Chapter 7 SUBORDINATE LEGISLATION IMPORTANCE pas In today's Parliamentary Democracy the subordinate legislation has assumed great importance. Parliament has no time to deal with each and every aspect of the legislation. It concentrates on framing of legislative policy and outlines the essential parameters of a legislation leaving the details to be worked out by the executive authorities on whom the rule making power is confirmed by the Legislature. Normally, administrative or procedural matters are delegated to the executive authorities, Government ‘or municipal or local self governments by whatever name they are called. Usually the Legislature enacts « law covering only policy matters and general principles and confers rule making_power on the Government or other administrative agencies. These rules, which are termed as delegated legislation or subordinate legislation, governs multifarious activities. In modern time no statute book of any country will be complete unless the entire body of the subordinate legislation is also clubbed together with the principle Acts under which it is framed. SUBORDINATE LEGISLATION The expression “subordinate legislation” covers a variety of matters and includes inter alia rules, regulations, by-laws, orders and notices issued by the authorities to whom the powers to frame them are delegated. The nomendature depends upon the terminology used by the country’s Interpretation Act and the terminology used in the Constitution and other statutes of the country. For example the terminology used in England (U.K, is ‘statutory instruments’, while in India it is the rules, regulations and the bye-laws. Collectively they are termed as subordinate legislation. 293 222LFORMS OF SUBORDINATE LEGISLATION The subordinate legislation take a number of forms and the enabling section of the principal Act normally specifies a particular form which the subordinate legislation would take (i.e. rules, regulations, ete.). These forms are often used indiscriminately and interchangeably but normal practice is as follows:— (a) Rules—Rules deal with the procedural matters providing for the administrative machinery such as registration of societies, election procedure, officers who are to enforce the legislation and their headquarters and other offices, etc. . Example—The Water (Prevention and Control of Pollution) Rules, 1975; The Indian Medicine Central Council (Election) Rules, 1975; The Indian Museum Rules, 1970; The Coal Mines Conservation and Safety Rules, 1954 and the Coal-Mines Labour Welfare Fund Rules,. 1949. (b) Regulations.—Regulations normatty-give a complete regime or a set of procedure in respect of several matters which the parent Act is supposed to govern Example—The Central Secretariat Service Assistants Grade (Limited Departmental Competition Examination) Regulations, 1974; The Khadi and Village Industries Commission Employees (Gratuity) Regulations, 1975; The Indian Boilers Regulations, 1970 and the I.A.S. (Appointment by Promotion) Regulations, 1954. (c) Orders and Notifications.—These terms are often used _ interchangeably. Many times the Regulations assume the character of an independent set of rules dealing with the entire subject and are termed as Orders. Example—The High Speed Diesel Oil and Light Diesel Oil (Control) Order, 1974; The Coconut Husks Control Order, 1973 and The Punjab State Agricultural Marketing Board and Marketing Committees (Reconstruction and Reorganisation) Order, 1969. The notification is normally employed to notify the bringing into force an Act or notifying the appointment of an officer, Board, Commission or any other authority, either statutory or non-statutory. The form of an Order is used for notifying an action taken by the Government in accordance with the directions or powers conferred by an Act of Parliament. But as observed abote there is no hard and fast rule in employing these forms and they are used interchangeably as per the nomenclature used in the parent Act or as per the choice of the drafter, depending upon the suitability of the form to the subject-matter of the instrument in question. 294 :224 “LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) (d) Bye-laws.—The bye-laws are instrument or subordinate legislation so termed when they are framed by the municipal bodies, corporations or other local self governments. They are not different from rules or regulations but so termed so as to easily identify them from the rules and regulations framed by the Government and other authorities such as the judiciary. They are framed by the local self governments under the powers conferred on them by an Act of Parliament. Example.—The Jullundur Cantonment (Regulation and Control of Loudspeakers) Bye-laws, 1978; The Roorkee Cantonment (Control and Supervision of Mills) Bye-laws, 1978 and The Ambala Cantonment (Regulation and Classification of Contractors) Bye-laws, 1974. {e)_Scheme.—Many times the subordinate legislation is termed as a Scheme to denote-the handling of the subject-matter as an independent scheme. Example.