Other Controls: Publication, Consultation and Procedural Safeguards

Why it matters. A person cannot be convicted under a law he had no means of knowing. The proposition applies with at least equal force to delegated legislation, which is made in a department without debate and which a citizen has no other way of discovering.

How publication is effected

The ordinary mode is publication in the Official Gazette, which section 3(39) of the General Clauses Act 1897 defines as the Gazette of India or the official Gazette of a State.

Two practical points follow.

1. The parent Act usually says so, requiring rules to be published in the Gazette, and where it does the requirement is ordinarily mandatory, because its purpose is to make the rule knowable.
2. Where the Act prescribes a particular mode, that mode must be followed. Publication by some other means, however effective in fact, is not compliance if the statute names the Gazette.

A recurring examination point is whether publication must also be brought to the notice of those affected. The better view is that publication in the prescribed manner is what the law requires, and that a person is taken to know what has been published in the Gazette; but where the Act prescribes no mode at all, the rule must be published in some manner reasonably calculated to bring it to the notice of those it binds, which is Harla applied directly.

Antecedent publicity and consultation

What they are

Antecedent publicity, also called previous publication, means publishing the draft rule before making it, inviting objections and suggestions, and considering them before the rule is finalised.

Consultation means asking a named body, or the interests affected, for their views before making the rule.

Both are the administrative equivalent of a Bill being debated, and both are green light controls: they improve the rule instead of quashing it afterwards.

Where the requirement comes from

There is no general statutory requirement in India that rules be preceded by publicity or consultation. The requirement arises where the parent Act imposes it, and many Acts do. Section 23 of the General Clauses Act 1897 supplies the standard machinery where an Act requires rules to be made "after previous publication": the draft must be published in the manner the Act requires, a date must be specified by which objections and suggestions will be considered, and the authority must consider any objections received before the date.

The forms consultation takes

1. Consultation with a named statutory body, for example a board or council constituted by the Act itself.
2. Consultation with affected interests, such as trade associations, employers and unions.
3. Consultation with an expert body, where the subject is technical.
4. Publication of a draft for public objections, which is consultation with everybody.
5. Preparation of the rules by an outside body and adoption by the Government, which is the strongest form.

The effect of a failure to consult

The same question as with laying, and the same test: is the requirement mandatory or directory? Where the Act says rules shall be made after previous publication, the requirement is ordinarily mandatory, because its whole purpose is to give affected persons the chance to object, and a rule made without it is procedurally ultra vires: [Judicial Control over Delegated Legislation]. Where the Act merely says the Government "may consult", the provision is enabling and no invalidity follows.

Note the limit. A duty to consult is a duty to consider what is said, not a duty to agree. The authority must consult with an open mind and give genuine consideration to the objections, but it remains free to make the rule it thinks right.

The political and public controls

These are the least legal and the most constant.

1. Ministerial responsibility. The minister answers in the House for rules made by the department, through questions, debates and the scrutiny committee.
2. The press and public opinion. A rule that provokes a public reaction is often withdrawn without any court being involved.
3. Trade, professional and civil society bodies, which watch the Gazette in their own field far more attentively than any legislature can.
4. Pre-legislative consultation. The practice, now standard for central departments, of placing draft legislation and subordinate legislation in the public domain for comment before it is finalised. It is a policy rather than a statute, so its breach does not invalidate a rule, but it has changed practice.
5. The Right to Information Act 2005. Section 4 obliges every public authority to publish, among other things, the rules, regulations, instructions, manuals and records it holds or uses, and the norms it sets for the discharge of its functions. That converts what used to be a matter of departmental grace into an enforceable obligation, and it is treated in [Obligations of Public Authorities and How a Request Is Made].

Point 5 is worth making in an answer because it links Module II to Module IV and shows the controls working together.

A worked example

An Act provides: "The State Government may, after previous publication, make rules prescribing the fees payable for a licence under this Act."

The Government publishes a draft in the Gazette on 1 March, stating that objections will be considered until 31 March. Three trade associations object that the fee is too high. The Government considers the objections, records that it is satisfied the fee is justified, and makes the rules unchanged on 15 April, publishing them in the Gazette.

Valid. Previous publication was complied with, objections were considered, and the duty to consult is a duty to consider, not to agree.

Variation 1. The Government makes the rules on 15 April without publishing any draft. Procedurally ultra vires, because "after previous publication" is a mandatory requirement whose purpose is to allow objection, and section 23 of the General Clauses Act 1897 supplies the machinery it requires.

