Powers, Functionaries and Subordinate Legislation under the General Clauses Act

So a notification appointing "the District Collector" is as good as one naming an individual, and the appointment then attaches to whoever holds the office.

Section 16: power to appoint includes power to suspend or dismiss

Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed, whether by itself or by any other authority, in exercise of that power.

Two points. The power to remove follows the power to appoint without express words. And it is the authority having the power for the time being, so a successor authority may dismiss a person appointed by its predecessor.

The section confers the power; it does not dispense with the procedure. Where the Constitution, the service rules or the principles of natural justice require a hearing before dismissal, section 16 does not remove that requirement.

Section 17: substitution of functionaries

In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed. Sub-section (2) extends it to Central Acts made after 3 January 1868 and Regulations made on or after 14 January 1887.

So an Act that refers to "the Superintendent of Police" applies to whoever is for the time being executing those functions, and does not become inoperative when the post is renamed or the holder changes.

Section 18: successors

In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to express its relation to the functionaries or corporations. Sub-section (2) extends it as in section 17.

The point is the same as section 17, applied to bodies as well as to persons: a reference to a municipal corporation includes its successors.

Section 19: official chiefs and subordinates

In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of expressing that a law relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to prescribe the duty of the superior. Sub-section (2) extends it as in sections 17 and 18.

So a duty imposed on the Collector binds a deputy lawfully performing the Collector's duties in his place, without the Act saying so.

Note the limit: the deputy must be lawfully performing the duties in the place of the superior. Section 19 is not a general power of delegation.

Sections 20 to 24: subordinate legislation

Subordinate legislation, also called delegated legislation, means the rules, regulations, notifications, orders, schemes, forms and bye-laws made by an authority under a power conferred by an Act. It is law, and it is subordinate because it draws its authority from the parent Act and is void so far as it goes beyond it.

Section 20: expressions bear the meanings in the parent Act

Where, by any Central Act or Regulation, a power to issue any notification, order, scheme, rule, form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act or Regulation conferring the power.

So a rule made under an Act uses the Act's vocabulary, and a word defined in the Act carries that definition into the rule. This is the definitional counterpart of the principle that subordinate legislation is read with its parent.

Section 21: the power to issue includes the power to amend or rescind

Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or 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, vary or rescind any notifications, orders, rules or bye-laws so issued.

This is the most used section in the group, and it has two halves.

The power to make includes the power to unmake. An authority that issued a notification may amend or rescind it without needing express words. Without section 21, every Act would have to say so.

But in the like manner and subject to the like sanction and conditions. Whatever had to be done before the notification was issued must be done again before it is amended or rescinded: previous publication if that was required, the approval of a named authority if that was required, consultation if that was required. This is where the mandatory and directory question arises in practice, because if one of those conditions is mandatory an amendment made without it is void, and [Interpretation of Directory and Mandatory Provisions] supplies the test.

Two limits worth naming. Section 21 applies to legislative or executive orders and not to a quasi-judicial decision, which cannot be revoked at will by the authority that made it. And it cannot be used to take away a right that has already accrued under the notification, because the presumption against impairing obligations applies, as [Presumptions in Statutory Interpretation] explains.

Section 22: rules made between passing and commencement

Where, by any Central Act or Regulation which is not to come into force immediately on the passing of it, a power is conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act, or with respect to the establishment of any court or office or the appointment of any Judge or officer, or with respect to the person by whom, the time when, the place where, the manner in which, or the fees for which anything is to be done under the Act, then that power may be exercised at any time after the passing of the Act, but rules, bye-laws or orders so made or issued shall not take effect till the commencement of the Act.

The reason is practical and is worked in [Commencement of Statutes]: an Act brought into force later needs its machinery ready on the day it starts.

Section 23: previous publication

Where a power to make rules or bye-laws is expressed to be given subject to the condition of previous publication, then the following apply.

One, the authority shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected.

Two, the publication shall be made in such manner as that authority deems sufficient, or as the Act prescribes.

Three, there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.

Four, the authority shall, before making the rules or bye-laws, consider any objection or suggestion which may be received from any person with respect to the draft before the date so specified.

Five, the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of such a power shall be conclusive proof that it was duly made.

Note the last one, because it is the practical answer to most challenges: publication in the Gazette is conclusive proof of due making, so a challenge on the ground that the draft was not published faces that provision at the threshold.

Section 24: continuation of subordinate legislation after a repeal and re-enactment

Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by something made or issued under those provisions.

Without section 24, replacing a Code would strike down at a stroke every rule, form, notification and appointment made under it, and the administration would stop. With it, they carry over.

A worked example

A fictitious Central Act, the Coastal Zones Act 2020, empowers the Central Government by notification to declare an area a protected coastal zone, subject to previous publication, and provides that a Zonal Officer shall enforce the Act. The Act is to come into force on a date to be appointed.

Before commencement. The Government wishes to prescribe the form of an application and to appoint the first Zonal Officers. Section 22 allows the rule-making power and the power of appointment to be exercised at any time after the passing of the Act, but what is made does not take effect until the Act commences.

Making the first notification. The power is subject to previous publication, so section 23 applies: a draft is published for those likely to be affected, with a notice specifying a date on or after which it will be taken into consideration, and objections received before that date are considered. Once the notification is published in the Official Gazette, that publication is conclusive proof that it was duly made.

Appointing the officer. Section 15 allows the appointment to be made by name or by virtue of office, so a notification appointing "the Tahsildar of the taluka" is good. Section 16 means the appointing authority may also suspend or dismiss the officer, and section 17 means the Act applies to whoever for the time being executes the functions. Section 19 means a duty imposed on the Zonal Officer binds a deputy lawfully performing the duties in his place.

