SUBORDINATE OR DELEGARED LEGISLATION. PUBLICITY—AS AN ASPECT OF RULE OF LAW

(M. P. R. Nair, Bar-at-Law)

1. "Absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be confined within clearly defined limits. The rule of law from this point of view means that deci­sions should be made by the application of known principles and, in general,' such decisions should be predictable and the citizen should know where he is". The above passage which appears in a recent decision of the Supreme Court (AIR. 1967 SC. 1427) emphasises an important aspect of the modern concept of the rule of law and embraces, to my mind, the need for publicity in regard to delegated or subordinate legislation before such legislation takes effect or becomes operative.

2. As an aspect of the concept of rule of law, publicity for delegated legislation has been recognised as a condition precedent in order to make the law effective. In most of the countries where the rule of law prevails, it is usual to provide certain safeguards for the control and supervision of this type of the law-making process, extensively resorted to in recent times by the subordinate authorities empowered by the legislature. Adequate publicity and laying before the legislature are two such effective measures.

3. The legislature is a public forum where open discussions take place and matters dealt with by the legislature often reach in the case of ordinary man through newspapers and other means of communication. Moreover the Acts are passed by the "accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done'. Not so, with regard to delegated legislation. A piece of delegated legislation stems from a subordinate authority specifically empowered by the legislature, who in framing laws acts without giving access to the public nor its accredited representatives unlike the legislature. It is fair and reasonable to expect that a person, whose life, liberty and property may be affected by a piece of subordinate legislation ought to know or ought to be able to acquire knowledge of the existence of such law if he takes reasonable steps to ascertain the law. Looked at this way, there is no escape from the conclusion that publication in some manner or form is essential for the subordinate legislation to take effect. Statutes of a subordinate legislature and also rules, ordinances, orders and bye-laws which have fulfilled all conditions precedent to their validity have the force of statutes and are law within the meaning of Art, 13 (2) of the Constitution.

4. On principles of natural justice as well, there cannot be any doubt that a valid legislation is one which has been made known to the public.

5. The Supreme Court of India and some High Courts in India have had occasions to consider the effect of non-publication of delegated legislation. The most authoritative and instructive pronouncement of the Supreme Court is contained in a decision reported in AIR. 1951 SC 467 (Harla v. State of .Rajasthan) In this case, the Council of Ministers appointed by the Crown Representative to look after the government and administration of the State during the minority of the then Maharaja of Jaipur passed a resolution which purported to enact the Jaipur Opium Act. The question for determination was whether the mere passing of the resolution without promulgation or publication in the Gazette or by other means making the Act known to the public was a valid legislation. It was admitted that the Jaipur Opium Act was never published in the Gazette either before or after 1—11—24, the date on which the Act was stated to come into force. Bose, J. held that in the absence of some specific law or custom to the contrary, the court was not told what law or custom existed in the State of Jaipur in regard to the coming into force of an enactment a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. His Lordship gave his reasons as under:

"The thought that a decision reached in the secret recesses of a chamber to which the public 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 civilized man. It shocks his conscience".

His Lordship invoked principles of natural justice to support his conclusions. At page 468 of the Report His Lordship observes as follows:

"Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is; oral the very least, there must be some special rule or regulation or customary Channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence."

His Lordship then outlined the English and French law on the subject and held that "reasonable publication of some sort" is essential for the validity of the law.

6. The concisions of His Lordship in the aforesaid decision are fortifiedby a later decision of the Supreme Court reported in AIR. 1960 SC. 430 (Narendra Kumar v. Union of India). The petitioners in this case were dealers in imported copper, who contended that Clause 4 of the Non-ferrous Metal Control Order, 1958 made under S. 3 of the Essential Commodities Act (Act 10 of 1955) read with certain principles specified in a letter issued by the Central Government violated the rights conferred on them under Art. 19 (1) (f) and (g). Clause 4 of the Order prohibited acquisition or agreement to acquire non-ferrous metal except and in accordance with a permit issued by the Controller in accordance with such principles as are specified by the Central Government. These were specified by the Central Government in a letter dated 18th April 1959 communicated to the Chief Industrial Adviser, according to which the Controller could not issue any permit to a deale but could issue permits only to certain manufacturers indicated therein. One of the contentions of the petitioners was that these principles formed part of the Order and were therefore, required to be notified in the Official Gazette and laid before the Houses of Parliament as required under the provisions of the Essential Commodities Act. At page 483 of the Report, the Supreme Court observed as follows:

"All that is necessary to make Clause 4 effective is that some principles should be specified and these notified in the Gazette and laid before the Houses of Parliament. It may be necessary from time to time to specify new principles in view of the changed circumstances; these have again to be notified and laid before the Houses of Parliament in order to be effective. So long as new principles do not come into operation, by being specified and the rafter notified in the Gazette and laid before the Houses of Parliament, the previous principles last specified, notified in theGazette and laid before the Houses of Parliament, will remain effective. As, however, the principles specified in the letter of the 18th April have not been notified in the Gazette, norlaid before the Houses of Parliament, and no principles appear to have been specified before or after that date Clause 4 of that order, as it now stands, must be stuck down as void'^!.It must be remembered in this context that the Non-ferrous Metal Controller Order itself was published in the Gazette.

7. The mandatory nature of the requirement of publication as held by the Supreme Court in the aforesaid decision gives ample support to the view that law for its validity requires some measure of publication. Commenting on the said decision the Indian Law Institute says in "Delegated Legislation in India" that the fact that the Court has not laid down any positive rule on the point only indicates that a requirement of notification of delegated legislation must be regarded as imperative without doubt."

8. A case reported in AIR. 1965 SC. 722 (Stale of Maharashtra v. M. H George) deserves some mention in this context, Although the point decided in this case is something different Their Lordships were prepared to accept the view that some method of bringing a rule or subordinate legislation is essential for its validity. The Supreme Court in this case was concerned with the contravention by one Mr. George of a notification under S. 8 of the Foreign Exchange Regulation Act, 1947 imposing certain restrictions on gold and gold articles, among other things, being brought to India or sent out of India, and of which he had no notice. This notification was published in the Gazette of India on November 24, 1962. Mr. George who carried with him some gold slabs and left Zurich by a Swiss Air Plane which touched Bombay on the morning of November 28 was arrested by the Customs Authorities for alleged contravention of the notification which was dated 8th November 1962 and published on 24th November 1962, It was argued that the said notification being merely subordinate or delegated legislation could be deemed to be in force only when it was brought to the notice of the persons who would be affected by it, and not from the date of its issue or publication. Dealing with this contention the Supreme Court observed thus:

"In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being published in the Official Gazette, It therefore, stands to reason that publication in the Official Gazette viz., the Gazette of India is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. As we have stated earlier, the notification by the Reserve Bank was published in the Gazette of India on November 24, 1962 and hence even adopting the view of Bailhache, J. the notification must be deemed to have been published and brought to the notice of the concerned individuals on 25th November, 1962. The argument, therefore .that the notification dated November 8, 1962 was not effective, in the sense of having been brought to the actual notice of the respondent must be rejected."

9. As is clear from the passage quoted above, the Supreme Court only held that actual notice to the persons affected is not required for a law to be effective if provisions for publication as required by the statute, of which knowledge will be presumed, are complied with, Bailhache, J. had held in Johnson v. Sargant and Sons, 1918-1KB 101 speaking of an order of the Food Controller made on a certain day and said to have been contravened on the same day that "if certain Orders are to be effective at all, it is essential that they should not be known until they are actually published."

10. The Supreme Court has, however, attached great force to the comment by Prf. Allen of the decision in Johnson v. Sargant by reference to an earlier decision Jones v. Robson 1901-1 KB. 673. It may not, therefore, be out of place to refer to a decision of the Nagpur High Court reported in AIR. 1945 Nagpur 218 (Babulal Rajoolal v. Emperor), in which the Nagpur High Court had considered Jones v, Robson in some detail. The learned Judge adverted to a decision reported in 1930-2K.B. 98-Rex v. Minister of Health; ex parte Yaffe and preferred the reasoning therein to that contained in Jones v. Robson. It would seem that the Nagpur decision was not brought to the notice of Their Lordships of the Supreme Court while considering the case reported in AIR, 1965 SC. 722.

11. The courts in India have in the past approached the question by way of construing the provisions relating to the publication of statutory instruments contained in the relevant statutes.

