to afford opportunity to affected interests to participate in rule-making^ as to place an obligation on the government department to seek assistance from some other agency in the framing of rules.

(ii) Consultation with Statutory Boards Administration of control and assistance in relation to certain industries has been entrusted by central Acts to statutory boards. These boards are composed of nominated officials and representatives of affected interests and are normally associated with pie-making power in a consultative capacity.^®

18, See also, Indian Law Institute, Administrative Process Under The Essential Committees Act, 97, 103, 113, 143-145. 19. Besides advising, these boards administer the subjects assigned to them. The requirement for consultation arises out of the necessity to know the views of the agency which is ultimately responsible for administering the proposed rules. SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 455

Therefore, the rule-makmg powers conferred on the Central Government under various Statutes are exercisable after consulting the concerned boards.^® Taking into account the composition of these boards, the provision for consultation affords some opportunity to the affected interests to canvass their vievi^s and suggestions before the government. Two observations may be made regarding this type of consultation. First, there is no uniformity in the practice. The boards set up under S. 26 of the Khadi Village Industries Commission A ct, 1956; S. 36 of the Faridabad Developm ent Corporation A ct; S. 26 of the Coir Industry Act; S. 13 of the Silk Board Act, 1948; S. 18 of the Indian Oil Seeds Committee Act, 1946; S. 17 of the Indian C oconut Committee Act> 1944, and S. 25 of the Rubber Act, 1947, though composed on principles similar to the boards mentioned above, are not required to be consulted by the Central Government in framing rules under these Acts. Secondly, the provision of consultation here is not primarily aimed at giving the interested persons an opportunity to take part in the rule- making process. (in) Consultation with Advisory Bodies The practice of constituting advisory bodies to assist the Central Government or other subordinate authorities can be traced back to the year 1901, when provision was made in the Indian Mines Act^^ for the constitution of mining boards on framing of regulations and State Governments on framing of regulations and certain other matters. Following the precedent, several other Acts also provided for the setting up of advisory committee by the Central Government for the purposes specified therein^®. The composition of advisory bodies is either laid down in the enabling Act itself or left to be regulated by the rules. But in either case they are to be composed mainly of persons representing affected interests. Confining ourselves to the part played by advisory bodies in the rule-making process,®® 20. See the Coffee Market Expansion Act, 1942, S, 16; the Drugs Act, 1940, Ss. 6(2) and 12; the Indian Lac Cess Act, 1930, S, 8; Indian Soft Coke Cess Act, 1929, S. 7. 21. Act 8 of 1901, Ss. 9 and 20. 22. See the Electricity Act, 1902, S. 36; the Indian Territorial Force Act, 1920; the Indian Lighthouse (Amendment) Act, 1959, S. 4; the Indian Merchant Shipping (Amendment) Act, 1928, S. 8. 23. The Advisory bodies generally advise the government on several other matters as well. Only in two instances, the Electricity Act, 1903, S. 32, and the Merchant Shipping Act, 1923, the advisory bodies are constituted exclusively for the purpose of advising on the rule-making process. 456 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 the distinction between compulsory and optional consultations may be looked into. While in either case the advice is not binding upon the rule-making authority, the consequence of an omission to consult, as we shall see below, may not be the same in both the cases. One notable example of compulsory consultation is furnished by the Indian Mines Act^^ which makes provision for setting up of Mine Boards consisting of nominees of the mine owners, representatives of miners, an official chairman and the Chief Inspector of Mines. The Mines Board must be consulted before rules are promulgated. The Industries (Development and Regulation) Act, 1951/® is another instance of compulsory consultation. The Act sets up a Central Advisory Council consisting of representatives of the owners of industrial undertakings of the scheduled industries, labour, consumers, and stipulates that before making any rules under the Act, the Central Government must, save in certain cases, consult the council. Similarly, the Lighthouse Act, 1927,’® requires the Central Government to appoint a Central Advisory Committee which must be consulted in regard to the making or altering of any rules or rates under the Act. The Rubber (Production and Marketing) Act, 19472'? example where the scope of consultation is limited only to the fixation of maximum and minimum prices of rubber. Compulsory consultation in the Minimum Wages Act, 1948^®, is also limited to specified aspects. While fixing the minimum wages for certain scheduled employments, the Act empowers the Central Government to revise the rates subsequently, after consulting advisory committees composed of persons representing in equal number the employers and the employees of the scheduled employments and of independent members not exceeding one-third of the total number of members on a committee.

Consultation will be optional where the enabling A ct leaves it to the discretion of the rule-making authority to refer to the advisory committee set up thereunder any matter arising out of the Act. In some instances the functions of the Advisory Committee have been defined in the Act or in the rules made thereunder. Generally advising on rule-making is not expressly included in the A ct or in the rules as one of the functions of an advisory committee. Still it is

24- Act 35 of 1952 as amended by Act 62 of 1959, Ss. 57, 58 and 59. 25. Section 5 (4). 26. Section 4 (i)(e), as amended by Act 16 of 1952. 27. Section 13. 28. Sections 4>10. SECTION 2 ] OTHER CONTROLS ON DELEGATED LEGISLATION 457 not unreasonable to expect and there is no legal bar to do so, that the competent authority may consult the advisory committee in matters relating to rule-making as well.

Where consultation is optional, it is not possible to estimate if and to what extent the advisory committees have been taken into confidence in the rule-making process. No reports of the work of the advisory committees are published.

(iv) Making o f Draft Rules by Affected Interests In a few instances power to draft rules is directly conferred on the affected interests. Ss. 3, 4 and 5 of the Industrial Employment (Standing Orders) Act, 1946, require the employer of an industrial estabhshment falling within the purview of the Act to submit to the certifying officer the draft of standing orders proposed by him for regulating the terms and conditions of employment in his establishment. The certifying officer has to notify the draft to the workmen and must receive their objections to the draft rules, if any. After giving the employer and the representatives of the workmen an opportunity of being heard, the officer certifies the draft with such modifications as he deems necessary. Similarly, S. 61 of the Indian Mines A ct of 1952 requires the owner of a mine to frame and submit to the Inspector of Mines a draft of bye-laws for the prevention of accidents and for the safety, convenience and discipline of those employed in the mine. The draft after it has been approved by the inspector is sent to the Central Government. If the Central Government approves the draft bye-laws, they must be published for information of persons affected and the copies of the draft bye-laws are made available to them. Written objections and suggestions are also invited and the government, after considering the comments received within the specified time, approves the bye-laws either in the form in which they were published or after making such amendments thereto as are thought fit.^®

So far we have described the practice of statutory consultation. As regards non-statutory consultation, there is no general departmental practice in India, as in England, of consulting affected interests before making rules. Of late, number of consultative commitees have been 29. In a like manner, S. 8 of the Securities Contracts (Regulation) Act, 1956, empowers the Central Government, by order in writing, to direct recognised stock exchange in particular, as the case may be, to make any rules or to amend any rules already made in respect of all or any of the matters specified in sub-sec. (2) of S. 3 within a period of six months ffoni the date of the order. 458 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

set up by informal administrative practice, most of them being drawn from trade and industry and have a general advisory function.^° Though consideration of draft rules is not one of the functions expressly assigned to them, the association of these committees with policy matters may, to some extent, influence the substance of subordinate legislation.

(v) Suggestions for Improvement

It would appear from the above that in India due importance is not given to the participation of affected interests in the rule-making process. There is no general departmental practice of prior consultation with outside interests, and though provision has been made in some Acts for non-official advisory committees, it is only exceptional that consultation with them in rule-making has been made compulsory. In other cases, such consultation, though not barred, has not been specifically mentioned as one of the functions of advisory committees. There is no practice of setting up of advisory committees by administrative action for the consideration of draft rules. The procedure of antecedent publicity, though in vogue for over seventy years, has never been made a general requirement for all subordinate rule-making. The result has been that its use has been somewhat capricious. While statutory rules and notifications vitally affecting private rights have been made without previous publicity, instances may be cited where the procedure has been used for matters of least importance. Moreover, as has been noted earlier the procedure of antecedent publicity outlined in S.23 of the General Clauses Act, 1897 is applicable to “rules” and “bye-laws” only, it has no apphcation to delegated legislation which goes by other names, such as “orders”, "notifications” or “schemes.”

The importance of participation by affected interests in the rule-making process is self-evident. Apart from other considerations, the administrative machinery moves smoothly if such interests are

30. Iron & Steel Advisory Committee; Jute Export Advisory Committee; Central Arecanut Committee; Central Tobacco Committee; Central Jute Committee; Central Employment Advisory Committee; All India Cattle Show Committee; Textile Advisory Committee; Non-statutory consultation by the President in regard to the amending of the Civil Services (Classification, Control and Appeal) Rules. S. R. O. 1379 Power of amendment in Civil Service Regulations after consulting Comptroller and Auditor-General, SECTION 2 J OTHER CONTROLS ON DELEGATED LEGISLATION 459 consulted. The Planning Commission of India eloquently expressed the same sentiments in the following words ; Under democratic conditions, the response which an administration makes to the needs and views of the public is of the greatest significance for two reasons. In first place, there is no surer test of the success of a policy than that it should be in tune with the genuine needs of the people and should receive their sympathy and goodwill. In the second place, it suggests the need in all spheres which affect the public, of taking its best elements into confidence, seeing their advice and formulating policies so that they should afford the maximum public satisfaction. This part of the activity of the Government is at present poorly organised, and there is little doubt that some of the dissatisfaction arising from economic conditions which has grown up during the past two or three years is due to the hiatus which exists between Government’s policies and the general lack of knowledge of the essential facts and considerations on which they are based.^^ At this point it may be asked whether it would not be desirable to lay down certain statutory procedural requirements for rule-making. An objection to any such proposal may be that this formula would bring in rigidity in the rule-making process and deprive it of its quality of flexibility. It may be argued, first that the same procedure may not be suitable for all the varied circumstances which may call for the exercise of rule-making power and, second, it may not be possible or practicable to follow the prescribed procedure in circumstances where disclosure of draft regulations may be prejudicial to the public interest or in situations of emergency. The objections, though valid, are not insurmountable. It is possible to provide minimum procedural requirements with a proviso accommodating extraordinary circumstances and exempting emergency situations. But then what should be the minimum procedural requirements which may be made applicable generally to all rule-making? Taking into account the fact that the Indian Parliament has to legislate for vast territory, and the fact that there exist no well-organised associations for economic interests, the simplest and the most administratively feasible procedure would be to make antecedent publicity of delegated legislation, with an opportunity being given to interested persons to represent, a general minimum requirement. The legislative practice in India has fairly got used to the procedure of antecedent publicity. 31. Government of India, Planning Commission, The First Five Year Plan— A Draft Outline (1951), pp. 247-48. 460 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

But this must be made a general requirement instead of an ad hoc A ct-to -A ct affair. Besides making antecedent publicity a condition for all rule- making the existing procedure outlined in the General Clauses Act, which we have described above, may further be modified on the following Hnes ; 1. Provision may be made for the publication of the proposed rules in the regional languages and where such a course is not convenient and practicable the summary of the proposed rules may be published in such regional languages; hitherto they are published only in the EngUsh language. 2. The procedure in the General Clauses Act must be extended to cover all kinds of delegation irrespective of the names in which they are styled. It will also be necessary to adopt and define some generic term, like “statutory instrument” which is used in the English Act of 1946, to cover delegated legislation appearing under different names. 3. The rule-making authority may be permitted to dispense with the giving of notice in emergency situations or in cirumstance where the disclosure of proposed legislation would be against public interest or where the rule-making concerns minor or merely technical amendments. To avoid the dispensing provisions being treated as an “escape clause” the rule- making authority should be required to state the reason for dispensing with antecedent publicity. The Lok Sabha Committee on Subordinate Legislation may be empowered to draw the attention of Parliament particu­ larly to situations where it finds that the reasons for not following the procedure are unsatisfactory.

Besides the above safeguards, consultations with statutory advisory committees, wherever they exist should, as a rule, be adhered to for the purpose of rule-making. In social and economic legislation affecting large sections of the population the precedent set-up by the advisory committee under the English National Insurance’Act, 1946, may usefully be followed. While it will not be safe to import the American procedure of “ adversary hearings'*, the other type of "hearings” can usefully be tried in certain situations, for example, in the fixation of wages under the Minimum W ages Act, 1948. SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 461

SECTION PABLIAMENTASY CONTROL

Since it is the legislature which confers legislative powers on the administration, it is its primary duty to see how its delegate exercises the powers so conferred, and to devise ways and means to ensure that the delegate does not use the power delegated in an abusive or unwarranted manner. On this theory is based the system of legislative control of delegated legislation. It will, however, be worth while to notice some of the inherent difficulties in the method of parliamentary control of delegated legislation. Firstly, there is the question of time; Secondly, the effective power lies in the hand of the Government whose leadership it accepts, and therefore it greatly restricts the capacity of the Parliament to force an issue against the. wishes of the Government- This is the over-all limitation under which the Parliament has to function.

In the first place, the legislative supervision is exercised by the “laying” procedure. This procedure serves two purposes; first, to inform the members as to what rules have been made by the administration in exercise of “delegated” legislative power; second, to provide an opportunity to them to question or challenge the rules made or proposed to be made. “Laying” procedure does not operate in every case as there is no general statute requiring all delegated legislation to be laid before Parliament, It operates only in those cases where the parent statute stipulates that the delegated legislation made there under be laid before Parliament. Several forms of “laying” procedure are used in Englaui where it has been renderd more systematic and ejffective by the Statutory Instruments A ct, 1946. Prior to 1946, there was vagueness as to the significance of the words “laid as soon as may be”; there was a lack of uniformity in the periods for which instruments were to lie before Parliament as also in the method of reckoning the various periods prescribed for laying. The Committee on Ministers’ Powers criticised the then prevailing situation. But at present Statutory Instruments Act, 1946, takes care of these anomalies. The relevant provisions are given below. “Laying” procedure is regarded as “directory” and not “mandatory" except when the rules cannot come into force without being approved by legislature. ‘‘Laying” procedure operates in India as well, as will be clear from the materials given below. It has now become a generally accepted technique. 462 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

The most important legislative instrumentality to control delegated legislation is what is known in England as the ‘ Committee on Statutory Instruments” and in India as the Committee on Subordinate Legislation.” The two bodies are more or less parallel and ■ their scope of operation is brought out by the extracts given below.. The genesis of the Committee in England is to be found in the report of the Donoughmore Committee made in 1932. The Committee noted that a defect in the parliament exercising an effective control over delegated legislation was the absence of an “automatic machinery” for scrutinising on behalf of the House as a whole the delegated legislation laid before it; the quantity and complexity of the delegated legislation was such that it was no longer possible to rely for such scrutiny on the vigilance of individual members. It, therefore, suggested the establishment in each House of a standing committee charged with the duty of scrutinising delegated legislation laid before the House—the idea of the committee being not to go into the merits of the rtiles made, nor to act as critic or censor of substantive proposals but to supply to the members of the House the requisite knowledge so as to enable them to exercise an informed discretion whether to object or criticise the delegated legislation themselves. This recommendation materialized in 1944 and India suit after Independence,

In the United States the relationship between the Congress and the Executive, based as it is on separation of powers, is of a different order than what it is in England or India and, therefore, Congress does not seek to exercise except in exceptional cases, much of followed supervision over administrative rule-making.

