THE RESPECTIVE HIERARCHY AND DIFFERENCES OF SUB-DELEGATED LEGISLATION IN INDIA
The author of this article is Mr. Abhijeet Mukherji a practicing Advocate at High Court of Judicature at Allahabad, Prayagraj since 2011. Partner, Mukherji & Mukherji and he is also appointed as State Law Officer Brief Holder (Criminal).
Law, according to Kelson is
a technique of social organization. He says, “law is characterized not as an
end but as a means, as an apparatus of compulsion to which, as such there
adheres no political or ethical value, law apparatus whose value derives from
some end which transcends the law”
As is already known that so far as
legislations are concerned, the Act enacted by the parliament is the parent
statute; the Statutes framed thereunder are pieces of subordinate or delegated
legislation. Ordinances,
Order, Bye-Law, Rule, Regulation, Notification, Custom or usages etc. are at the base. They are pieces of sub-delegated legislation. Thus,
these legislative actions are at the lowest of the rung. Therefore, as of
necessity, they cannot sail beyond the Statute or the Act.
John
Austin, the propounder of the analytical school of Jurisprudence defined law by
stating that Law is the command of the sovereign. Assuming in our country, that
if the sovereign is the State and its commands; its enforcement agencies. Then
taking this premise, it is safe to submit that any law which is capable of
taking shape of enforcement or rather comes in the realm of enforcement is a
“law” under A. 13. This has been illustrated in A. 13 (3)(a) wherein the
inclusive character of law under our Constitution is provided by using the word
“includes” for law. Thus, it is
stated that under this Article, unless the context otherwise requires, “law”
includes any:
I.
Ordinance
II.
Order
III.
Bye-Law
IV.
Rule
V.
Regulation
VI.
Notification; and
VII.
Custom or usages
Further,
with regard to A. 13(3)(a) it may be pertinent to note that the word “having the force of law” appearing in this article may be
interpreted according to Holland’s definition of Law as “a rule of external human action enforced by the sovereign political
authority”. From this definition it follows that such a law as provided in
A. 13(3)(a) has following three
essential characteristics:
1. Such
a Law is a rule relating to the actions of human beings.
2. Such
a Law attempts to regulate the external actions of human beings.
3. Such
a Law is enforced by the State.
Thus we may infer that the
Act of Parliament which delegates the power may in so many words lay down that
‘regulations’, ‘rules’, ‘orders’, ‘warrants’, ‘minutes’, ‘schemes’, ‘bye-laws’,
or other instruments- for delegated legislation appears under all these
different names- may be made or approved under defined conditions. On the other
hand, the statute may merely authorise the minister to ‘prescribe’ or ‘approve’
certain requirements or to ‘appoint’ a day or ‘fix’ some standard, but give no
directions about the particular method or form to be adopted in framing his
decision; he may even be free to perform his prescribing, approving, appointing
or fixing by an ad hoc decision- perhaps even informally in the course of
correspondence- without any obligation to formulate it in general terms as a
legislative regulation[1].
l The hierarchy of sub
delegated laws in the realm of Services under Union or State:
As
far as the service law in India and the hierarchy of this form of law in the
relm are concerned, the law under A. 13 must be read with A. 309 which reads as
under:
309.
Recruitment and conditions of service of
persons serving the Union or a State Subject to the provisions of this
Constitution, Acts of the appropriate Legislature may regulate the recruitment,
and conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or
such person as he may direct in the case of services and posts in connection
with the affairs of the Union, and for the Governor of a State or such person
as he may direct in the case of services and posts in connection with the
affairs of the State, to make rules regulating the recruitment, and the
conditions of service of persons appointed, to such services and posts until
provision in that behalf is made by or under an Act of the appropriate Legislature
under this article, and any rules so made shall have effect subject to the
provisions of any such Act.
The
concluding portion of the provisio is perhaps of paramount importance to the
subject. As is provided, in the service life of any person in Union or Sate
service, rules may be framed to “regulate” his or her service conditions but
such rules will always be sub-servient to the parent Act, as stated before.
It
goes without saying that Service conditions are controlled by the
administration, not only by way of framing rules. There is a plethora of such
regulating actions by the executive, the pecking order and respective
differences of which is interesting to note.
l The various Regulating
Actions of the Executive as per their hierarchy:
Bye-Laws
Bye-laws
are rules made in exercise of statutory power, by some authority subordinate to
the legislature (eg. Municipal[2] and other local bodies,
public utility corporations empowered by the State to make bye-laws) for the
regulation, administration or management of some local area, property
undertaking etc. which are binding on all persons who come within their scope.
Commonly,
rule made by local authorities under statutory power are regarded as bye-laws.
But any other statutory body[3] may be
Vested
with the power to make bye-laws.
A
bye-law does not have the status of a statute[4] but it has the force of
administrative orders having statutory authority[5]. Bye-Laws and Rules do not
stand under the same footing. What distinguishes a bye-law from a ‘rule’,
however, is that a rule is made by some governmental authority other than the
legislature and a rule made by a government department would never be called a
‘bye-law’, the latter term is used with reference to the subordinate
legislation by a statutory body.
Rules (and there variance with regulations:
Rule
framed in the exercise of power under the Act is legislative in character and
will have the force of as if state legislature had framed the rules[6]. Rules framed under A. 309
of the Constitution can be given retrospective effect[7]. Service rules framed under
the statutory provision have the force of law[8].
I.
S. 3(51) of the General
Clauses Act defines a rule as a -
“rule made in exercise of
power conferred by enactment, and shall include regulation made as a rule under
any enactment”.
A
rule is of general application in the same way as a statute, differing only in
the nature of the authority by which it is created.
“Rules made under an Act...are to be of the same effect
as if contained in the Act and are to be judicially noticed, must be treated
for all purposes of construction or obligation or otherwise, exactly as if they
were in the Act. If there is a conflict between one of these rules and a
section of the Act, it must be dealt with in the same spirit as a conflict
between two sections of the Act should be dealt with. If reconciliation is
impossible, the subordinate provision must give way, and probably the rule
would be treated as subordinate to the section”[9].
In
other words, when a rule, regulation or notification[10] made under statutory
authority is validly made under the Act
i.e. is intra vires the regulation making authority[11] which should be regarded as
a part and parcel of the statute itself and should not be regarded as though it
were contained in the Act itself[12].
In
our Supreme Court decision in Ibrahim v.
R.T.A.[13], there are certain
observations which should be read in the above light:
“a bye law must not be repugnant to the
statute or the general law. But bye-laws and rules made under rule making
power conferred by a statute do not stand on the same footing, as such rules
are part and parcel of the statute itself[14].”
II Broadly speaking, there is little
difference between a rule and a regulation, excepting that where a rule-making
power is vested in a non-governmental body, e.g., a statutory corporation such
as a University[16], the subordinate
legislation is usually called a
regulation.
Sometimes
the power to make rules as well as regulations is vested in the same authority,
e.g., the Central Government- by ss. 29-30 of the Mines Act, 1923, and if made
in compliance with the formality prescribed by the Act, and if not inconsistent
with the Act, both acquire the same status of “having effect as if enacted in
this Act”[17] [s.31(4)]. In such a case,
the apparent distinction between the two powers is that while the rules deal
with major problems arising under the Act, the Regulations are to provide for
minor and subsidiary matters.
It
has also been held that regulation, made in exercise of a statutory power,
amounts to a ‘rule’ within the meaning of s. 24 of the General Clauses Act.
Regulations:
While
a rule or regulation are general in scope[18], it must be remembered that
unlike rules which can be vested upon non-governmental bodies also, regulations
are made only by statutory authorities and corporations like LIC[19]. As an illustration it may
also be added that generally, for example in Mines and Minerals Act, rules deal
with the major problem while the regulations deal with the minor problem in the
Statute.
Regulation
has a statutory sanction and force if they play an essential and integral part
in the sphere of operation[20]. Power to make regulation
is confined to certain limits court will ignore them. That the regulation has
legal status is of no avail[21].
Order:
Unlike
Rules and Regulations, Orders are specific
in nature and relate to enforcement of some rule previously made or some
provisions of the statute itself to cases or classes of cases[22].
Though
practically the difference is not always maintained; orders may further be
classified into following three kinds:
II.
Quasi-judicial order[24]: When an order indicates as to how a
subordinate should dispose of a case
III.
Legislative order[25]: When an order lays down a
“rule” as to how the cases of the same nature are to be disposed of.
At
this juncture it is worth mentioning that when a legislative order is passed
order it, apart from being specific in application, considers the individual
aspect in its applicability and the existing rights and liabilities of the
named parties and particular persons.This is the distinction between such
orders and rules. The rules, on the other hand, apart from being general in
application, and is directed at the future ‘situations’[26].
An
administrative order will survive unless it is qualified or ceases to operate
for another reason[27]. Administrative order to
create a post can be issued unless it is inconsistent with the rules[28].
Circular:
It
is an announcement or directive typically in the form of a printed leaflet
intended to be sent to many persons or otherwise distributed[29]. Circular issued pursuant
to policy decision must pass the test of A. 14, 15, 16, of the Constitution[30]. “Departmental orders” is
another terminology given to Circulars[31]. Circulars are issued by the state government
and they are capable of enforcement[32] as long as do not
contravene the part three of the constitution[33].
