The implementation of the Food Safety and Standards Act, 2006 has run into rough weather.  The Act consolidates eight laws[1] governing the food sector and establishes the Food Safety and Standards Authority (FSSA) as the regulator.  It requires all food business operators (including small businesses and street vendors) to obtain a licence or registration.  The Regulations under FSSA related to procedure for obtaining a licence or registration was notified on August 1, 2011.  According to the Regulations, all food business operators had to get a licence or registration within one year of the notification.  Due to opposition from several food business operators (see here and here), the FSSA has now extended the deadline for getting a licence or registration by another six months (till February 2013).  However, some of the key concerns regarding the law have not yet been addressed.

Key issues related to the Bill raised by PRS (for more details see Legislative Brief)

  • The organised as well as the unorganised food sectors are required to follow the same food law.  The unorganised sector, such as street vendors, might have difficulty in adhering to the law, for example, with regard to specifications on ingredients, traceability and recall procedures.
  • The Bill does not require any specific standards for potable water (which is usually provided by local authorities).  It is the responsibility of the person preparing or manufacturing food to ensure that he uses water of requisite quality even when tap water does not meet the required safety standards.
  • The Bill excludes plants prior to harvesting and animal feed from its purview.  Thus, it does not control the entry of pesticides and antibiotics into the food at its source.
  • The power to suspend the license of any food operator is given to a local level officer.  This offers scope for harassment and corruption.

Other issues referred to in the media

  • The Act requires a food business operator to get different licenses if articles of food are manufactured or sold at different premises.  Newspapers reported that this provision was challenged in the Madras High Court but a stay order on the Act and its Rules was refused.
  • According to media reports, two hotel associations in Karnataka had challenged certain sections of the Act and Rules in the Karnataka High Court related to requirement of technical person for supervision of production process and requirement of a laboratory on the premises of food operators.  The court stayed these provisions for three months (till October 2012).
  • News papers reported that the Supreme Court is examining the question whether liquor is a food.

[1].  (a) The Prevention of Food Adulteration Act, 1954.  (b) The Fruit Products Order, 1955.  (c) The Meat Food Products Order, 1973. (d)  The Vegetable Oil Products (Control) Order, 1947.  (e) The Edible Oils Packaging (Regulation) Order, 1998. (f) The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control) Order, 1967. (g) The Milk and Milk Products Order, 1992. (h) Any other order issued under the Essential Commodities Act, 1955, relating to food.

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: