Chapter 11
Subordinate Legislation

Introduction

 

11.1.1 The Constitution of India as well as Laws made by Parliament usually vest the powers in the Government to make and notify in the Gazette of India, rules, regulations, bye-laws etc., to subserve the objectives behind the main legislation, but within their broad framework. As these rules etc., are statutory in character, they come within the scope of what is termed as ‘Subordinate Legislation’.

 

 

11.1.2 The department concerned will frame the rules etc., and refer them to the Ministry of Law and Justice who will vet them from constitutional, legal and drafting point of view.

 

 

11.1.3 To facilitate speedier disposal of cases and avoid unnecessary correspondence, departments may ensure fulfilment of the points given in the checklist below, before referring the cases relating to Subordinate Legislation to the Ministry of Law and Justice:

 

CHECKLIST

(i)   As regards Principal rules, regulations, orders etc.:

      (a) consultation with the authorities which are required to be consulted have been made by the administrative department;

      (b) where rules, etc., are to have effect retrospectively (in cases where parent Act or the Constitution empowers retrospective operation), an explanatory memorandum has been added in the form of a note explaining that the interests of no person shall be adversely affected by such retrospective effect;

      (c) where existing rules etc., are sought to be superseded or repealed, up-to-date copies of such rules, etc. are placed on the file for reference.

      (d) approval of authorities competent to approve such proposal has been  obtained.

 

 

(ii)  As regards amending rules, regulations, orders etc.:

      (a) up-to-date copies of the principal rules or copies of such rules along with subsequent amendments, are placed on the file for reference;

      (b) footnote indicating the gazette references of the principal rules and all subsequent amending rules is appended to the draft;

      (c) approval of authorities competent to approve such proposal has been obtained;

      (d) where rules, etc., are to take effect retrospectively (in cases where parent Act or the Constitution empowers retrospective operation), an explanatory memorandum has been added in the form of a note explaining that the interests of no person shall be adversely affected; and

      (e) consultation with the authorities which are to be consulted have been made.

 

 

(iii) As regards rules, etc., to be finally published after they have been previously published for general information, the preamble to the draft should contain:

      (a) the notification number with which the draft has been published and the date of the gazette in which the draft rules were published;

      (b) the date on which the gazette copies containing the draft rules were made available to the public;

      (c) the last date fixed for receipt of public comments;

      (d) all references made to the department should be accompanied with a self-contained note explaining the proposal; and

      (e) in time-bound cases the administrative department should specifically indicate the same by some method in the file itself. Those cases, wherever possible, may be settled after discussion by an officer of appropriate level with the concerned legislative counsels.

Procedure where pre-publication of rules etc. is required

 

11.2 Where an Act requires previous publication of rules, etc., made thereunder, the department concerned will:

(a)  frame the draft rules in consultation with the Ministry of Law and Justice;

(b)  get them published in the official gazette inviting objections and suggestions within a specified period of 30 days;

(c)  if suggestions have to be obtained from interests concerned who are likely to be affected by the legislation, attempt should be made to get their comments at the earliest by sending registered letters to them and, if necessary, by publication of the draft rules in the national or regional press/newspapers;

(d)  on expiry of the specified period of 30 clear days, which will be reckoned from the date on which the gazette is made available for sale to the public, consider the objections and suggestions received;

(e)  if the suggestions/objections received are large, the final rules should be notified within a period of six months from the last date of receiving the comments. If no objections/suggestions are received or the number of objections etc., so received is also small, the rules should be finally notified within a period of 3 months; and

(f)  finalise the rules in consultation with  the Ministry of Law and Justice, where modifications are involved.

Time limit for framing rules.  Cabinet Secretariat 
O.M.No.6/1/13/71-CF dt 25-8-71

 

11.3.1 Statutory rules, regulations and bye-laws will be framed within a period of six months from the date on which the relevant statute came into force. Cases in which, for any reasons, this is not possible, will be brought to the notice of the Secretary and the Minister at the earliest possible stage.

 

 

11.3.2 In case the departments are not able to frame the rules within the prescribed period of six months, they should seek extension of time from the Committee on Subordinate Legislation stating reasons for such extension; such extension being not more than for a period of three months at a time. The request should be made after obtaining the approval of the Minister.

Notifying the rules etc. in the gazette

 

11.4 After the rules, etc., are finalised, steps will be taken by the department concerned to publish them in the gazette and, where the Act provides for it, to lay them on the Table of each House. The procedure to be followed in this regard has been described in para 11.5.