LAYING BEFORE PARLIAMENT

STATUTORY INSTRUMENTS ACT, 1946.

4.— (1 ) Where by this Act or any Act passed after the commencement of this A ct any statutory instrument is required to be laid before Parliament after being made, a copy of the instrument shall be laid before each House of Parliament and, subject as herein­ after provided, shall be so laid before the instrument comes into operation. SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 463

Provided that if it is essential that any such instrument should come into operation before copies thereof can be so laid as aforesaid, the instrument may be made so as to come into operation before it has been so laid; and where any statutory instrument comes into operation before it is laid before Parliament, notification shall forthwith be sent to the Lord Chancellor and to the Speaker of the House of Commons drawing attention to the fact that copies of the instrument have yet to be laid before Parliament and explaining why such copies were not so laid before the instrument came into operation. (2) Every copy of any such statutory instrument sold by the King’s printer of Acts of Parliament shall bear on the face thereof

(a) a statement showing the date on which the statutory instrument came or will come into operation; and (b) either a statement showing the date on which copies thereof were laid before Parliament or a statement that such copies are to be laid before Parliament. (3) Where any Act passed before the date of the commencement of this Act contains provisions requiring that any Order in Council or other document made in exercise of any power conferred by that or any other Act be laid before Parliament after being made, any statutory instrument made in exercise of that power shall by virtue of this Act be laid before Parliament and the foregoing provisions of this section shall apply thereto accordingly in substitution for any such provisions' as aforesaid contained in the Act passed before the said date. 5.—( 1 ) Where by this Act or any Act passed after the commencement of this Act, it is provided that any statutory instrument shall be subject to annulment in pursuance of resolution of either House of Parliament, the instrument shall be laid before Parliament after being made and the provisions of the last foregoing section shall apply thereto accordingly, and if either House, within the period of forty days beginning with the day on which a copy thereof is laid before it, resolves that an Address be presented to His Majesty praying that the instrument be annulled, no further proceedings shall be taken thereunder after the date of the resolution, and His Majesty may by Order in Council revoke the instrument, so, however, that any such resolution and revocation shall be without prejudice to the validity of anything previously done under the instrument or to the making of a new statutory instrument. 464 INDIAN ADMINISTRATIVE LA W [ CHAPTER 6

(2) Where any Act passed before the date of the commencement of this Act contains provisions requiring that any Order in Council or other document made in exercise of any power conferred by that or any other A ct shall be laid before Parliament after being made and shall cease to be in force or may be annulled, as the case may be, if within a specified period either House presents an address to His Majesty or passes a resolution to that effect, then, subject to the provisions of any Order in Council made under this A ct, any statutory instrument made in exercise of the said power shall by virtue of this Act be subject to annulment in pursuance of a resolution of either House of Parliament and the provisions of the last foregoing subsection shall apply thereto accordingly in substitution for any such provisions as aforesaid contained in the Act passed before the said date. 6.~(1) Where by this Act or any Act passed after the commencement of this Act it is provided that a draft of any statutory instrument shall be laid before Parliament, but the A ct do.es not prohibit the making of the instrument without the approval of Parliament, then, in the case of an Order in Council the draft shall not be submitted to His Majesty in Council, and in any other case the statutory instrument shall not be made, until after the expiration of a period of forty days beginning with the day on which a copy of the draft is laid before each House of Parliament or, if such copies are laid on different days, with the later of the two days, and if within that period either House resolves that the draft be not submitted to His Majesty or that the statutory instrument be not made, as the case may be, no further proceedings’ shall be taken thereon, but without prejudice to the laying before Parliament of a new draft. (2) Where any Act passed before the date of the commencement of this Act contains provisions requiring that a draft of any Order in Council or other document to be made in exercise of any power conferred by that or any other Act shall be laid before Parliament before being submitted to His Majesty, or before being made, as the case may be, and, that it shall not be so submitted or made if within a specified period either House presents an address to His Majesty or passes a resolution to that effect, then subject to the provisions of any Order in Council made under this Act, a draft of any statutory instrument made in exercise of the said power shall by virtue o f this Act be laid before Parliament and the provisions of the last foregoing subsection shall apply thereto accordingly in substitution for any SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 465 such provisions as aforesaid contained in the Act passed before the said date. 7. (1) In reckoning for the purposes of either of the last two foregoing sections any period of forty days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. (2) In relation to any instrument required by any Act, whether passed before or after the commencement of this Act, to be laid before the House of Commons only, the provisions of the last three foregoing sections shall have effect as if reference to that House were therein substituted for references to Parliament and for references to either House and each House thereof. (3) The provisions of sections four and five of this Act shall not apply to any statutory instrument being an order which is subject to special Parliamentary procedure, or to any other instrument which is required to be laid before Parliament, or before the House of Commons, for any period before it comes into operation.

GRIFFITH AND STREET, PRINCIPLES OF ADMINISTRATIVE LAW^ 8 4 -9 1 (1957)

LAYING BEFORE PARLIAMENT

(a) Proceedings in Parliament Where an Act delegates the power to legislate it usually, but not invariably, requires the subordinate legislation so made to be laid before Parliament. Further, the Act usually subjects that legislation to one of several parliamentary procedures. These statutory provisions may be summarised under the following heads. (i) Laid with no Further Directions. An important example of such a provision is to be found in the Foreign Jurisdiction Act, 1890, which empowers the making of various Orders in Council. The Act provides ; “Every Order in Council made in pursuance of this Act shall be laid down before both Houses of Parliament forthwith after it is made, if Parliament be then in session, and if not, forthwith after the commencement of the then next session of Parliament” Similarly, Orders in Council made under the Merchant 1.. Footnotes as in the original omitted; some footnotes have been added by way of explanation, (Ed.), 466 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Shipping Act, 1894, are required to be laid before Parliament within one month after they are made, A more recent example is to be found in the Agriculture Act, 1947, which empowers the Minister to make schemes for providing goods and services to persons managing or farming argicultural land and which provides : “Any scheme under this section shall be embodied in an order which shall be laid before Parliament forthwith after being made.” In such cases, the subordinate legislation is valid when it is made. Members are not empowered to move its annulment, nor is the Government required to obtain a resolution before it becomes operative. (ii) Laid and made subject to annulment within Forty Days. This is by far the most common provision. The usual form of words in Acts passed before 1948 is : “Any regulations [ etc. ] made under this Act shall be laid before Parliament immediately after they are made, and if either House, within the period of forty days after the regulations are so laid before it, resolves that the regulations be annulled, the regulations shall thereupon cease to have effect, but without prejudice to the validity of anything previously done thereunder or to the making of new regulations,” The period for laying varied considerably in different statutes- The Statutory Instruments A ct, 1946 fixed the uniform period o f forty days.^

Where any Act passed after 1947 provides that any statutory instrument made thereunder shall be subject to annulment by resolution of either House of Parliament, the instrument must be laid before Parliament for forty days, and within that period either House may resolve that an Address be presented to Her Majesty praying that the instrument be annulled. Her Majesty may then by Order in Council revoke the instrument. This revocation, as above, does not affect the validity of anything previously done nor prevent the making of new instruments. As a result of these provisions the usual form of words in Acts passed after 1947 i s : “ A ny power conferred by this Act to make regulations [etc.] shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament,’’ In reckoning the period of forty days, no account is taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days. This procedure is often called the “procedure by negative prayer” or the 2. Section 5(2), supra at 464. SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION A61

“negative procedure.” Any Member may within the period of forty days move the annulment of any subordinate law which is subject to the procedure. This motion, since it is made in pursuance of a statute, is exempt from the operation of the eleven o’clock rule in the House of Commons and may therefore be taken after the normal close of business for the day. Until recently, this procedure was not often used and seems to have been regarded as of little value. It is true that the chances of the motion succeeding are small since the Government will not hesitate to put on Whips, while the mover may find difficulty in persuading enough members to stay with him at that late hour. But as an opportunity for drawing attention to probable injustice or for criticising the Government on the way in which it is using its powers, it has considerable value. In the last few years several important debates have taken place on motions for annulment. Moreover, it is not uncommon for Ministers, as a result of views expressed during debate, to agree to withdraw subordinate legislation which is then resubmitted in another form. Finally, these motions complement the work of the Select Committee on Statutory Instruments which is discussed below.

It is very rare for an Act, when requiring subordinate legislation to be laid before Parliament and made subject to this or any other procedure, to provide for the amendment of that legislation by Parliament. The power is usually to accept or reject. One of th? purposes of the Statutory Orders (Special Procedure) Act, 1945, was to meet this difficulty. Subordinate legislation subjected to the negative procedure is valid when it is made, and so has effect at the time when it is laid before Parliament.... (iii) Laid and Made Subject to Affirmative Resolution. There are two kinds of provisions to be examined under this heading. The first kind provides that the subordinate legislation “shall be of no effect unless it is approved by the resolution of each House of Parliament." The second kind provides that the subordinate legislation “shall cease to have effect on the expiration’’ of a stated period “unless at some time before the expiration of that period it has been approved by resolution of each House of Parliament.”

The former is the more common while the latter is used particularly for certain financial orders made by the Treasury (in which case regulation by the House of Commons alone is required). Theoretically, this affirmative procedure is used for more important 468 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 subordinate legislation but it is impossible to find or, perhaps, to make any clear distinction. The Select Committee on Statutory Instruments has drawn attention to the need for some distinguishing criterion. W e shall see that some subordinate legislation is required to be laid in draft and approved. Taking this provision also into account, seventy of the statutes in force at the end of 1944 required the affirmative resolution for some of the subordinate legislation made under their provisions as did a further fifty-six of those passed betv^een December, 1944, and December, 1950. The principal differences in practice between the negative and the affirmative procedures are that in the case of the latter the Government must find the time for the resolution and any debate that may ensue; and that a subordinate law made under the first kind of affirmative provision is not operative until approved. The affirmative procedure is also exempt from the operation of the eleven o’clock rule. (iv) Laid in Draft and Made Subject to Ajfirmative Resolution. Under the three procedures discussed above, the subordinate legislation is “made” before it is laid. Legally, it exists although it may cease to exist or not come into effect for a period, or at all, according to the provisions of those procedures. Where, however, the legislation is required to be laid in draft it has no legal existence; it has not been “made.” The provision under consideration is framed to make this clear and is generally in these terms: “Before any order [etc.] is made under this section, a draft thereof shall be laid before each House of Parliament, and the order shall not be made until the draft has been approved by resolution of each House.’* If the subordinate legislation is in the form of an Order in Council, the wording is: “A draft of any Order in Council under this section shall be laid before Parliament, and the draft shall not be submitted to H er Majesty unless each House of ParHament presents an Address to H er M ajesty praying that the Order be made.” (v) Laid in Draft and Made Subject to Annulment within Forty Days, Provisions to this effect are less common than the last three procedures discussed. By the Statutory Instruments Act, 1946, where such provisions are contained in Acts passed before 1948 but the period is other than forty days, then the A ct of 1946 operates to amend the period to one of forty days. By the Act of 1946, where a provision is contained in an A ct passed after 1947 requiring the laying o f a draft SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 469 before Parliament and not prohibiting the making of the instrument without the approval of Parliament, then the draft must lie before Parliament for forty days and is subject to annulment within that period. In this latter case, therefore, the words “A draft of any instrument made under this section shall tte laid before Parliament” are sufficient to subject the instrument to the negative procedure, without any express provision. (vi) Laid before Operative. The Statutory Instruments Act, 1946 makes an important change in procedure for instruments required to be laid before Parliament after being made. It provides that such instruments are to be laid before Parliament before they come into operation.® In exceptional cases where it is essential that instrument should come into operation before being laid, notification must be sent forthwith to the Lord Chancellor and the Speaker of the House of Commons explaining the reason. Standing Orders of both Houses require this notification to be communicated to Parliament, and the Select Cmmittee on Statutory Instruments is empowered to draw the attention of the House of Commons to cases where there has been unjustifiable delay in notifying the Speaker. This requirement to notify is to be treated as having been complied with, in a case in which notification forthwith is impossible by reason of a vacancy for the time being in the office of Lord Chancellor or of the Speaker, whether occurring by death, resignation, dissolution of Parliament, or otherwise, if the notification is sent immediately after the vacancy is filled. One result of this provision was that the notification procedure had to be followed when it was desired to make and operate an instrument at a time when Parliament was not sitting. In order to avoid this consequence, the House of Commons made a Standing Order which provided that an instrument, other than one required by its parent Act to be laid before Parliament for a period before it came into operation (requiring affirmative resolution or required to be laid in draft), delivered to the Votes and Proceedings Office any day during the existence of a Parliament was deemed to be laid before Parliament. When a similar Standing Order was moved in the House of Lords, objections were made that it was ultra vires in that it attempted to modify the meaning of “ laid before Parliament” in the statutes. As a result, the Laying of Documents before Parliament (Interpretation) Act, 1948, was passed. This Act provides that a reference in an Act or subordinate legislation to the laying of a

3. Section 4(1), supra at 462. 470 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 document before Parliament is to be construed as a reference to the taking, during the existence of a Parliament, of such action as is directed by virtue of any Standing or Sessional Order or other direction or practice of that House to constitute the laying of that document before that House, notwithstanding that the action consists in part or wholly of action capable of being taken other­ wise than at time when that House is sitting. The Houses of ParUament are therefore empowered to lay down what they mean by “laid before Parliament” and any doubt on the validity of the Standing Orders is removed. The Statutory Instruments Act, 1946, also requires each instru­ ment to bear on its face a statement showing the date on which it came or will come into operation, and a statement either showing the date on which copies were laid before ParHament or indicating that copies are to be laid before Parliament^. (vii) No Laying Requirement. The practice of requiring subordinate legislation to be laid before Parliament was occasionally adopted during the nineteenth century. The absence of the requirement is now exceptional but cases continue to occur whithout, generally, any apparent reason. Sometimes orders which are particular rather than general in application are not required to be laid—an example can be found in the Exchange Contorl Act, 1947. On the other hand, under the Furnished Houses (Rent Control) Act, 1946, regulations may be made “generally for carrying into effect the provisions of this Act" and there is no laying requirement. Wide powers to make Orders in Council, regulations and rules are conferred by the British Nationality A ct, 1948, and although they are required to be exercisable by statutory instrument, there is no laying requirement. Finally, the Civil Aviation A ct, 1946, provides an excellent illustration of the various laying provisions. Orders concerning the functions of the three new airways corporations and regulations to deal with consecrated land burial grounds are subject to parliamentary annulment. The Order in Council constituting the Air Transport Advisory Council must be laid in draft and is subject to annulment. Regulations relating to the compensation of officers must be approved by parliamentary resolution. Orders to stop up or divert highways are subject to the Statutory Orders (Special Procedure) Act, 1945, If the Minister wishes to provide for the 4. Section 4(2), supra at 463. SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 471

creation of easements and other rights in his favour, his order must be preceded by public notice and local inquiry and is subject to challenge in the High Court. Regulations governing the issue, transfer, etc., of corporation stocks, for the establishment and maintenance of pension schemes for employees, for keeping a register of births and deaths and governing the safe-custody and redelivery of property found are not required to be laid before Parliament at all.

