LAW RESOURCE INDIA

The art of delaying

Posted in CONSTITUTION, DEMOCRACY by NNLRJ INDIA on March 15, 2010

AVINASH CELESTINE IN THE INDIAN EXPRESS

A CLAUSE INTENDED TO GIVE THE GOVERNMENT TIME TO SORT OUT PRACTICAL PROBLEMS WAS NEVER INTENDED TO BE USED TO DELAY THE IMPLEMENTATION OF THE LAW

The Women’s Reservation Bill, passed by the Rajya Sabha on Tuesday, will next have to be passed by the Lok Sabha and then obtain the assent of the president. Eventually it will achieve the status of an act of Parliament. However, the new act will come into force only when the Central government announces such a date in the official gazettes. But it is far from certain when (and even whether) this will happen. Many acts that were passed by Parliament have not, indeed, been implemented.

For example, the Delhi Rent Act, which was passed in 1995. An important piece of legislation, it would have led to a substantial shift in power away from tenants towards landlords in the capital. Many tenants, who had for years enjoyed the benefits of rent control, would have had to pay much higher rents. But even 15 years on, the government has still not issued a crucial notification in the official gazette which would have brought it into effect. Think about this: under the Constitution, Parliament has the sole power to enact laws; Parliament has expressed its will that such a law should prevail in Delhi. But that will has become little more than words on paper.

There are other examples: the National Environment Tribunal Act, for one, passed in the same year as the Delhi Rent Act, to set up a dedicated environmental tribunal in the country and impose tighter standards on polluters. Status? No notification yet. The offshore areas Mineral (Development and Regulation) Act passed in 2002 to regulate mining off India’s coastline. Status? No notification issued even after seven-and-a-half years.

The issue here is an important, but often overlooked, clause tucked away in many acts. Through this clause, Parliament essentially “delegates” the power to bring an act into force to the government. This is often a practical necessity. Parliament may pass a law but a number of other steps need to be taken before that law can be implemented effectively. For instance, an act may require the setting up of a tribunal; for which office space needs to be discovered, and judges have to be found to staff, along with their support staff. All this takes time, and that is what the clause is intended to do — give the government time to sort out the practical problems involved in implementing a law effectively, and then, when it is ready, to issue the notification. It was never intended to be used to delay the implementation of a law, and in some cases (like the Delhi Rent Act) to effectively thwart Parliament’s will.

Yet in a number of cases this is what has happened. In a study of over 190 acts passed between 1995 and 2008, we found that around 10 had not been brought into force at all as of mid-2009. Seventeen other acts had been only partially brought into force — only parts have been notified.

In some cases there were good reasons for the delay. For instance, parts of the Competition Act, passed in 2002, were subsequently struck down by the Supreme Court, and had to be amended by the government (in 2007). Because of this, large parts of the act were not notified for a long time. In other cases, though, reasons for delay are less clear-cut. The Petroleum and Natural Gas Regulatory Board Act was passed in 2006 to regulate the distribution of oil and gas. All parts of that act have been notified, except Section 16. On the floor of Parliament, the petroleum minister said that the delay was because the “existing text of the same does not reflect the intent of the statute.”  Surely, it should not be the decision of the government to decide whether the text of a new law

reflects the intent of the statute. If the executive has a problem with the law as it exists, it can propose an amendment in Parliament. But it hardly has the right to decide that existing laws need not be notified because the text “does not reflect the intent of the statute.” Parliament has the prerogative of amending laws, and the higher judiciary.

What is the role of the judiciary in all this? In a major judgment in 1981, (A.K. Roy vs Union of India), a five judge bench of the Supreme Court expressed its unhappiness with the practice of delaying notifications, but stopped short of ordering the government to issue the notification. It said that since Parliament had delegated this power to the executive, it was up to Parliament to exercise its oversight, and hold the executive to task. That judgment was upheld in subsequent cases, including one brought against the government on the Delhi Rent Act.

In short, then, Parliament’s job does not end when it passes legislation. It must continue to exercise its powers to ensure that the laws it passes don’t fall down at the very first hurdle.

The writer is with PRS Legislative Research

http://www.indianexpress.com/news/the-art-of-delaying/590783/0

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