Other Controls: Publication, Consultation and Procedural Safeguards

In one line

Besides the courts and the legislature, delegated legislation is controlled by the requirements that it be published before it binds anybody, that affected interests be consulted before it is made, and by the ordinary pressures of publicity and public opinion.

In the words a student can write in an exam: the other controls over delegated legislation are procedural and political. The procedural controls are publication, without which a rule does not become operative, and antecedent publicity and consultation, under which a draft is published or affected interests or an expert body are consulted before the rule is made. The political controls are the ordinary accountability of a minister to the legislature, the work of the press and of affected trade and professional bodies, and, in modern practice, pre-legislative consultation policy and the disclosure obligations of the Right to Information Act 2005.

Why a third chapter of controls

Because the first two are both incomplete. Judicial control needs a litigant and can ask only about legality. Legislative control comes after the rule is already in force and is defeated by volume. The controls in this chapter operate before the rule exists, which is where a green light theorist would say control belongs: [Red Light and Green Light Theories].

Publication

The rule

A law that nobody can find does not bind. This is not a technicality but a principle of natural justice, and the leading Indian case says so in terms.

Facts. Harla v. State of Rajasthan, AIR 1951 SC 467, concerned the Jaipur Opium Act. The Council of Ministers appointed by the Crown Representative for the government of the Jaipur State passed a Resolution in 1923 purporting to enact that Act, but it was neither promulgated nor published in the Gazette nor otherwise made known to the public. The Jaipur Laws Act 1923, in force from 1 November 1924, provided that the law to be administered by the courts should include the regulations then in force and enactments thereafter passed by the State and published in the Official Gazette. In 1938 the Opium Act was amended by adding a clause that it should come into force from 1 September 1924. The appellant was convicted under section 7 of it.

Held. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or at least there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The mere passing of the Resolution of the Council, without further publication or promulgation, was not sufficient to make the law operative, so the Jaipur Opium Act was not a valid law. Nor was it saved by the Jaipur Laws Act 1923, since it was not a valid law in force on 1 November 1924, and the addition in 1938 of a clause that it should come into force in 1924 was of no use.