On October 18, it was reportein 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.

Activity

Timeline

  • Publication of Rules, Regulations, and Bye-Laws, where public consultation is required under the Act
  • A minimum of 30 days for public feedback
  • Consequently, for publication,
  • Three months, if the number of suggestions is small
  • Six months, if the number of suggestions is large
  • Publication of Rules, Regulations, and Bye-Laws, not requiring public consultation
  • Six months from the date on which the concerned Act came into force
  • Any extension for publication
  • A maximum of three months at a time

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:

  • Statement on reasons for the delay: In 2011, Rajya Sabha Committee recommended that while laying Rules/Regulations before Parliament, the Ministry should also lay a statement explaining the reasons for the delay, if any.
  • Scrutiny of delays by the Cabinet Secretary:  In 2016, the Rajya Sabha Committee recommended that the Cabinet Secretary should continue the practice of calling the Secretaries of concerned Ministries/Departments, to explain the reasons for the delay in framing the subordinate legislation.  Each Ministry should send a quarterly status report to the Cabinet Secretariat.
  • Revisiting guidelines: In 2011, Lok Sabha Committee recommended that the 1986 guidelines should be revisited and all major recommendations of the Committee should be incorporated.  However, as per the Action Taken Report, the government observed that the ministries consider the extant guidelines adequate and these guidelines were re-iterated in 2012.

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.

  • Capacity of Committees on Subordinate Legislation:  Parliamentary Committees on Subordinate Legislation have the responsibility to examine Rules in detail.  In past, they have examined some key rules, regulations, and notifications regarding e-commerceliability of internet-based services, and demonetisation.  However, usually, they are able to examine only a fraction of subordinate legislation in detail.  For more details, please see the PRS discussion paper here.
  • Uniformity of standards:  Countries such as UKUSAAustralia, and Canada have overarching legislation for regulating the framing of subordinate legislation.  These laws provide for the manner of public consultation, timelines, drafting standards, and a common register.  India does not have any similar law.  In India, the detail whether public consultation for subordinate legislation is required or not, is specified in respective Acts.  The General Clauses Act, 1897 also governs certain aspects of the framing of subordinate legislation.  In addition, the Pre-Legislative Consultation Policy, 2014 guides the pre-legislative consultation on subordinate legislation.

See here for our recently published analysis of the Criminal Procedure (Identification) Rules, 2022, notified in September 2022.  Also, check out PRS analysis of:

As of May 29, 2020, there are 1,65,799 confirmed cases of COVID-19 in India.  47,352 new cases have been registered in the last week (since May 22).  Out of the confirmed cases so far, 71,106 patients have been cured/discharged and 4,706 have died.  Most cases are in the state of Maharashtra (59,546) followed by the states of Tamil Nadu (19,372), Delhi (16,281) and Gujarat (15,562).  

With the spread of COVID-19, the central government initially undertook many measures to contain the spread of the pandemic, including restrictions on travel and movement through national lockdown.  With gradual resumption of activities, the central government has recently announced measures to ease restrictions on travel and movement.   Further, the government has continued to announce policy decisions to ease the financial stress caused by the pandemic, and to contain further spread of the pandemic.  In this blog post, we summarise some of the key measures taken by the central government in this regard between May 23 and May 29, 2020.

Figure 1: Day wise number of COVID-19 cases in the country

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Source: Ministry of Health and Family Welfare; PRS.

Finance

RBI announces additional measures to ease financial stress caused by COVID-19

On May 22, the Reserve Bank of India (RBI) issued a statement with various development and regulatory policies to ease the financial stress caused by COVID-19.   These measures include: (i) improving liquidity in the market; (ii) support to exports and imports; and (iii) easing capital financing.  Subsequently, following measures have been notified by the RBI: 

  • In March 2020, the RBI had permitted all lending institutions to grant a moratorium of three months on payment of all term loans outstanding as of March 1, 2020.   This has been extended by another three months (till August 31, 2020).  Such deferment will not result in downgrade in asset classification.
     
