SVKM’S
PRAVIN GANDHI COLLEGE OF LAW
A Research to determine whether the prior publication of
delegated legislation is mandatory and what will be the
effect of non-compliance with this requirement in Motor
Vehicles Act 1939
SUBMITTED BY: SRUSHTI VAIDYA
ROLL NO: B053
CLASS: 4TH YEAR
COURSE: B.L.S. LL.B
SUBMITTED TO: DR. VIKRANT HALKANDAR
FACULTY INCHARGE (ADMINISTRATIVE LAW)
ABSTRACT:
India, unlike numerous other nations that embraced democracy as the core principle of their
constitutions, has managed to maintain its status as a democratic nation even beyond its
75th year of independence. A key factor contributing to this achievement is the faith of the
populace in our Constitution and in other governing bodies. The three organs of the
government, namely, the legislature, the executive, and the judiciary, assume highly
significant roles in the administration and dispensation of justice accessible to ordinary
citizens. Legislative functions are primarily carried out by the legislature, with authorities
falling under these legislative branches proposing and formulating laws used for governance.
On occasion, legislative powers are further delegated from one individual to another,
contingent on various circumstances.
KEYWORDS:
Delegated legislation, Publication, Motor Vehicles Act 1939.
INTRODUCTION:
Delegation, as defined in Black's Law Dictionary, refers to the act of conferring authority
upon an individual, thereby authorizing them to act on behalf of the person granting that
authority or to serve as their agent or representative. Delegated legislation, on the other
hand, involves the utilization of legislative authority by an agent who holds a lower position
than the Legislature or is subservient to it.
According to M.P. Jain, the term delegated legislation is used in two senses:
• Exercise by a subordinate agency of the legislative power delegated to it by the
legislature
• The subsidiary rules themselves which are made by the subordinate authority in
pursuance of the power conferred on it by the legislature.
The concept of Publication holds significant importance in issues pertaining to delegated
legislation. The act of publishing delegated legislation is regarded as a procedural
requirement crucial in cases involving the transfer of authority from a higher entity to a
lower one. Therefore, it is imperative to ensure the proper publication of pertinent matters
before they take effect, as this is the means by which the general public becomes informed
about these matters.
PUBLICATION: THE SCENARIO IN INDIA:
In contrast to England or the United States of America, India lacks a well-defined legislative
framework explicitly outlining the principles of publication, and there is no statute that
defines the significance of publication in matters pertaining to delegated legislation.
However, the principles regarding publication established in the statutes of the USA and the
UK are equally applicable in the Indian context. Over time, the courts in India have issued
rulings on various aspects of publication of delegated legislation, affirming that some form
of publication is an indispensable element and requirement for the enforcement,
applicability, and validity of such laws. Consequently, Indian courts have delivered judgments
at different points in time, emphasizing the necessity and importance of publishing delegated
legislation and highlighting the pivotal role that publication plays in the effective
implementation of such legislation.
IS PUBLICATION OF DELEGATED LEGISLATION MADATORY IN
INDIA:
In Harla v. State of Rajasthan", the legislation in question passed by the Council was neither
published nor was it made known to the general public through any other means. Holding its
publication necessary and applying the principles of natural justice, the Supreme Court
observed:
The thought that a decision reached in the secret recesses of a chamber to which the public
have no access and to which even their accredited representatives have no access and of which
they can normally know nothing, can nevertheless affect their lives, liberty and property by the
mere passing of a resolution without anything more is abhorrent to civilised man. It
shocks his conscience.
In State of Maharashtra V Mayer Hans George Case, the Supreme Court clearly stated that if
a notification or government order is published in the Official Gazette and made known to the
whole of India, then the ignorance pleaded by the respondent or accused is wholly irrelevant
and there will be no violation of the principle of natural justice over here.
The government has an obligation to fully safeguard the interests of society, and it is
imperative for the government to implement specific policies and guidelines to ensure the
utmost protection of the people's interests. Consequently, publication assumes a significant
role in communicating matters to the general public and safeguarding the broader interests
of society. Therefore, it is essential to emphasize that publication plays a significant role in
influencing the effectiveness of delegated legislation. In the context of this modern era, we can
assert that publication is not just a recommendation; it should be deemed a requirement.
