Report No. 14
11. Composition of this body.-
Such a body will have to consist of experts who will devote continuous attention to this arduous work. Most of our statutes have not undergone substantial revision or examination for many years, and the task involved in revising them and in incorporating into them the views judicially expressed from time to time can only be performed by a competent body of persons of experience giving their entire attention to it. As observed by Prof. Goodhart: "Law Reform, if it is to be properly done, is not the work of a few spare afternoons".1
1. Presidential Address to the Holdsworth Club on Law Reform, cited by R.E. Megarry Canadian Bar Review, 1956, p. 108.
12. bodies at State level.-
Bodies of this character will have to be appointed at the State level also in order that State legislation may also be subjected to scrutiny from time to time. In this connection, we refer with satisfaction to the appointment by the State of West Bengal of a Statute Revision Committee constituted in 1952 which has since been reconstituted as the Law Commission consisting of a Chairman and a member.
13. Scrutiny of future Legislation.-
So far, we have dealt with the question of the revision of laws already made. Of no less importance is the question of the scrutiny of (a) legislation which may from time to time be undertaken by Parliament, and (b) delegated legislation.
14. Statutory Legislation (Deficiencies of the present system).-
It is widely recognised that modern conditions have led to an enormous growth of legislative activity. Within the last few years, Government has been called upon to legislate upon a variety of topics in an atmosphere of haste to deal with situations and contingencies that did not arise in the pre-independence period. Without reflecting in any manner on the patience and ability of our legislators, it must be admitted that laws have been passed which, with more leisure for scrutiny, would have avoided many defects subsequently found to exist and which have called for amending Acts.
Cases have frequently arisen where a statute or a part of it has been struck down as being unconstitutional by the High Court or the Supreme Court. The point of view from which the legislature scrutinizes a statute is entirely different from that of a body of legal experts. One cannot, therefore, expect Parliament to be in a position, even if it were so inclined, to examine the contents of each statute and its effect in such a manner as to ensure that every part of it lies within the limits of the legislative power or that it does not offend the Fundamental Rights guaranteed by the Constitution or that it is otherwise a sound and workman-like piece of legislation.
15. Suggested measures (Emergent legislation: scrutiny not possible).-
It is in our view, practicable to provide for a considered scrutiny of legislation undertaken by Parliament. Legislation may for this purpose, perhaps, be divided into legislation which is emergent and legislation, the enactment of which can wait for a time. It is obvious that it would be difficult to provide scrutiny by an expert body of legislation which is of an emergent character. Such legislation will have to be examined by the Law Ministry and the Ministry concerned with the aid of their own staff in order to see that it conforms to constitutional requirements and that it is in other respects proper.
16. Other major legislation: prior scrutiny recommended.-
However, in regard to fresh major legislation, as distinguished from routine or amending legislation, the enactment of which can wait for scrutiny by an expert body, we would recommend that it should, as a rule, be sent for examination to the expert body, whose creation we have recommended, before its submission to Parliament. Such a course has been adopted with advantage in some legislation which has recently and in the past been passed by Parliament. We have in our minds certain provisions of the recent Central Sales Tax Act (LXXIV of 1956) and legislation like the Partnership Act and the Sale of Goods Act enacted several years ago. The adoption of such a course will avoid pitfalls and shortcomings such as have been brought to light by the decisions of the courts in regard to several statutes.
17. Delegated legislation.-
As an inevitable consequence of the increasing amount of legislation, the legislatures have found it necessary to confer upon specified authorities the power to make rules, regulations or bye-laws for the purpose of carrying out the object of the enactments. Such delegated legislation largely exceeds in quantity the amount of direct legislation and is necessary for conserving parliamentary time for the discussion of matters of principle and importance, leaving the making of detailed regulations to the departments concerned. In framing these regulations, very wide and general powers are exercised by the departments; the only restraint on the discretion of the department in framing them is that they should not be ultra vires the parent Act. No adequate machinery is, however, provided for the scrutiny of the regulations so framed nor is sufficient care bestowed on their drafting.
18. Need for scrutiny.-
Not a few of the petitions filed under Article 226 of the Constitution in the High Courts have raised the question of the vires of such rules. Frequently, the High Courts have been called upon to pronounce judicially upon the validity of subordinate legislation and a great deal of their time is taken up in determining its validity and even its scope. It is obvious, therefore, that a great amount of judicial time can be saved if delegated legislation made by these subordinate authorities were made subject to an independent and expert scrutiny before it is permitted to take effect.
19. Prior publication.-
While conferring powers to make rules or regulations on subordinate authorities, some of the statutes require that these rules should be published before they can be brought into force. Other require that these rules should be placed on the Table of the Houses of Parliament or the State Legislature after publication; some others empower the Legislature to alter or vary them after they have been placed on the Table of the House. In some cases, while power to alter or vary is not specifically given, the rules or regulations are required to be placed before the House for a specified period before they come into operation.
20. Parliamentary scrutiny.-
The requirement that the rules should be placed on the Table of the House was presumably intended to ensure that the members of the Legislature would examine those rules and if they found that those rules exceeded the authority of the statute itself or contained provisions which conflicted with the constitutional provisions and protections or were otherwise undesirable, action could be taken by a member to have the matter set right. It was thus left to the individual enterprise of a member of the Legislature to take upon himself this difficult task of examining the rules. It may be broadly stated that this expectation was not generally realised.