NOTE

The existing pattern of “laying” procedure suffers from several anomalies, viz-, first whether a particular piece of delegated legislation shall be laid or not depends upon the terms of the parent statute. In this connection, it may be stated that quite a large bulk of delegated legislation is not laid; second, the question as to what type of “laying” procedure is to be adopted also depends on the parent Act. There does not seem to be any well established principle governing this practice.

JAIN, PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION IN INDIA' Public Law 42-51 (1964)

LAYING PROCEDURE

Parliament cannot be expected to supervise what it is not aware of. “Laying” procedure is made use of for informing the House about the contents of delegated legislation made by the Government and it thus constitutes the first step in ensuring parliamentary supervision over it. There is no general law in India requiring that all delegated legislation be laid before the House of Parliament. Whether a particular piece of delegated legislation is to be laid before the House or not depends upon the terms of the parent statute. Before 1957, the position in India was that quite a large number of statutes prescribed no laying procedure at all; the rules framed under them came into force without ever coming before Parliament which could, therefore, exercise no control over them. Further, the statutory provisions prescribing "laying” were not uniform and were variable. Usually, they followed three patterns; (1) Some required the rules to 5. Footnotes omitted. 472 INDIAN administrative LAW [ CHAPTER 6 be laid before Parliament “as soon as may be” after their publication, (2) a few statutes made rules promulgated under them subject to such modifications as Parliament “may make after they are laid on the table” (3) a very few stautes provided that the rules made under them be laid on the table of the Houses for a specified period before they are finally published. “Laying” with “ affirmative” or “negative” procedure was not prevalent in India. Formulae (1) and (2) are not mandatory but merely directory and failure to lay the rules does not make them legally infirm. The period for which rules were to be laid in formulae (2) and (3) differed from statute to statute and there was no uniformity in this respect. As a result thereof, varied forms and practices had come into being which resulted in ambiguities and confusions and rendered the work of the Committee on Subordinate Legislation difficult. The Scrutiny Committee, realising the need for achieving some uniformity in the laying procedures, suggested the following formula for adoption: All Acts of Parliament should uniformly require that the rules shall be laid on the table of the House as soon as possible, for a “uniform and total period of thirty days before the date of their final publication,” and that the rules “shall be subject to such modifications as the Houses may like to make.” The Government objected to this formula on the ground that it would create difficulties in cases where it might be necessary to enforce the rules immediately on publication. This apprehension of the Government, it may be noted, had not much substance as the practice prevailing in England could have been adopted in India to meet the difficulty envisaged. However, the Scrutiny Committee, to accommodate the Government’s point, agreed to add a proviso to the formula proposed, saying that “ Where it is not deemed expedient to lay any rules on the table before the date of publication, such rules may be laid as soon as possible after publication” and that an explanatory note should accompany the rules at the time of laying, explaining why it was not deemed expedient to lay them before final publication. The Government, however, proposed the following alternative formula instead: “ A ll rules made under this section shall be laid for not less than thirty days before both Houses as soon as possible after they are made and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the session immediately following.” The Committee accepted this model clause although it requires laying of rules after their coming into force while the Committee’s own original suggestion required the SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 473 rules to be laid before they came into force, which was in consonance with the English practice. A short time after adopting the above formula, need was felt to recast it so as to clarify the following points : (1) The period of thirty days for which the rules are to be laid before the Houses may be completed in one or more sessions; in the absence of this clarification, rules were often required to be relaid entailing considerable administrative difficulties. (2) If modifications are introduced in the rules after they have been laid, they are not to affect the previous operation of the unmodified rules. (3) If rules are laid before the Houses of Parliament on different dates, the period of thirty days is to run from the later date. (4) Rules come into force immediately and not after they have been laid for the stipulated period. (5) Not only modification but even annulment of the rules is possible. The new model clause agreed to between the Committee and the Government runs thus : “ Every rule made under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree the rule should not be made, the rule shall thereafter have effect only in such modified fo^m or be of no effect, as the case may be; so, however, that any ^uch ^ modification or annulment shall be without prejudice to the validity . of anything previously done under the rule.” A word of comment on the above model clause may be in order at this stage. It fixes thirty days as the “laying” period and thus seeks to avoid the lack of uniformity prevailing in the past with respect to the laying periods. The period allowed in India for modifying or annulling rules is shorter than the period of forty days prescribed in England. The model clause introduces the system of laying with the negative resolution procedure. It, has, however, the advantage of expressly reserving the power of the Houses to make modifications in the rules laid. On the whole, the model clause constitutes a great advance over the previous position when the “laying” provision was sporadic, more of an exception rather than the rule, and whenever “laying’’ was prescribed it used to be of the ordinary type without reserving Parliament's power to modify the rules. The model clause has now become the general norm and finds a place in most of the statutes enacted by Parliament. It is, 474 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

however, a matter for consideration whether or not it would mean better parliamentary control of delegated legislation if the original suggestion made by the Scrutiny Committee of laying the rules before their coming into force is implemented. To provide for enforcing the rules before their being laid, where the Government regards tliat course as necessary, a rule similar to the English rule can be adopted, viz., necessary information along with reasons for doing so be sent to the Speaker of the House of the People and the Chairman of the Council of States. Further, it is suggested that the model clause be enacted generally so as to become a part of every statute unless a particular statute specifically lays down a different laying procedure or declares that the rules under it shall not be subject to any laying procedure at all. Such exceptions from the general norm, it is hoped, will be few and far between. This step will be more convenient as it will obviate the necessity of repeating the longish model clause in every statute and thus make drafting of statutes simpler and more elegant. To enlighten the Member of Parliament on the content of the rules, and thereby to strengthen parliamentary control over them, the Scrutiny Committee suggested that when rules are laid before the Houses, a statement of objects and reasons, and explanatory notes on the rules, should be appended for information of the members, and when new rules amending the original rules are laid, relevant extracts from the original rules should be attached thereto. The Government has accepted the suggestions subject to the following riders ; explanatory note would not be attached to complicated and important rules without forming part of the rules; simple and self-explanatory rules do not require any explanatory notes; whenever an explanatory note has been attached to a rule, statement of objects and reasons is not necessary as the explanatory note would bring out the objects and reasons behind the rule; in case of an amending rule, extracts from the original rules sought to be amended would be laid on the Table of the House except when small amendments were being made in lengthy schedules appended to the rules, to copy which would entail a good deal of duplication.

Laying o f rules framed by state Governments under central Acts.

A typical problem arises in India due to federal nature of the Constitution. At times, laws are passed by Parliament for the sake of uniformity and co-ordination on several subjects, but the rule- making power under them is conferred on the state Governments so SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 475 that rules may be made to suit the conditions prevailing in each state. A moot question is whether the central law could prescribe laying of state-made rules before Parliament or the state legislature concerned for modification or annulment. Solution of the question presents difficulties. It is argued, on the one hand, that while making rules under a central law, the state Government acts as the delegate of Parliament and not of the state legislature and so it is not responsible to the latter; it is thus not proper to require the state-made rules to be laid before the state legislature as the power of overseeing the rules, and of seeing how far the delegate is exercising the power within the orbit of delegated authority, should properly and legally belong to Parliament, the fountain source of power. It is further added in support of this proposition that a provision in a central law requiring state-made rules to be laid before the state legislature would appear to confer a power to impose a duty on the state legislature, which is not possible under the Constitution. The state legislature has full power to regulate its own procedure. Therefore, a provision in the central law fixing the period of laying within which the rules may be modified might be unconstitutional or contrary to the state- made law, if any. On the other hand, laying of state-made rules before Parliament also bristles with difficulties. It is not a practical proposition because of the unmanageable bulk of state-made rules; no central Minister can own responsibihty for them, and so no one can physically lay them in Parliament. States would make rules keeping in view their peculiar local conditions, and so Parliament may not be in a position to discuss the state-made rules comprehensively in the absence of the knowledge of local conditions; a discussion of these rules in Parhament may lead to criticism of the state Government concerned, and no central Minister will be responsible for replying to such criticism. Appreciating these difficulties, the solution suggested by the Scrutiny Committee is that state Governments be requested to have their own laws enacted by their legislatures to provide for laying and modification of rules made by them (either under a central or state Act) by the state legislatures. It is suggested that it will be a great advantage if a model Bill is evolved for acceptance by all state legislatures so that uniform practices prevail throughout India... Laying in ihe absence o f a statutory provision to that effect. A s has already been said there is no general law in India requiring laying of all delegated legislation and it depends entirely on the terms of the parent statute. The Scrutiny Committee has, 476 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 however, on several occasions, especially in matters relating to finance, taken the view that the rules shoiild be laid before the House of the People even though the parent statute does not require it. A few examples may be cited here; the Central Excise and Salt Act, 1944, empowers the Government to exempt any article from excise duty; no obHgation is placed on the Government to inform the House whenever action is taken. The Scrutiny Committee has taken the view that the Government should inform the House, even though there is no statutory obligation to do so because the House is responsible for keeping a watch over the taxation pohcy. Information should be sent to the Speaker if the House is not in session at the relevant time. The Finance Minister has agreed to comply with the suggestion. The Government has not responded favourably to a suggestion of the Committee that when a Bill levying excise duty is pending in the House, the Government should not exempt any item from it without the approval of the House. The Finance Ministry has agreed, following a suggestion of the Scrutiny Committee, that rules framed by the Government under section 6 of the Railway Passenger Fares Act, 1957, “to carry out the purposes of the Act.” should be laid before the Houses even though there is no such statutory requirement. The Coffee Market Expansion Act, 1942, prescribes one rupee per cwt. as the customs or excise duty; Government is empowered to reduce it but no provision is made requiting the notification changing the duty to be laid before the House. The Government has accepted the suggestion of the Scrutiny Committee that such notification should be laid in the House of the People and that the Government should specify the nature of the change, along with reasons for it, so that the House, if necessary, may discuss it. The Indian TarifJ Act authorises the Government to increase export duty on a scheduled article, or levy export duty on a non-scheduled article. Such a notification is to be laid before, and approved by, the House within a given time. Such a notification may be rescinded by Government at any time; the rescinding notification is not, however, required to be laid before the House. The Scrutiny Committee felt that it would be proper if the notification rescinding a Parliament approved notification is placed before the House for approval. Government did not accept this suggestion and the Scrutiny Committee agreed with the Government’s point of view. Delay in laying rules. A theme occurring constantly in the reports of the Scrutiny Committee is with regard to the delay caused in laying rules before SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 477

Parliament. The usual statutory formula in India stipulates the laying of rules “as soon as may be” after they are made, but often rules are laid after an unduly long period. Since delay in laying reduces the efficacy of parliamentary control, the Scrutiny Committee has devoted some special attention to remedying this state of affairs. Its reports contain lists of Orders laid after an undue delay; statements showing dates of publication of the rules and their being laid in the House are annexed, to the reports. The Scrutiny Committee has underlined the words “as soon as may be” and impressed on the Government that it should take the first opportunity of placing the rules before the House. In some cases where long delay occurred in laying, it characterised the situation as “disquieting.” It suggested that rules be laid within seven days of their publication in the Gazette, if the House is in session; if not in session, within seven days of the commencement of the following session. The Government feeling difficulties in observing the seven days’ limit, proposed a time-limit of fifteen days instead. The Committee has accepted the Government’s suggestion. Nevertheless, cases of overstepping the fifteen days’ limit occur continually and in some cases there has been a delay of over a year. To improve this situation, the Scrutiny Committee suggested recently that an explanatory note should be appended to the rules when laid after inordinate delay, giving reasons for the same. The Government has not favoured this suggestion. Instead, it has proposed that the purpose of “pinpointing particular cases of delay" would be served if the Scrutiny Committee were informed of the reasons in suitable cases; if the explanation appears to be unsatisfactory, the Committee could bring those cases to the notice of the House through its reports. The Committee has accepted this proposition as an experimental measure. The Government has assured the Committee that the Department of Parliamentary Affairs is making special efforts to ensure that there was no delay in laying the rules before the House. The urgency and importance of avoiding delay has been impressed on all Ministries. Though the situation has improved appreciably as a result of the Committee’s vigilance, yet cases of delay do occur and each report of the Committee contains a list of rules laid after delay. 478 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

INDIAN LAW INSTITUTE. DELEGATED LEGISLATION IN INDIA 156-159 (1964)