Laying of rules etc. on the Table of each House

 

11.5.1 After publication, the rules, etc., will be laid on the Table of the House as soon as possible and, in any case, within a period of 15 days (30 days in case of notifications relating to a state under the President’s rule), reckoned from:

PRO 6.15

 

(a)  the date of their publication in the official gazette if the House is in session; or

PRO 6.15

 

(b)  the date of commencement of the next session, if the House is not in session.

PRO 6.1(c)

 

11.5.2 An authenticated copy of the rules, etc., will be sent to the LS/RS Secretariat for being laid on the Table of the House together with a statement containing the following information:

(a)  brief purport;

(b)  name of the Act and number of the Section under which the paper is to be laid;

(c)  ‘G.S.R.’ or ‘S.O.’ number of the notification and the number of part and section of the gazette in which published;

(d)  date of publication in the gazette;

(e)  date on which it is proposed to be laid;

(f)  whether under the Act, the rules, etc., are subject to modification by the House;

(g)  period for which they are required to be laid before the Houses; and

(h) reasons for delay, if undue delay has taken place to lay them on the Table of the House.

 

 

11.5.3 In case the delay is anticipated in getting printed copies of the rules, etc., from the press, cyclostyled/photo copies will be laid on the Table of the House within the prescribed time limits.

 

 

11.5.4 To avoid delay in the printing of the material relating to subordinate legislation, departments may ensure that the following formalities are complete in all respects:

(i)   The department should send the notification containing rules, etc., required to be published by a particular date in the weekly/Extraordinary Gazette with a covering demi-official letter addressed to the manager of the press, clearly indicating the date on which it is to be published either in the Extraordinary Gazette or date of the weekly gazette.

(ii)  Reasonable time, as far as possible, should be allowed to the press to publish notifications relating to Rules which are of a bulky nature.

(iii) The number of spare copies required by the department should be clearly indicated in the demi-official letter and in the printing requisition.

(iv) As per the Directorate of Printing’s revised instructions regarding printing and distribution of the gazette issued vide their O.M. No. O. 17034/1/83-P(III), dated 2-9-85, all notifications received by the press up to 13.00 hours on Tuesday will be printed in the same week’s gazette of Saturday.

 

 

11.5.5 The period for which such rules should remain laid on the Table of each House is prescribed by the Act. For deciding the dates on which the papers sent by them were actually laid on the Table of the House, the Bulletin Part I will be consulted. In case Hindi and English versions of such rules, etc., are laid on the Table of the Houses on different dates, the statutory period for which the rules, etc., are required to be laid will be calculated from the later of the two dates.

Relaying of the rules etc. on the Table of the House

PRO 6.11, 6.12 LSR 234

 

11.6.1 After the termination of each session, the department will examine the rules, etc., laid on the Table of each House to see whether the prescribed period for which they were to be laid has been completed. If not, an intimation stating the date (which should be, as far as possible, the first day of the following session allotted to the department concerned) for relaying should be furnished to the LS/RS Secretariat at least 3 clear days before the date on which it is to be relaid. Such rules etc., when re-laid, need not be accompanied by authenticated or spare copies, unless there has been a change in the incumbency of the Minister who had laid it in the House earlier.

PRO 6.13

 

11.6.2 In the event of the dissolution of the Lok Sabha before the expiry of the full period prescribed, the concerned rule, etc., will be laid afresh in the new Lok Sabha for the full prescribed period.

Amendment to rules etc. laid on the Table of the House
LSR 235

 

11.7.1 After the notifications regarding rules, etc., are laid on the Table of the House, any member may give notice of an amendment thereto.

 

 

11.7.2 On receipt of a notice for amendment of the rules, etc., the Parliament Unit will immediately bring it to the notice of the Joint Secretary incharge of Parliament Section in the department concerned, who will:

(a)  put it up immediately for obtaining the orders of the Minister for arranging a discussion of the matter in Parliament before the expiry of the statutory period provided for modification by Parliament;

(b)  settle with the Ministry of Parliamentary Affairs the date to be fixed for the debate; and

(c)  submit a brief for use of the Minister during the discussion.

 

 

11.7.3 Where a motion to amend the rules, etc., is carried in one House, it is transmitted to the other House by the LS/RS Secretariat. When it is carried in the other House also, the department concerned will take steps to amend the rules, etc., notify them in the official gazette and lay them on the Table of each House vide para 11.5.1.