Notice:
As
far as individual notice is concerned, it only affects the civil rights of a
person and is essential for the purposes of natural justice so that the person
may make his representation to the action proposed[34], except where there are
exceptional circumstances which make it expedient to issue notice before taking
of action[35]. Where giving of such notice is require by the
relevant statute, either expressly[36] or impliedly[37], such condition is
construed by the court as mandatory[38] and in default, the
resultant order is invalidated, apart from the general principles of natural
justice.
Notification:
Notification[39] implies of formal
announcement of a legally relevant fact. A notification published in official
gazette means a notification published by the authority of law. It is on formal
declaration andpublication of an order and shall have to be in accordance with
the declared policies; e.g.- ss. 4,5,6 of the Land Acquisition Act 1986.
Like
any other statutory instrument, a notification may be ultra vires, if it transgresses the powers conferred in this behalf
by the statute[40] or the relevant statutory
instrument[41], or unconstitutional, if it
offends against constitutional provisions[42]. But, if intra vires, it has the force of law[43], and has to be read along
with the statute[44].
A
notification has no statutory force and cannot override rules statutorily made[45]. When a notification is issued in accordance
with power conferred by the statute, it has statutory force and validity and
therefore, the exemption under the notification is as it were contained in the
Act itself as observed by the apex court in Orient Weaving Mills Pvt. Ltd. v.
Union of India[46]. The principle is
well-settled that when two views of a notification are possible, it should be
construed in favour of the subject, as notification is a part of fiscal
enactment.
It
must, however, be borne in mind that absurd results of construction should be
avoided per the rules of interpretation laid down by the Supreme Court in
Collector of Central Excise v. Parley Exports Pvt. Ltd.[47] It is not the duty of the court to import
words in the notification and thereby to legislate or interpret in a manner
which may render the scheme to an absurdity. Notification should be strictly
construed but there is another equally valid principle that such notification
should be given their due effect keeping in view the purpose underlying it[48]
In
Ramesh Mehta v. Sanwal Chand Singhvi[49] , S.B. Sinha J. observed
that the subordinate or deligated legislation must be read in a meaningful
manner s as to give effect to the provisions of the statute. In selecting the
true meaning of a word, regard must be had to the consequences leading thereto.
If two constructions are possible to adopt, a meaning which would make the provision
workable and in consonance with the statutory scheme should be preferred.
Notification
contrary to rule is invalid and inoperative[50]. Statutory notification
cannot be superseded by non-statutory executive order[51].
Administrative/Executive Instructions:
An
administrative instruction cannot possibly be a substitute for a notification[52]. A field is fully covered
by the provisions of the Act and Rules. There is no provision in the Act
empowering the Government to supplement the rules by executive instructions. If
the Act had empowered the Government to issue administrative instructions to
supplement the rules, the Government could fill the gaps in the rules by
issuing administrative instructions provided the rules are silent on the same
subject and the same is not inconsistent with the rules. In absence of such
provision in the Act, the Government cannot supplement the rules by an
executive order[53].
By
means of an administrative instruction Government can fill up the gaps of rule
provided the rule is silent on the subject and they are not inconsistent with
the rule[54]. Administrative
instructions not inconsistent with rules can be issued to cover a field not
covered by the rules. Thus it may be said that their role is to supplementthe
rules[55]. In absence of provisions
in the rules administrative instructions may
apply[56]. Notes or administrative
instructions cannot supplement or supersede statutory rules. Thus, a writ shall
not lie for enforcement of an administrative instruction[57]. However, it is pertinent
to note that in absence of statutory rule, executive instruction or decision
will operate[58].
Under
A. 77(1) of the Constitution, executive instructions to supplement legislative
power, is a law.
Noting:
A
noting in the office will not confer a right upon a person[59]. However it is important to
note that an incorrect noting can cause serious repercussions to an
administration.
Government Resolution:
This
means the resolutions moved by the ministers. Government resolution is a law
under A. 13(3)(a) of the Constitution[60].
Hand Book:
Hand
book of procedure[61] is published by the
Government of India in the Ministry of Commerce and Industry. Such a hand book
for returning officers cannot overrule the provisions of Statute, rules or
order[62].
Scheme:
A
scheme made under statutory power is another form of subordinate legislation. A
scheme works out the ways and meansof implementing the object of a law,
particularly, relating to welfare measures[63]e.g. the Coal Mines
Provident Fund and Bonus Schemes Act (XLVI of 1948) and the s. 68 under the
Motor Vehicles Act.
Though
a ‘scheme’ is not mentioned in A. 13(3) 0f our Constitution nor defined in s. 3
of the General Clauses Act, it is a species of subordinate legislation and, as
such, is referred to in s. 20 of the General Clauses Act. It is treated as a
rule or regulation and interpreted in the same manner[64], subject to the rule of
ultra vires[65]. It would also be invalid as vitiated by mala
fides if it is made not according to the statutory requirements but under the
influence of an extraneous authority e.g., the chief minister [66]
When a statute is declared
unconstitutional, a scheme framed thereunder falls with it. But it has been
held that when a State Act becomes void owing to repugnancy to a Central Law,
schemes framed under the State Act prior to the moment when repugnancy took
place, remain as regards past transactions[67].