When made obligatory, it facilitates seamless interaction between the government and the
public, fostering a harmonious relationship between them.
IS PREVIOUS PUBLICATION IS REQUIRED UNDER MOTOR
VEHICAL ACT 1939:
just as there are no statutes specifically governing publications, the same holds true for
antecedent publications. Some statutes do, however, necessitate prior publication. For
example, the Motor Vehicles Act of 1939 and the Mines Act of 1952 explicitly mandate prior
publication. In such cases, the procedure for pre-publication is outlined in the General
Clauses Act. It's important to note that the General Clauses Act exclusively applies to rules,
regulations, and by-laws, while orders, notifications, and schemes do not fall under its
purview in terms of pre-publication requirements.
Regarding the time frame allocated for such notifications, it is primarily determined by the
relevant authority and typically spans a period ranging from three to six months.
Nevertheless, the Committee on Subordinate Legislation, in its report, notes that, in practice,
the allotted time is often exceedingly brief. This shortened duration has the effect of
depriving the public of an adequate opportunity to raise objections.
MODE OF PUBLICATION:
The method of publishing varies depending on the circumstances and adapts its character
according to the situation. In some cases, publication is obligatory, while in others, it is
merely a matter of guidance, dictated by the specific context. Occasionally, there may be a
combination of both mandatory and advisory aspects, especially when the statutory
requirement pertains to tax imposition, making it mandatory to publish, whereas the manner
in which the rules are disseminated is purely advisory. Therefore, despite various publication
methods, the fundamental essence of the concept of publication remains consistent, rooted
deeply in the principles of natural justice. It also implicitly underscores the necessity for all
officials to act in an impartial manner, as any form of bias would result in a violation of these
principles of natural justice.
Conclusion and Recommendations:
For parliamentary oversight of delegated legislation to remain a continuous and effective
practice in India, it is essential to enhance the role of parliamentary committees and enact a
distinct law, akin to the Statutory Instruments Act, which would establish consistent
regulations for the submission and publication of such legislation. This committee could be
supported by a dedicated governmental agency to enhance the oversight of delegated
legislation. Additionally, other measures should be implemented to bolster Parliament's
control over delegated legislation.
The majority of sub-delegated legislation lacks procedural regulations for publication, yet
failure to comply with them can result in penalties such as fines and even imprisonment. It
would be incorrect to suggest that Indian legislative authorities have overlooked this gap.
The Lok Sabha established the Committee on Subordinate Legislation with the main goal of
improving the publication process for subordinate legislation and enhancing its accessibility
to relevant parties.
The majority of statutes lack provisions for dissemination, and when they do, they are often
afflicted by unjustified and unnecessary delays. Simply mechanically publishing rules and
orders in a Gazette is insufficient; they must effectively reach the individuals they impact. To
enhance this process, one potential approach could involve amending all statutes to include
a provision mandating the issuance of notices in regional languages.
In the case of Narendra Kumar v. India, the highest court ruled that for subordinate
legislation to carry legal weight and be effective, compliance with the parent act's
requirement for publication in the Official Gazette is essential. When the provision is of a
general nature, it can be published in accordance with the provisions of the General Clauses
Act. Expanding the implications of this judgment, mandating publication under the General
Clauses Act can serve as a crucial initial measure. However, it should be noted that
exceptions may be necessary in cases where they were previously implemented in England
and are still practiced in the United States.
BIBLOGRAPHY:
• Harla v. State of Rajasthan 1951 AIR 467, 1952 SCR 110
• State of Maharashtra V Mayer Hans George Case 1965 AIR 722, 1965 SCR (1) 123
• Narendra Kumar v. union of India 1960 AIR 430, 1960 SCR (2) 375
• Article by Bhaswat Prakash
• (https://www.legalserviceindia.com/legal/article-5638-constitutionality-of-
delegated-indian-legislation.html)
• Article by Shivam Sharma
• (https://publication-and-antecedent-publication-of-delegated-legislations-a-
comparison-between-us-uk-and-india)
• Lectures on Administrative Law by C.K. Takwani
• MP Jain, Indian Constitutional Law, 8th Edition, LexisNexis
• MP Jain and SN Jain, Principles of Administrative Law, 7th Edition, LexisNexis