—The Kandla Dock Workers (Regulation and Employment) Scheme, 1969; The Bombay Unregistered Dock Clearing and Forwarding Workers (Regulation of Employment) Scheme, 1973. CONSTITUTIONAL MANDATE In every country the subordinate legislation has assumed great importance in view of the enormous volume of delegated legislation framed by the executive Government and other statutory and non- statutory bodies. Almost all the activities of the individual citizen and the society as well, are controlled by the subordinate legislation. The modern constitutional documents, therefore, give equal importance to the subordinate or delegated legislation and has made sufficient mandatory provisions to control it so that the subordinate legislation does not transgress the rights of the citizens of the nation. Foremost consideration is, therefore, given to the subordinate legislation by article 13 of the Constitution of India. Article 13(1) lays down, that all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part (Part III) shall, to the extent of the such inconsistency, be void. Article 13(2) states that the State shall not make any Jaw which takes away or abridges the rights conferred by this Part (Part Ill) and any law made in contravention of this clause shall, to the extent of the contravention, ,be void. Article 13(3)(a) provides that ‘law’ includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Every rule, regulation, order, bye-law or scheme framed under an Act of Parliament must be intra vires the provisions of the Act under which it has been framed and also consistent with the provisions of the Constitution. If not itSUBORDINATE LEGISLATION 205 will be void and unenforceable. The drafter has, therefore, to take utmost care to see that the subordinate legislation framed by him is not inconsistent with any of the provisions of the Constitution. He should take precautions while framing the subordinate legalisation and avoid such inconsistency. The device of delegating the power to frame the rules and regulations (subordinate legislation) is employed for diverse purposes. (1) Commencement of Acts.—Several Acts authorise the Government to appoint the date with effect from which the enactment shall come into force. Sir Cecil Carr has observed that by this method the Legislature provides the target but leaves to the executive the task of pressing the trigger. , This delegation of power is used differently for different purposes, but is an effective tool in the hands of the executive to set up the administrative-machinery and frame the necessary rules for the purpose before the concerned Act is brought into force. It gives the Government an opportunity to take preparatory steps to deal with each and every aspect of the legislation. The clause many times empowers the executive authority to appoint different dates for enforcement of different sections of the Act or if necessary to bring the Act into force in Parts in different areas of the country. All this is possible because of section 22 of the General Clauses Act, 1897 (10 of 1897), whereunder the rules may be made, orders may be issued for enforcement of an Act, for appointment of officers or for prescribing, the procedural matters before the commencement of the Act. The historical perspective of this provision.— Section 22 of the General Clauses Act, 1897 (10 of 1897) corresponds to section 37 of the Interpretation Act, 1899 of England, which validates the exercise of rule making power between passing and coming into operation of the enabling Act, but only “so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of its commencement”. In Usher v. Barlaw* the Court of Appeal, followin, the decision in R: v. Minister of Town & Country Planning, observed that rule making power may be used before the commencement of the Act not only as far as necessary but also as for “expedient”. Finding of the Court. was that if the making of the rule had awaited the commencement of the Act, it would have been highly inconvenient. Section 22 of the General Clauses Act, 1897 (10 of 1897) of Indian does not lay down such condition. ——— 1. See Carr on Administrative Law, page 43. 2. (1950) All ER 282, (285). 296226 LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) (2) Extension and application of Acts—The subordinate legislation device is often used for the extension. of Acts in respect of territory and other objects and duration of time. (a) Territory and other objects-—Sub-section (3) of section 1 of the Dangerous Machines (Regulation) Act, 1983 (35 of 1983) is an example of this aspect. It provides— This section and sub clause (c) of section 3 shall come into force at once in all States and the remaining provisions of this Act shall come into force in the State on such date as the State Government may, by notification in the Official Gazette appoint; _and ‘any reference to any provisions of this Act to the commencement of this Act shall in relation to any State be construed as a reference to the commencement of that provision in that State. (b) Duration of time.—Sub-section (3) of section 1 of the Essential Commodities (Special Provisions) Act, 1981 (18 of 1981) is an example of this aspect. It provides— (3) It shall cease to have effect on the expiry of five years from the date of commencement of this Act except as respects things done or omitted to be done before such caesar of operation of this Act and section 6 of the General Clauses Act, 1897 (10 of 1897) shall apply upon such cession of operation of this Act as if it had been repealed by the Central Act. Occasionally an enabling Act empowers the executive to extend laws operating in other areas to certain specified territories. Thus, section 2 of Part C States (Laws) Act, 1950 (30 of 1950) empower the Central Government to extend to any Part C State with such restrictions and modifications, as it thinks fit, any enactment which is in force in a Part A State at the date of notification. This gives a blanket power to the Government and is no longer an accepted mode of delegating of the powers to the executive. (3) Temporary extension of Acts—Act of temporary nature having a fixed tenure sometime contains a provision enabling the Government to extend the life of the Act or part of it. (4) Extension of Acts to objects not originally covered.—l. The Railways Act, 1890(9 of 1890) — Section 146 of the Act extend the Act to tramways. Tl. The Inland Vessels, Act 1917 (1 of 1917) — Section 78 of the Act extend it to vessels propelled by electricity. ae Ml. Wild Birds and Animals Protection Act, 1912 (8 of 1912).—Section 2(2) empowers the Central Government to extend the Act to birds and animals other than those mentioned in enacting legislatidn. ye 297IV. The Provident Funds Act, 1925(19 of 1925) — Section 8(2) empowers extension of the provisions of the Act to the funds other than those established by local authorities. (5) Dispensing and suspending of Acts-——-Many Acts provide an exemption clause empowering the executive to make exemptions from all or any of the provisions of an Act in a particular case or class of cases when, in the discretion of the executive, such a course is warranted. Examples : I. Section 9 of the Cinematograph Act, 1952 (37 of 1952) — The Central Government may exempt, by order in writing, the exhibition of any film subject to such conditions as it may impose. " Il. The Registration Act, 1908 (16 of 1908)— It extends to the whole of India except in suchdistricts or tracts of the country as, the State Government may exclude from its operation. (Such provisions are often subjected by the courts to severe test of equality of treatment under article 14 of the Constitution of India). Likewise, closely akin to but wider in its. scope, is the power sometimes delegated to the executive, to suspend the operation of the Act or part of an Act Example The State Financial Corporations Act, 1951 (63 of 1951)— Section-46 (2) provides that the Central Government may, by notification, in the Official Gazette, suspend the operation of any enactment........ (6) Delegation of power to alter an Act—Alteration technically amounts to an amendment of an Act. This is an essential function of a Legislature. However, this is distinguished between two classes—(a) Modifications, and (b) Amendments. (a) Modifications—Purpose of this delegation is to empower the Government to make changes in an Act by, way of— (i) adoptions; (ii) alterations; (iii) exceptions; (iv) restrictions; or (v) additions so that the modified Act serves some purpose other than that for which it was originally enacted. i298 ‘228 ‘LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) In the Indian context, practice of empowering the Government to modify the Act has mostly been delegated as a sequel (consequence) to the power of extension and application of Laws. The delegated power authorises the making of modifications in an Act to be extended, which may be an enabling Act. itself or some other Act or Acts. Another occasion for the grant of modification arises; when “Legislation by reference is adopted”. It is a device where an Act or Part of it is taken to be forming a part of another Act. To make the adopted Act fit into framework of the adoptive Act, power is given to the executive to introduce necessary modifications in the former. Example 2 The Excess Ptofits Tax Act, 1940 (15 of 1940), provides that certain specified provisions-of the Indian Income Tax Act, 1922 (11 of 1922)shall apply with such modifications, iF any, as may be prescribed by rules. Normally, this power is limited to consequential changes without disturbing the policy or substance of the Act. There are instances where this power is used going beyond the consequential changes in the Act Example (1) The Income Tax Act, 1922 (11 of 1922) made no provision in section 40 for the recovery of income tax direct from non-resident principal, but with the power to modify conferred under section 21 of the Excess Profits Act, 1940 (15 of 1940), a provision to recover the tax from such principal has been added in the Income Tax Act thus modifying the Act to that extent. (2) The Delhi Laws Act, 1912 (13 of 1912)—The Central Government extended the application of the Bombay Debtor's Relief Act to Delhi. The Bombay Act is limited in application to the agriculturists with income of less than Rs. 500/-. But in excess of the power of modification the Central Government removed the limit en the income. The Supreme Court in Delhi Laws Case and subsequent cases has held a view that delegation of power of modification (alteration) cannot be blanket one and cannot be considered as a power to change essential policy or function dealt with in the given Act But Dr. Allen, an early authority on the Administrative Law, was of the view that “there cannot be serious objection to a power vested in the departmental experts who, of course, act on a technical advice, to alter from time to time the list of poisons, theraeuptic substances, fertilisers and feeding stuffs, ancient monuments or whatever it may be, which fall within the appropriate statutes provided that the are esjudem generis with the other things which the Statute is clearly intended to apply”? Sir Cecil Carr, another authority 1. Jn Delhi Laws Act, 1912, AIR 1951 SC 332; Rajnarain Singh v. Chairman, Patna Administrative Committee, AIR 1954 SC 569, 2. Laws and Orders (1956) by Dr. Allen, 299DUDURUINALE Lawn has observed that without it (this power) endless delay might be caused.