Rules, Regulations, Bye-Laws, Notifications and Orders
Chapter -Seven
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 379 to 381 of 430
In one line
Rules, regulations, bye-laws, notifications and orders are five different things, and knowing which is which tells you who made it and how it can be attacked.
In the wording a student can write in an exam: the forms of delegated legislation are rules, ordinarily made by the Government under a rule-making section and laid before the legislature; regulations, ordinarily made by a statutory authority for its own affairs; bye-laws, made by a local or corporate body for its area or members; notifications, by which a power is exercised or a matter declared; and orders, which may be general and legislative or particular and administrative.
The five forms
Rules. Made by the Central or a State Government under a section which says that the Government may make rules for carrying out the purposes of the Act. Ordinarily required to be published in the Official Gazette and laid before the legislature.
Regulations. Ordinarily made by a statutory authority, corporation or commission for the conduct of its own affairs, sometimes with the previous approval of the Government. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, holds that regulations framed under a corporation's constituting Act have the force of law and are not internal instructions.
Bye-laws. Made by a local authority, a municipality or a corporate body, binding within its area or on its members, and traditionally subject to a test of reasonableness stricter than that applied to rules.
Notifications. The instrument by which a power is exercised: bringing an Act into force, extending it to an area, exempting a class, fixing a rate.
Orders. The most ambiguous of the five. A control order fixing prices for a whole industry is legislative; an order cancelling one dealer's licence is administrative. The label decides nothing, and the court looks at whether the instrument lays down a general rule.
The life of a rule, in three sections of the General Clauses Act 1897
Section 21, amendment and rescission. Where a Central Act or Regulation confers a power to issue notifications, orders, rules or bye-laws, that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
Two things follow. A rule-making authority need not look for an express power to amend. And it must amend in the same manner and with the same sanctions and conditions as the original, so a rule made after previous publication cannot be amended without previous publication.
Section 22, rules made before commencement. Where a Central Act or Regulation is not to come into force immediately on its passing, and a power is conferred to make rules or bye-laws or to issue orders with respect to the application of the Act, the establishment of a court or office, the appointment of a judge or officer, or the person by whom, the time when, the place where, the manner in which or the fees for which anything is to be done, that power may be exercised at any time after the passing of the Act; but the rules, bye-laws or orders so made shall not take effect till the commencement of the Act.
Rules, Regulations, Bye-Laws, Notifications and Orders
Section 24, survival on re-enactment. Where a Central Act or Regulation is repealed and re-enacted, with or without modification, then unless expressly provided otherwise, any appointment, notification, order, scheme, rule, form or bye-law made or issued under the repealed Act continues in force, so far as it is not inconsistent with the re-enacted provisions, and is deemed to have been made under those provisions, until superseded.
Why the form matters
It tells you who could lawfully make it, so a regulation made by a Government where the Act empowers the authority is bad.
It tells you what procedure was required, since previous publication and laying are attached to particular forms by particular Acts.
It tells you the standard of review. A bye-law has traditionally been tested for reasonableness more strictly than a rule.
It tells you whether a hearing was owed, because a general instrument is legislative and a particular one may not be.
A worked example
A State Act empowers the Government to make rules and the State Pollution Control Board to make regulations for its own procedure. The Board issues a notification fixing effluent standards for an entire industry, describing it as a regulation, without the previous publication which the Act requires for rules.
Two objections. The instrument is in substance a rule, because it lays down a general standard binding on an industry rather than governing the Board's own procedure, so the power was the Government's and not the Board's. And even if the Board had power, previous publication was required, and section 21 confirms that the manner and conditions attached to the making of an instrument attach equally to its amendment.
What this does NOT mean
It does not mean the label is decisive. The court looks at substance, which is Narendra Kumar v. Union of India, AIR 1960 SC 430.
It does not mean every notification is legislative. A notification acquiring a particular plot is administrative.
It does not mean section 24 revives a rule inconsistent with the new Act. It continues a rule only so far as it is not inconsistent with the re-enacted provisions.
Quick revision
Five forms: rules by the Government under a rule-making section; regulations by a statutory authority, with the force of law after Sukhdev Singh; bye-laws by local and corporate bodies, tested more strictly for reasonableness; notifications, by which a power is exercised; and orders, which may be legislative or administrative according to their substance. General Clauses Act: section 21 implies a power to add to, amend, vary or rescind, exercisable in the like manner and subject to the like conditions; section 22 permits rules to be made after the passing of an Act but not to take effect before commencement; section 24 continues rules under a repealed and re-enacted Act so far as not inconsistent, until superseded.
Rules, Regulations, Bye-Laws, Notifications and Orders
Test yourself
1. What does section 21 add to a rule-making power? A power, exercisable in the like manner and subject to the like sanction and conditions, to add to, amend, vary or rescind the rules made under it.
2. When do rules made between the passing and the commencement of an Act take effect? Not until the commencement of the Act, by section 22, although the power may be exercised at any time after its passing.
3. What happens to rules when the parent Act is repealed and re-enacted? By section 24 they continue in force so far as they are not inconsistent with the re-enacted provisions, are deemed made under them, and remain until superseded.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.