In India until recently the requirement to lay subordinate legislation before Parliament was made in the following words'^’ ; All rules made under this section shall be laid for not less than 30 days before both Houses of Parliament as soon as possible after they are made and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the session immediately follow ing. Regarding the effect of non-laying two questions seem to arise; (1) Are the rules prevented from taking effect until they are laid before Parliament? (2) If the rules can come into effect before they are so laid, do they cease to be effective subsequently because they are not laid within the specified period ? As to the first question, the following observation of the Supreme Court, though made by way of obffer dicta, in Express Newspapers v. Union of India^"^ may be relevant; The rule was framed by the Central Government,... and was a piece of delegated legislation which, if the rules were laid before both the Houses of Parliament....acquired the force of law. After the publication of the rules, they became a part of the Act itself. The earlier part of this passage suggests that for bringing the rules into force their laying is essential, but the latter part indicates, perhaps a little inconsistently, that their publication is enough to give them the force of law. It is difficult to draw an inference whether the court said so because in its opinion both laying and publication were essential. W e may recall here that in Narendra Kumar V. Union o f India,^ certain principles regarded as part of certain statutory rules were declared ineffective because they were neither published nor laid. There is, however, nothing in Narendra Kumar’s case to suggest that the result would have been the same if the principles were published but not laid. In In re Kerala Education Bill the Supreme Court observed*’ ' ‘After the Rules are laid before the Legislative Assembly they may be altered or amended and it is then that the Rules, as amended, 6. See, First Report, Lok Sabha Committee on Subordinate Legislation (1954). 7. 1958 S. C. J. 113 at U8. 8. Supra at 351 and 403. 9. 1959 S. C. J. 321 at 344. SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 479 become effective. If no amendments are made the Rules come into operation after a period of 14 days (the period for which they were required to remain before legislature) expired.’ Here the court seemed to be of the definite view that the rules could not come into effect until they were laid and after the laying period had elapsed. If this was the correct view, it would follow that the rules would not be effective at all in case they were not laid. The matter was considered in detail by the Calcutta High Court in MimnalaJw. H. M. Scott,^^ where the court examined whether a laying requirement, contained in Art. 320(5) of the Constitution of India, was mandatory or directory. This provision was materially the same as given above with the addition, however, of a few words to the effect that the modifications which the Houses of Parliament might make ‘could be whether by way of repeal or amendment’. Chakravarti, C. J., pointed out that the word repeal’ implied and connoted that what had to be repealed was already law. It was not said in the provision that till the regulations had been laid or after they had been laid for a particular period, they should not come into force. The court therefore held that the laying requirement was not mandatory and the regulations involved in the case were intended by the Constitution to be valid even before they were laid. The Calcutta High Court’s opinion that the statutory rules required to be laid before Parliament are valid even before they are laid, seems rather convincing. Prior to the regular practice of providing for laying of statutory rules before Parliament grew up, the enabling Acts used to state, that rules might be made by government by notification in the Gazette and to come into force on the date of such notification-or on a later date specified therein. Now what the laying provision requires is that the rules shall be laid...‘as soon as possible after they are made....’ Obviously the old position that rules may come into effect on their notification seems to remain unchanged. No doubt rules are directed to be subject to such modifications as Parliament may make within the prescribed period after their laying, but this direction does not affect the validity of the rules prior to passing of such modifications if any^\ - It is interesing to note that to get over the difficulties implicit in the observation of the Supreme Court in In re Kerala Education 10. A. I. R. 1955”CaL 451. 11. The English Case, Bailey v. Williamson (1873) 8 Q. B, 118 is a useful guide on this point. 480 INDIAN ADMINISTRATIVE LA W [ CHAPTER 6

the Central Government, after consulting the Committee on Subordinate Legislation, changed the laying clause in such a way that the rules requiredi to be laid before Parliament would be operative ab initio}^ The following words have been added to the clause,^^ So however that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule. The second question, whether the rules cease to be operative if they are not laid before the Legislature within the specified time, remains to be considered. If the rules required to be laid become effective before they are laid, do they later cease to be operative if not laid within the prescribed period ? The Supreme Court’s observations cited above do not indicate that the court regarded the laying requirement as directory; rather they suggested the contrary. The Calcutta High Court, which held in Munnalal v. H. R. ScotO^, that the laying requirement was directory, did so, it is respectfully submitted, without considering the question fully. The court examined only one aspect of the problem—whether laying was essential for the relevant regulations to come into effect. After finding that the regulations were intended to be valid even before they were laid, the court held that the laying requirement was directory. If ‘laying’ was directory it should mean that a failure to lay the regulations within the prescribed period would not affect the continued validity of the regulations. But this aspect was not touched by the court. In deciding whether the requirement to lay statutory rules within the prescribed period is directory or mandatory, the consequence of holding the requirement as mandatory shall have to be taken into consideration. The period within which rules are required to be laid according to the laying clause in India is “as soon as possible after they are made” which means an indefinite period. If the laying provision is held to be mandatory, the consequence will be that the rules which are in force ab initio will cease to be operative because they are subsequently not laid before Parliament within some future and indefinite period. This will introduce uncertainty into law, causing hardship to the general public for want of proper means 12. 1959 S, C. J. 321 at 344, 13. Fifth Report, Committee on Subordinate Legislation (2nd L.S.), 8-9. 14. For example, See S. 17 of the Haj Committee Act, 1959. 15. Supra at 479. SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION ‘ISl

to know the government’s failure to lay. On the other hand, if we look to the object of the laying requirement it does not seem to be more than that of providing an opportunity for parliamentary control of delegated legislation. But as was said in Springer v. Doorly, uncertainty in law is a greater evil than the ineffectiveness of parliamentary control in those few cases where there may be failure to lay. If all these factors are taken into consideration it seems likely that the Indian courts will take the stand that the requirement to lay rules before Parliament within the prescribed period is only directory.

NOTES

In the “laying” procedure as is commonly followed now in terms of the formula evolved by the Committee on subordinate legislation, the following points may be noted : It is of the “negative” type. It differs from parallel English procedure in several respects.

“First, the Indian Procedure not only permits the annulment of statutory rules laid before Parliament like the British negative procedure, but also authorises the two Houses to modify them by a concurrent resolution. In the United Kingdom, Parliament does not have power to modify instruments by its resolutions. Secondly, according to the present practice in India, concurrence of both Houses of Parliament is essential for modification or annulment of statutory rules, whereas in the United Kingdom instruments may be revoked on resolution of either Houses. Thirdly, under the Indian procedure, delegated legislation stands modified or annulled as soon as a resolution to that effect is passed by one House and agreed to by the other; but in the United Kingdom a Parliamentary resolution cannot directly effect annulment of instruments. Under tbe British negative procedure a resolution must first be passed to the effect that an address be presented to Her Majesty praying that the instrument be annulled and Her Majesty may then, by Order- in-Council, revoke the instrument. Fourthly, in India, the power of the two Houses of Parliament to annul or modify the statutory instruments laid before them extends to the remaining period of the session in which it is so laid and to whole of the session next following. But in Britain the negative resolution must be passed within 40 days of the laying of the instrument concerned."^® 16- The Indian Law Institute, Delegated Legislation in Indid 1B6-7 (1964). 482 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

A further word of comment on the Indian “laying” procedure is that it neglects the “affirmative” procedure practically completely. The “negative” procedure is convenient to the government but is less efficacious from the point of vievsr of control. In the “affirmative” procedure, a discussion must be raised in the Houses for the proposed rules to become valid and, therefore, parliamentary control is more effective. It is suggested that the Committee on Subordinate Legislation should consider this matter and lay down criteria when “affirmative” procedure may be followed. In practice it appears that the Indian Parliament does not take much interest in scrutinising delegated legislation as is evident from the fact that only on a few occasions discussion is raised on the proposed rules laid before Parliament. During 1952-59, only fifteen sets of statutory rules were brought into discussion in the L ok Sabha, and still less in the Rajya Sabha, while the mass of delegated legislation produced during the period was enormous.^’

“ LAYING” PROVISION DIRECTORY OR MANDATORY

Section 9 of the Parks Regulations Act, 1872, required that rules made thereunder were to be laid before the two Houses of Parliament ‘forthwith’ and if disapproved by any House within one month of being so laid, such rules were not to be enforced. The regulations made under the Act had not been laid before Parliament. The defendant argued that they did not become effective until they had been so laid and were, therefore, invalid. The Court held in Bailey v. Williamson}^ that they become effective on being made and continued to be effective until disapproved by Parliament and the failure to lay them did not affect their validity.

In 1944, the Home Secretary’s failure to lay a series of National Fire Service Regulations (Indemnity) Act, 1944, which not only indemnified the Home Secretary, but also provided (perhaps sx abundanti cautela) that the Regulations “shall be deemed to have been duly laid before Parliament in accordance with the requirements of the statute under which they were made.” In 1944 it was found that a series of regulations made under the Fire Services (Emergency Provisions) Act, 1941, had not been laid before Parliament. Therefore, an Act was passed indemnifying the

17. The Indian Law Institute, Delegated Legislation in India 193-8 (1964). 18. (1873) Q. B. 118. Also Starey v. Graham, (1899) 1 Q. B, 406; Sheer Metalcmft case (1954) 1 Q. B, 586, SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 483

Secretary of State and it provided that the regulations should be deemed to have been duly laid. In a W est Indian case, Springer v. Doorly, the Court of Appeal held that the requirement of laying the regulations before the legislature “as soon as possible” was merely directory and not mandatory. The Court was of the view that to hold the regulations null and void would work serious general inconvenience and injustice; that to hold the provision mandatory would introduce uncertainty in the law and would thus cause inconvenience to the public.^®

In India also the position appears to be the same, namely that the “laying” requirement is “directory” only.

THE INDIAN LAW INSTITUTE, ADMINISTRATIVE PROCESS UNDER THE ESSENTIAL COMMODITIES ACT 85-6 (1964)

The delegation of power on the executive under S. 3 of the Essential Commodities Act is so broad that it is virtually not possible for the courts to control its exercise or to hold that an order made under it is ultra vires. It is purely a matter for the subjective satisfaction of the executive as to what order should be made. In this context, the parliamentary control over the orders becomes important. To secure such a control, orders made by the Central Government or by any of its officers, are required to be laid before both Houses of Parliament. This is a plain and simple “laying” without either an affirmative or a negative resolution. One of the advantages of this provision is that the members of both Houses get a chance of becoming acquainted with the orders made by the executive under the Act so that they might be able to press for repeal, revocation or amendment of an obnoxious order. This, however, is not a very substantial safeguard as, in these days, members have too much to inform themselves about, and further, the party discipline in Parliament does not leave much freedom to an individual member to question an executive order in the House. Regarding S.3(6), the Judicial Commissioner of Manipur has held in Prithi Singh v. Union o f India^^ that the sub-section does not provide for the result that will

19. 66 L, Q. Rev. 299 (llSO); also see Griffith and Street, Principles oj Administrattve Law, 110-2 (1957). 2% A.LR, 1959 Manipur 43, 484 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 follow, if the provisions of that sub-section are not complied with. In such a case, it cannot be said that the provisions are mandatory, which means that they are only directory. The same view is supported by the judgment of the Andhra High Court in Krishnan v. Secretary, R.T. Authority^-'^ given in relation to S. 133 of the Motor Vehicles Act. In Chimilal v. Manipur^^, S.3(6) of the Essential Commodities Act was held to be mandatory so that an order made under S.3(l) and not laid before Parliament was held to be inoperative, but this is now overruled in view of the later decision in the Prithi Singh case mentioned above. The “laying” procedure was, however, caught hold of by the courts to hold that S. 3 does not confer arbitrary powers on the executive and so is constitutionally valid.

PARLIAMENTARY SCRUTINY COMMITTEE

GRIFFITH, DELEGATED LEGISLATION—SOME RECENT DEVELOPMENTS 12 Mod. L. Rev. 297-306 (1949)23

L The Select Committee on Statutory Instruments, Statutory instruments can be regarded from two standpoints. First, the likely effect may be looked at, and examination is then directed to their merits to see if their provisions are desirable. Secondly, they may be considered as the formal results of the delegated power, in which case the question is whether they are the type of instrument which the Legislature intended or expected to emerge. From either of these standpoints Members may speak when the instrument has been laid before Parliament. It is sometimes argued that this laying is ineffective; this generally seems to mean that too few instruments are examined as to their merits and derives more from a dislike of governmental ‘interference’ than from a fear that the substance of instrument does not reflect the intention of the parent Act. The most cogent of the reasons for the delegation of the power to legislate is the shortage of Parliamentary time, and the requirement that ParHament should reconsider the merits and policy of any large number of instruments defeats the purpose of delegation. The policy of the parent Act has been debated; so have the principles 21. A.I.R. 1956 Andhra 129. ' 22. A.IR. 1956 Manipur 25. 23. Original footnotes have been omitted. A few footnotes have been added to bring the statistical data to a later date. (Ed.). SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 485 of its sections; interests affected by the Act have been consulted, their representations considered, amendments made and final decisions taken by the Government. The point was made most clearly by a Government Department to the Donoaghmore Committee; in a memorandum the Ministry of Transport stated: ‘Unless Parliamentary approval is to be accorded in a way which might be regarded as perfunctory, it would be difficult, even if it were possible, to avoid a reopening of the whole merits of the various provisions contained in the Rules and Orders submitted. It is therefore right that only on rare occasions should the merits and policy form the basis of a prayer for annulment or the opposition to an affirmative resolution. In the House of Lords, those instruments which require affirmative resolutions are referred to the Special Orders Committee, which decides, if the order is of the nature of a public Bill, whether there should be a debate and, if the order is of the nature of a private or hybrid whether it should, because of the petitions laid against it, be considered by a Select Committee. The question of shortage of time which so determines the attitude of the House of Commons scarcely arises in the House of Lords. The Select Committee regards the formal or constitutional aspects. The Committee was first appointed in 1944, after a debate in that year, to consider every statutory instrument laid or laid in draft before the House of Commons, upon which proceedings might be taken in either House in pursuance of any Act of Parliament, with a view to determine whether the special attention of the House should be drawn to it on any of the following grounds: that it imposes charges, is not open to challenge in the courts, appears to make unusual or unexpected use of the powers conferred, purports to have retrospective effect where the parent statute confers no such express authority, that there has been unjustifiable delay in publication or in the laying before Parliament or in notifying the Speaker in accordance with section 4(1) of the Statutory Instruments Act, 1946, or that for any special reason its form or purport calls for elucidation. The powers of the Committee include the requiring of written or oral explanation from Government Departments and the reporting to the House of this explanation; before drawing the attention of the House to any instrument, the Committee must give departments an opportunity for such explanation. This order of reference gives the Committee no power to inquire into the merits of an instrument. Sir Gilbert Campion (then Clerk of the House of Commons) made two proposals to the recent Select Committee on Procedure, 486 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

which would have greatly extended the powers of the Statutory Instruments Committee, and which serve show its present function. The first proposal was that the latter Committee should examine every statutory instrument which is subject to annulment and be empowered to report on its merits, as an exercise of the powers delegated. Sir Gilbert admitted that the merits and poUcy of the parent Act should not be discussed, and recognised that the distinction might be difficult to maintain. None of the other witnesses supported this proposal. The principal objections were t w o : first, that it would divide the Select Committee on party lines and, secondly, that it would add so greatly to the work of the Committee as to prevent it functioning at all. This latter objection was particularly stressed by Sir Charles MacAndrew as Chairman, and by Sir Cecil Carr as Assistant to the Statutory Instruments Committee. The Government rejected the proposal on the ground that it would mean Ministers attending before the Committee to defend the poHcy embodied in the instruments. The Clerk of the House in answer pointed out that the merits of an instrument, as an exercise of the powers delegated, were not the same as the policy of the instrument or of the parent Act. In the normal type of delegated legislation, where the limits of the power are clearly defined, the merits of an instrument, in his view, consisted in its effectiveness in carrying out accepted policy without unnecessary interference with the rights of the public. But this does not seem to meet the criticisms for, if the Committee is to be enabled to report that the instrument is not effective in carrying out the policy of the Act (a decision which would be very difficult to make before there had been experience of its practical working), Parliament is attempting to instruct the Executive how best to govern and to suggest, inevitably, lines of detailed administration. Such is not and cannot be a Parliamentary function. The second proposal was that the Select Committee should have power to inquire into and report on any grievances arising out of instruments actually in operation. Again, this proposal received no support. It was not clear how it could be tackled at all, but there was agreement that this Committee was not the proper organ. Sir Gilbert later explained that what he had meant was that the Committee should inquire not into the grievances themselves but into the operation of instruments which had been the subject of reasonable complaint. The opinion has indeed often been expressed that the methods whereby complaints can be made by Members of Parliament against particular administrative action are inadequate* SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 487

