Financial Daily from THE HINDU group of publications
Thursday, Apr 01, 2004
Information obfuscation in notifications
N. R. Moorthy
There is a distinct line of demarcation between the legislature and the executive. Legislature lays down certain policies in the interest of good governance, dispensation of justice and public cause. It is the responsibility of the executive to establish a suitable mechanism to administer and enforce the law which has been enacted by Parliament, comprising the people's representatives from various constituencies.
So as to enable the executive to have adequate time to work out a suitable mechanism and, at the same time, build infrastructure facilities, the legislation leaves the commencement date open stating "this Act shall come into force from such date as may be notified, etc." It also empowers the executive to prescribe different dates for different provisions.
Whenever the statute decides the appointment of a suitable autonomous regulatory body to implement the Act, the legislation decides the qualifications, terms and conditions, tenure of office, selection procedure, and so on, of the members, president/chairman/presiding officer, and leaves it to the executive to notify the constitution of such body.
In pursuance of the powers, the government issues one or more notifications from time to time constituting such regulatory authority by appointing chairman/president/presiding officer or other members, as the case may be, and the date on which the regulatory authority shall become functional. Unfortunately, such notifications are not informative.
In the present era, citizens have the right to information. Where transparency and openness is preached the so-called notifications do not meet this test. By way of illustration, a recent notification issued by the Central Government, appointing the presiding officer of the Securities Appellate Tribunal, is cited:
"In exercise of the powers conferred by Section 15L read with Sections 15M(1) and 15N of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Central Government hereby appoints Justice Kumar Rajaratnam, Chief Jusitice, High Court of Madhya Pradesh as Presiding Officer of Securities Appellate Tribunal, Mumbai for a period of five (5) years from the date on which he enters upon his office or until he attains the age of sixty-eight (68) years, which ever is earlier."
The last sentence reads that the chairman is appointed for a period of five years "from the date on which he enters upon his office or until he attains the age of sixty eight (68) years, which ever is earlier." See how the language of the notification is couched in ambiguity and vagueness. The information conveys that the presiding officer shall hold office for a "period of five years from the date upon which he enters upon his office" is a mere reproduction of the wording from Section 15N.
Sections 15L, 15M and 15N, relied upon by the notification clearly lays down a legislative policy. It is the administrative authorities' duty to act in the spirit of the legislation.
The general public and, more particularly, the capital market players and litigants are entitled to know on which date SAT would become functional for the reasons that without the assumption of office by the presiding officer SAT cannot take up any appeal, let alone agitate on any petition.
Surely, the Government knows the age of the appointee. Section 15N entitles them to make such enquires and satisfy themselves of the age of the incumbent so much so that the notification should be specific as to the date of his retirement. The power conferred under Section 15M is being truly complied with in the sense that the name and qualification of the presiding officer has been spelt out so as to convey the message of his eligibility to enter upon his office.
In the interest of the pubic and litigants, the Government should take steps to issue notifications which are self-explanatory and reveal all details rather than take shelter under ambiguity.
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