CHAPTER-VIII

PRESENTATION OF BILLS FOR ASSENT AND PUBLICATION AS ACTS

29. Correction of patent errors:- After a Bill has been passed by the Legislative Assembly, the Speaker has the power to correct any obvious printing or clerical errors at any stage of a Bill. When a Bill has been passed, the Vidhan Secretariat sends a copy thereof to the Administrative Departments concerned, for scrutiny with a view to assist the Speaker in correcting such patent errors etc. The Draftsman in the Law Department is invariably consulted by the Administrative Department .It is open to the Draftsman to point out mistakes in the Bill, if any, relating to printing, spelling, punctuation, numbering of sections or clauses, or cross-references and marginal headings. As a rule, patent errors pointed out by the Draftsman as well as the Administrative Department and accepted by the Speaker are carried out in the Bills before they are printed for presentation to the Governor for assent.

30. Presentation of the Bills for assent: When a Bill is passed by the Assembly and corrected, if necessary, it is printed on thick or parched paper and authenticated by the Speaker and if it is a Money Bill, certified in the manner prescribed under article 199 of the Constitution. Four assented copies are endorsed by the Speaker with a certificate to the effect that the Bill has been passed by the Assembly. It is thereafter presented through the Law Department to the Governor for assent within a period of one month from the date of signing of the Bill by the Speaker. Immediately, on receipt of the reference from the Speaker, Secretary(Law) procures the report of the Administrative Secretary concerned and also records his own report under rule 53 of the Rules of Business of the Himachal Pradesh Government.

31. Assent to the Bill: The Governor may either assent to the Bill, withhold his assent, or reserve the Bill for the consideration of the President or return the Bill, if it is not a Money Bill, with a message for consideration of the Bill or any specified provisions thereof, or for consideration of the desirability of introducing any such amendments as he may recommend in his message. Where the Bills are reserved for the consideration of the President, the necessary action to transmit the Bill to the Ministry of Home Affairs to the Government of India for procuring the assent of the President, is taken in the Governor’s Sectt, in accordance with procedure laid down in the instructions issued by the said Ministry vide their letter no. 17-23/72-Judl., dated 3.8.1972. Such reference is required to be sent with at least six copies of the Bill as introduced (with Statement of Objects and Reasons) six copies of the Bill as passed, six copies of the letter forwarding the proposal and in case the Bill is an amending, six updated copes of the principal Act and also a certificate to the extent that all the said copies have been enclosed therewith.

32. Custody of assented copies: Out of the four authenticated copies of the Bills, as passed and assented to, one copy is retained in safe custody each by the Governor’s Sectt., Law Department, Vidhan Sabha Sectt. and the Administrative Department. Where a Bill is assented to by the President, fourth copy is retained in the Ministry of Home Affairs in the Government of India.

33. Publication of the Bill as Act: A Bill becomes a law as soon as it is assented to by the Governor or the President, as the case may be. The general rule regarding coming into operation of an enactment is that in the absence of any express provision to the contrary, an Act comes into operation on the day on which it is first published in the Official Gazette, after which it receives the assent. Thus after the Bill is assented to by the President or the Governor, as the case may be, and is assigned the number and year by the Law Department, by making entry in the Register of Acts, the Bill, as assented to, is published as an Act in the Official Gazette.

34. Publication of Authoritative English and Hindi texts of State laws: In the State of Himachal Pradesh w.e.f. 1st July, 1979 Hindi Language stands declared under the Himachal Pradesh Official Language Act, 1975, as the Official Language for the transaction of Legislative Business. Since Hindi is the Official Language for the transaction of the Legislative Business in this State, efforts are made to publish under the authority of the Governor, as far as possible, simultaneously the authoritative English texts of the Acts, enacted in Hindi language,. The authoritative texts in Hindi of laws, originally enacted in English language by the State Legislature, are published by the Official Wing of the Law Department, which processes proposals to secure authentication by the Governor of the translation of State Acts into Hindi.