12. A long line of cases had come up for consideration before the High Courts in India dealing with the failure to comply with the requirements of Rule 119 of the Defence of India Rules or the Essential Supplies Act or the Essential Commodities Act, and so on. Instances are not wanting where the courts have held that the provisions relating to publication are only directory in nature and not mandatory. The courts scrutinised the relevant provisions from an angle covered only by the field of interpretation of statutes. The wider implications of the question which assumes great importance in a country where rule of law prevails, it is submitted do not appear to have been brought to the notice of the courts in the various decisions where the courts have held that provisions for publication are only directory.

13. In England, the position has been clarified and is now governed by the Statutory Instruments Act, 1946. The Parliaments of Australia, Newzealand and Canada have also enacted legislation providing publication of statutory instruments. ID India, however, provisions relating to publication are contained in the relevant statutes themselves and it cannot but be said that there is a certain amount of uncertainty in the law as to (1) when subordinate legislation can be said to have been passed and (2) when it comes into effect. But the proposition seems to be clear that no statute should exclude instruments of delegated legislative import from the provisions of publication except in very special and extraordinary circumstances.

14. In summarizing the various aspects of the modern concept of rule of law Pof. Wade observes that rule of law, among other things, means and includes "effective control of and proper publicity for delegated legislation particularly when it imposes penalties". And indeed, one cannot but agree with the words of John E, Kersell that "an ideal system which might work in appropriate circumstances, would, of course, include something like the Australian requirement for publication prior to operation. It would encompass not only the wide range of delegated legislation now covered in each country by the relevant statute but it would encompass also all sub-delegated legislation that is, rules, directives, proclamations and so on which purports to have general legislative effect. It would include minimal provision for publicity, through at least the press, of coming into force of particular enactments, and it would make the texts of these more readily available to the general public than is now the case in any commonwealth country''

"26 Days A Month"

(M.R. Rajendran Nair, Advocate, Ernakulam)

How many days are there in a month? Though answer to this question may vary from 26 to 31, ordinarily a month is understood to mean 30 days. But under the Payment of Gratuity Act for the purpose of calculation of a day's wage of a monthly rated employee a month must be understood to have only 26 days. In other words, an employee is entitled to get 15/26 of the wages last drawn by him as gratuity for every completed year of service.

The controversy over this issue as to whether the gratuity for every completed year of service for a monthly rated employee is 15/30 or 15/26 of the last drawn wages, has been finally settled by the ' Supreme Court in the cases of Shri. Digvijay Woollen Mills Ltd. v. Shri. Mahendrapratapri Buch and the Mahharana Mills Ltd. v. Gobal Das Ladha Bhaikakkad (1980 (4) SC. 106 : 1980 KLT 712)which were disposed of together by a common judgment dated 23rd July 1980.

In both cases the gratuity was paid to the employee on the basis of 15 days wages which was taken as half of the monthly wages last drawn by them. The employee(s) claimed additional sum as gratuity on the ground that his monthly' wages should be taken as what he got for 26 working days, his daily wages should be ascertained on that basis and 15 days wages must be worked out accordingly. The employees' contention was upheld by the authorities under the Act, the High Court and the Supreme Court. The Gujarat High Court observed in Digvijay Woollen Mills case,

"In any factory it is well known that an employee never works and could never be permitted to work for all the 30 days of the month. He gets 52 Sundays in a year as paid holidays and, therefore, the basic wages and dearness allowance are always fixed bytaking into consideration this economic reality.'...........A worker gets full month's Wagesnot by remaining on duty for all the 30 days within a month but by remaining on work and doing duty for only 26 days. The other extra holidays may make some marginal variation into 26 working days, but all wage boards and wage fixing authorities or tri­bunals in the country have always followed this pattern of fixation of wages by this method of 26 working days."

The Supreme Court was not inclined to interfere with the decision of the High Court because it was not felt that the view taken by the authorities was in anyway unreasonable or perverse. 'Treating of monthly wages as wages for 26 working days is not anything unique or unknown', observed the Supreme Court, referring to the case of Delhi Cloth and General Mills Company Ltd. v. Workmen AIR. 1970 SC. 919 wherein it was stated.

"The expression average basic wage can only mean the wage earned by a workman during a month divided by the number of days for which he has worked and multiplied by 26 in order to arrive at the monthly wage for the computation of gratuity payable".

