SVKM’S

PRAVIN GANDHI COLLEGE OF LAW

Mandatory Prior Publication & Motor Vehicle Act

“A Research to determine whether the prior publication of

delegated legislation is mandatory and what will be the effect of
non-compliance with this requirement in Motor Vehicles Act 1939”

SUBMITTED BY: SRUSHTI VAIDYA

ROLL NO: B053

CLASS: 4TH YEAR

COURSE: B.L.S. LL.B

SUBMITTED TO: DR. VIKRANT HALKANDAR

FACULTY INCHARGE (ADMINISTRATIVE LAW)

ABSTRACT:
This research aims to investigate the crucial question of whether prior publication of
delegated legislation is mandatory and, if so, to analyse the implications of non-compliance
with this requirement, with a focus on the Motor Vehicles Act of 1939. Delegated legislation
plays a significant role in modern legal systems, as it enables administrative bodies to create
rules and regulations necessary for the effective implementation of statutes.

Non-compliance with the requirement for prior publication can have far-reaching effects,
potentially affecting the legitimacy and legality of the regulations in question. This research
will delve into the legal, procedural, and practical consequences of such non-compliance,
exploring how it impacts transparency, public participation, and the rule of law in the
context of the Motor Vehicles Act.

KEYWORDS:
Delegated legislation, Publication, Motor Vehicles Act 1939.

INTRODUCTION:
Delegation, as defined in Black's Law Dictionary, refers to the act of conferring authority
upon an individual, thereby authorizing them to act on behalf of the person granting that
authority or to serve as their agent or representative. Delegated legislation, on the other
hand, involves the utilization of legislative authority by an agent who holds a lower position
than the Legislature or is subservient to it.

According to M.P. Jain, the term delegated legislation is used in two senses:

 Exercise by a subordinate agency of the legislative power delegated to it by the

legislature
 The subsidiary rules themselves which are made by the subordinate authority in
pursuance of the power conferred on it by the legislature.

The concept of Publication holds significant importance in issues pertaining to delegated

legislation. The act of publishing delegated legislation is regarded as a procedural
requirement crucial in cases involving the transfer of authority from a higher entity to a
lower one. Therefore, it is imperative to ensure the proper publication of pertinent matters
before they take effect, as this is the means by which the general public becomes informed
about these matters.

PUBLICATION: THE SCENARIO IN INDIA:

In contrast to England or the United States of America, India lacks a well-defined legislative
framework explicitly outlining the principles of publication, and there is no statute that
defines the significance of publication in matters pertaining to delegated legislation.
However, the principles regarding publication established in the statutes of the USA and the
UK are equally applicable in the Indian context. Over time, the courts in India have issued
rulings on various aspects of publication of delegated legislation, affirming that some form
of publication is an indispensable element and requirement for the enforcement,
applicability, and validity of such laws. Consequently, Indian courts have delivered judgments
at different points in time, emphasizing the necessity and importance of publishing
delegated legislation and highlighting the pivotal role that publication plays in the effective
implementation of such legislation.

IS PUBLICATION OF DELEGATED LEGISLATION MADATORY IN

INDIA:
In Harla v. State of Rajasthan", the legislation in question passed by the Council was neither
published nor was it made known to the general public through any other means. Holding its
publication necessary and applying the principles of natural justice, the Supreme Court
observed:

The thought that a decision reached in the secret recesses of a chamber to which the public
have no access and to which even their accredited representatives have no access and of
which they can normally know nothing, can nevertheless affect their lives, liberty and
property by the mere passing of a resolution without anything more is abhorrent to civilised
man. It shocks his conscience.

In State of Maharashtra V Mayer Hans George Case, the Supreme Court clearly stated that if
a notification or government order is published in the Official Gazette and made known to
the whole of India, then the ignorance pleaded by the respondent or accused is wholly
irrelevant and there will be no violation of the principle of natural justice over here.

The government has an obligation to fully safeguard the interests of society, and it is
imperative for the government to implement specific policies and guidelines to ensure the
utmost protection of the people's interests. Consequently, publication assumes a significant
role in communicating matters to the general public and safeguarding the broader interests
of society. Therefore, it is essential to emphasize that publication plays a significant role in
influencing the effectiveness of delegated legislation. In the context of this modern era, we
can assert that publication is not just a recommendation; it should be deemed a
requirement. When made obligatory, it facilitates seamless interaction between the
government and the public, fostering a harmonious relationship between them.

IS PREVIOUS PUBLICATION IS REQUIRED UNDER MOTOR

VEHICAL ACT 1939:
just as there are no statutes specifically governing publications, the same holds true for
antecedent publications. Some statutes do, however, necessitate prior publication. For
example, the Motor Vehicles Act of 1939 and the Mines Act of 1952 explicitly mandate prior
publication. In such cases, the procedure for pre-publication is outlined in the General
Clauses Act. It's important to note that the General Clauses Act exclusively applies to rules,
regulations, and by-laws, while orders, notifications, and schemes do not fall under its
purview in terms of pre-publication requirements.

Regarding the time frame allocated for such notifications, it is primarily determined by the
relevant authority and typically spans a period ranging from three to six months.
Nevertheless, the Committee on Subordinate Legislation, in its report, notes that, in practice,
the allotted time is often exceedingly brief. This shortened duration has the effect of
depriving the public of an adequate opportunity to raise objections.

The publication of delegated legislation prior to its implementation is an important aspect of

ensuring transparency, accountability, and the rule of law. In many legal systems, including
India, the requirement for prior publication of delegated legislation is often mandatory to
ensure that the public and affected stakeholders have an opportunity to review and
comment on proposed rules and regulations. This process is sometimes referred to as
"consultation" or "public notice and comment."