Though
a non-statutory scheme has no legislative scheme, it has been enforced on
various grounds such as estoppel[68], beneficial object of the
scheme[69], fundamental rights
involved[70] etc.
Rules framed by the Court-
Superior
courts in all countries posses the power to frame rules to regulate the
proceedings before them, as ancillary to judicial powers.
In
India such power is conferred by the Constitution itself. In case of the
Supreme Court it is A. 145(1). As far as the High Courts are concerned there is
no provision exactly corresponding to A. 145(1) however, rules of the High
courts are framed under A. 225 and A. 227(1) of the Constitution.
The
continuance of the rule-making power under the Constitution is, however subject
to two limitations:
(a) The
provisions of the Constitution,
(b) Legislation
by the appropriate Legislature under Entries 78, 95 0f List I, 3 of List II[71], 46 of List III.
Conclusion:
These
administrative instruments, hierarchical differences notwithstanding, serve the
purpose of administration of Justice. Sometimes they become necessary
concomitant to maintain Rule of Law in a Welfare State like India.
“...In order that right and
not might is the basis of the society, the people must be under the Rule of Law
and there are four requisites which the law must fulfil: (1) It must be certain
so that people may act safely upon it;(2) It must be just so that they will
approve it being enforced (3) It must be readily ascertainable, so that they
may know what their rights and duties are; (4) it must be enforced by
independent and upright judges in whom the people have confidence”.
[2]AIR 1964 SC 264
[4]AIR 1954 SC 493.
[5]AIR 1970 SC 245.
[7](1998) 9 SCC 439.
[8](1999) 1 SCC 741; see also : (1999)
2 SCC 60.
[9]Wicks v. D.P.P., (1947) 1 ALL E.R.
205 (H.L.).
[10]AIR 1957 SC 790(791).
[12](1956) SCR 393(448); Willingdale v.
Norris (1909) 1 KB 57.
[13]Op. Cit. at footnote no. 6.
[15]AIR 1983 SC 743.
[17]AIR 1961 SC 838 (842, 845).
[18]Cf. Att. Gen. For Alberta v. Huggard
Asssets, (1953) 2 ALLER 951.
[19]AIR 1976 Cal. 88.
[20](2000) 7 SCC 109.
[21](2001) 8 SCC 676.
[25]AIR 1960 Sc 475.
[26] Willapoint Oysters v. Ewing (1949)338 US 860; AIR 1960 SC 475; See also:
Essential Commodities Act 1955( sugar control order 1956).
[27](2003) 9 SCC 336.
[28](1998) 6 SCC 66.
[29]S. 120(1) of the Trade and
Merchandise Marks Act 1958.
[30](2002) 6 SCC 562.
[31]AIR 1994 SC 268 (para 362)
[32](2004)3SCC429; (2003) 8 SCC 203 ;
(2004) 2 SCC 510.
[33](1955)1 SCR 568; (1951) SCR 525;
(1951) SCR 229.
[34]AIR 1975 SC 266.
[35]AIR 1977 SC 965.
[36]AIR 1980 SC 1157
[37]AIR 1997 SC 2313.
[38]AIR 1976 SC 57.
[39]See: The Genereal Clauses Act , s.
20-21; AIR 1961 SC 683 (686) (notice to public).
[46]AIR1963SC98, See also: AIR1957SC790.
[47]AIR1989SC644, See also :AIR 1992 SC
152, AIR 1991 SC1028 , (1993) ILR Guj. 143
[48]AIR 1993 SC 1921
[49](2004) 5 SCC 409.
[51](1999) 2 SCC 672.
[52](2003) 1 SCC 506.
[53](2001) 8 SCC 378.
[54](2000) 5 SCC 742.
[55](1998) 8 SCC 753.
[56](1999) 1 SCC 482.
[57](2004) 1 SCC 592.
[58](1999) 8 SCC 99.
[60](1954) SCR 599(604).
[63]AIR 1963 SC 976 (para 2,p.10)
[64](1929) 1 KB 619.
[65]Prescott v. Brimingham Corpn. (1954)
3 ALLER 698(CA).
[67]AIR 1959 SC 648(667-69).
[68](1994)1 SCC 274 (para 8).
[69]AIR 1990 SC 746.
[70] AIR 1989 SC 2138 (para 64).
[71]AIR 1961 Cal. 545 (533).
[72]The Changing Law, by Denning (under special
arrangement with Sweet and Maxwel Ltd U.K. and Second Indian reprint of 2012
Universal Law Publishing Co.Pvt. Ltd. ISBN : 978-81-7534-434-1.)
Very Informative Article, Sir.
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