In view of the decision of the Supreme Court a bench decision of Kerala High Court reported in 1979 KLT. 721 is no longer good law The Kerala High Court was of the view that in interpreting a statutory provision the plain meaning of the language used therein must be looked into and if it does not give room for any ambiguity that meaning has to be given to it, in the absence of any contrary or different intention indicated expressly or at least by implication. And in the absence of any definition giving a different meaning, no justification was found, for departing from the meaning given to the term 'month' in common parlance.

The High Court concluded:

"We are therefore, of the opinion that for the purpose of S. 4 (2) of the Act, for arriving at the tidily wages of the employees in the case, of monthly rated employee, the total monthly wages reckonable for the purpose should be divided by 30 and that there is no legal basis for the contrary view taken by the 2nd respondent in Ext. P3 order".

The Supreme Court while maintaining that in the ordinary parlance a month is understood to mean 30 days, upheld the view taken by the Gujarat High Court as legitimate, reasonable and not perverse.

The view taken by the Supreme Court, of course is liberal and in favour of the worker. But at the same time the correctness of the same is not free from doubt. It is a matter of common knowledge that workmen are entitled to get a day in a week as paid holiday. If we take the wages of the whole month as wages for 26 days only, that would lead to the position that the worker is paid only for 26 days. In other words the holidays are to be taken as 'unpaid'. This will be inconsisent with the economic reality of worker getting 52 Sundays in a year as paid holidays as stated by Gujarat High Court Further, if Sundays can be excluded from the days of month for the purpose of S. 4 (2) of the Act, there is no reason why other paid holidays should not be excluded. To arrive at the wage for a day the monthly wages must be multiplied by 12 and then divided by the total number of actual working days in an year, even excluding the permissible leave period with full wages.

By doing so the marginal variation caused by other extra holidays as feared by the Gujarat High Court can be avoided.

It will be desirable that the legislature steps in and clarifies the position.

CRIMES

(M. Stanley Fernandez, B. Com., D.S.S., B.L., District Government Pleader & Public Prosecutor, Ernakulam)

Crimes are on the increase. Thefts, robbery, dacoity,' rape and murders are all every day occurrences. A disturbing trend noticed in recent years, is that majority of the criminals come from the age group of thirty and below. The investigation machinery in the States definitely require a shake up. A trained cadre of investigation Officers is a must for the proper functioning of the investigation wing of the Police Department. The present practice of transferring and posting the ordinary police officers to the crime Detachment will not serve the purpose. In Kerala, the crime Detachment offices lack even the basic necessities. Inadequacy of staff, stationery, furniture, equipments and other fecilities for investigation are the urgent problems which require immediate attention. In cases like, murder, rape etc., the police officers should of necessity consult the law officers well in advance. There is no point in submitting the papers for scrutiny to the prosecutors at the final stage, as the charge laying ceremony. Many of the legal infirmities in the charge, which result in acquittals of the criminals could be avoided if the law officers are consulted at earlier stage of investigation. The Courts of law should be little more slow in releasing criminals on bail even before the blood stains on the weapons of offence are dried up. In social crimes like rape, dacoity and robbery deterrent punishment is the only way out. In Arab countries, where the punishment is severe the impact of crimes is less. In the present set up in India fool proof investigation is well nigh impossible. Hence the courts of law also should view things in such perspective so that the social welfare is not sacrificed at the altar of legal niceties.

WEALTH TAX, THE LUCKY MUSLIMS, AND THE JAINS

(Prof. J. Duncan M. Derrett, University of London)

Readers of this journal will remember the present writer's protests about Muslim families being assessed to Wealth Tax, through their managers, or rather his objections to Hindu undivided families being taxed when Muslim undivided families as such are not within the statute. In 1962 KLT, J., 18 he approved of Mammed Keyi v. Wealth Tax Officer 1961 KLT. 905. Parliamentary draftsmen forgot that there were joint families which are Muslim and (in Mysore at any rate) Christian. The subject came up for treatment in Rajah Sir M. A. Muthia Chettiar v. Wealth Tax Officer 1964 II MLJ. 273, which was not attractive The upshot of the question was treated by the present writer in 1964 K.L.T., J., 69-74. Then came the interesting and complex full bench judgments in Mam-mad Keyi v. Wealth Tax Officer, Calicut 19o5 KLT. 1238 FB = AIR. 1966 Ker.77 FB. and the present writer recapitulated his viewpoint (for what it is worth) at 1966 KLT., J., 71-3. He will not go into it all again, for fear of being accused of the academic vice of 'regurgitation'. But the following may be repeated:—

1. Moplah marumakkattayam tarwads are outside the Act and are not liable to be taxed.

2. There is discrimination on the ground of religion against Hindus.

3. Parliament does not have the power to discriminate in this way in a taxing statute.

4. But since the proportion of Muslim and Christian joint families is very small this fact cannot be allowed to strike down the taxation of Hindus as such,

5. and therefore though Muslims should go free, the taxing of Hindu families is constitutionally valid notwithstanding the technical breach of the constitutional provisions requiring equal treatment.