+ [This is exactly what is being experienced today in many disciplines—such as Environment, Atomic energy, Urban land ceilings, Apartient ownership ( or sectional property as it is fermed in Canada and Kenya), etc.]. But the power to modify is not limited in the case of section 20 of the Defence of India Act, 1939 which provided that any rule made under section, any order made under any such rule, shall have effect notwithstanding anything inconsistent therewith contained in any other Act. But this wide power was considered as essential as it was used in war like situation for the defence of the country and when normally Part Ill of the Constitution of India (relating to fundamental rights) is suspended during the emergency. The amending power given in section 20 of the Defence of yndia Act, 1939 (now 1962) assumes a form of unlimited power.’ Section provides that any rule made under section 2, and any order made under any_such rule shall have effect notwithstanding any thing inconsistent therewith-contained in any enactment other than this Act. The power is, therefore, very wide. In effect it may repeal any provision of any enactment. For example, some of the rent control orders issued under rule 81 of the Defence of India Rules (framed under 1939 Act) has the effect of repealing several provisions of the Transfer of Property Act, 1882(4 of 1882) and the Indian Contract Act, 1872 (9 of 1872). Dr. Allen's observations in relation to the English Emergency Act are applicable with equal force in the case of the Defence of India Act and the rules framed thereunder, Dr. Allen observed— the question is not whether the Regulations are in fact necessary or expedient but whether théy appear to be so to his Majesty’s Government. This is the governing principle and it clearly places ulira vires in a condition of catalepsy, for how can it ever be shown that a certain measure did not appear to the rule making authority to be necessary or expedient. In several cases, therefore, the rule made under the Defence of India Act, 1939 were challenged in the High Courts and the Supreme Court as having made in excess of rule making power conferred by the Act, but without any success. In Keshav Talapade v. King Emperor the Federal Court of India held mule 26 of the Defence of India Rules ulira vires on the ground that it went beyond the rule making power conferred by clause (x) of sub-section (2) of section 2 of the Defence of India Act, 1939, though it was not denied that the rule could be covered by the language of sub-section (1) of section 2. 1, English Administrative Law (1940), page 85. 2. AIR 1943 FC 72. Also see Eniperor v. Sibanath Bonerji, AIR 1945 PC 156, whi overruled this decision Santech Kumar v. Stale, AIR 961 SC 201. ess 00 :230 “LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) Section 2 (1) read thus: Such rules as appears to it to be necessary or expedient for securing the defence of (British) India, the public order or efficient prosecution of war or for maintaining supplies and services essential to the life of the country. The Privy Council, however, did not accept the interpretation given by the Federal Court. According to the Privy Council the function of sub- section (2) is merely an illustrative one; the rule making power conferred by sub-section (1) and “the rules” which are referred to in the opening sentence of sub-section (2) are the rules which are authorised by, and made under those sub-sections, the provisions of sub-section (2) are not restrictive of sub-section (1), as indeed, is expressly stated by the words “without prejudice to the generality-of-the powers conferred by sub- sections” Analogous provision in English statute is nicknamed as “Henry VII Clause” which empowers the executive to amend the provisions of the enabling Act and have been subjected to most vehement criticism? Sir Cecil Carr maintained that bulk of the orders made under this clause will find them surprisingly innocuous. The device is partly a draftsman’: insurance policy, in case he had overlooked something, and is partly due to immense body of local Acts in-England creating special difficulties in particular areas. Subsequently, it was decided that Henry VIII Clause should never be used. Another instance of modifying power is of a power to removal ot difficulties [This has now been limited to a period of two years only That is any modification to be made in the Act must be carried out within a period of two years from the date the enactment brought into force]. (b) Amendments—Al] alterations, not mentioned as modifications above, directly or indirectly authorised by the delegating statute, are termed as amendments. (7) Delegation of Legislative power to impose taxes— Distinction in taxes and fees.