Issuing a second notification. Section 14: the power is not exhausted by being used once, so a second area may be declared.

Amending the first notification. Section 21: the power to issue includes the power to amend, vary or rescind, exercisable in the like manner and subject to the like conditions. So the amendment must itself go through previous publication under section 23, because that condition attached to the original. Whether an amendment made without previous publication is void is the mandatory and directory question, and the indicators in [Interpretation of Directory and Mandatory Provisions] apply: the condition exists for the benefit of persons affected, and it is a condition on the exercise of a power that restricts the use of property.

And a word in the rules. A rule uses the expression "coastal zone" without defining it. Section 20: expressions in the rule bear the same meanings as in the Act conferring the power.

Ten years later the Act is repealed and re-enacted. Section 24: every notification, appointment, form and rule made under the old Act continues in force so far as it is not inconsistent with the re-enacted provisions, and is deemed made under them, until superseded.

Distinctions table

What these do NOT mean

Section 16 does not dispense with a hearing. It confers the power to dismiss; the procedure required by the Constitution, service rules or natural justice still applies.

Section 19 is not a power of delegation. The deputy must be lawfully performing the duties in the place of the superior.

Section 21 does not apply to a quasi-judicial order. A decision made after hearing parties cannot be revoked at will by the authority that made it.

Section 21 does not permit an amendment that ignores the original conditions. "In the like manner and subject to the like sanction and conditions" is the operative limitation.

Section 22 does not bring rules into force early. They are made early and take effect on commencement.

Section 24 does not preserve an inconsistent rule. It carries over only what is not inconsistent with the re-enacted provisions.

Limits and criticism

Section 23's conclusive-proof provision is strong medicine. Publication in the Gazette being conclusive proof of due making, a person affected by rules made without any real consultation has a difficult challenge, and the value of previous publication depends on the authority taking it seriously.

Section 21 gives the executive a standing power to undo what it has done, and the only checks are the conditions attached to the original power and the presumption against impairing accrued rights. Where the parent Act attached no conditions, a notification on which people have relied can be rescinded at will.

Sections 17, 18 and 19 are drafting conveniences of their period. Modern drafting usually says what it means about successors and deputies, and these sections operate mostly on older Acts.

Quick revision

Powers and functionaries. s.14, a power may be exercised from time to time. s.15, appointment by name or by virtue of office. s.16, power to appoint includes power to suspend or dismiss, by the authority having the power for the time being. s.17, naming the officer presently executing the functions suffices. s.18, the relation to functionaries or corporations covers successors. s.19, prescribing the duty of the superior binds a deputy lawfully acting in his place.

Subordinate legislation. s.20, expressions bear the meanings in the parent Act. s.21, the power to issue includes power to add to, amend, vary or rescind, exercisable in the like manner and subject to the like sanction and conditions. s.22, rules may be made between passing and commencement but take effect only on commencement. s.23, previous publication: draft published for those likely to be affected, notice of the date of consideration, objections considered, and Gazette publication is conclusive proof of due making. s.24, on repeal and re-enactment, appointments, notifications, orders, schemes, rules, forms and bye-laws continue so far as not inconsistent and are deemed made under the re-enacted provisions until superseded.

Test yourself

1. What does section 14 provide, and what problem does it solve?

That where a Central Act or Regulation confers a power, then unless a different intention appears the power may be exercised from time to time as occasion requires. It solves the argument that a power is spent once it has been used, so an authority empowered to issue a notification may issue another, and one empowered to grant an exemption may grant a second. Without it every Act conferring a power would have to say so expressly.

2. State sections 15 and 16 together.

Section 15 provides that where a power to appoint a person to fill an office or execute a function is conferred, then unless it is otherwise expressly provided the appointment may be made either by name or by virtue of office, so that appointing "the District Collector" is as good as naming an individual. Section 16 provides that where a power to make an appointment is conferred, then unless a different intention appears the authority having for the time being the power to make the appointment shall also have power to suspend or dismiss any person appointed in exercise of that power, whether by itself or by another authority.

3. Explain section 21 and its two halves.

Section 21 provides that where a power to issue notifications, orders, rules or bye-laws is conferred, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any, to add to, amend, vary or rescind what has been issued. The first half is that the power to make carries with it the power to unmake, without express words. The second half is that the conditions attached to the original exercise attach equally to the amendment or rescission, so that if previous publication or the approval of an authority was required to issue the notification, the same is required to change it.

4. What does previous publication require?

Under section 23, the authority must publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected; the publication must be made in such manner as the authority deems sufficient or as the Act prescribes; a notice must be published with the draft specifying a date on or after which it will be taken into consideration; the authority must consider any objection or suggestion received before that date; and publication in the Official Gazette of a rule purporting to have been made in exercise of such a power is conclusive proof that it was duly made.

5. Why is section 24 necessary?

Because without it the replacement of an Act would destroy at a stroke every appointment, notification, order, scheme, rule, form and bye-law made under it, and the administration of the subject would stop until everything was made afresh. Section 24 provides that where an Act is repealed and re-enacted, with or without modification, such instruments continue in force so far as they are not inconsistent with the re-enacted provisions, and are deemed to have been made or issued under those provisions until superseded.

6. Does section 16 mean an appointed officer can be dismissed without a hearing?

No. Section 16 confers the power to suspend or dismiss on the authority having the power to appoint, but it says nothing about how that power is to be exercised. The procedure continues to be governed by whatever applies: the constitutional protections for civil servants, the applicable service rules, and the principles of natural justice, which the presumption against intending injustice reads into a power that affects a person's rights unless the statute excludes them expressly or by necessary implication.