  • For working capital such as cash credit or overdraft as well, lending institutions are permitted to allow a deferment of another three months on recovery of interest (till August 31, 2020). 
     
  • Currently, the exposure limit of a bank to a group of connected counterparties is 25% of the eligible capital base of the bank.  As a one-time measure to ease difficulty in raising funds, this limit has been relaxed to 30% of capital base of bank. 

Travel and Movement 

Domestic Air travel resumes; fare limits set by government

Domestic passenger air travel has been resumed in a phased manned (with one-third capacity of operations) from May 25, 2020 based on the announcement of the Ministry of Civil Aviation on May 21.  To ensure that airlines do not charge excessive fare and to ensure that journey is only for essential purposes, the Ministry of Civil Aviation issued an order to limit the minimum and maximum fare that airlines can charge from the passenger.   The routes have been divided in seven sectors based on the approximate duration of the flight.  For routes with shortest duration (for example, Delhi to Chandigarh), the minimum and maximum fare will be Rs 2,000 and Rs 6,000, respectively.  For routes with the longest duration (for example, Delhi to Thiruvananthapuram), the minimum and maximum fare will be Rs 6,500 and Rs 18,600, respectively. 

Further, the Ministry announced that all operational routes under the Regional Connectivity (UDAN) Scheme with up to 500 km of length or operational routes in priority areas (North East region, hilly states or islands) are permitted to resume operations.  This is in addition to the one-third capacity of operations announced earlier. 

Health

Guidelines for international arrivals issued

The Ministry of Health and Family Welfare issued guidelines for international arrivals.  All travellers are required to give an undertaking that they will undergo a 14-day mandatory institutional quarantine at their own cost (7 days in institutional quarantine followed by a 7-day isolation at home).  In emergency cases (such as pregnancy or death in the family), home quarantine will be permitted.  Use of Aarogya Setu app will be mandatory in such cases.  Only asymptomatic passengers will be allowed to board (flight/ship) after thermal screening.  On arrival, thermal screening will be carried out for all passengers.  The passengers found to be symptomatic will be isolated and taken to a medical facility. 

Movement of migrant labourers

Supreme Court gives an interim order regarding problems of migrant labourers

The Supreme Court of India took cognisance of the problems of migrant labourers who have been stranded in different parts of the country.  In its order, the Court observed that there are lapses being noticed in the process of registration, transportation and in providing food and shelter to the migrant workers.  In view of these difficulties, the Court issued the following interim directions:  

  • Free of cost food should be provided to the migrant workers who are stranded at different places in the country by the concerned state governments.  This information should be publicised and also notified to workers when they are waiting for their turn to board the train or bus.
     
  • The states should speed up the process of registration of migrant workers and provide help desk for registration.  Complete information regarding the modes of transport must be publicised to the workers.  
     
  • Fare should not be charged from migrant workers for travel by train or bus. The railway fare shall be shared by the states as per their arrangement.  The originating state of travel must provide water and meal during transportation.   In case of a train journey, Railways must provide water and meal during the journey. 
     
  • After the migrant workers reach their native place, the receiving state must provide health screening, transport and other facilities free of cost. 
     
  • Migrant workers found walking on highways or roads must be provided transportation to their destination and all facilities including food and water.

The Court directed the central and state governments to produce record of all necessary details such as the number of migrant workers, the plan to transport them to their destination, and the mechanism of registration. 

Other measures

PM CARES Fund included in the list of CSR eligible activities

The Ministry of Corporate Affairs notified the inclusion of PM CARES fund in the list of activities eligible for Corporate Social Responsibility (CSR) under the Companies Act, 2013.  Under the Act, companies with net worth, turnover or profits above a specified amount are required to spend 2% of their average net profits in the last three financial years towards CSR activities. This measure will come into effect retrospectively from March 28, 2020, when the fund was setup

For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.