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.

APPLICATION FOR DIVORCE—PROPER FORUM

(By V, M. Balakrishnan Nambisan, Advocate, Taliparamba)

The recent decision in the case Vijayamma v. Gangadharan reported in 1967 KLT. 115 in which His Lordship Mr. Justice M. Madhavan Nair held that "after the commencement of the Hindu Marriage Act, 1955, the forum for institution of proceedings for dissolution of a marriage even under the Travancore Nayar Act (of 1100) is the District Court as defined in the Hindu Marriage Act' has been interpreted to be incorrect by Advocate Sri M. Velayudhan Nair in 1967 KLT, Journal Section, pp. 70-73. The decision of course raises certain intricate but interesting arguments. I wish to differ from the view taken by Mr. Velayudhan Nair but would say that the Hon. Judge has correctly laid down the law.

Para 6 of Sri. Velayudhan Nair's article begins with this sentence: "A petition under S. 19 of the Hindu Marriage Act would be maintainable only if any of the grounds specified in S. 13 exists." If it were so, all the several circumstances enumerated by Sri, Velayudhan Nair in para 6 of his article to show that "there is no justification for dissociating the right to obtain a divorce from the mode and the forum prescribed by the special enactments for working out the right" would have been correct. But it is not so. The word ''only" in Sri Velayudhan Nair's above sentence is superfluous. That "only" is most misleading and it changes the entire scope of S. 19 which reads as follows:

"Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together."

It may be observed that S. 19 is only an inclusive provision and therefore every petition for divorce under any Act other than one under the Hindu Marriage Act may also be presented to the District Court. I respectfully submit that it is not correct to say that "S. 19 of the Hindu Marriage Act will be attracted only when the petition for dissolution of marriage is fifed under S. 13" as held in the Full Bench decision reported in 1957 KLT. 977 = AIR. 1958 Ker. 39. What S. 19

lays down is that all petitions for divorce on grounds specified in S. 13 of the Hindu Marriage Act shall be presented only to the District Court and not to any other court. It must be understood that S. 19 of the Hindu Marriage Act does not say that petitions for divorce other than those under the Hindu Marriage Act shall not be presented to the District Court, whereas since the provision for institution of petitions for divorce in the Court of a Munsif is repealed by S. 4 (2) of the Central Act (i.e. the Hindu Marriage Act).As reasoned rightly and logically arrived at by His Lordship Mr. Justice M. Madhavan Nair in 1967 KLT. 115, petitions for dissolution of marriage under the special enactments have to be presented to the District Court itself as provided by S. 19 of the Hindu Marriage Act. However, a petition for divorce on grounds specified in S. 13 of the Hindu Marriage Act would have to be tried and disposed of as per the Hindu Marriage Act, whereas a petition for divorce on grounds, if any, mentioned in the special enactment would have to be tried and disposed of as per the special enactment itself, the common forum for both being the District Court. In short, the, Central Act (i. e. the Hindu Marriage Act, 1955) has created a common forum for all matrimonial proceedings. It would also be clear now that the apprehension of Sri. Velayudhan Nair that an application for divorce presented to the District court on the ground of impotency or incompatibility of temperament or habitual cruelty, is liable to be dismissed on the short ground that the ground of divorce alleged in the petition is not one of the grounds specified in S. 13 of the Hindu Marriage Act, notwithstanding that the ground alleged in the petition is a ground of divorce according to the Travancore Nayar Act by which the parties are governed" is baseless. Such an "anomalous situation" is unwarranted. Because a petition for divorce on grounds, if any, mentioned in the special enactment (e.g. The Travancore Nair Act), presented to the District Court under S. 19 of the Hindu Marriage Act, as already said above, has simply to be disposed of as per the provisions of the special enactment itself. The Hon. Judge has correctly differentiated the substantial right to obtain a divorce from the procedural forum for working out the right.

Apart from the legal deliberations, the Hon. Judge has also considered the practical utility of trying different matrimonial proceedings in a common forum as otherwise "the husband would compel the wife to conjugal union and the wife would refuse to see him under the respective decrees in their favour if the two petitions, one for restitution of conjugal rights and one for dissolution are to be tried by different courts and they arrive at different conclusions."

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.

A New Year Salad

(T.G. John, Advocate, Trichur)

Much is talked about legalising abortions. We hear of bills about the same in the anvil in this country and elsewhere. The matter is unthinkable as a topic of public discussion but the population explosion, the food problem and other complexities of life makes the topic as endearing to the common man as a breakfast egg As far as our Penal Code is concerned, Macaulay may turn twice in his grave if he comes to know that Ss. 312 to 315 will have to be dropped off from the Code which he drafted so laboriously. But the shock will be less when he hears news from his own country that "gentlemen" over there are thinking seriously to legalise homosexuality. King James the first who succeeded Queen Elizabeth in 1603, was homosexual. (Wilson and Pitman-over bury Murder). Even this extreme measure will become unnecessary within a few years because with safe do-it-yourself medicatious abortion will be brought actively into the arena of private decision. Boston College's Jesuit Thelogian-Lawyer Robert, F. Drinan contends even therapeutic abortion under a model code recommended by the American law institute and recently adopted by three states means taking a life. To ensure that no abortion shall have legal sanction, Father Drinan suggested that the states shall repeal all abortion laws. The reaction of Pat Maginnis, a medical technician aged thirty nine who had three abortions herself is different. It is her confirmed opinion that no laws shall hold the woman responsible for ridding herself of an unwanted child. She argues that the police shall not be allowed to take any action "even if you take your fetus into the police station and tell them you just did your abortion".

xx xx xx xx

Defence counsel in criminal trials sometimes become very dramatic. The trial of Leopald Nathan and Richard Loeb law students of Chicago University for the murder of fourteen year old Bobbie Franks was an occasion when the defence counsel, Clarrance Darrow became suddenly poetic and took the court room by surprise His defence speech was ponderous and emotional with Freudian under-stones. To the agape courtroom he quoted from A.E. Houseman's Last poems:

"The night my father got me

his mind was not on me,

He did not plague his fancy

to muse if I should be

the son you see".

and went on to more irrelevant whimsy "the mother who looks into the blue eyes of her little baby cannot help musing of the end of the child, whether it will be crowned with the greatest promises that mind can imagine--or whether he will meet death upon the scaffold'. Over eloquent when describing his client's possible summons to the scaffold, Darrow went on to say that Judge Caverly presiding over the trial stood between the past and the future, between hate and love and quoted the Persian poet, Omar Khayyam":

"So I be written in the Book of love

I do not care about that book above

Erase my name or write it as you

So I be written in the Book of love''.

The trial took place in the criminal court of Cook County, in Chicago on 21st of July 1924. In spite of the public clamour for death sentence, the Judge awarded only life imprisonment.