Report No. 14
21. The Lok Sabha Committee on Subordinate Legislation.-
We may, however, draw attention to an important step taken towards surmounting this difficulty by the Lok Sabha in providing by its Rules certain salutary procedures for the examination of statutory rules. The Sabha has established a Committee called "The Committee on Subordinate Legislation" for the scrutiny of orders. Rule 271 of the Rules of Procedure and conduct of business of the Lok Sabha gives a wide definition of an "order" which includes statutory rules. Rule 272 provides that after each order referred to in rule 271 is laid before the House, the Committee shall, in particular, consider:
"(i) whether it is in accord with the general objects of the Constitution or 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 any tax;
(iv) whether it directly or indirectly bars the jurisdiction of the courts;
(v) 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;" and
"(ix) whether for any reason its form or purport calls for any elucidation".
The Committee was nominated by the Speaker in December, 1953, and it has submitted a number of reports. All rules required to be laid on the Table of the House are examined by the members of the Committee with the aid of notes prepared by the Secretariat. Whenever the members feel that a particular order transgresses the limits of propriety, they formulate questions to be answered by the Ministry or Department concerned; the questions are then consolidated and a questionnaire is prepared by the Parliament Secretariat. The Committee is authorised to examine on oath, if necessary, witnesses representing the department which has issued the rules in question.
The Committee has recommended that the lack of uniformity in the various statutes in regard to the manner in which rules were to become operative and to be laid on the Table of the House should be avoided and that in all future enactments conferring rule-making powers on Government, provision should be made in express terms that the rules should be laid on the Table of the House for a uniform total period of thirty days before the date of their final publication and that they should be subject to such modifications as the House may find necessary.
22. Its functioning-The position in the States.-
There is no doubt that the Committee constituted by the Rules of the Lok Sabha has performed and is performing very useful functions and keeps subordinate legislation under control. The activities of the Committee have earned the commendation of Sir Ceceil Carr, an authority on subordinate legislation, who has described its work as that of "a rigorous and independent body".1 Committees on similar lines have been constituted by several of the State Legislatures. We recommend the establishment of a similar Committee by all the State Legislatures.
23. Prior scrutiny of rules by an expert body.-
The question, however, still arises whether a scrutiny of the regulations by an expert body would not be desirable. However close the scrutiny by the Parliamentary Committee may be, it cannot subject the rules to an examination such as a qualified body of experts can give. Various points would be looked at by the expert committee which the Parliamentary Committee would be unlikely to consider. We would, therefore, recommend that whenever possible, the more important rules made under an Act should be submitted for prior scrutiny to the permanent body we have recommended.
A Committee of this body may be entrusted with the task of examining delegated legislation before its publication and before it is laid on the Table of the House. The Committee will, undoubtedly, have to be assisted in its deliberations on the rules by a representative of Government in the concerned department. Such association is necessary in order that the Committee may have before it the reasons and the point of view which have led to the formulation of a particular rule or rules. The procedure we are recommending need not cause any delay in the publication of the rules or in their being laid on the Table of the House provided a proper procedure is evolved for the examination of these rules by the Committee of the permanent body.
24. The position in the United Kingdom.-
In the United Kingdom, a Committee known as the Select Committee on Statutory Instruments is constituted by the House of Commons. Its duty is to consider every statutory rule or order laid in draft before the House upon which proceedings may be or may have been taken in either House (i.e. all rules which require to be confirmed by a resolution of the House, or can be annulled in like manner). The Committee considers the rule or order from points of view similar to those outlined in the Rules of Procedure of the Lok Sabha.
25. The Statutory Act.-
In the result of the recommendations of this committee, the Statutory Instruments Act of 1946 was passed in England. This Act applies to every statutory instrument and includes every order-in-council and any from of subordinate legislation made by a Minister; and it provides for the publication, printing and sale of copies of such instrument. It requires that copies of ans order which is required by by any law to be laid before Parliament shall be laid on the Table of the House as required prior to its coming into operation except in cases where it is necessary to bring it into force before copies are so laid, in which case, reasons have to be given to the House.
The is Competent to present an address for annulment of the order within forty days in cases where the statutory instrument is made expressly subject to annulment by Resolution of either House. In other cases, the instrument is not to come into force until after the expiry of forty days from the date of its being laid before the House. This Act ensures that statutory instruments are properly published and made available to the public and that no penalty for the contravention of a statutory instrument shall be incurred unless such publication is made. It seems to us that a general provision of this nature could with advantage be include in our General Clauses Act.
26. Drafting of legislation.-
The process of law making assumes far greater importance in a democratic State, particularly, in a democratic welfare State. The laws tend to become more and more numerous covering, as they do, most phases of a citizen's social and industrial activities. Very often, legislation is hastily conceived and still more hastily prepared. Finally, it is deliberated upon, amended and adopted in large committees and assemblies which are not places suitable to the formulation of precise ideas and to the framing of accurate phraseology.
27. Increase in legislation.-
One may refer to the tremendous increase in legislative output during recent years. Thus, while from 1933 to 1940 only two hundred and forty-nine Acts were passed by the Central Legislature, the number of Acts passed by Parliament during the last eight years is as large as five hundred and eighty. In addition, several ordinances, regulations and President's Acts have also been promulgated. Most of the Acts are followed by the framing of a multitude of rules and regulations under them.
There has been heavy legislative activity in the States also. Before the recent reorganization of the States, about twenty-four State legislatures were occupied with making laws in the erstwhile Part A, Part B and Part C States, and their legislative output during the last few years has been truly colossal.
28. Burden on the draftsmen.-
With such mass legislation continually on the anvil, the problem is to devise measures which will keep the stream of law clear and pellucid. What can be done to make these multitudinous laws brief, clear, precise and free from contradictions and ambiguities? The increased legislative activity has undoubtedly imposed a heavy burden upon those who are entrusted with the task of drafting legislation. An Act generally lays down only the broad policy of the law. For implementing its provisions, rules and regulations have usually to be made. The drafting of such subordinate legislation entails an even heavier burden on the draftsmen.
The importance of the role of a draftsman in the present set-up cannot be overemphasised. It has been said that the draftsman is to the legislatures and the Governments what the pen is to the poet and the brush to the artist.
29. Defects in drafting.-
Our draftsmen seem to have stood the stress to which they have been subjected not too badly. Quite a large number of our Acts and the rules framed under them have been subjected to judicial scrutiny during the last few years. Though they have not been generally found defective, cases have not been infrequent where the courts have commented on "bad drafting", "looseness of expression" and "not happily worded" enactments and rules.
That legislation is often hastily conceived and ill-drafted is shown by the large number of occasions on which soon after the passing of the principal Act, the Government has to come forward with an amending Act to make provision for the omissions and the defects in the principal Act. Out of the total number of four hundred and three Acts (this figure excludes the one hundred and two Appropriation Acts, Finance Acts and the like) passed during the period 1950-56 by Parliament, not less than 217 were amending Acts. It is not unlikely that quite a few of these were intended to rectify defects in the principal Acts.
30. Reasons for defects.-
In justice to the draftsman, it must, however, be said that these defects are not always his responsibility. So hastily has legislation sometimes to be prepared that he is asked to be ready with a Bill in a matter of days or even hours. Often enough he has to work on the barest outline of policy and clothe the skeleton himself. What is worse is that the draft Bill prepared by him undergoes in the legislative process changes (about which he is not consulted) at the hands of those who think that they know the art of drafting better.