 

11.7.4 (i) Where the parent Act provides that the rules, etc., framed thereunder will come into force after the approval of the Parliament, the department will address a motion in the prescribed form (Annex 22) to the Secretary-General, Lok/Rajya Sabha, under intimation to the Ministry of Parliamentary Affairs. The date for discussion of such a motion will be settled by the Ministry of Parliamentary Affairs in consultation with the department concerned. In such a case, a brief will also be prepared for the use of the Minister.

Giving retrospective effect to rules

 

(ii)  In cases where the parent Act provides for giving of retrospective effect, the rules framed thereunder should be accompanied by an explanatory note setting out therein the reasons and circumstances which necessitated the giving of such retrospective effect. The note should also indicate that the interests of no one will be prejudicially affected by giving retrospective effect. In cases where the parent Act does not provide for giving retrospective effect but  retrospective effect is proposed to be given due to unavoidable circumstances, prior action should be taken to clothe it with legal sanction for the purpose.

M.P.A. O.M. No.32(57)/73-R&C dt. 22-9-1973

 

11.7.5 All amendments to rules and regulations will be published in the official gazette. If two or more amendments to the same rules or regulations are to be published in the same issue of the gazette, they will be assigned order numbers in the same sequences as those assigned to the amendments to the said rules etc. and also published in that order.

Committees on Subordinate Legislation 
LSR 320
RSR 209

11.8 The committees on Subordinate Legislation constituted by the Speaker/Chairman scrutinize all rules etc. laid on the Table of the concerned House. The report containing the recommendations of the committee is submitted to the House by the Chairman of the committee.

 

 

11.9.1 (i) Soon after the presentation of the report by the committee:

Action on the report of the committee

 

    (a) the Ministry of Parliamentary Affairs will process such recommendations made by the committee as are of a general nature and concern more than one department.

     (b) The department concerned will take prompt action on the recommendation which primarily concern them and ensure that “action taken statements” are sent direct to the Lok/Rajya Sabha Secretariat, as the case may be, under intimation to the Ministry of Parliamentary Affairs within the period of six months from the date of the presentation of the report.

 

 

(ii) Where the department concerned accepts a recommendation, it will communicate the acceptance to the Lok/Rajya Sabha Secretariat, under intimation to the Ministry of Parliamentary Affairs. Where, however, a recommendation is not acceptable to the concerned department, or the department feels any difficulty in giving effect to it, it will:

      (a) submit a brief to the Minister giving the reasons for not accepting it; and

      (b) after obtaining his approval, communicate the comments of the department to the Lok/Rajya Sabha Secretariat, as the case may be, under intimation to the Ministry of Parliamentary Affairs.

 

 

11.9.2 Where it is proposed to amend the rules on the basis of the recommendations of the committee, the department concerned will take steps to amend the rules, notify the amended rules, etc., in the official gazette and to lay them on the Table of each House (vide paras 11.4 and 11.5.1).

 

 

11.10 As soon as an Act comes into force, it should be examined to ascertain the specific sections conferring power to make rules, regulations, bye-laws, orders, etc.

 

 

11.11 A register should be maintained by the concerned section in each department, specifying the various stages of processing the legislation, e.g., name of the enactment, date of its coming into force, sections (with any sub-sections etc.) conferring legislative powers on the government; whether power has been given to an agency other than Central Government for framing the rules and also identify the various stages of processing the rules, namely, framing of the draft rules, notification thereof in the gazette, if necessary, consideration of objections and suggestions, finalisation of rules in consultation with the Ministry of Law and Justice, the translation thereof, and final notification in the gazette. The above register should be put up by the section concerned to the officer in- charge for periodical check with a view to seeing that the process of legislation is not held up at any stage for any reason.

 

 

11.12 A monthly return should be put up by the section in-charge regularly to the Joint Secretary deputed for co-ordinating this work who shall monitor the progress and take remedial measures for avoiding any delay in the matter and who shall further submit a return, along with the remedial action taken, to the Additional Secretary/Secretary.

 

 

11.13 A quarterly report in respect of cases in which rules/regulations under a statute have not been published within six months should be sent regularly to the Legislative Department of the Ministry of Law and Justice.

 

 

11.14 The department should maintain up-to-date copies of the Acts and rules and regulations, bye-laws, etc., framed thereunder in sufficient numbers. In case the number of amendments is large, efforts should be made to reprint the Acts or the rules, as the case may be, so as to provide a continuous reading.