Publication as a Condition of Validity
Chapter -Nine
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 414 to 416 of 430
In one line
A law nobody can know is not a law, and that sentence is the whole of this chapter.
In the wording a student can write in an exam: natural justice requires that a law be promulgated or published before it becomes operative; where a statute requires publication in the Official Gazette, publication is a condition of validity and an unpublished rule is of no effect; and where a statute requires rules to be made after previous publication, section 23 of the General Clauses Act 1897 prescribes what that means.
The foundational case
Harla v. State of Rajasthan, AIR 1951 SC 467.
Facts. A Council of Ministers appointed by the Crown Representative for the government of the Jaipur State passed a resolution in 1923 purporting to enact a law called the Jaipur Opium Act. It was never promulgated, never published in the Gazette and never made known to the public. Many years later a man was convicted under it.
Held. The conviction was set aside. 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, regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.
Why it matters here. It is the most quotable sentence in the whole of delegated legislation, and it establishes publication as a requirement of natural justice and not merely of statute.
The statutory requirement
Where the parent Act requires publication in the Official Gazette, the requirement is ordinarily mandatory, and a rule not so published is of no effect.
Narendra Kumar v. Union of India, AIR 1960 SC 430.
Facts. The Non-ferrous Metal Control Order 1958, made under section 3 of the Essential Commodities Act 1955, required a permit for acquisition, permits to be issued by the Controller in accordance with such principles as the Central Government might specify. Principles were communicated by a departmental letter but were never published in the Official Gazette or laid before both Houses, as the Act required.
Held. The principles by which permits were to be issued were themselves an order within the meaning of section 3, so they had to be published in the Official Gazette and laid before both Houses; not having been, they were of no effect and the permit clause could not be enforced against the petitioners.
Why it matters here. It shows that publication is not a formality, and that guidance which in substance legislates must satisfy the same conditions.
Publication as a Condition of Validity
Previous publication: section 23 of the General Clauses Act 1897
Where an Act gives a power to make rules or bye-laws subject to the condition of previous publication, section 23 provides that:
(1) the authority shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected;
(2) the publication shall be made in such manner as that authority deems sufficient, or, where the condition so requires, in such manner as the Government concerned prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the rule-making authority, and where the rules are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion received with respect to the draft before the date specified; and
(5) the publication in the Official Gazette of a rule or bye-law purporting to have been made after previous publication shall be conclusive proof that the rule or bye-law has been duly made.
Clause (5) is worth noticing, because it is a conclusive evidence clause of the kind discussed in [The Conclusive Evidence Clause], and it protects the process rather than the content: it proves that the rule was duly made, not that it is intra vires.
The unsettled question
Whether publication in the Gazette is enough, where the Gazette is not in fact available to the persons affected. Harla's language points one way, saying that the law must be broadcast in some recognisable way; the practice points the other, since Gazette publication is universally treated as sufficient. The honest answer for an LL.M. paper is that Gazette publication satisfies the statutory requirement, that the question of actual knowledge remains open, and that the direction of travel is towards effective publication, which electronic gazettes have made easier.
A worked example
A State makes rules under a shops Act requiring every establishment to install a particular kind of fire extinguisher, and prosecutes a shopkeeper three months later. The rules were signed by the Secretary, placed on the department's noticeboard, and published in the Gazette a week after the prosecution began.
The prosecution fails. The rules were not law when the alleged breach occurred, because they had not been published, and Harla is the whole answer. If the Act had required previous publication, there is a second defect: no draft was published, no date for consideration was notified, and no objections were considered, which is section 23.
What this does NOT mean
It does not mean a rule must reach every person. It must be published in the prescribed manner or made known in a recognisable way.
It does not mean previous publication is always required. Only where the Act says so.
Publication as a Condition of Validity
It does not mean clause (5) protects the content. It is conclusive proof of due making, not of validity.
Quick revision
Harla: natural justice requires a law to be promulgated or published before it is operative, broadcast in some recognisable way so that all men may know what it is. Narendra Kumar: where the Act requires publication in the Gazette and laying, an unpublished order is of no effect, and guidance which in substance legislates is caught. Section 23 of the General Clauses Act sets out previous publication: a draft, a notice of the date of consideration, consideration of objections by the rule-maker and by any sanctioning authority, and Gazette publication as conclusive proof of due making.
Test yourself
1. Quote the proposition in Harla. That natural justice requires a law to be promulgated or published before it becomes operative, broadcast in some recognisable way so that all men may know what it is, or at least by some channel through which it can be known with due and reasonable diligence.
2. What does previous publication require? A draft published for the information of those likely to be affected, a notice of the date on or after which it will be considered, and consideration of the objections received before that date.
3. What does section 23(5) prove? That the rule was duly made; it is conclusive proof of the process, not of the validity of the rule's content.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.