35. Subordinate Legislation- permissible limits of delegation .- With the ever-widening Governmental activities in a welfare State, subordinate legislation has become necessary. The Legislature lays down principles to frame, in conformity with those principles, formal and procedural details about that measure in the form of rules, regulations etc. The fields of legislation and subordinate legislation are treated as separate fields and distinct though at times it is difficult to draw a line between them. The Supreme Court in AIR, 1951 SC 332(known as Delhi Laws Act case) has observed that it is not open to the Legislature to delegate its essential legislative functions which consist in the determination of the legislative policy and of formally enacting that policy into a binding rule of conduct. Legislature must lay down the legislative policy and principles and must afford guidance for carrying out the said policy before it delegates its subordinates powers in that behalf. Legislature can only delegate to an outside body subordinate or ancillary legislative functions for carrying out the purpose and the policy of the Act.

The essential legislative functions and the ancillary or subordinate legislative functions can be broadly distinguished with sufficient clarity as follows-

(A). Essential Legislative functions are :-

1. Declaring what the laws shall be in relation to any particular territory or locality;

2. Extending the duration of operation of an Act, beyond the period mentioned in the Act itself; (however this power may be delegated to the Executive, if sufficient guide for the maximum period of extension are laid down in the Act);

3. Repealing or amending the law;

4. Modifying any existing or future law in any essential feature so as to involve a change of policy;

5. Power to tax;

6. Power to levy fees;

7. Power to create offences (Penalties can be prescribed by rules provided the parent Act contains a specific provision to this effect and the maximum amount of penalty is also laid down in the Act);

8. Power to allow exemptions (After laying down the policy of law and the standards to be applied in the administration, the Legislature may authorise the Executive to make rules or regulations prescribing classes of cases in which relief or exemption may be granted);

9. Expenditure from public revenues, as for instance, appointment of a penal of assessors, payment of fees and travelling allowances to them (Rules may govern these matters provided the Act contains the necessary enabling provision, and adequate indication is given in the Act that expenditure from the public revenues is likely to be incurred on these matters);

10. Matters affecting the jurisdiction of the Courts;

11. Right to appeal (When the entire machinery for taking original decisions is created under the rules, authorised by the enabling provisions of the Act, there may be no objection to provide also by rules, machinery and procedure for appeals against such decisions, but if the original decisions are taken under the specific provisions of the Act and there is no provision of appeal made in the Act, it will not be right to fill the lacuna by making provisions regarding appeals under rules on grounds of natural justice);

12. Provisions affecting interest or rights in properties and providing for compensation;

13. Trespassing upon individual rights and liberties:- (Rules may be made affecting interest or rights in properties and providing for compensation therefor or for trespassing upon individual rights and liberties, provided there are specific enabling provisions in the Act and sufficient guides are indicated therein regarding the manner in which and the extent to which these rights, interests and liberties are going to be affected).

(B) The Ancillary or subordinate legislative functions are as follows and can be governed by the rules framed by the Executive Government-

1. All matters of subsidiary or ancillary nature or those which relate to procedure or matters of detail;

2. Fees can be prescribed, if there is enabling provisions in the Act, but they should not be out of all proportion to the services rendered so as to be in he nature of impost or tax;

3. As regards taxation, it seems permissible to delegate, the power to carry out certain taxation policy, if the principles of taxation are clearly embodied in the Act. Examples of these may be mentioned as follows:-

(a) Powers to determine the time when or the manner in which tax should be paid, i.e. power to determine matters of computation, appraisement, adjustment, and such other like powers involving more certainty of details;

(b) Powers to authorise administrative authority to mathematically deduce the rate from facts and events referred to in the taxing measures;

(c) Power to revise rates according to the changing circumstances provided definite standards are laid down to guide the exercise of such powers;

(d) Rate making functions, provided adequate standards are provided to guide the administrative body in rate making process;

(e) In matters of sales tax, power to prescribe by rules at what single point in series of sales by successive dealers the goods shall be liable to tax;

(f) discretion as regards the procedure to be followed in the matter of collection or assessment of taxes, provided sufficient guide or standards for the exercise of such discretion is provided;

(g) power to determine whether a particular article or merchandise is dutiable, after the Legislature had laid down the principles and the rate according to which a duty is to be levied.