In their Third Report, the Select Committee on Procedure in 1946 said of both Sir Gilbert Campion’s proposals that they “would go some way to supplement the inadequate and unsatisfactory opportuni­ ties which the House at present possesses for exercising its control over one aspect of administration,” but they preferred to recommend the setting up of another Select Committee to inqurie into the delegation of legislative power generally. The Government, however, has declined to support this recommendation at the present time. It would seem both impossible and inappropriate for one Committee to deal with complaints arising on all the subjects dealt with by statutory instruments. The alternative which has been constantly advocated is the setting up of committees of members attached to departments. There is, however, a serious objection to this. Criticism of policy and the making of complaints are proper functions for Parliament to which Ministers are responsible and where, if they are not quickly to lose their reputations, they must adequately defend themselves. But it is the duty of the Government to govern, and departments must be run by Ministers, not Parliamentary Committees. As Sir Cecil Carr has stated: “The proposal may be said to involve a more definite intrusion by the Legislature into the daily routine of administering the government of the country than has hitherto been undertaken.. . When the question of committees sitting attached to all the different departments has been proposed in the past ...there were witnesses who thought that a committee of the House should actually sit inside the department because all the material would be there.... It seems to me a remarkable constitutional innovation that Members of the House of Commons should invade Whitehall. The House might not welcome reciprocity on those lines/' Sir Gilbert Campion himself has pointed out the difference between the present powers of the Statutory Instruments Committee and the powers which it would have if their proposals were adopted. The present Committee, in liis words, ‘is looking at the formal aspects and I am thinking of something which would look more at the instrument itself.’ Nevertheless, the Committee’s terms of reference are not narrow. The duty to draw the attention of the House to an instrument which ‘appears to make some unusual or unexpected use of the powers conferred’ has been called by the Member who in 1944 moved that the Committee be 'set up, ‘a most original and brilliant piece of draughtsmanship.’ He adds: ‘It is not desirable that a minority in Parliament which has failed to defeat the A ct establishing the policy should be encouraged to oppose the statutory instrument giving 488 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 effect to the policy. What should however be provided against is that a Minister should be able to use his powers in a way not contemplated by Pariament’. Similarly, the Lord President of the Council has said: ‘What is important is that the subordinate legislation should not go outside the authority given by Parliament, That is the great thing that has to be watched.’ The function of the Committee has been thus described by its Chairman : ‘If Members of Parliament were all perfect and able to do an inestimable amount of work, they would read all [the statutory instruments] through themselves and, if they desired, they could put down a prayer against any particular one but to save them doing that, this Committee is set up. Our function is to go through them and report to the House for their action if we think there is anything unexpected or any unjustifiable delay or something that calls for elucidation'. The Committee as such never makes an official ‘prayer’ in the House, although Members of the Committee are free to do so. The distinction made by the Committee between examination of the merits and pohcy of an instrument and the decision that an unusual or unexpected use has been made of the power to legislate has been exempHfied by Sir Cecil Carr : ‘The line taken from the beginning has been : if you have a price-fixing order for potatoes... and the price goes up 2d or down 2d . . that is policy and merits, but, if you found it went up suddenly by 19s . . that was something you might regard as an unusual or unexpected use of the power.’ From its first sitting until the end of the 1947-48 session the Committee examined approximately 3200 instruments and submitted 52 routine and 8 special reports to the House.^'^ It has drawn the attention of the House to 16 instruments which appeared to make an unusual or unexpected use of the powers conferred. Two examples may be given. The first was one of the type suggested by Sir Cecil Carr in the example quoted above. Under the Raw Cocoa (Control and Maximum Prices) (Amendment) Order, 1947, the price of raw cocoa to manufacturers in this country was raised from 51s. to 119s. per hundredweight, and the Ministry of Food sent a senior official to the Committee to explain the reason for the increase. The Ministry’s buying price, it appeared from his evidence, was determined by the world price following the New York market price, which had 24. Till the end of the 1959-60 session, it examined some 10,780 instruments, drew the attention of the House to 49 instruments which appeared to make an unusual or unexpected use of the powers conferred ; Griffith and Street, Principles of Administrative Law, 94 (1957 ed.). SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 489

soared when America removed controls. Questions were asked to ascertain to whom the additional money went, and the Government’s policy to the African native was discussed. Presumably, however, whatever explanation had been given, the Committee would have drawn the attention of the House to the instrument, since it was of opinion that the power delegated was meant to enable the Minister to vary within narrow Hmits the controlled price of raw cocoa, not to double the price at one stroke. Some of the questions very closely approached the merits and policy of the action. One Member suggested that it might have been fairer to the public if the price had been gradually increased, and that the Colonial OfHce might have seen to it that the profit went back to the gorwers for the improvement of the plantations. The giving of an explanation to the Committee by a departmental official both' clarifies the issue and saves time, enabling criticism in the House to be relevant and informed. Equally desirable are questions for the elucidation of the explanation. But implied or expressed criticism of the policy and merits of the instrument fall, it is submitted, outside the Committee’s terms of reference and should be addressed to the responsible Minister in the House itself. The second example concerns the Seizure of Food Order, 1948. This Order provided for the seizure and sale of any article of food in respect of which an offence against Regulations 55 and 55 AB of the Defence (General) Regulations had been or was believed to have been committed. In addition it authorised the deduction of expenses incurred by or on behalf of the Minister whether conviction or acquittal of the accused ensued. The proceeds of sale, less these expenses subject to certain directions which might be made by the courts, were to be returned to the owner. The Committee particularly requested to be informed of the statutory provision which authorised the deduction of expenses. The Ministry of Food sent a memorandum to the Committee first pointing out that the Defence Regulations gave power to the Minister when making the Order to provide for ‘any incidental and supplementary matters’ which he thought ‘expedient for the purposes of the Order to provide’, and secondly, claiming that ‘the deduction of expenses is only reasonable to ensure that the Ministry is not involved in financial loss through the handling of property which may be that of a person who has been convicted of a serious offence* or where the offence is believed to have been committed. In practice, the department stated, no deduction of expenses was made where a person was acquitted. The Parliamentary Secretary to the Ministry 490 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 of Food had given an undertaking in the House that Order would be amended to provide that no expenses should be deducted where no conviction was obtained. In addition, the question of the vires of the provision for the deduction of expenses was referred to the Solicitor- General for his opinion. In this example, opposition to the Order had already been voiced in the House when the Committee first examined it. This also happened in the case of the Registration for Employment Order, 1947 (the ‘spivs and drones Order). This reversal of the usual procedure does not make the Committee’s examination in any way superfluous; in the Committee, Members may question the Ministry’s senior officials on certain aspects of the instrument in the House they cannot. So long as the officials are not questioned on the policy and merits, the responsibility of the Minister is not impaired.^^

The Committee has drawn the attention of the House to seven instruments®® the from or purport of which called for elucidation, and to thirty-two*^’ instruments where the publication or laying before Parliaments appeared to have been unjustifiably delayed. In 1956 the Committee expressed strongly their disapproval of instruments which purported to have retrospective effect although there was no express statutory authority for this; as a result, the power of drawing the attention of the House to such instruments was added to the terms of reference and has been used on one occasion.^® The Committee has not discovered any®® instrument which imposes a charge within the meaning of the first head of reference or which is made in pursuance of an enactment containing specific provisions excluding it from challenge in the courts (the second head). The total number of instruments, therefore, to which the attention of the House has been drawn by the Committee up to the end of the 1947-48 session is fifty- five.^® This means that the Committee thought that an unusual or unexpected use of the power had been made, or that the form or purport of the instrument required elucidation, or that the instrument had retrospective effect without express authority, is less than one per cent of all those examined. The total number of instruments registered is of course far greater than the number examined. A scrutiny 25. For a few more examples see^ Griffith and Street, id. 94-5. 26. Thirty-eight by the end of 1959-60. (Ed.). 27. Thirty-nine by the end of 1959-60, (Ed.). 28. Four by the end of 1959-60. (Ed.). 29. One by the end of 1959-60. (Ed.). 30. Hundred and thirty-one by the end of 1959-60, (Ed.). SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 491 of the instruments registered under the numbers 1-200 for 1948 shows that only seventy-one of these were examined by the Committee. Of the remainder, seventy-two were not published by the Stationery OfBce for sale to the general public; there are broadly four categories in this group ; first, local instruments; second, any general instrument which is or will be otherwise printed as a series and made available to the persons affected; third, temporary instruments; fourth, instruments the printing and sale of which would be ‘contrary to the public interest’ in the opinion of the Minister concerned. Again, forty-seven of the 200 were not required by the parent Act to be laid before Parliament; these include orders under the W ages Councils A ct, 1945, the Requisitioned Land and W a r W orks A ct, 1945, the Trading with the Enemy A ct, 1939, and eighteen other statutes. A further seven were laid but were not examined because no provision had been made rendering them subject to Parliamentary proceedings. Indirectly and through Special Reports, the Committee has had considerable influence. The Seventh Report of 1945-6 Session Committee drew attention to thirteen instruments the publication or laying before Parliament of which appeared to have been unjustifiably delayed; its Ninth Report listed seven more; the Tenth to Fourteenth totalled another seven; none appeared in the Fifteenth to Twenty- first Reports. In the whole of the 1946-7 session, the attention of the House was drawn to two such instruments and to only one in the 1947-8 session^^. The need for consolidation of overamended instruments has been urged; so has the desirability of descriptive short titles. The issue of explanatory notes was welcomed by the Committee. It cited the following instruments: ‘The Laundry (Control) Order, 1942, as amended by the Laundry (Control) (No. 2) Order, 1942, shall have effect as if sub-paragraph (3) of paragraph 2 were omitted and the Laundry ( Control) ( No. 2 ) Order, 1942 is hereby revoked’. The Committee commented: ‘To that unilluminating provision the following explanatory note is added: “The effect of this Order is that a lunderer is no longer required to give notice to the Board of Trade if he intends to close down his business either temporarily or permanently”. The Committee suggested that the explanatory note might have been placed, with advantage, in the forefront of the Order itself. Sub-delegation has also been the object of the Committee’s attentions, and concern is expressed ‘over the 31. In 1948-49 session, one; In the 1950 session, one; in the 1950-51 session, five; and in the nine subsequent sessions, one. (Ed.). 492 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 difficulty of knowing in each case wliether the directions, requirements or other details will or will not take the form of statutory instruments and whether they will or will not escape any provision in the parent statute which would cause them to be laid before the House and be subject to annulment of motion.’ In 1944, the Committee referred to ‘the apparent absence of any affirmative resolution and the procedure for annulment of rules and orders by adverse prayer/ In 1947, the Committee again drew attention to the need of ‘some considered formula', but the Lord President of the Council answering a question in the House refused to lay down any rules and attempted to pass the responsibility on to Parliament ‘because the Bill comes before Parliament and Parliament can argue the point and decide it’. This idea that ParHament is the appropriate body to decide such matters, rather than the draftsmen under the guidance of Ministers and officials, is merely playing with constitutional phraseology and is presumably not intended as a serious contribrution. One additional power must be noted. Under the Statutory Instruments Act, 1946, instruments may, exceptionally, be laid after becoming operative. To avoid criticisms similar to those directed against Provisional Rules under the Rules Publication Act, 1893, the Speaker of the House of Commons must be notified of any such instruments. The Select Committee has been empowered to consider any of these notifications, and, as we have noted, to draw the attention of the House to cases of unjustifiable delay in notifying the Speaker. The idea of a Select Committee operating in this way was generally opposed as impracticable before it was tried. Sir Arthur Robinson, Secretary to the Ministry of Health in 1931, failed to see how it could avoid going into the question of merits. Sir Ivor Jennings considered that the task would be impossible and the Members could not be found to undertake it. On the other hand, the Donoughmore Committee recommended a Standing Committee to be established in each House with the duty of scrutinising not only the regulations but also every Bill containing proposals for the conferring of legislative powers on Ministers. Dr. C. K. Allen has recently revived this latter recommendation. To sum up ; the amount of work, most of it drudgery, which is done by the Committee with the assistance of Sir Cecil Carr is considerable. The value and importance of this work are undeniable. The very existence of the Committee must prevent more shortcomings than the Committee detects; unjustifiable delay in publication and laying before Parliament has almost ceased; the intelligibility of SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 493 instruments has slightly increased. Old practices and new develop­ ments are quickly noted and, where necessary, watched. For good, well-planned administration in the modern State, the Government must possess considerable legislative and iudicial (in addition to executive) powers. The greater the power, the greater the need to ensure that it is used only for the purpose and in the way authorised. Moreover, misappHed power is not only dangerous, it is also wasteful. The fear is that the Select Committee will be swamped and forced to be less thorough. In the 1946-7 session, 795 instruments were examined. In the 1947-8 session, the figure was 1189. Under the Statutory Instruments A ct, 1946, the effect o f which is only now beginning to be felt, not only those instruments made but also those confirmed or approved by a Minister and required to be laid before Parliament, now come before the Committee* More than half of the instruments examined still derive from emergency legislation, though the proportion is decreasing. On the whole, it seems unlikely that the number of instruments will soon start appreciably to diminish. It remains to be seen whether the Select Committee as at present constituted can continue to carry what may be an ever-increasing burden.®^

SCHWARTZ, AN INTRODUCTION TO AMERICAN ADMINISTRATIVE LAW 68-70 (1962)

LEGISLATIVE CONTROL

Procedure in administrative rule-making designed to secure participation by interests specially affected, such as the techniques we have been discussing, though perhaps the primary safeguard to ensure the proper exercise of powers of delegated legislation, remains largely an internal check. Legislatures may prescribe and courts attempt to enforce procedural requirements, but their effectiveness in practice depends mainly upon the administrative agency itself. Thus, consultations of interests or hearing can be gone through as a matter of form, without any effect upon the delegated legislation as actually issued.

32, In the three full sessions of 1951-2, 1952-3,1953-4, the Committee examined only 930, 680 and 595 instruments respectively; and the average for each session from 1954-5 to 1959-60 was 450. “ There seems to be no reason to believe that the work of this committee is proving too onerous” . Griffith and Street, op. cit, p. 99 (Ed.). 494 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

There are, however, other safeguards upon the exercise of powers of delegated legislation which are external to the administrative process. These are the checks imposed by the legislature and judiciary. In Britain, Parliamentary control over delegated legislation is exercised through the various forms of “laying” prescribed in enabling Acts, Through them, the legislature is enabled at least in theory to exercise a continuing supervision over administrative rules and regulations. The methods of Parliamentary control which have been developed on the eastern side of the Atlantic have almost no American counterparts. This is largely due to the differing constitutional position of the legislature in both countries. Control of administrative action in America is left more to the courts of law, and the Congress is not thought of as being responsible even for the limited supervision over delegated legislation that ParUament exercises.