—To understand the nature of the powe: delegated under this heading it is necessary to draw the distinction between the taxes and fees. The distinction of the power to levy a tax is not identical with that of the power to levy a fee. Taxes are specifically distributed between the Union and State Legislature under the Indian federal structure under various legislative entries in the Union and the 1. See New Despotism (1929), page 60, by Hewart 301SUBORDINATE LEGISLATION 231 State Lists enlisted in the Seventh Schedule to the Constitution of India. A tax is_an imposition made for public purpose, without reference to any services rendered by the State or any specific benefit to be con: aS upon the tax payer. On the other hand, a fee is a payment bevies by the State in respect of services performed by it for the benefit of the individual. It is levied on the principle just opposite to that of the tax. While a tax is paid for the common benefits conferred by ie Government on all tax payers, a fee is a payment made for some spec . benefit enjoyed by the payer and the payment is usually proportional to the special benefit? Normally, in the case of fees the power is given to the executive to determine the rates or amount of fees, and to vary them at its discretion’ However, the Indian Stamp Act, 1899 (2 of 1899) and the Court-fees Act, 1870 (7 of 1870) are the notable exceptions to the practice for under both these Acts the-rates have been fixed by the Legislature without the provision for executive interference. As regards taxes normally Parliament itself fixes/ decides/ provides/ determines rate of taxes. In respect of cesses, which are levies for special purposes and do not form part of the general fiscal framework, three courses are adopted to fix the rates— (i) rates are fixed by the Act. (ii) Act fixing the maximum of rates with power delegated to the Executive to determine the actual rates not exceeding the maximum limit prescribed in the statute. (iii) the fixation of rates being left to. the discretion of the executive (subject to the Parliamentary control of laying down the notification / rules / orders fixing the rates of taxes for scrutiny by the Parliamentary Committees on Subordinate Legislation and Approval). (8) Delegation of power of supplementary legislation—Under this heading may be inchided all such instances of delegated power which authorise the rule making authority to elaborate, supplement or help to work out the details of the principles laid down in the Act. The bulk of the subordinate legislation falls under this category regulating the wide range of private activities. Normally, rule making section of the Act enumerates the subject-matters or provisions of the Act for which rules are to be made and also ex abandanti cauela “any other matter which is to be or may be prescribed”. i 1. Commissioner, HR.E. v. Lakshimindra, Punjab, AIR 1980 SC 1008; and Hing 1961 SC 459 (464). (1954) SCR 1005; Kewal Krishan Puri_v. State of ir Rampur Coal Company v. Stale of Orissa, AIR 1302. 2Bz LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) One type of delegation is aimed at supplementing the Act by providing necessary administrative mechanism to bring the Act/ law into operation. Thus it is left to the rule making authority to prescribe various forms and notices, the procedure to prepare and file returns or make applications for licences, the manner in which statutory body may keep its accounts or prepare its budget and also for prescribing table of fees, forms and contents of certificates, etc. In striking contract fo purely machinery provisions are what may be described “blank cheque” delegations. The oldest examples of such rule making power is the Epidemic Diseases Act, 1897 (3 of 1897). The Act empoweres the Government, on the happening of any specified events, to take or require or empower any person to take, such measures and by public notice, prescribe such temporary regulations, as it shall deem necessary to prevent the outbreak of epidemic diseases. The Defence of India Act, 1939, excelled them all in the width of power delegated and amount of subordinated legislation made under section 2, thereof. [See extensive discussion in paragraph (6) (2) above]. (9) Delegation of power to prescribe punishments —In India it is a common practice to delegate the power to prescribe in the rules the punishments for their breach. This power is delegated even under those statutes, which. provide for framing of rules for setting of only administrative machinery. This power is also delegated to the statutory Boards and Corporations. The safeguards provided are,— (a) The Legislature must fix in the Act itself the maximum punishment which the rule making authority can or may prescribe for breach of rules or regulations, and (b) If such power is delegated to any authority other than the State or Central Government, the exercise of the’ power must be subject to the previous sanction or subsequent approval of the State or the Central Government, as the case may be. Ruie making authorities to whom the powers to frame rules or regulations are normally delegated are— (1) The Central Government, "2) The State Government, (3) The Central or State subordinate off ‘ials and authorities, (4) The semi-govemmental statutory bodies, (5) Local authorities, and (6) The Supreme Court, High Court and other judicial bodies. 