Unenforced legislations – reconsidering AK Roy

In a recent post on a related matter, I mentioned the judgment in AK Roy:

‘In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.’

It is very interesting to compare AK Roy and several subsequent cases which have taken the same route with a British case decided by the far less ‘activist’ House of Lords:

In Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) the House of Lords held that it was unlawful for the Home Secretary to introduce changes to a scheme which were incompatible with an Act of Parliament. Parliament enacted a provision for compensating victims of crimes, with a clause empowering the Secretary of State to bring it into force. The Secretary not only did not bring it into force, but also issued an order instituting a less generous scheme. The majority held that although it was within the Secretary’s discretion to decide when it was appropriate to bring the law into force, he was under an obligation to keep the matter under continuing review. The institution of the less generous scheme was a failure of this duty since it was clear that the Secretary did not intend to bring the law into force at all, and thereby frustrated Parliament’s will.

The doctrine of reasonable expectations also played a role. To quote Lord Brone-Wilkinson:

“Although the victim of a crime committed immediately before theWhite Paper was published had no legal right to receive compensation inaccordance with the old scheme, he certainly had a legitimate expectation thathe would do so. Moreover, he had a legitimate expectation that, unless therewere proper reasons for further delay in bringing sections 108 to 117 of theAct into force, his expectations would be converted into a statutory right. Ifthose legitimate expectations were defeated by the composite decision of theSecretary of State to discontinue the old scheme and not to bring the statutoryscheme into force and those decisions were unlawfully taken, he has locusstandi in proceedings for judicial review to complain of such illegality.”

Interestingly, both the majority and the minority employed separation of power arguments. The majority held that it was for the Parliament to repeal a law, not the Executive. The minority reminded the Court of its own limitations.

The majority opionion makes sense. There are several instances where it is quite clear that the Executive has decided never to implement a law, like the constitutional amendment in AK Roy. It has thereby frustrated Parliamentary mandate – surely the discretion to bring into force does not include the choice of never bringing it into force. It is easy to say that those aggreived should go back to the Parliament – but Parliamentary time is a valuable resource. In any case, the Parliament has expressed an intention and has not said anything to the contrary – shouldn’t it generate some obligations on the Executive? In fact, if it is unhappy with a law, shouldn’t it be the government’s responsibility to go back to Parliament to get it repealed (like it did in the case of the Freedom of Information Act 2002) rather than it frustrating the legitimate expectations of the citizen as well as the will of the Parliament?

Even international law (I think) has comparable rules, where a country which has signed a treaty but not ratified it is nonetheless has the obligation to refrain from any action contrary to the spirit of the treaty.

Perhaps the courts cannot issue mandamus to bring the law into force. But surely there is a middle way, like in Fire Brigades Union? The challenge of coming up with appropriate remedies should not result in the denial of the right itself. In some cases, even a mere judicial declaration of the continuing obligation on the Executive to consider the date of implementation and seeking evidence to demonstrate the fulfilment of this duty might suffice.

This article discusses a related issue of bringing different provisions into force at different times, creating confusion:
‘The Supreme Court was confronted with this predicament in a recent case, J Mitra & Co Pvt Ltd vs Assistant Controller of Patents & Designs.
The judgment described the case as a “classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of the Patents (Amendment) Act 2005”. There were amendments in 1999 and 2002, making significant changes in the patent law. But some sections were not notified, and others telescoped into the later amendments, creating a bewildering situation. This is what happens when different dates are appointed for the coming into force of different parts of the same Act, and the government does not enforce some portions.’

Venkatesan, thanks for pointing this out.

Update 2:
Apparently Aeltemesh Rein v. Union of India decided by the Supreme Court has already upheld a ‘duty to consider’ similar to that in Fire Brigades Union. I haven’t read the case myself yet, but picked this up from a note Vikram sent (thanks) – am I correct in this? Has anyone else seen this case?

Written by
Tarunabh Khaitan
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  • The question in the Fire Brigades Union appears to be not whether the Secretary of State has the discretionary authority to defer a decision – the judges held that he does – but whether he can announce a new policy whose terms contravene the enacted terms of the statute. In the case of Indian laws, it is simply whether enforcement can be indefinitely postponed leaving the status quo intact. The comparison therefore seems to be between apples and oranges.

