The Laying Procedure

Section 9 of the Fiscal Responsibility and Budget Management Act 2003 is the same formula for every rule made under that Act, in identical words.

Read the formula for its four features, because they recur everywhere.

Thirty days, aggregated across sessions. Not thirty days of one session; the periods are added.

"Both Houses agree." Both. One House alone cannot annul or modify.

Modification as well as annulment. This is the stronger negative form: the House may change the instrument, not merely kill it.

And the saving. Anything previously done under the instrument stays valid. The annulment operates thereafter, not retrospectively, which is what makes the procedure workable and also what limits its value to a person already affected.

The other laying requirements in this book

Notice how many there are, and that they are not all the same kind of thing.

Delegated legislation. Section 22 of the Central Vigilance Commission Act; section 9 of the FRBM Act; section 24(3) of the Right to Information Act, chapter 890, under which every notification amending the Second Schedule shall be laid before each House.

Reports. Section 14(3) of the Central Vigilance Commission Act, the annual report; article 151, the audit reports; section 3(4) of the Commissions of Inquiry Act, a Commission's report with an action taken memorandum, chapter 470.

Orders. Section 23(2) of the Central Vigilance Commission Act, every removal of difficulties order.

The distinction to draw, and it is worth marks. Where delegated legislation is laid, the House may in the stronger forms modify or annul it. Where a report is laid, it may do nothing at all to it: chapter 1060 showed that the only thing standing behind a report's laying is the Committee on Papers Laid on the Table, which checks that it was laid and reports the delay. A laying requirement is not one device but two, and only one of them carries a power.

Where the control actually operates

Not on the floor. No House reads the instruments laid before it. Chapter 1050 gave the figure implicitly: fifteen members of a Committee on Subordinate Legislation against the whole rule-making of the Union.

So laying is a delivery mechanism, and the committee is the control. The instrument is laid, the committee reads it, and the committee reports. Take away the committee and laying is a rule deposited in a library.

And chapter 1240 completes the picture. Because the courts have held a laying requirement to be ordinarily directory, non-compliance does not invalidate the instrument. So the legal force of laying is slight and its practical force is entirely the committee's.

A worked example

An Act provides that rules made under it shall be laid before each House for thirty days, and that if both Houses agree in modifying a rule or agree that it should not be made, it shall have effect only as modified or be of no effect, without prejudice to anything previously done.

Which form is this? Laying subject to a negative resolution, in its stronger version, since the House may modify as well as annul.

A rule is made on 1 April and comes into force at once. It operates from the moment it is made. The laying is subsequent, not a condition precedent.

It is laid on 1 May. The thirty-day period runs while the House is in session, aggregated across one or more successive sessions.

On 1 August both Houses agree that the rule should not have been made. The rule is of no effect thereafter. Everything done under it between 1 April and 1 August stands, by the saving.

Only the Lok Sabha so resolves. Nothing happens. The section requires both Houses to agree.

Nobody notices the rule at all. It stays in force. That is the negative procedure working exactly as drafted, and it is why the Committee on Subordinate Legislation exists.

Now change the Act to an affirmative form: the rule shall not take effect until approved by resolution of both Houses. Now inertia kills it, and the executive must obtain a positive act of the legislature before its rule is law.

And change the instrument to a report rather than a rule. There is nothing for either House to resolve; laying a report is delivery, and the only sanction is the Committee on Papers Laid on the Table.

What beginners get wrong

That laying always lets the House annul. Under simple laying it does not; the section gives no power at all.

That one House can annul. The standard formula requires both Houses to agree.

That thirty days means thirty days of one session. It is a total period of thirty days which may be comprised in one session or in two or more successive sessions.

That annulment undoes what was done. The saving preserves anything previously done under the instrument.

That laying a report is the same as laying a rule. A rule may be modified or annulled; a report may not be touched.

That the House reads what is laid. The committee reads it, and that is the whole of the control.