393Two important questions arise in respect of delegation of rule making power to subordinate authorities or executive or administrative organs of the State— : (i) to whom the rule or bye-law making power should be given, and (2) whether there should be excessive delegation. The safe guards against the abuse of preventing the misuse of delegated power the drafter must remember that— ‘ {a) the delegation must be to some authority which is a public department; (b) the limits of the delegated power must be defined strictly in the statute itself; (© care should be taken that where the rights or interest of any class or community is affected, then such class-or-community _ should be consulted by the delegated authority; (d) the rules or regulations should be published in a publication such as government gazette so that all concerned can refer them and apprise themselves of the conditions contained therein; and (2) proper authority should be mentioned for amending or revoking the subordinate legislation in the principal statute itself. As regards question of excessive delegation a survey of relevant cases shows that the courts do support the doctrine that the power to frame subordinate legislation is valid only if the delegating statute specifies the policy which the delegate is suppose to execute by making appropriate rules o regulations. The doctrine of excessive delegation serves several useful functions from practical point of view. But some kind of safety valve is necessary if the modern parliamentary system in developing countries is to be successful. However, the line demarcating the principal and subordinate legislation is now well defined and the courts have'distinguished with sufficient clarity what are the essential legislative functions and ancillary or subordinate legislative functions. @ The essential legislative functions are: (1) Declaring what the laws shall be in territory or locality e (2) Extending the duration or operation of an Act beyond the period mentioned in the Act itself. However, this power may be delegated to the executive if sufficient guidelines for the exercise of this power and also the maximum period of extension are laid down in the Act. relation to any particular 1304 :234 LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) (3) Repealing or amending the law (4) Modifying any existing or future law in any essential feature so as to involve a change of policy. (5) Power to tax. (6) Power to levy fees. (7) Power to create offences; [Penalties can be prescribed by rules provided the parent Act contains a specific provision to this effect and the maximum amount of penalty is also laid down in the Act]. (8) Power to allpw exemptions; [After laying down the policy of law and the standards to be applied in the administration, the legislature may authorise the executive to make rules or regulations prescribing classes of cases in which relief or exemption may be granted]. (9) Expenditure from public revenues, as for instance, appointment of a panel of Assessors, payment of fees and travelling allowance to them (10) Rules may govern these matters provided the Act contains the necessary enabling provision, and adequate indication is given in the Act that the expenditure from the public revenues is likely to be incurred on these matters. (11) Matters affecting the jurisdiction of the courts. (12) Right of appeal. Note.—When the entire machinery for taking original decisions is created under rules authorised by the enabling provision of the Act, there may be no objection to provide also by rules, machinery and procedure for appeals against such decisions, but if the original decisions are taken under the specific provisions of the Act and there is no provision of appeal made in the Act, it will not be right to fill the lacuna by making provisions regarding appeals under the rules on grounds of natural justice. (13) Provision affecting interest or rights in properties and providing for compensation. (14) Trespassing upon individual rights and liberties. Rules may be made affecting interests or rights in properties and providing for compensation therefore or for trespassing upon’ individual rights and liberties, provided there are specific enabling provisions in the Act and sufficient guides are indicated therein regarding the manner in which and the extent to which these rights, interest, and liberties are going to be affected. 33051 subordinate legislative functions are as follows eo a ey oierned by the rules framed by the execulive Government:— (1) All matters of subsidiary or ancillary nature or those which relate to procedure or matters of detail. (2) Fees can be prescribed if there is enabling provision in the Act, but they should not be out of all proportion to the services rendered so as to be in the nature of an impost or tax. (3) As regards taxation, it seems permissible, to delegate the power to carry out certain taxation policy if the principles of taxation are clearly embodied in the Act. Examples of this are mentioned below: (i) Powers to determine the time when or the manner in which tax should be paid, that is, power to determine matters of computation, assessment, adjustment and such other like powers involving more certainty of details; (i) Power to authorise administrative authority to matliematically deduce the rate from facts and events referred to in the taxing measure; (iii) Power to revise rates according to the changing circumstances, provided definite standards are laid down to guide the exercise of such powers; (iv) Rate fixing