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@all I have a query regarding the Benami Transations Act,1988. Why were the rules not notified under it? Apart from the obvious reason to stall a progressive legislation, what are the reasons which have been stated by successive governments? Also could someone throw light on the importance of framing rules under an act. Why are such rules framed? Also if rules are not framed then does the act remain nonoperational? Thanks in advance.
"The Ministry in a background note furnished to the Committee stated that though the power to make rules was available to the Central Government under the Benami Transactions (Prohibition) Act, 1988, no rules could be prescribed due to procedural infirmities. During the process of formulating the rules for implementing certain provisions of the Act, it was found that the provisions of the aforesaid Act are inadequate to deal with benami transactions as the Act, inter-alia,—
(i) does not contain any specific provision for vesting of confiscated property with the Central Government;
(ii) does not have any provision for an appellate mechanism against an action taken by the authorities under the Act, while barring the jurisdiction of a Civil Court;
(iii) does not confer the powers of the Civil Court upon the authorities for its implementation.
To remove these infirmities, several consultations were held with the Ministry of Law and Justice. Later it was realized that it would not be possible to remove the infirmities by making some amendments but a fresh legislation shall be required to comprehensively deal with all the issues."
Further, a small elaboration of what @Gilmour said with regard to rule-making in general. The main reasons why many statutes make provision for rule-making are:
a) Some laws deal with complex matters which require expertise. Rules provide the executive the time and opportunity to consult experts and then frame rules. b) The procedural niceties are better handled through rules for two reasons, namely, the need for detail and, at the same time, the ease of making changes to it as and when the need arises. It saves the Legislature's time.
As for the validity of a law in the absence of rules, I guess it depends on the scope of the rules. Like in the present case, the procedure, it seems, was by and large dependent on the rules. in such a case, how can a law be implemented in the absence of any established procedure for its working. (I haven't read the Act, I'm just taking a guess).
@Gilmour@aparna27 Thank you for your replies. From the above post it appears as if successive governments did not notify the rules because the act had some procedural lacunae, which were to be corrected. Doesn't sound like our "honest" governments, but lets go with it.
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Comments
This is all that I could find:
"The Ministry in a background note furnished to the Committee stated that though the power to make rules was available to the Central Government under the Benami Transactions (Prohibition) Act, 1988, no rules could be prescribed due to procedural infirmities. During the process of formulating the rules for implementing certain provisions of the Act, it was found that the provisions of the aforesaid Act are inadequate to deal with benami transactions as the Act, inter-alia,—
(i) does not contain any specific provision for vesting of confiscated property with the Central
Government;
(ii) does not have any provision for an appellate mechanism against an action taken by the authorities under the Act, while barring the jurisdiction of a Civil Court;
(iii) does not confer the powers of the Civil Court upon the authorities for its implementation.
To remove these infirmities, several consultations were held with the Ministry of Law and Justice. Later it was realized that it would not be possible to remove the infirmities by making some amendments but a fresh legislation shall be required to comprehensively deal with all the issues."
Source: http://164.100.47.134/lsscommittee/Finance/15_Finance_58.pdf (Report of the Standing Committee on Finance)
Further, a small elaboration of what @Gilmour said with regard to rule-making in general. The main reasons why many statutes make provision for rule-making are:
a) Some laws deal with complex matters which require expertise. Rules provide the executive the time and opportunity to consult experts and then frame rules.
b) The procedural niceties are better handled through rules for two reasons, namely, the need for detail and, at the same time, the ease of making changes to it as and when the need arises. It saves the Legislature's time.
As for the validity of a law in the absence of rules, I guess it depends on the scope of the rules. Like in the present case, the procedure, it seems, was by and large dependent on the rules. in such a case, how can a law be implemented in the absence of any established procedure for its working. (I haven't read the Act, I'm just taking a guess).
Sorry for the longish post. :P
Thank you for your replies. From the above post it appears as if successive governments did not notify the rules because the act had some procedural lacunae, which were to be corrected. Doesn't sound like our "honest" governments, but lets go with it.