Publication as a Condition of Validity

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operative; where a statute requires publication in the Official Gazette, publication is a condition of validity and an unpublished rule is of no effect; and where a statute requires rules to be made after previous publication, section 23 of the General Clauses Act 1897 prescribes what that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.