Yet this is not to say that the American legislature should not take a more active role in controlling administrative rule-making. As Dean Landis points out, the English techniques have several virtues. “For one thing, they bring the legislative into close and constant contact with the administrative.” An M. P. who wishes to object to some regulation or order can do so directly on the floor of the House. The individual Congressman, on the other hand, can only place his objection before the administrative agency concerned. If the agency refuses to meet the objection, he can seek to bring indirect pressure against it; there is no direct machinery for congres­ sional annulment of particular regulations analogous to the negative- resolution technique in Britain.

The laying procedure has, it is true, not been entirely unknown in American practice. One example, which readily comes to mind is the Reorganization Act of 1939, which, as its title implies, gave the President extensive powers to reorganize the executive branch of the Government by executive order. This measure passed only after bitter controversy and with the authority asked for by the President was substantially cut down. The laying requirement was inserted as a check upon the power conferred; Presidential reorganization orders were not to be operative for a stated period during which they could be nullified by the Congress. This provision did, in fact, enable some Congressional control to be maintained over the power delegated, for the measure was a highly contentious one, and the legislative interest was thus sufficiently aroused to ensure adequate scrutiny of the orders which were laid. SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 495

Direct legislative control by the laying technique has, all the same, been comparatively rare in the United States. Control by Congress over administrative agencies has tended rather to be indirect through the prescription of statutory requirements to which the administrative process must conform. Nevertheless, it should be pointed out that the question of more effective legislative control of administration is one that has become increasingly current among American administrative lawyers. Americans interested in the subject are coming to see that, there to be truly ejffective checks upon administrative action, control by the courts must be supplemented by Congressional oversight. The Congress is the one great organ of American government that is both responsible to the electorate and independent of the Executive. As the source of delegations of administrative power, it must also exercise direct responsibility over the manner in which such power is employed. The Congress does not really get rid of a subject by delegating powers to the Executive. The consistent transfer of authority to the agencies only increases the difficulty, from the point of view of the effective working of respresentative democracy. If the trend toward bureaucratic predominance is successfully to be resisted, the Congress must not surrender control as it has delegated power. In an era of ever- expanding administrative authority the great need is for effective safeguards outside of the executive branch, by organs wholly independent of the administrative process. Such independent control can, in practice, be exercised only by the legislative and judicial branches. In the United States, as already stated, attention has been devoted to control by the courts as a safeguard. The technique of direct legislative supervision has largely been neglected. The development of proper tachniques of Congressional control can enable the Congress to assume its rightful place, proper to the elected representatives of the people, as overseer of the powers which it has delegated.

JAIN. PALIAMENTARY CONTROL OF DELEGATED LEGlSLATION=*=* Public Law 35-40 (1964)

THE COMMITTEE ON SUBORDINATE LEGISLATION The main trouble with the modern legislature, due to the impact of the doctrine of the welfare state, is that it is a very busy body and 33, Footqotes omitted. 496 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 is always pressed for time. It cannot, therefore, as a body, exercise effective supervision over delegated legislation. Leaving the matter to the initiative of individual members does not mean much, as their own resources are not adequate to enable them to keep vigilance over, and scrutinise, the bulky and complicated delegated legislation which daily keeps flowing from government departments •= Need has therefore been felt for an “automatic machinery to carry on an effective scrutiny over delegated legislation on behalf of Parliament as a whole. To fulfil this aim, the Select Committee on Statutory Instruments was set up in the House of Commons in England in 1944 and has been functioning since then. On the same model, the Committee on Subordinate Legislation has been functioning in the House of the People since December 1, 1953. The composition, powers and functions of the Committee are delineated in the Rules of Procedure and Conduct of Business of the House. The Committee consists of 15 members nominated by the Speaker for one year. The convention is to appoint members from all political parties in the House and they are represented on the Committee in proportion to their strength. A Minister cannot be a member. Its Chairman is appointed by the Speaker, but the Deputy Speaker, in case he is a member, ipso facto becomes the Chairman. The Committee has power to require attendance of persons or production of papers or records, if it considers such a course necessary for discharging its duties. The Government may, however, decline to produce a document on the ground that its disclosure would be prejudicial to the safety or interest of the state. The general function of the Committee is to scrutinise and report to the House of People “whether the powers to make regulations, rules, sub-rules, by-laws, etc., conferred by the Constitution or delegated by Parliament are being properly exercised within such delegation. More specifically, the Committee is to scrutinise each Order laid before the House and to consider : 1. Whether the Order is in accord with the general object of the Constitution or the Act pursuant to which it is made; 2. whether it contains matter which in the opinion of the Committee should more properly be dealt with in an Act of Parhament; 3. whether it contains imposition of any tax; 4. whether it directly or indirectly bars the jurisdiction of the courts; SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 497

5. whether it gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power; 6. whether it involves expenditure from the Consolidated Fund of India or the public revenue; 7. whether it appears to make some unusual or unexpected use of the powers conferred hy the Constitution or the Act pursuant to which it is made; 8. whether there appears to have been unjustifiable delay in its publication or the laying of it before Parliament; 9. whether for any reason its form and purport call for any elucidation. In case the Committee takes the view that an Order may be annulled wholly or in part, or amended in any respect, it should report its opinion, and the grounds thereof, to the House. The Committee may also bring to the notice of the House any other matter relating to an Order which it thinks deserves the notice of the House. The reports of the Committee are presented by its chairman to the House of the People. The Speaker is empowered to issue such directions as he may consider necessary for regulating the procedure in connection with all matters connected with the consideration of any question of subordinate legislation in the Committee. Accordingly the Speaker has issued several directions. He has authorised the Committee to examine all Orders whether laid before the House or not. It has been directed to examine provisions of Bills seeking to delegate powers to make Orders with a view to see whether suitable provisions for the laying of the Orders before the House have been made therein. The Committee may examine any other matter relating to an Order or any question of subordinate legislation arising therefrom. The procedure for the working of the Committee has been laid down partly in the Speaker's Directions and partly by the Committee itself. After an Order is published in the Gazette, the Secretariat of the House examines it and determines whether it is required to be brought to the notice of the Committee on any of the grounds mentioned above, or in accordance with any practice or direction of the Committee. If in the course of examination of an Order, it is considered necessary to seek any clarification regarding any point, it is referred to the Ministry concerned and the matter, if necessary, re-examined in the light of such reply. If, after examination of an 498 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Order, it is considered necessary to bring any point to the Committee’s notice, a self-contained memorandum is prepared on the subject and, after the approval of the Chairman, placed before the Committee. Members of the Committee may also formulate questions with respect to orders under the Committee’s examination; such questions are consolidated and a questionnaire prepared by the Secretariat which is then sent to the Department concerned. The Committee may examine the concerned Ministry’s representatives. After considering the whole matter, the Committee reports to the House its observations on matters of special interest made during the course of the examination of the orders, matters required to be brought to the notice of the House, its conclusions and recommendations regarding the action to be taken with respect to the order under scrutiny, along with the following materials : summary of the recommendations made in the report; relevant portions of the minutes of the Committee’s meetings; any other necessary material. The Committee’s reports are not discussed in the House, but the Government attaches to them the same weight and respect as if they have the imprint of the whole House. The Ministries try to implement the Committee’s suggestions. In case a Ministry finds it difficult to give effect to any suggestion, it places its views before the Committee which may, after considering the Ministery’s views, pre.sent a further report to the House if it thinks fit. In case the Committee feels satisfied with the Ministry’s explanation, it may recommend no further action in the matter, or may modify its own earlier recommendation. By this process of mutual consultation between the Committee and the Ministry concerned, points of diSerence between the two are ironed out and agreed formulae evolved. The Ministries furnish from time to time, to the Secretariat of the House, statements of action taken or proposed to be taken by them on the Committee’s recommendations and on assurances given by them in the course of their correspondence with the Committee. The information so received is placed before the Committee in the form of a memorandum. Each of the Committee's reports contains three tables comprising recommendations in respect of which a Ministry has given its own suggestions which the Committee has accepted; recommendations not wholly accepted by the Minstry but which the Committee continues to pursue. The Ministry of Parliamentary Affairs acts as the co-ordinating agency to see that the Committee s recommendations of a general nature which are applicable to more than one Ministry are SECTION 3 ./ OTHER CONTROLS ON DELEGATED LEGISLATION 499 implemented by them. The Committee itself carries on corres­ pondence with individual Ministries regarding implementation of its recommendations by them. In case a Bill, presented to the House, does not contain “laying’’ provisions conformable to the standards laid down, the Committee usually authorises one of its members to table necessary amendments to the Bill when it is being discijssed in the House. The Committee on Subordinate Legislation is an active body. During the life of the first House of the People, from 1953 to 1956, the Committee considered about 100 Orders and submitted six reports. Daring the life of the second House, from 1957 to 1961, the Committee held 33 sittings considered nearly 4,500 Orders and submitted 13 reports. Due to effective help rendered to it by the Parliamentary Secretariat, the Committee does not feel overworked. It usually meets when the House of the people is in session, as that is convenient to its members and is economical to the Government. The Committee’s reports are a mine of interesting and instructive information and throw a flood of light on the way the institution of delegated legislation functions in India. The reports contain reasoned comments and criticisms of the orders by the Committee, suggestions regarding action to be taken, progress made in implementation of its suggestions, relevant extracts from the correspondence between the Committee and the Ministries concerned, and minutes of its meetings....

ADDRESS DELIVERED BY THE DEPUTY SPEAKER (SARDAR HUKAM SINGH) TO THE MEMBERS OF THE COMMITTEE ON SUB­ ORDINATE LEGISLATION ON THE 16TH JULY, 1957. First Report, Committee on Subordinate Legislation, Second Lok Sabha, 76-8.

Our Committee has very important functions to perform. As elected representatives of the people we have to safeguard the interest of the people. W e have a written Constitution and certain broad limits have been laid down within which the Parliament is to function as a Sovereign body. There is the Judiciary to declare whether any limits have been transgressed. Then as the Supreme Legislature of the land the Parliament enacts laws and directs the Executive to administer those laws. In a Welfare State the spheres of activity of the State are increasing and the administration pervades every walk of citizen s life. Naturally the work of the Parliament increases, and the scope of the legislation becomes very wide. Even 500 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 where the ParHament is continuously in session as in England ,except for brief intervals of recess, it is not possible for it to enact all details of legislation that are required in the country. Besides that, there is always a need for certain amount of flexibility within which adjustments may be necessary at occasions. Sometimes immediate action becomes necessary and technical details can be worked out only by experts. It is agreed now that the delegated legislation is a necessity. But at the same time there is a risk involved in it. It is this Committee which would be exercising these checks on behalf of the Parliament. W e shall have to see whether the authority delegated by Parliament in the Statutes has been properly exercised to the extent permissible and in the manner envisaged. W e shall be making our reports to the ParHament advising it for taking any action which may be deemed necessary.

But in discharging our duties we would not be acting in hostiHty to the Executive. Our objective is uniform and our efforts would be complementary. The executive always try to comply with the wishes of the Parliament and frame rules and regulations in exercise of the authority vested in them by law. Sometimes in their eagerness to discharge their duties more expeditiously and effectively, the Executive may commit mistakes. May be, sometimes, out of thirst for greater power, they might go astray. W e have to keep them on right track. We are the friends of the Executive and not their enemies. We have to help them in the proper discharge of their duties for benefit of the masses.

There is another danger. The Subordinate Legislation, namely the rules, regulations, by-laws and orders, are mostly framed by the officials of the Secretariat in their rooms. These officials have a different approach. They have little contact with the masses, and seldom know what is the effect of a particular legislation on those who are affected by it. W e know the intention of the legislature as well as the interests of the people and hence we are best suited to advise in these respects.

This Committee has another peculiar feature. There are no parties and no factions here. Once a law is enacted by the vote of the majority, it becomes the combined will of the ParHament. Then it is the concern of all parties to see that it is administered properly. From the proceedings of this Committee, Members might have noticed that all the decisions were arrived at unanimously and I hope that tradition would be continued by us too and we would be able to SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 501 pull on in a combined manner and cooperetively and with the same will and determination as is expected of us. I welcom e you all.

WORKING OF THE INDIAN COMMITTEE

Ja in , parliamentary c o n t r o l o f d e l e g a t e d legislations ^ Public Law 51-9, 152-163 (1964)

EXCLUSION OF JUDICIAL REVIEW The Scrutiny Committee has not liked attempts to curtail judicial review through delegated legislation. It has consistently advocated the principle that a substantive provision excluding jurisdiction of courts, if thought necessary, should be made through legislation by Parliament, and not by subordinate legislation, because, first, curtailing or limiting powers of courts by rules is not in keeping with the structure of the Constitution; secondly, if the same were allowed, there would be no judicial check over transgression of the rule-making power by the administrative authorities. The general principle enunciated by the Committee has been accepted by the Government. On the above principle, the Committee has objected to the following rules specially: Rule 6(A ) of the Cinematograph (Censorship) Rules saying that the Board’s actions or proceedings would not be questioned on the ground merely “of the existence of any vacancy in, or defect in the constitution of the Board"....a rule empowering the National Co-operative Development Warehousing Board to determine “finally” whether an institution was qualified to be its shareholder. The Scrutiny Committee has also expressed the view that a provision as to which Court should take cognisance of the offences under the Act, and the period up to which it could take such cognisance, are matters which should be dealt with, more properly, by the statute itself, and not by the rules made under it.

RULES IMPOSING TAXATION The Scrutiny Committee has continually advocated the view that consistently with Article 265, democratic principles, and in larger public interests, a financial levy should be imposed by the statute and not by the rules. In case Parliament considers it necessary to delegate taxing power in order to save its, time, it should do so 34. Footnotes omitted. 502 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 expressly or by necessary implication in the statute; without there being such a statutory authority, the Scrutiny Committee has objected to rules being made imposing any financial levy. On this point, a very interesting case arose in 1957. The Delhi (Control of Building Operations) Regulations imposed certain charges on appUcants seeking permission to develop land. The Scrutiny Committee felt that the levy was not authorised by the parent Act. The Ministry of Health justified the levy as a fee for amenities provided, such as trunk sewers, water mains, etc., whose levy was incidental to the power of effective control and regulation of building operations which was the principal object of the Act. The Committee, however, recommended amendment of the regulations by deleting the taxing provision, and the Government agreed to make the necessary modifications.

The Estate Duty (Controlled Companies) Rules, 1953, sought to impose taxation without express statutory authority in the Act, and, therefore, the Scrutiny Committee suggested that the provisions made by the rules be incorporated in the Act itself. The Government, however, requested the Committee to reconsider the recommendation on the following grounds: if the matters relating to controlled companies were incorporated in the Act, it would be difficult to modify those provisions with the changing circumstances; constant amendment of the Act would be necessary to meet new methods of tax evasion of estate duty; it was a special provision not normally found in similar Acts; as the rules were laid before Parliament before their final publication, parliamentary control over them is fully secured. The Committee accepted the Government’s explanation.