Quick revision

Three forms, from the Atlas Cycle decision: laying without further procedure; laying subject to a negative resolution; laying subject to an affirmative resolution. The object is to keep supervision and control over the subordinate law-making authorities, and the form chosen depends on the degree of control the legislature wishes to exercise and on the wording of the statute.

Where inertia falls: under the negative form, doing nothing leaves the rule in force; under the affirmative form, doing nothing kills it. Since a House does nothing to most instruments, the affirmative form is the real control.

The standard Indian formula, s.22 of the CVC Act and s.9 of the FRBM Act: laid before each House while in session for a total of thirty days, comprised in one or more successive sessions; if both Houses agree in a modification or that it should not be made, it has effect only as modified or is of no effect; without prejudice to anything previously done.

Other laying requirements in this book: s.24(3) RTI Act (Second Schedule notifications); s.14(3) CVC Act (annual report); art 151 (audit reports); s.3(4) Commissions of Inquiry Act (report with an action taken memorandum); s.23(2) CVC Act (removal of difficulties orders).

Two kinds of laying: delegated legislation, which the House may modify or annul; and reports, which it may do nothing to, the only sanction being the Committee on Papers Laid on the Table.

Test yourself

1. What are the three kinds of laying? Laying without further procedure, in which the instrument is simply laid before the House and the section confers no power to modify or annul it; laying subject to a negative resolution, in which the instrument operates unless within a stated period the House resolves that it should not be made or agrees upon a modification, in which case it ceases to have effect or has effect only as modified; and laying subject to an affirmative resolution, in which the instrument does not take effect, or ceases to have effect, unless it is approved by the House within a stated period. As the Supreme Court observed in Atlas Cycle, the object of laying provisions is to keep supervision and control over the subordinate law-making authorities and executive instrumentalities, and the laying clauses assume different forms according to the degree of control the legislature wishes to exercise, each case depending on its own circumstances and on the wording of the statute under which the rules are made.

2. Why is the affirmative procedure the stronger control? Because of where inertia falls. Under a negative procedure the instrument is in force from the moment it is made and remains in force unless the House takes a positive step to annul or modify it; under an affirmative procedure it does not take effect at all unless the House takes a positive step to approve it. Since a House does nothing about the overwhelming majority of the instruments laid before it, the practical difference is that the negative procedure leaves the executive's rule standing and the affirmative procedure does not. That is why the affirmative form is reserved for instruments of unusual importance, and why the choice of form is itself a legislative judgment about how much of the House's time a particular class of instrument is worth.

3. Set out the standard Indian laying formula and explain each of its features. Every instrument shall be laid before each House while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions; and if, before the expiry of the session immediately following, both Houses agree in making any modification or agree that the instrument should not be made, it shall thereafter have effect only in such modified form or be of no effect; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under it. Section 22 of the Central Vigilance Commission Act 2003 and section 9 of the Fiscal Responsibility and Budget Management Act 2003 are in those terms. The thirty days are aggregated across sessions rather than counted within one. Both Houses must agree, so one House alone can neither annul nor modify. The power extends to modification and not merely to annulment, which makes it the stronger negative form. And the saving preserves everything done under the instrument before the annulment, so that the annulment operates only thereafter, which is what makes the procedure workable and also what limits its value to a person already affected by the rule.

4. Is laying one device or two? Two, and the distinction is often missed. Where delegated legislation is laid under a section in the standard form, the House has a power over the instrument itself: it may, with the concurrence of the other House, modify it or resolve that it should not have been made. Where a report is laid, whether the annual report of the Central Vigilance Commission under section 14(3), the reports of the Comptroller and Auditor General under article 151, or the report of a Commission of Inquiry with an action taken memorandum under section 3(4) of the 1952 Act, the House has no power over the document at all: the laying is delivery, and the only thing standing behind the obligation is the Committee on Papers Laid on the Table, which examines whether the paper was laid in compliance with the provision requiring it and whether there was unreasonable delay.