function provided adequate standards are provided to guide the exercise of such powers; (v) In matters of sales tax, power to prescribe by rules at what single point in the series of sales by successive dealers the goods shall be liable tc tax; (vi) Discretion as regards the procedure to be followed in the matter of collection, or assessment of taxes, provided sufficient guide or standards for the exercise of such discretion is provided in the law; (vii) Power to determine whether a particular article or merchandise is dutiable, after the Legislature had laid down the principles and the rate according to which a duty is to be levied. (4) Penalties can be provided subj (7) of paragraph 3()), There is strict control on subordinate legisl, che Houses of Parliament have establishex ject to the observations in item ation by Parliament and both d Committees on Subordinate 306236 = LEGISLATIVE DRAFTING (PRINCIPLES AND TECHNIQUES) Legislation, which scrutinise the subordinate legislation enacted by the Central Government and other authorities. Subordinate legislation is laid on the Table of the House after it has been framed. The Committee by way of recommendations keeps the excessive use of delegatory power under control Due to complexity of legislation and for want of sufficient time Parliaments generally delegate the powers of framing subordinate legislation to executive Government and authorities subordinate to it. However, they exercise strict control over the framing of rules, orders, regulations and bye-laws by the executives. Each House of Indian Parliament, namely the House of People [Lok Sabha] and the Council of States [Rajya Sabha] had established Committees on Subordinate Legislation who's main function is to Scrutinise the delegated legislation placed on the Table of Parliament. The State Legislatures had also established similar Committees to control and scrutinise the delegated legislation framed under the relevant State Acts. The Committee on Subordinate Legislation of Lok Sabha has been constituted under Chapter XXVI—rules 317 and 318 of the Rules of Procedure and Conduct of Business in Lok Sabha. The main functions of the Committee as laid down under rule 320 are to examine — (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; ) whether it contains imposition of any tax; Gi (iv) whether it directly or indirectly bars the jurisdiction of the courts; (v) whether it gives retrospective efféct to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power; (vi) whether it involves expenditure from the Consolidated Fund of India or the public revenue; (vii) whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made; (viii) whether there appears to have been unjustifiable delay in its publication or in laying it before Parliament; and (ix) whether for any reasén. its form or purport calls for any elucidation . 307SUBORDINATE LEGISLATION ps 237 For Rules of Procedure and Conduct of Business in Lok Sabha see Annexure I of this Chapter. The Lok Sabha Committee on Subordinate Legislation has, by way of recommendations contained in its report, has exercised very strict control over the exercise of delegated powers by the Government and other subordinate authorities. These recommendations are mandatory and all the Ministries and the departments of Government are expected to follow them and revise or amend the rules and regulations framed by thern as per the recommendations of the Committee. Every Ministry and other statutory bodies who are exercising rule making powers under the Constitution or an Act of Parliament must keep themselves_update on the recommendations of the Committee'so as to avoid transgressing the powers conferred on them by the Act. Every drafter as well as the persons in charge of the rule making in the Ministries in the Government and other subordinate authorities, including the courts interpreting the rules and regulations, must carefully study these recommendations in order to avoid transgressing the powers delegated to them by the Act of Parliament. Let us consider few examples from the recommendations of the Committee on Subordinate Legislation, Lok Sabha to stress the point. While scrutinising the Explosive (Amendment) Rules, 1971 the Committee observed that while cancelling the licence the licensee must be given an opportunity of being heard and provision to that effect must be made in the rules. [Para 74-75, 6th Report (5 LS.) and Para 17 of 19th Report (6 L. In another instance while scrutinising the Supreme Court Legal Services Committee Regulation, 1996, the Committee observed that the provision to provide for free and competent legal service to weaker sections of the society be made in the rules to ensure that the opportunities for securing justice is not denied to any citizen for reason of economic disabilities taking into consideration article 39A. of the Constitution of India, which provides for equal justice and free legal aid. The recommendations of the Committee are, therefore, very important as they crystallise the various legal principles, which must be observed by the delegating authority while framing the delegated legislation. Hof this Chapter). It gives an insight of Committee during the course of fifty 1950. Index covers 4th Report of 12th n the guide lines evolved by the Years of its existence since January Lok Sabha, i.e,, from 1950 to 1999. 308