Rule 25 of the Customs House Agents Licensing Rules, 1950, imposed a fee of Rs. 50/- on every appeal filed to the Chief Customs Authority from orders of the Customs Collectors. The rule was modified and the fee deleted when the Scrutiny Committee held that the fee was not authorised by the parent Act. An order made under the Cotton Control Order provided for survey of cotton for purposes of valuation and required the purchaser to pay a small charge for it. The Scrutiny Committee pointed out that the parent Act contained no authority to levy such fees and suggested that the Act be suitably modified. The Government observed that the charge formed no part of the revenues, but only met the survey expenses; instead of amending the Act, it proposed that the Order might be amended to bring out clearly that only the actual cost of survey and SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 503 no more was payable. The Committee accepted the Government's view. Section 4A (1) of the Indian Tariff Act, 1934, empowers the Government to levy export duty on any article even though not mentioned in the schedule to the Act. The Scrutiny Committee felt that the Government may be given power to tax specified articles exhaustively in the Schedule but not a broad power to tax anything. The Government’s justification was that such a power was necessary in order to preclude any speculation in trade by not revealing before­ hand the items involved; emergency action had to be taken from time to time in the light of wide and sudden fluctuations in the prices in the world market; export duties had to be levied not only on revenue considerations but also to mop up the difference between the internal prices of the commodities to avoid inflationary developments in the country. The Scrutiny Committee was satisfied with the Government’s explanation. Nasirabad Cantonment levied a fee on animals grazing in its land without any statutory authority to that effect, justifying the levy on the ground of ownership of the land. The Scrutiny Committee, however, held that to levy the fee, the Act should expressly give power for the purpose and thus suggested that the Act be suitably amended. Aurangabad Cantonment levied a fee on erection of fences. The Act provided only for regulation of such structures and not for levy of any fee. On the Scrutiny Committee’s suggestion, the Defence Ministry agreed to withdraw the levy. Similarly, the Government agreed to withdraw the charge of Rs. 3/- as a licence-fee for herding and stabling of animals when the parent Act provided only for regulation of the same. The Scrutiny Committee has objected to levy of fees by rules on appeals and applications under the various sections of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, without any express provision in the Act, and has suggested that the Act be suitably modified. A rule instead of prescribing the fees itself authorised the Government to lay them down. The Government agreed to the suggestion of the Scrutiny Committee that the fees be laid down in the rule itself. The Registration of Newspapers (Central) Rules, 1956, raised the fee from one to five rupees for furnishing extracts from the Press Register. The Committee emphasised that the quantum of the fees imposed should be commensurate to the quantum of services rendered. The Government explained that the fee of one rupee was not sufficient to cover the labour involved, and the Committee accepted the explanation as satisfactory. 504 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

FORM AND PURPORT CALLING FOR ELUCIDATION The Scrutiny Committee has criticised the use of complicated language in the rules which makes it difficult for the general public to understand them. For example, the language of the Estate Duty (Controlled Companies) Rules was extremely complicated. The Government justified it on the ground that it had been copied verbatim from the parallel British Act. The Scrutiny Committee pointed out that the criterion in such cases should be the ability of the Indian public to understand the language which should, therefore, be simple and not complex so that it could be followed without much difficulty. One of Estate Duty Rules, 1955, was not easy to follow as it was expressed in a single sentence of 194 words. On this being pointed out by the Committee, the Ministry of Finance agreed to redraft it. Similar was the case with rule 7 of the Leave Rules which was expressed in a single sentence of 177 words. The Scrutiny Committee has recommended that unusually long sentences should be avoided in drafting of rules. The Committee has also pointed out several cases of ambiguities in the rules e.g., rules use terms without defining them; rules make reference to schedules annexed, but no schedule is in fact annexed; a rule says “ subject to the Acts,” but fails to name the relevant Acts meant; rules prescribe forms and blanks to be filled in, but no forms are appended to the rules; rules are incomprehensible at times.

RETROSPECTIVE OPERATION OF THE RULES Retrospective operation of rules is disfavoured as they may prejudicially affect vested rights. The Scrutiny Committee has emphasised that retrospective operation should not be given to the rules unless the parent Act expressly confers power to do so. The Government has accepted this recommendation generally sudject to the rider that if it becomes necessary in more cases to give retrospective effect to any subordinate legislation, care would be taken to see that it is in accordance with the principle laid down by the courts that such operation will not affect vested rights. In one case, retrospective operation given to the rules; the Government explained the necessity thereof to the Committee which dropped further action in the matter. The All India Services (Overseas Pay, Passages and Leave Salary) Rules, 1957, were put into force from 1956, The Government explained to the Scrutiny Committee that the decisions contained in the rules had been intimated to the officers in 1956 and so no officer would be prejudicially affected. The Committee SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 505 thereafter dropped its objection to the rules. The Imported Tourist Cars (C on trol) Order, 1961, published in G azette on February 11, 1961, was brought into force from January 28, 1961, though the parent Act did not empower Government to give it retrospective effect. The Minister of Transport stated that it was not intended to give the order a retrospective effect; there was delay in the despatch of the order and so it could not be published in the Gazette before coming into force. The Ministry agreed to amend the commencement clause so as to bring the order into force from the date of its publication.

MATTER TO BE DEALT WITH IN AN ACT OF PARLIAMENT The basic philosophy behind delegated legislation is that policies should be laid down in the Acts of Parliament, and detailed provisions to give effect to those policies may be worked out and enacted through the rules by the Administration. It, however, happens not rarely that matters which ought to be discussed in Parliament are always discussed there, but are left to be taken care of through rule- making power, which consequently diminishes parliamentary control of the executive. Therefore, the Scrutiny Committee has been charged specifically with the duty to review the rules with a view to see whether they contain some matters which should more properly be enacted in Acts after discussion in Parliament, so that important matters may not escape parliamentary scrutiny. It may be noted that no such term of reference exists in the case of the English Scrutiny Committee.

....It [Scrutiny Committee] has criticised, for instance, delegation of rule-making power to the Government to frame rules regarding allowances to Ministers under the Salaries and Allowances of Ministers Act, 1952, on the ground that it amounts to ministers “legislating for themselves.” The Committee has therefore suggested that in accor­ dance with democratic principles, larger public interests and to avoid misinformed criticism, the rules framed should become operative only after obtaining an affirmative vote of the House. This procedure, the Committee has emphasised, is less rigid and cumbersome than the ordinary legislative process, secures Parliament’s ultimate control over the rules and also saves its time.

A t times, the Scrutiny Committee has criticised the wide language in which power has been delegated. Section 43 (B) (3) (d) ci the Sea Customs A ct authorises the Government to make rules to provide for admissibility of drawback for “ any specific period or withoutfany 506 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 limit of period.” The Committee has stated that “it is not desirable to delegate such wide powers” and has suggested that there should be a definite time-limit fixed or the maximum period stated in such cases. Rules 32 and 35 of the Andaman and Nicobar Islands Economiser Rules, 1959, provide for appointment of assessors to assist the appellate authority and for payment of fees and travelling expenses to them while assisting the appellate authority. The Committee has expressed the view that such provisions ought to have been made in the parent Act itself and not left to the rules.

The Scrutiny Committee has also criticised the common practice of leaving certain provisions, which should find place in statutes, out of the Bills and later providing for them through the rules. The Committee has expressed a hope that in course of time it may develop and lay down certain principles regarding what should be dealt with in the statutes and what might be left to be provided for by the rules, so that-Parliament could be fully apprised of such matters.

UNUSUAL OR UNEXPECTED USE OF RULE-MAKING POWERS

The terms of reference gived to the Scrutiny Committee no specific power to criticise or formulate policies embodied in the rules or to review them on merits. Its task mainly is to scrutinise application of policy, its forms and its results. Such a restriction is imposed because of the fact that the Committee is composed of party men and, it is feared, that if it were to consider policy it would tend to become little more than another debating chamber within the House and might divide along the party lines. One of its terms of reference, however, charges it to consider whether the executive has made an unusual or unexpected use of its rule-making power. Under this provision, however, the Committee comes nearest to consideration and scrutiny of policy and merits of the rules, and this is regarded as the better way to approach the scrutiny of policy. This ingenious formula has been found to be quite useful in England, it has been used to catch cases of ultra vires, sub-delegation, cases of commission or omission by a department which, had it occurred in a Bill, would certainly have been pounced upon by the common-sense of members of Parliament. The formula has been used by the Indian ■sCommittee on a more liberal basis than in England and it has cf^ticised the rules on such grounds as that of being not “fair,” or that they were ‘'harsh” or that they were against “natural justice,” or that they were ultra vires the parent Act’. A few examples of the rulesj caught by the Scrutiny Committee under this head may be noted. SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 507

The Development Councils (Procedural) Rules, 1952, provided for tV70 alternative methods of appointing the Chairman of a Development Council—either nomination by the central Government or election by members, according as the Government might decide in each case. The Scrutiny Committee regarded the provision as unusual, objected to the creation of an uncertain and indefinite system, and suggested that a definite method of appointment of Chairman, be it election or nomination, be provided. The Government agreed to amend the rule suitably. The Rubber (Production and Marketing) Rules, 1947, did not make provisions against arbitrary degrading, suspension or dismissal of the staff of the Indian Rubber Board without regular procedure. The Committee regarded the absence of such a provision as “unusual”. The Government, however, stated that absence of such a rule did not mean that action against the staff could be taken arbitrarily and that no arbitrary action had ever been taken in the past. The Committee was not satisfied with this explanation ; it thought that absence of such a case so far was no guarantee that it might not occur in future and so it suggested that rules be framed providing for detailed procedure in this behalf- The Government agreed to frame detailed rules regarding disciplinary matters for staff of the Board. Rule lO(lV) of the Agricultural Produce (Development and Warehousing) Corporations Rules, 1956, empowered the central Government to terminate the services of the Secretary of the Board at any time by giving three months’ notice without giving any reasons. The Scrutiny Committee’s first reaction was that the rule was “unusual” but later it thought that no action was necessary after the Government had explained that the Secretary did not fall within the purview of Article 311 and that ordinarily he would be given an opportunity to represent his case. Section 5 of the Indian Aircraft Act empowers the Government to make rules for any aircraft. A rule in the Indian Aircraft Rules made the rules applicable to aircraft registered in India but operating wholly outside India “subject to such modifications and restrictions as may be specified.” The Scrutiny Committee regarded the rule as “unusual” as, in the face of the provision in the Act, there was no necessity for the Government to take further power under the rule to modify the Aircraft Rules-. The Government agreed to cancel the said rule. A Punjab Order banned the use of sugarcane for the manufacture of gur (jaggery) within ten miles of a sugar mill The main purpose behind the Order was to ensure adequate supply of 508 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 sugarcane to the mills. The Scrutiny Committee characterised the restriction imposed by the Order as being “disproportionate to the evil sought to be remedied,” because the sugarcane growers were not allowed even to make gur in small quantities for their own consumption.... When broad powers of entry to premises, search and seizure were conferred by certain Orders under the Essential Commodities Act, the Committee suggested that such powers must be subjected to the following safeguards: officers exercising powers of search should pay due regard to the social and religious customs of the occupants of the premises; witnesses be present at the time of search; an inventory of goods seized be prepared The Government agreed with the suggestion and made suitable modifications in the Orders.

The Scrutiny Committee criticised a rule enabHng an officer of the All India Service to contest, with the Government’s permission, election to local authorities. It suggested that while such officers might be nominated to local bodies, they should not be allowed to contest elections which were mostly fought on political grounds. The Government accepted the Committee’s suggestion.

Some rules have been criticised by the Committee as being unfair. The Committee found no reason behind a rule of a Cantonment Board which required water meters supplied by^consuraers at their own cost to become the property of the Board. The Government agreed to amend the rule. ’ The Excise Salt Rules, before 1953, provided for remission of duty on warehouse goods lost or destroyed by unavoidable accident. Remission of duty for goods lost by theft was withdrawn in 1953. The Committee held the amended rule as unfair and suggested that remission of duty be allowed in case of theft of uninsured goods. A rule provided that the resignation of a member or chairman from a statutory body or committee would not be effective till accepted, but fixed no time-limit within which it would be accepted. The Committee suggested fixation of some time-limit for the purpose as the absence of any limit might prove harsh to the resigning member. The Government accepted the suggestion and fixed generally thirty days for the period.

Some instances of rules criticised on the ground of natural justice may be noted. Rule 4 of the Customs Duties Drawback Rules, 1954, enabled the Government to withdraw the provision for drawback of customs duties without notice. The Committee felt that barring exceptional cases, provision for a reasonable notice SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 509 should be made. The Governm ent pointed out that since cancellation of rules could be done only by “previous publication,” notice permissible under the circumtances had to be given, and so no specific notice was needed. This clarification satisfied the Committee. In another case, the Committee objected to a rule saying that “natural justice” demands that no changes in the rules should be brought about which may adversely affect the terms and benefits of persons already in service. A rule made under the Bombay Dock Workers (Regulation of Employment) Scheme, 1956, gave discretionary power to the Board to dissolve a group of registered employers formed under the scheme for pooling their resources together to enlist monthly dock workers, when the Board was satisfied that the employers had failed to comply with the conditions prescribed. The Scrutiny Committee suggested that an opportunity of being heard should be given to the employers affected as there was no right of appeal against the Board’s order and the dissolution might affect the employers financially. A rule provided that a licence granted for constructing a culvert/pavement would ^be terminable by the central Government or the Cantonment Board at any time without any previous notice to the licensee. The Scrutiny Committee held the rule to be against natural justice and, conse­ quently, it was amended so as to provide for a thirty days' notice to the licensee before cancellation of the licence.

Rules defining unfair conditions of services have been criticised by the Committee several times, and as a result modifications have been introduced in them at times. A rule gave wide power to the Chairman of the Coal Board to suspend, reduce in rank or dismis^n employee, no procedure having been prescribed for the purpose. The Government accepted the Committee’s suggestion that rules should lay down the procedure to be followed by the Chairman before taking disciplinary action against an employee and that there should be a provision for an appellate authority. A Silk Board rule applied to the Board’s employees in disciplinary action the central Government procedure “with such modifications as may be necessary.” The Government agreed with the Committee's suggestion that the words “with such modifications, etc.,” should be deleted. Regulation 6 of the Khadi and Village Industries Commission Regulations, 1958, did not provide for appeal in case services of a temporary employee were terminated as a disciplinary measure. The Government assured the Committee that the procedure regarding appeal, etc., laid down in the Conduct, Discipline and Appeal Regulations would be followed in this case. 510 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

The Committee expressed its displeasure when conditions of service were left undefined in the rules in case the parent Act envisaged that the rules would do so.

