Sec.48 notification in our pension case

LEGAL OPINION ON GOVERNMENTS POWERS TO MAKE RULES

UNDER POWER5S VESTED UPON IT BY LEGISLATION.

I have been writing on the powers vested in the Govt. to make regulations. For the information of our friends, I am quoting two opinions that appeared in the Hindu dated 4-7-15.

The Government of India have recently under Black Money(Undisclosed foreign Income & Assets) and Imposition Act notified Rules for the implementation of the Act. These rules are called subordinate legislation, in legal parlance, akin to the LIC Act and the rules like those under Sec.48 made by the Govt.

• Former Addl. Solicitor General Bisvajit Bhattacharya commending on the validity of the above notification said that a delegated delegation cannot amend the parent legislation. Parliment alone could have altered the date of coming into force of the Act.
• Sr. Advocate and M.P Shri K.T.S. Tulsi also said “if a date is mentioned in the statute, the Govt. can change the date of implementation only through an amendment by the parliament”.

The two quoted opinions reiterate that a rule making power of the Govt. cannot be used to completely change the provision in the substantive law. This is more so of a Constitutional principle of non-discrimination. The Constitution of India is the supreme law and all other laws have to be within the Constitution. Hence the Jaipur HC Judgement is in line with the decision with Nakaras case. Even in the absence of a notification or a notification specifically denying higher DA neutralisation will not be valid. Above all a final Judgement of a HC or SC have to be obeyed and nothing more is required to be done by the Govt. for the enforcement of a judgement. In other words a final judgement of a HC/SC cannot be pocketed by the Govt. without complying with the order.

This reinforces our contention that once that discrimination is proved, the rights arising are enforceable. Many decided cases can be cited in support. It is clear that the claim of the LIC/Govt. as to the need for a notification over and above the decision of the HC is fatuous.

A.S. Ramanathan