4. Penalties can be provided to the observations in item 7 of the paragraph "A".

5. Exemptions:- The Legislature may authorise the Executive to make rules or regulations prescribing classes of cases in which exemptions would be granted after laying down the policy for the purpose.

6. Power to give retrospective effect:-

(i) this must flow from the Act itself either by expressed words or by necessary intendment which must be gathered from the provisions of the Act itself;

(ii) should be given only to confer benefits on subject and not to impose any new obligations or restrictions affecting the existing rights and that too in circumstances which are compelling and the power should be used;

(iii) should not be earlier than the date when the Act comes into force unless the Act specifically provides otherwise.

36. Guidance to Executive and other safeguards.- While processing the proposal to frame rules, bye-laws etc. should be kept in view that:-

(a) it is couched in simple language;

(b) it contains, if it is an amending regulations or rules, adequate references to the principal regulations, rules etc.;

(c) it indicates exact statutory authority under which these have been made;

(d) it does not involve sub-delegation of legislative power without the authority of the parent Act, or where sub-delegation is authorised, it should not be wide and general without proper safeguards;

(e) it is not likely to cause any hardship to any citizens on the ground of lack of adequate notice provision;

(f) it does not contain provisions whereby the Executive is empowered to issue orders affecting the interest of the citizens, affording them an opportunity of being heard and without the right of appeal.

(g) it does not contain any provision which may result in arbitrary exercise of powers; and that any of its provision is not unjustified on general democratic principles and is not ambiguous.

37. Procedural requirements.- (a) Previous publication.- There is no uniform procedure in India for making subordinate legislation, except in the case of rules or bye-laws made under the Acts which provide for requirement of previous publication. Thus, besides, the cases where the provisions of the General Clauses Act, applies, the procedure for making subordinate legislation depends upon the provisions, if any, of the enabling Act under which it is made. The essentials of the procedure by section  22 of the Himachal Pradesh General Clauses Act, 1968 (which corresponds to section 23 of the General Clauses Act, 1897) are the antecedent publicity of the draft rules or bye-laws in the Official Gazette with a view to give the persons likely to be affected an opportunity of making objections, and consideration of objections, if any, before the rules or bye-laws are finally made.

(b) Requirement of laying.- So far as the laying of rules before the legislative is concerned, the formula is now finally well settled. Invariably the rule making section read as under:

"Every rule made under this Act, shall be laid, as soon as may be after it is made, before the Legislative Assembly, while it is in session for a total period of ten days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or successive sessions aforesaid, the Legislative Assembly agrees in making any modifications in the rule, or agrees that the rules should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modifications or annulment shall be without prejudice to the validity of anything previously done under that rule."

Section 22-A of the Himachal Pradesh General Clauses Act, 1968, makes general provisions that every rule made under the Himachal Act, or under the Central Act, relating to the matters with respect to which the State Legislature has power to make laws for the State of Himachal Pradesh, as soon as may be after it made is to be laid before the State Legislative Assembly for a period of ten days, which may be comprised in one or more successive sessions. The procedure for laying the rules, etc. is prescribed in the Rules of Procedure for the Internal working of the Committee on Papers Laid on Table annexed to the Directions issued by the Speaker and in rules 340, 341, 342 and 343 of the Rules of Procedure and Conduct of Business in the Legislative Assembly. Where in a particular session if the said period of ten days is not completed, the rules are relaid in the successive session and this process continues till the period of ten days is completed.

(c) Requirement of Consultation.- In some cases enabling Act contains provisions which lay down the requirement of previous consultation with some named agency. An example of such a provision is the consultation of the State Public Service Commission in framing the service rules of the Government employees, or of the High Court in framing the rules concerning judicial services etc.

