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Report No. 60

12.23. Application of whole Act to subordinate legislation.-

We have given careful consideration to the question whether the whole Act should apply to subordinate legislation and we have come to the conclusion that the Act should not, in terms,1 apply to such legislation. The practice in the Government of India is that subordinate legislation is first prepared in the administrative Ministry. It is then sent to the Legislative Department (of the Ministry of Law) for scrutiny only. At the stage of scrutiny, it is difficult for the Draftsman in the Legislative Department to recast the original draft in the light of the General Clauses Act. Moreover, subordinate legislation is of various kinds. Rules made under a statute constitute only one form of such legislation. Such rules may, for convenience, be called "subordinate legislation of the first degree".

Sometimes, orders are made under a rule, and, further, there are orders made under such orders. These may be called "subordinate legislation of the second" and of the "third" degrees, respectively. A common illustration of such subordinate legislation may be found in the various orders made under the Defence of India Rules. Subordinate legislation of the second and third degrees is not always sent to the Legislative Department for scrutiny.

It is also to be borne in mind that subordinate legislation is not expected to be drafted with that care which is bestowed on the drafting of statute of Parliament. A rigid application of the General Clauses Act to subordinate legislation, is, therefore, likely to create some unforeseen complications. Moreover, no practical difficulty has arisen in the interpretation of subordinate legislation.

1. See also para. 12.26, infra.

General Clauses Act, 1897 Back

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