Variation 2. The Government publishes the draft, receives objections, and makes the rules on the same day without reading them. Bad, because consultation requires genuine consideration; going through the form without the substance is not compliance.

Variation 3. The rules are made and considered but never published in the Gazette, though they are circulated to all licensing officers. The rules do not bind licensees, on the principle of Harla v. State of Rajasthan, AIR 1951 SC 467: a law must be published in some recognisable way before it becomes operative, and internal circulation to officials is not that.

Distinctions worth having straight

What it does NOT mean

It does not mean there is a general duty to consult before making rules. In India the duty arises from the parent Act. There is no equivalent of a general administrative procedure statute.

It does not mean consultation obliges the authority to accept what it hears. It obliges genuine consideration with an open mind.

It does not mean natural justice applies to rule making. It does not, because a rule affects a class and not an identified person. Consultation is a statutory substitute for a hearing, not an application of natural justice.

It does not mean publication anywhere will do. Where the Act prescribes the Gazette, the Gazette is what is required.

Quick revision

1. Other controls are procedural, publication and consultation, and political, ministerial responsibility, the press, affected bodies, pre-legislative consultation and the Right to Information Act 2005.
2. Harla v. State of Rajasthan, AIR 1951 SC 467: a law must be promulgated or published, broadcast in some recognisable way, before it becomes operative; an unpublished Resolution enacting the Jaipur Opium Act was not a valid law, and retrospective commencement added in 1938 did not save it.
3. The ordinary mode is the Official Gazette, defined in section 3(39) of the General Clauses Act 1897. Where the Act prescribes a mode, that mode must be used.
4. Previous publication publishes the draft and invites objections; section 23 of the General Clauses Act 1897 supplies the machinery.
5. Forms of consultation: a named statutory body, affected interests, an expert body, a published draft, or rules prepared by an outside body.
6. A mandatory requirement of previous publication or consultation, if omitted, makes the rule procedurally ultra vires. A duty to consult is a duty to consider, not to agree.
7. Section 4 of the Right to Information Act 2005 now requires proactive publication of rules, instructions and norms.

Test yourself

1. What controls over delegated legislation exist apart from judicial and legislative control? Procedural and political controls. The procedural controls are publication, without which a rule does not become operative, and antecedent publicity and consultation, under which a draft is published for objections or affected or expert bodies are consulted before the rule is made. The political controls are the responsibility of the minister to the House, scrutiny by the press and by trade, professional and civil society bodies, the practice of pre-legislative consultation, and the obligation in section 4 of the Right to Information Act 2005 to publish rules, instructions, manuals and norms proactively. These operate before the rule is made or as it is applied, and so reach the great mass of delegated legislation that no court ever sees.

2. Is publication necessary before delegated legislation takes effect? Yes. Harla v. State of Rajasthan, AIR 1951 SC 467, held that natural justice requires a law to be promulgated or published before it becomes operative, broadcast in some recognisable way so that all may know what it is, or at least made discoverable through a customary channel by the exercise of due and reasonable diligence. An unpublished Resolution enacting the Jaipur Opium Act was therefore not a valid law. Where the parent Act prescribes publication in the Official Gazette, that mode must be followed, and internal circulation among officials is not sufficient.

3. What is meant by previous publication, and what happens if it is omitted? Previous publication means publishing the draft of a proposed rule, inviting objections and suggestions, and considering them before the rule is made. Section 23 of the General Clauses Act 1897 supplies the machinery where an Act requires rules to be made after previous publication: the draft is published in the prescribed manner, a date is specified by which objections will be considered, and objections received before that date must be considered. Where the requirement is mandatory, as it ordinarily is, omitting it makes the rule procedurally ultra vires and void.

4. Does a duty to consult oblige the authority to accept the views it receives? No. The duty is to consult with an open mind and to give genuine consideration to what is said. The authority remains free to make the rule it considers right, and a rule is not invalid merely because objections were rejected. What is not compliance is going through the form without the substance, such as receiving objections and making the rule the same day without considering them.

5. Why is consultation not the same as a hearing under natural justice? Because they arise in different situations and come from different sources. Consultation belongs to rule making, in which a general rule affects a class of persons defined by description, and the duty arises from the parent Act. A hearing under natural justice belongs to a determination affecting an identified person, and the duty arises from the common law and from Articles 14 and 21 of the Constitution. Natural justice does not ordinarily apply to rule making at all, which is why the legislature supplies consultation as a statutory substitute.