In the context of the Motor Vehicles Act in India, if there is a requirement for prior
publication of delegated legislation, the non-compliance with this requirement could have
several consequences:

 Legality of the Regulation: If delegated legislation is not published or made available

for public consultation as required by law, it may call into question the legality and
validity of the regulation.
 Challenges and Litigation: Non-compliance can lead to legal challenges by affected
parties who believe their rights or interests have been adversely affected by the
regulation. This could result in court cases and delays in implementing the regulation.
 Lack of Public Input: The purpose of prior publication and consultation is to allow for
public input, comments, and feedback. Non-compliance would deprive the public and
stakeholders of this opportunity to voice their concerns or suggest improvements to
the proposed regulation.
 Transparency and Accountability: Non-compliance can undermine transparency and
accountability in the legislative process. It may be seen as an attempt to bypass the
checks and balances that are meant to be in place for regulatory decision-making.
 Revised or Scrapped Regulations: In some cases, non-compliance may lead to the
regulatory body revising or scrapping the regulation altogether and going through
the proper consultation and publication process

Publication of and commencement of rules under Motor

Vehicle 1939
(1) Every power to make rules given by this Act is subject to the condition of the rules being
made after previous publication.

(2) All rules made under this Act shall be published in the Official Gazette, and shall, unless
some later date is appointed, come into force on the date of such publication.
(3) Every rule made by the Central Government under this Act shall be laid, as soon as may
be after it is made, before each House of Parliament 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 the session or the successive
sessions aforesaid, both Houses agree in making any modification in the rule or both Houses
agree that the rule should not be made, the rule shall thereafter have effect only in such
modified form or be of no effect as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything previously done under
that rule.

The consequences of non-compliance with the requirements

under the Motor Vehicles Act, 1939
The consequences of non-compliance with the requirements under any version of the Motor
Vehicles Act typically involve legal penalties and sanctions. These penalties can vary
depending on the specific requirement that is not complied with, but common consequences
of non-compliance with traffic rules and regulations can include:

Fines: Non-compliance with various provisions of the Motor Vehicles Act can result in
monetary fines. The amount of the fine may vary depending on the severity of the violation.
It is crucial to pay these fines promptly to avoid additional penalties.

Traffic Offense Records: Traffic violations can lead to records of offenses on your driving
history. Accumulating too many violations may result in the suspension or revocation of your
driver's license.

Suspension or Revocation of License: In cases of serious non-compliance, such as drunk

driving or reckless driving, your driver's license may be suspended or revoked, temporarily or
permanently.

Impoundment of Vehicle: In certain cases, such as driving without a valid license or

registration, the authorities may impound your vehicle, and you would have to pay fines and
fulfill other requirements to release it.
Legal Action: In cases of accidents, severe violations, or violations causing harm to others,
legal actions, including criminal charges, may be brought against the offender.

Increased Insurance Premiums: Traffic violations can also result in higher insurance
premiums for your vehicle.

Conclusion and Recommendations:

For parliamentary oversight of delegated legislation to remain a continuous and effective
practice in India, it is essential to enhance the role of parliamentary committees and enact a
distinct law, akin to the Statutory Instruments Act, which would establish consistent
regulations for the submission and publication of such legislation. This committee could be
supported by a dedicated governmental agency to enhance the oversight of delegated
legislation. Additionally, other measures should be implemented to bolster Parliament's
control over delegated legislation.

The majority of sub-delegated legislation lacks procedural regulations for publication, yet
failure to comply with them can result in penalties such as fines and even imprisonment. It
would be incorrect to suggest that Indian legislative authorities have overlooked this gap.
The Lok Sabha established the Committee on Subordinate Legislation with the main goal of
improving the publication process for subordinate legislation and enhancing its accessibility
to relevant parties.

The majority of statutes lack provisions for dissemination, and when they do, they are often
afflicted by unjustified and unnecessary delays. Simply mechanically publishing rules and
orders in a Gazette is insufficient; they must effectively reach the individuals they impact. To
enhance this process, one potential approach could involve amending all statutes to include
a provision mandating the issuance of notices in regional languages.

In the case of Narendra Kumar v. India, the highest court ruled that for subordinate
legislation to carry legal weight and be effective, compliance with the parent act's
requirement for publication in the Official Gazette is essential. When the provision is of a
general nature, it can be published in accordance with the provisions of the General Clauses
Act. Expanding the implications of this judgment, mandating publication under the General
Clauses Act can serve as a crucial initial measure. However, it should be noted that
exceptions may be necessary in cases where they were previously implemented in England
and are still practiced in the United States.

BIBLOGRAPHY:
 Harla v. State of Rajasthan 1951 AIR 467, 1952 SCR 110
 State of Maharashtra V Mayer Hans George Case 1965 AIR 722, 1965 SCR (1) 123
 Narendra Kumar v. union of India 1960 AIR 430, 1960 SCR (2) 375
 Article by Bhaswat Prakash
 (https://www.legalserviceindia.com/legal/article-5638-constitutionality-of-
delegated-indian-legislation.html)
 Article by Shivam Sharma
 (https://publication-and-antecedent-publication-of-delegated-legislations-a-
comparison-between-us-uk-and-india)
 Lectures on Administrative Law by C.K. Takwani
 MP Jain, Indian Constitutional Law, 8th Edition, LexisNexis
 MP Jain and SN Jain, Principles of Administrative Law, 7th Edition, LexisNexis
 Motor vehicle Act 1939

**********