(d) Requirement of prior Approval or sanction.- Requirement of prior approval or sanction, if any, prescribed by the enabling Act, is held to be mandatory, subordinate legislation will have to receive the prior approval or sanction prescribed before it can be effective.

38. Powers implied from the General Clauses Act.- (a) Power to vary, amend and rescind etc..- It is implied, because of section 20 of the Himachal Pradesh General Clauses Act, 1968 (which corresponds to section 21 of the General Clauses Act, 1897), that where a power to issue notification, orders, rules bye-laws is conferred then that power includes a power exercisable in the like manner and subject to the like sanction and conditions(if any) to add to, amend, or rescind any notifications, orders, rules or bye-laws so issued. But the power to amend or modify, in the absence of any clear authorisation to that effect, can only be exercised during the period in which original notification, order etc. continues to be effective, for it cannot be brought to life post facto ex after it has ceased to exist.

(b) Power to frame rules before the commencement of the Act.- Power conferred by enabling Act to make subordinate legislation may at time be exercised even before the commencement of the Act. This is made possible by section 21 of the Himachal Pradesh General Clauses Act, 1968, (which corresponds to section 22 of the General Clauses Act, 1897). It is enabling provision, its intent and purpose being to facilitate the making of rules, bye-laws or orders before the date of commencement of an enactment the anticipation of its coming into force. Subordinate legislation so made comes into operation with the coming into operation of the Act and facilitates its effective implementation, for an Act may contain provisions which are not workable till the rules are made.

(c) Continuation of orders etc. issued under enactments repealed and re-enacted.-By virtue of the provisions of section 23 of the Himachal Pradesh General Clauses Act, 1968 (which corresponds section 24 of the General Clauses Act, 1897), where any Act is repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, the rules framed under the repealed Act so far these are not inconsistent with the re-enacted provisions, are to continue to be in force, unless and until these are superseded by the rules etc. under the re-enacted provisions.

39. Parliamentary control over subordinate legislation.- The Authority delegated to the Executive has to be kept under scrutiny. The State Legislature exercises the necessary check and control through its Departmentally Related Standing Committees under rule 273 of the Rules of Procedure and Conduct of Business in the Assembly. It is the function of the said committees to see that the rule making power of the Executive, conferred by the Constitution or delegated by the Legislature, is being exercised within such delegation. In practice the Committee scrutinizes all orders made by the State Government or by an other subordinate authority ultimately responsible to the Government, and which are published in the Official Gazette or laid on the table. While examining rules, the committee considers in particular whether these are in accordance with the general objects of the Constitution or the Act pursuant to which these are made, whether these contain matter which in the opinion of the Committee should more properly be dealt with in a Act of Legislature, whether it contains imposition of any tax; whether these directly indirectly bar the jurisdiction of the courts; whether these give retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power; whether these involve expenditure from the Consolidated Fund of the State or the Public Revenues; whether these appear to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which these are made; whether for any reasons their form or purpose calls for any elucidation; and whether there appears to have been unjustified delay in their publication or in laying them before the Legislature. Under rule 1 of the Rules of Procedure for the Internal Working of the Committee on Papers Laid on the Table (annexed to Directions by the Speaker), the Standing Committees are required to see, that:-

(a) there has been compliance with the provisions of the Constitution, rule, regulation under which the papers have been laid;

(b) there has not been any unreasonable delay in laying the papers; and

(c) in the case of delay a statement explaining the reasons for delay has been laid on the table of the House.

40. Maintenance of State Statutory Code: Law Department is also responsible for preparation and revision of State Code (containing all rules, important notifications/statutory orders) and to keep them up to date by bringing Annual Supplements.

41. Computer Technology in the field of legislation: A scheme by way of storing information in the computer in relation to State Laws, in collaboration with the National Informatics Centre, has been initiated. To have better and efficient performance, this scheme has been strengthened by having an independent computer set. On maturity of this scheme, it is likely to facilitate the immediate availability of State Laws, for reference to Courts, which are to interpret laws, to Government Officers, who are to implement the laws and to the public, who are the actual consumers of Laws.