The Scrutiny Committee has expressed itself against wide discretion given to the Government by rules without proper safeguards as there is a danger of its being misused. The Employees’ Provident Funds Scheme, 1952, empowers the Commissioner for the Employees Provident Funds to make certain exemptions in entertaining applications from the employees for opting out of the provisions of the scheme. The Ministry of Labour explained, on a reference being made by the Committee, that the Commissioner had no arbitrary uncontrolled power as he would exercise his power subject to conditions specified in the Scheme. Rule 416 of the Indian Telegraph Rules, 1951, confers a general power on the Telegraph Authority to withdraw either totally or partially any telephone if it considers it necessary to do so. The Committee, apprehending that such an unqualified power could be abused or exercised arbitrarily, suggested modification of the rule by incorporating the following safeguards: (a) giving of due notice to the subscriber prior to withdrawal of the telephone; (b) recording of reasons in writing for withdrawal and communication thereof to the subscriber preferably before, if practicable, otherwise within seven days of the withdrawal. Rule 7 of the I.A.S, and I.P.S. (Regulation of Seniority) Rules, 1954, provided that on transfer of an officer from one cadre to another, his position in the grade list of the cadre to which he is transferred would be^etermined by the central Government on an ad hoc basis. The Scrutiny Committee felt that, in order to prevent injustice to any­ body, principles should be laid down, in consultation with the Union Public Service Commission, for the purpose. The Government amended the rule accordingly.

Ultra vires rules

The Committee has pointed out a few cases where the rules appeared to go beyond the rule-making power conferred by the parent statute. A rule framed under section 52 sub-section (a) of the D.elhi Road Transport Act, 1950, provided that the views of the Chief Accounts Officer on new proposals going before the General Manager “shall not be overruled’’ except with the permission of the “Authority or its Chairman.” The Scrutiny Committee pointed out that the rule went beyond the statutory provision because it gave power to the Chairman to overrule the views of the Chief Accounts Officer, while SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 511

section 1(3) of the parent Act impliedly meant that only the Authority could overrule the Chief Accounts Officer. The Government accordingly modified the rule. Section 283 of the Cantonments Act, 1924, provides for a fine up to Rs, 1000 for contravention of any bylaw made under the Act. The Committee objected to a bylaw which sought to impose a higher penalty for its infringement than what section 283 provided. A bylaw requiring a ground rent from a licensee to carry on the business of selling or manufacturing fireworks was held by the Scrutiny Committee to be ultra vires the parent Act, and the Government agreed to drop it. A statutory provision provided for the levy of a registration fee in respect of dockworkers only and not stevedores. Hence a rule providing for a registration fee in respect of stevedores was held by the Committee to be uitra vires the Act, and consequently the Government dropped the levy. Rule 4(b) of the Prevention of Food Adulteration Rules provided that the fees payable in respect of certificates of analysis of food sample to be issued by a laboratory would be according to the rates specified by the Central Government. The Committee held that the rule was not in accordance with the parent Act, section 4(2)(b) of which envisages that the fees for such certificates should be prescribed in the rules. The Government agreed to do the needful as suggested by the Committee. Rule 22 of the Minerals Conservation and Development Rules, 1958, required every owner, agent or manager of a mine to permit students of approved mining and geological institutions to acquire practical training in mines operated by them.’ The Scrutiny Committee regarded the rule to be beyond the pa^rt: Act. A bylaw of the Ahmedabad Cantonment Board provided that in case of loss of grazing tokens, a duplicate might be issued on payment of Rs. 5 plus the value of the token. The Scrutiny Committee held that the additional charge of Rs. 5 was in the nature of a penalty for which there was no authority in the parent Act. The Government deleted the additional fee. The Cotton Textiles (Production by Handloom) Control Order, 1956, introduced compulsory registration of handlooms and provided for seizure of unregistered looms from the weavers. The idea behind the Order was to collect statistical information so that quantity of yarn required for consumption by the handloom industry may be ascertained. The Scrutiny Committee's view was that there was no authority in the parent Act for seizure of looms even temporarily for non-registration. The Government, however, did not accept this suggestion as it took the view that provision for seizure was consistent with the parent Act. 512 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Discriminatory rules Clause 22 of the Fertilizer Control Order, as amended in 1958, authorised the state Governments to fix different fees for different classes of dealers for the grant of a duplicate licence or a dupUcate certificate of registration. The Scrutiny Committee objected to it on the ground that it was discriminatory. The Ministry of Food, explaining the reasons behind the provision, stated that though the rule might suggest the possibility of fixing different fees for different classes of dealers for issue of duplicate licences the intention was to fix only one rate of fees for all such cases in a state. The Scrutiny Committee, however, suggested that the rule be amended to clarify the Government’s intention of fixing only one rate of fees for duplicate licences for all classes of dealers. The rule was amended accordingly.

Sub-delegation The Scrutiny Committee has objected to sub-delegation in a very wide language, or when the parent statute was silent on the point, and has impressed that there should be some safeguards imposed before a delegate is allowed to sub-delegate its authority to another functionary. The Committee characterised as undesirable the wide language used in section 5(2) of the Coal Mines (Conservation and Safety) Act, 1952. This section authorises the Government to delegate any of their powers to the said Board by a special or general order. By a rule, the Government of India left the power of laying down "principles” for acquisition or disposal of lands and surface rigife to the Coal Board. The Scrutiny Committee raised the objection that principles should be laid down by the Government and not by a subordinate authority. The Government accepted the suggestion to amend the rule. The Central Silk Board Rules, 1955, sub-delegated rule-making power to the Silk Board when the parent Act specifically authorised the central Government to make such rules. On an objection being raised to this sub-delegation, the Government agreed to amend the rule. In another case, the Scrutiny Committee objected to sub-delegation of its rule-making power by the central Government to authorities because there was no authority for it in the parent statute. Section 3 of the all India Services Act, 1951, empowers the central Government to make rules for the regulation of recruitment and conditions of service of persons appointed to an all India Service. By the rules made under it, the central Government assumed further SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 513

power to regulate conditions of service of the personnel of the All India Services in respect of residuary matters, i. e., matters not covered by the rules, by issuing regulations. The Scrutiny Committee objected to this provision. Rule 51A of the Mineral Concessions Rules, 1949, empowers the state Governments to issue directions to parties concerned with mineral concessions. According to section 5 of the parent Act only the central Government is authorised to make provisions regarding regulation of mining leases. Section 8 authorises the central Government to delegate its power to any authority by publishing a notification. The Scrutiny Committee objected to Rule 51A because through it the Centre delegated power to the state Governments without issuing a notification as required by section 8. The Government agreed with the Committee’s view.

G e n e r a l P o w e r A very broad general power has been given to the Scrutiny Committee to bring to the notice of the House any matter relating to an order which it thinks deserves the notice of the House. Conse­ quently, the Committee has taken the opportunity from time to time to comment and criticise the orders on certain grounds falling outside the enumerated heads of reference, and generally to suggest ways and means to improve the techniques and procedures of rule-making. A few examples may be noted here.

Parliamentary Representation Till 1956 there was no uniformity in respect of parliamentary representation on statutory bodies constituted under the central Government. Provisions were made sometimes for their election by the House of the People, sometimes for their nomination by the Speaker, and sometimes for their appointment by the Government. There was no fixed ratio in the matter of representation of the two Houses on such bodies. The Scrutiny Committee formulated the following principles to remove these anomalies, viz. (1) Representation of Parliament on statutory bodies should be by election by the House, or, in the alternative, by nomination by the Speaker# but never by governmental nomination; (2) Ratio of representation between the House of the people and the Council of States should be 2 : 1: (3) Rules should specifically provide that the Lok Sabha’s representative would cease to be a member of the statutory body as soon as he ceases to be a member of the House. The Government has generally accepted these suggestions. 514 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

Delay in making rules Many cases have come to light in which the Government did not either exercise the rule-making power at all or did so after an inordinate delay. Commenting on this aspect, the Scrutiny Committee has stated that it was not clear how the Acts which provided for certain matters to be regulated by rules were administered in the absence of such rules. To take two examples, the All India Institute of Medical Sciences Act became operative from November 15, 1956, but the rules under it were made effective on April 1, 1958; regulations for metalliferous mines under section 57 of the Mines A ct, 1952, were not framed till 1959. The Scrutiny Committee therefore suggested that when an A ct required certain matters to be regulated by rules, such rules should be framed immediately after the commencement of the Act, and in no case later than six months; and it also decided to take up the matter with the Government and report it to the House whenever it felt that “undue delay has occurred in framing the rules.” The Government explaining the position stated that the rule-making power was an enabling provision and that where it was not necessary or proposed to exercise it, there was no need to frame rules immediately after an Act commenced or even within a fixed time-limit thereafter, there may be cases where rules might be needed only after the actual working of the Act has made them necessary and not to frame them immediately. The Scrutiny Committee did not, however, alter its earlier suggestion, for every case of delay it would first seek clarification from the Ministry concerned and if then it felt that there had been undue delay in framing the rules, it would report the matter to the House.

Delay in replying to the Committee

Though generally government departments take due notice of the Committee and co-operate with it, one or two cases have occurred, nevertheless, where Ministries have been rather slow in replying to the Committee or complying with its suggestions. In one case, as many as three years were taken by a Ministry to answer the Committee s reference. The Committee therefore impressed on the various Ministries that they should reply to its references to them expeditiously. The Department of Parliamentary Affairs has also suggested to all Ministries and Departments of the Government of India to give the highest priority to requests for information coming from parliamentary committees. Even after this, an extreme case of administrative lethargy has come to light. On August 27, 1955, the SECTION 3 J OTHER CONTROLS ON DELEGATED LEGISLATION 515

Committee referred a few points to the Ministry of Commerce and Industry, concerning the Rubber Rules, 1955, After a protracted correspondence, the Ministry conveyed its acceptance of the Committee's recommendations on February 17, 1958. On June 6, 1959, the Ministry wrote to the Committee that, because of the discrepancies pointed out by it, the existing rules were being examined de novo and that new rules regarding recruitment, classification, control and appeal for the staff of the Rubber Board were being framed. The new rules were published in the Gazette on June 3, 1961, but the discrepancies earlier pointed out by the Committee still remained. On September 11, 1961 the Ministry was again reminded. On another reminder by the Committee, the Ministry informed it on November 18, 1961, that the comments of the Rubber Board on the points raised by the Committee were still awaited. The Committee has recently expressed its regrets over the manner “in which the Ministry has been advancing one excuse after another in delaying the removal of defects from the rules in question which in fact were acknowledged by the Ministry in 1958.” The matter has been hanging fire for the last several years and the Committee has expressed the hope that the Ministry would now take the earliest opportunity to rectify the defects in the rules. This, however, appears to be the only example of its kind reported so far by the Committee in which the Ministry has stalled implementation of the Committee’s suggestions so long due to administrative ir.efficiency.

Rajya Sabha Committee on Subordinate Legislation The Rules of Procedure and Conduct of Business in the Rajya Sabha provide for the setting up of a Committee on Subordinate Legislation. The relevant Rules are extracted below :—

RULES OF PROCEDURE AND CONDUCT OF BUSINESS IN THE COUNCIL OF STATE ( RAJYA S A B H A )35 51-54 ( 1964 )

COMMITTEE ON SUBORDINATE LEGISLATION 204. There shall be a Committee on subordinate legislation to scrutinise and report to the Council whether the powers delegated 35. These Rules were adopted by the Rajya Sabha at its sitting held on the 2nd June, 1964 and published under Rajya Sabha Secretariat Notification No. RS. l3/l/63-L(l), dated the 1st July, vide Gazette o f India Extraordinary, Parti—Sec, 1, pp. 1171-1207. These Rules came into force on the 1st July, 1964, vide Rajya Sabha Secretariat Notification No. RS. 13/l/63-L(2), dated the 1st July^ 1964, Gazette o f India Extraordinary, Part I, Sec. 1, p. 1208. 516 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6 by Parliament have been properly exercised within the framework of statute delegating such powers. 205. (1) The Committee shall be nominated by the Chairman.

(2) The Committee nominated under sub-rule (1) shall hold office until a new Committee is nominated. (3) Casual vacancies in the Committee shall be filled by the Chairman. 206. (1) The Chairman of the Committee shall be appointed by the Chairman from amongst the members of the Committee: Provided that if the Deputy Chairman is a member of the Committee, he shall be appointed Chairman of the Committee. (2) If the Chairman of the Committee is for any reason unable to act, the Chairman may similarly appoint another Chairman of the Committee in his place. (3) If the Chairman of the Committee is absent from any meeting, the Committee shall choose another member to act as Chairman of the Committee for that meeting. 207. (1) In order to constitute a meeting of the Committee the quorum shall be five. (2) The Chairman of the Committee shall not vote in the first instance but in the case of an equality of votes on any matter, he shall have, and exercise, a casting vote.

208. (1) The Committee shall have power to require the attendance of persons or the production of papers or records, if such a course is considered necessary for the discharge of its duties :

Provided that Government may decline to produce a document on the ground that its disclosure would be prejudicial to the safety or interest of the State.

(2) Subject to the provisions of this rule, a witness may be summoned by an order signed by the Secretary and shall produce such documents as required for the use of the Committee. (3) It shall be in the discretion of the Committee to treat any evidence tendered before it as secret or confidential.

209. After each rule, regulation, bye-law, scheme, or other statutory instrument framed in pursuance of the legislative functions delegated by Parliament to a subordinate authority which is required to be laid before Parliament (hereinafter referred to as the "order”) SECTION 3 ] OTHER CONTROLS ON DELEGATED LEGISLATION 517 is so laid before the Council, the Committee shall, in particular, consider*— (i) whether it is in accord with the general object of the Act pursuant to which it is made; (ii) whether it contains matter which in the opinion of the Committee should more properly be dealt with in an Act of Parliament; (iii) whether it contains imposition of taxation; (iv) whether it directly or indirectly bars the jurisdiction of the court; (v) whether it gives retrospective effect to any of the provisions in respect of which the Act does not expressly give any such power;

(vi) whether it involves expenditure from the Consolidated Fund of India or the public revenues; (vii) whether it appears to make some unusual or unexpected use of the powers conferred by the Act pursuant to which it is made; (viii) whether there appears to have been unjustifiable delay in its publication or laying it before Parliament; (ix) whether for any reason its form or purport calls for any elucidation. 210. (1) If the Committee is of opinion that any order should be annulled wholly or in part, or should be amended in any respect, it shall report that opinion and the grounds thereof to the Council. (2) If the Committee is of opinion that any other matter relating to any order should be brought to the notice of the Council, it may report that opinion and matter to the Council. 211. The report of the Committee shall be presented to tbe Council by the Chairman of the Committee or. in his absence, by any member of the Committee. 212. The Committee shall determine its own procedure in connection with all matters connected with the consideration of any question of subordinate legislation in the Committee. The Committee has been set up but no report has so far been published. 518 INDIAN ADMINISTRATIVE LAW [ CHAPTER 6

NOTE

It has been suggested that to make the machinery of Parliamentary control more efficacious, the terms of reference of the Scrutiny Committee may be extended so as to enable it to consider the merits of a statutory instrument as an exercise of the power delegated; and also that it may enquire into and report upon grievances arising out of instruments actually in operation.

Do you agree with this view? Do you have any other ideas to improve parliamentary control of delegated legislation ?