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Mainstream, VOL XLIX, No 51, December 10, 2011

About Time Parliament Censures the Executive

Monday 12 December 2011

by SHOBHA AGGARWAL

“Sir, I am shocked to see such a brief reply, which is no reply at all. I admit that it is a failure on the part of the Parliament for holding the Government and the Executive accountable for their failure to notify Central Acts for implementation… I feel that the Government and Executive are making a mockery of the Parliament and making a mockery of the legislations.”
—Shri D. Raja, MP Rajya Sabha in response to a written reply on Starred Question No. 244 regarding Enforcement of Central Acts answered on 15.3.2010
 
“Certain Central Acts have not so far been brought into force by the concerned administrative Ministries for various administrative reasons and stage of preparedness, the requisite information in this regard is being collected and will be laid on the Table of the House.”
—Dr M. Veerappa Moily, the then Minister of Law and Justice, in the written response on 15.3.2010 to Shri D. Raja’s query

Shri D. Raja had enquired about the number of Central Acts passed by Parliament and assented to by the President but have not been implemented due to the government’s failure to issue notification to give them the force of a law; and the details of such Acts passed by Parliament since 1995 indicating the names of the Act, the Ministry concerned, year of passing the Act and the reason for failure to issue notification to enforce the law. Dr Moily assured the House that within two months the compilation of such laws would be furnished along with the reasons why the rules have not been framed or notification has not been issued with regard to their implementation.

Arm-chair Anarchists or Executive?

SHOCKINGLY, as per the information available on the website of the Ministry of Parliamentary Affairs, Government Assurances, Rajya Sabha, the assurance is still pending as on 9.11.2011. Conceding that the Delhi Rent Act, 1995 and the Constitution (Eighty-Sixth Amendment) Act, 2002 have not been notified, Dr Moily had told the Rajya Sabha on 15.03.2010 that there is no proper compilation of Central Acts awaiting notification. Even after almost twenty months the compilation is not ready! Ironically Dr K. Keshava Rao, MP, had at that time cautioned the House during the discussion:

“This House must be the leader of the entire process and must be able to either dictate to the Government, or tell the Government, or advise the Government as to what is happening to the Bills that have been passed here.”

New Despotism of the Executive

IN India the executive power of the Union is vested in the President of India but he is obliged to exercise it on the aid and advice of his Council of Ministers. To whom should citizens turn to in situations where Parliament passes laws, the President gives the assent but the executive fails to enforce the Acts through notification for decades? The judiciary has drawn a Laxman Rekha on the subject of directing the Central Government to bring a notification to enforce such Acts. One such valiant attempt was made by Shri A.K. Roy, a Marxist Member of Parliament, who was detained under the National Security Ordinance (2 of 1980) by an order passed by the District Magistrate, Dhanbad on the ground that he was indulging in activities which were prejudicial to public order. Ten Members of Parliament, one an Independent and the others belonging to various political parties in Opposition, intervened in the petition filed by Shri A.K. Roy in the Supreme Court. The issue of non-notification of Section 3 of the Constitution (Forty-Fourth Amendment) Act, 1978 was raised before the Court. This Section affords to the detenu an assurance that his case will be considered fairly and objectively by an impartial tribunal. It was argued that since the Central Government had failed to exercise its power within a reasonable time, the Court should issue a mandamus calling upon it to discharge its duty without any further delay. The majority (3:2) judgement delivered by a Constitution Bench of five judges, while refusing the petitioner’s prayer, held:

“Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of Section 3 of the 44th Amendment Act into force. That Amendment received the assent of the President on April 30, 1979 and more than two-and-a-half years have already gone by without the Central Government issuing a notification for bringing section 3 of the Act into force. But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus.

“… the Parliament could not have intended that the Central Government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provisions into force. The Parliament having seen the necessity of introducing into the Constitution a provision like Section 3 of the 44th Amendment, it is not open to the Central Government to sit in judgment over the wisdom of the policy of that section. If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament.”

The Way Forward

AFTER A.K. Roy’s case, several petitioners in the last thirty years have moved the Supreme Court to get laws enforced by issuing mandamus to the Central Government. In all these cases the laws had been kept in suspended animation for a considerable length of time. Thus we have judgements in Aeltemesh Rein Vs. Union of India [AIR 1988 SC 1768]; Union of India Vs. Shree Gajanan Maharaj Sansthan [Civil Appeal No. decided on 29.04.2002] and Common Cause Vs. Union of India & Ors. [Civil Appeal No. 3988-3989 of 2001 decided on 08.10.2003]. In all these cases the Supreme Court relying on the Constitution Bench judgement in A.K. Roy, declined to issue direction to the government to enforce Acts through notification.

It is a sad commentary on the functioning of the executive that Central Acts await enforce-ment through notification for several decades. Worse, even the complete list of such laws has still been not been laid in Parliament by the Central Government in spite of assurances made in the Rajya Sabha on 15.03.2010. The only way forward is for Parliament to censure the executive.

The author is an Advocate and the Joint Secretary, Public Interest Litigation Watch Group, New Delhi. Her e-mail is pilwatchgroup@gmail.com

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