    One might be able to make a distinction between a decision not to notify and no decision at all and then hold the Executive accountable under an arbitrary and capricious standard – something not unlike what our Courts are currently doing.

    The other question is whether it is permissible to notify only for some states and not others like the IMDT Act (1983) which was notified only for Assam. What is your view about that?

  • Well, of course the cases are different, but not that different. The moot question is whether the Executive is performing its continuous duty of ‘considering the prospects of bringing these laws into force’ or not. Enacting a contradictory rule is but one way of showing that it has failed in this duty, as it was shown in Fire Brigades Union.

    Surely there are other ways of proving that this failure has taken place? Perhaps an idea of a ‘reasonable time’ – can a delay of 30 years be considered reasonable? Actually notification in some states but not others shows continued application of mind, and therfore that the duty to review is being continuously performed.

    But does complete inaction ever lead to a conclusion that no review is on and the Executive has failed in its duty?

    Perhaps a statement by a Minister that the government does not intend to bring a law into force. A good way of testing this would be to file an RTI application asking the government of the steps it is taking to bring the preventive detention amendment into force. Will an acceptance that no steps are being taken and the government does not intend to bring it into force be sufficient proof of its failure to follow Parliamentary command and therefore actionable in court?

  • Tarunabh,

    My reading of the Fire Brigades Union opinion is that the Executive is under no obligation to ever bring the law into force – the discretion to bring into force does in fact include the prerogative to never bring it into force. It was six years or so when the controversy erupted in that case, yet all the judges affirmed that the secretary was well within his rights to have not done anything at all in the first place. The test was not whether he ought to have considered moving towards its implementation but whether he had done anything renouncing the power vested in him to implement it. Thus it is fine for the government to not notify an enactment for 30 years but the Minister cannot actually break the silence and state outright that he has no intention of implementing it for to do that would amount to his renouncing the power vested in him (the fact that these two situations would have different legal consequences as a fallout notwithstanding the lack of any practical difference in the outcome was correctly pointed out by Lord Mustill in his dissent). For the same reason, the test would be met if he were to announce a contradictory scheme which is what happened in this case.

  • Even if this is the case, the hypothetical RTI scenario I point it will be interesting because with an RTI application, the government will not be able to continue being silent since it is required by law to give reasons. And as soon as it has spoken, the speech might just give rise to facts that make judicial review possible.

  • Right. The RTI application, if not anything else, will at least force the government into making a disclosure that is likely to be embarrassing. Even if the minister were to indicate that the law will not be enforced, the scope of judicial review is rather limited: the court can only hold that his statement has no legal standing but it cannot ask him to reverse course and implement what parliament enacted – even in the Fire Brigades Union case, the judges only struck down his new alternative scheme but could not ask him to bring into effect what had been endorsed by the legislature previously.

  • I agree with dilip.

    Firstly, The House of Lords case you have cited seems more akin to a situation where the delegated legislation is ultra vires the parent act. For it may be declared invalid even if it goes against the basic policy of the parent statute.

    Secondly, Courts may even interfere with administrative actions when the administrative authorities have impose unnecessary fetter on the exercise of their discretion which in this case the Secretary of state by introducing a scheme scheme has.

  • Tarunabh, your analogy may not be so off the mark, actually. During the arguments by P.P.Rao in Ashoka Kumar Thakur, it was submitted by him that as Article 15(5) allowed measures for admissions in “educational institutions”, that would include schools. However, Article 21A ensuring fundamental right to education would be contradicted, even though it had not been notified as yet. The only distinction between this instance and Fire Brigades Union is that here, the inaction of the Executive allowed the Legislature to take measures contrary to its own earlier action in amending Article 21. Hence, begging the new question: What is the effect of Parliament contradicting itself, only because the executive failed to act?

    On the other point on which Dilip agrees with you concerning the RTI mechanism, I’m afraid I must disagree. There is virtually no chance of a reply saying that the Government “does not intend to bring the law into force”. Officers would get sacked for saying that. At best, their response would be – and a stock one at that – “Information as sought for is not available with these offices”. I, however encourage you to file the RTI application anyway. I would be more than happy to be wrong.

  • Will any of you with any practical expertise on RTIs help me draft and file an application in this regard? Please email me at tarunabh at gmail dot com