A very interesting development in Calcutta places this whole discussion in a slightly clearer light, though regrettably neither the Madras case cited above nor any of the Kerala cases were cited, as it would seem, to the bench (B. N. Banerjee and K L. Roy, JJ.).

In Commissioner of Wealth Tax, West Bengal v. Smt. Champa Kumari Singhi AIR. 1968 Cal. 74 some Janis objected that the words "Hindu undivided family" in S. 3 of the Wealth Tax Act, 1957, could not comprehend them, as they were not Hindus. Their Lordships studied the question, and were impressed by the fact that the so-called 'Hindu Code' statutes take pains to include Janis within the term 'Hindu' for the purposes of application of those Acts. It seems difficult to prove at this time of day that Jains are Hindus. They have been treated as Hindus for the purposes of the application of Hindu law even long before the Hindu Code (see Mulla's Hindu Law, 13th edn., sec. 6, p. 73, n. (t)), but this does not mean that the expression ^:Hindu undivided family will include a Jain undivided family. It is a narrow point, but the Calcutta bench must be right. Their Lordships did not refer to Kerala cases, which is odd since the affair has become notorious But they did refer to a case this writer had not seen, namely P. F. Pinto v. Commissioner of Wealth Tax, Mysore (1967) 65 ITR. 123 (Mys). In that case the family were converted from Hinduism but had retained their custom of joint enjoyment of family property. They were able to prove that the Indian Succession Act (a recent introduction in Mysore State) did not apply to their property as then enjoyed by them. They went further and asked that their wealth should be taxed as that of a Hindu undivided family, because they were a Christian undivided family and the statute should not be taken to discriminate against Christians where there was an advantage to be gained in being assessed as a family rather than as individuals. The Mysore High Court held that 'Hindu' must be construed as if it meant exactly what it says, 'Hindu', and that non-Hindus by religion were excluded. Hence both Mysore and Calcutta take the view of this section of the Wealth Tax Act, which this writer took. And they are in accord with the Kerala full bench decision referred to above.

The constitutional point was not raised in Calcutta. Let us see what its future will be in the Supreme Court.

Meanwhile the Muslims should be free not only in Kerala but wherever Muslim joint families are to be found (e. g. Madras State). The present writer has referred to the case of M. Sandhukhan How ther v. Ratnam AIR 1958 Mad. 144 at p. 527 of his Religion, Law, and the State in India (London, Faber, 1968).

The amusing case of Abdul Kader Haji v. Agricultural I. T. Officer 1966 KLT.731 in which it was held that the words "Hindu undivided family" in sec. 3[3] of the Agricultural Income-Tax Act, 1950 must be taken to embrace a Muslim undivided family also (because "Hindu undivided family" is defined as including an undivided marumakkattayam toward or tavazhi and Muslims have such joint families) may have to be reconsidered, since the construction (in the interest of the validity of the statute) seems very forced.

Subordinate Courts

(M. Stanley Fernandez, B.Com., D.S.S., B.L., District Government Pleader & Public Prosecutor, Ernakulam)

There is no sitting of Judges in the High Court’s on Saturdays. The various sections of the offices of the High Court work on all Saturdays except the second Saturdays. This privilege is denied to the presiding officers of the Subordinate Courts, without proper reasons. Those of the Judicial Officers, who have their homes away, could go over there during week ends, if they get two days' holidays on Saturday & Sunday consecutively. While others who remain in station can usefully spend their time attending to administrative work or preparing judgments of the cases they heard during the week. One of the reasons for law's delays in the Subordinate Courts is due to paucity of time and adequate facilities for disposal of cases already heard by the pre­siding officers. Both the Kerala Government and the Chief Justice of the Kerala High Court should look into this matter, and declare Saturday as a daywithout sitting for the Subordinate Courts in Kerala State.