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Elections to the 13th Legislative Assembly of Gujarat are scheduled to be held in two phases on the 13th and 17th of December. The BJP has been the dominant majority party in the Assembly since 1995. The 2002 elections saw the largest victory for the party, winning 127 seats. The Congress last held power in Gujarat in 1985. In the Assembly elections held for the the seventh Assembly, the Congress had a clear majority of 149 seats. In 1990, the Janata Dal emerged as the largest party with 70 seats. The BJP registered major gains in 1990, improving their tally of 11 seats in 1985 to 67 seats. The Congress came third with 33 seats. The electoral trends over the last 22 years may be viewed here. In the current Assembly, 117 of the 182 seats are held by the BJP. It is useful to look at the work done by the 12th Gujarat Assembly during its term from 2008 to 2012. Here we look at key metrics like the number of days the assembly was in session, members’ attendance, and legislative business. Performance of the Assembly During its five year term, the assembly sat for a total of 157 days – an average of 31 days each year. In comparison, the Lok Sabha sat for an average of 66 days each year during the period 2008 to 2011. In the same period the Kerala Assembly sat for an average of 50 days – highest among states - followed by Maharashtra (44). However, the Gujarat Assembly sat for more number of days than the Haryana Assembly which sat for an average of 13 days and Rajasthan (24). The average attendance among Gujarat MLAs stood at 83% for the whole term, with two members registering 100% attendance. 87 Bills were passed by the Assembly since the beginning of its term in 2008 till September 2011. Of these, 80 Bills i.e. over 90% of all Bills were passed on the same day as they were introduced. None of the Bills were referred to any Committee. In the Budget Session of 2011, 31 Bills were passed of which 21 were introduced and passed within three sitting days Amendments sought by the President and the Governor One of the significant laws passed by the 12th Assembly was the Gujarat Control of Terrorism and Organised Crime Bill, 2003 which was introduced and passed in July 2009. However the Bill did not receive the Presidents Assent and was sent back to the Gujarat Assembly for amendments. In December 2009, the assembly passed the Gujarat Local Authorities Laws (Amendment) Bill 2009 which sought to make voting compulsory in elections to local self-government bodies like municipal corporations and Panchayats. The Gujarat governor returned the Bill for reconsideration in 2010. It was re-introduced in the house in September 2010 without changes. Another Bill that was returned by the Governor was the Gujarat Regularisation of Unauthorised Development Bill which sought to regularise unauthorised construction on payment of an Impact Fee. The Bill was passed by the Assembly in March 2011. The Governor returned the Bill with a suggestion to include a provision to bar the regularisation of unauthorised construction beyond a specified date. The Bill was re-introduced and passed with amendments by the Assembly in September 2011.
On October 18, it was reported in the news that the central government has been given more time for framing rules under the Citizenship (Amendment) Act, 2019. The President had given assent to this Act in December 2019 and the Act came into force in January 2020. Similarly, about two years have passed since the new labour codes were passed by Parliament, and the final Rules are yet to be published. This raises the question how long the government can take to frame Rules and what is the procedure guiding this. In this blog, we discuss the same.
Under the Constitution, the Legislature has the power to make laws and the Executive is responsible for implementing them. Often, the Legislature enacts a law covering the general principles and policies, and delegates the power to the Executive for specifying certain details for the implementation of a law. For example, the Citizenship Amendment Act provides who will be eligible for citizenship. The certificate of registration or naturalization to a person will be issued, subject to conditions, restrictions, and manner as may be prescribed by the central government through Rules. Delay in framing Rules results in delay in implementing the law, since the necessary details are not available. For example, new labour codes provide a social security scheme for gig economy workers such as Swiggy and Zomato delivery persons and Uber and Ola drivers. These benefits as per these Codes are yet to be rolled out as the Rules are yet to be notified.
Timelines and checks and balances for adherence
Each House of Parliament has a Committee of Members to examine Rules, Regulations, and government orders in detail called the Committee on Subordinate Legislation. Over the years, the recommendations of these Committees have shaped the evolution of the procedure and timelines for framing subordinate legislation. These are reflected in the Manual of Parliamentary Procedures issued by the Ministry of Parliamentary Affairs, which provides detailed guidelines.
Ordinarily, Rules, Regulations, and bye-laws are to be framed within six months from the date on which the concerned Act came into force. Post that, the concerned Ministry is required to seek an extension from the Parliamentary Committees on Subordinate Legislation. The reason for the extension needs to be stated. Such extensions may be granted for a maximum period of three months at a time. For example, in case of Rules under the Citizenship Amendment Act, 2019, at an earlier instance, an extension was granted on account of the onset of the COVID-19 pandemic.
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To ensure monitoring, every Ministry is required to prepare a quarterly report on the status of subordinate legislation not framed and share it with the Ministry of Law and Justice. These reports are not available in the public domain.
Recommendations to address delays
Over the years, the Subordinate Legislation Committees in both Houses have observed multiple instances of non-adherence to the above timelines by various Ministries. To address this, they have made the following key recommendations:
Are all Rules under an Act required to be framed?
Usually, the expressions used in an Act are “The Central Government may, by notification, make rules for carrying out the provisions of this Act.”, or “as may be prescribed”. Hence, it may appear that the laws aim to enable rule-making instead of mandate rule-making. However, certain provisions of an Act cannot be brought into force if the required details have not been prescribed under the Rules. This makes the implementation of the Act consequent to the publication of respective Rules. For example, the Criminal Procedure (Identification) Act, 2022 enables the police and certain other persons to collect identity-related information about certain persons. It provides that the manner of collection of such information may be specified by the central government. Unless the manner is prescribed, such collection cannot take place.
That said, some other rule-making powers may be enabling in nature and subject to discretion by the concerned Ministry. In 2016, Rajya Sabha Committee on Subordinate Legislation examined the status of Rules and Regulations to be framed under the Energy Conservation Act, 2001. It observed that the Ministry of Power had held that two Rules and three Regulations under this Act were not necessary. The Ministry of Law and Justice had opined that those deemed not necessary were enabling provisions meant for unforeseen circumstances. The Rajya Sabha Committee (2016) had recommended that where the Ministry does not feel the need for framing subordinate legislation, the Minister should table a statement in Parliament, stating reasons for such a conclusion.
Some key issues related to subordinate legislation
The Legislature delegates the power to specify details for the implementation of a law to the Executive through powers for framing subordinate legislation. Hence, it is important to ensure these are well-scrutinised so that they are within the limits envisaged in the law.
See here for our recently published analysis of the Criminal Procedure (Identification) Rules, 2022, notified in September 2022. Also, check out PRS analysis of:
