Publication and Previous Publication

The five clauses.

(1) The authority shall, before making them, publish a draft of the proposed rules for the information of persons likely to be affected thereby.

(2) The publication shall be in such manner as that authority deems to be sufficient, or, if 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 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 from any person with respect to the draft before the date so specified.

(5) The publication in the Official Gazette of a rule purporting to have been made in exercise of a power to make rules after previous publication shall be CONCLUSIVE PROOF that the rule has been duly made.

Why previous publication is the stronger control

Set it against the two devices in chapters 1230 and 1240.

Laying happens after the rule is made and, on Atlas Cycle, is ordinarily directory, so non-compliance invalidates nothing.

The Committee on Subordinate Legislation reads the rule after it is in force, chapter 1050, and reports.

Previous publication happens BEFORE the rule exists. The draft is published, persons likely to be affected are told, a date is fixed, and the authority shall consider objections and suggestions received before that date.

Three consequences follow.

It reaches the people the rule will bind, not the House. It is the only device in this label that consults the governed rather than the legislature.

It operates while the rule can still be changed. Everything else in this label operates on a rule already made.

And it imposes a duty to consider, exactly the duty chapter 700 found in section 17(3) of the Central Vigilance Commission Act. A duty to consider is a real administrative-law duty, and a rule made without considering objections received before the specified date is made in breach of the section.

Clause (5), and the honest limit

"Conclusive proof that the rule has been duly made."

That is a strong phrase, and it cuts against the citizen. Once the rule is published in the Official Gazette as having been made in exercise of a power to make rules after previous publication, the fact that the procedure was followed cannot be disputed.

So the practical position is this. The duty in clauses (1) to (4) is real, and an authority that ignores objections has failed in it; but once the rule appears in the Gazette in the proper form, a challenge based on non-compliance with the previous publication procedure faces clause (5).

Say both halves in an answer. Previous publication is the strongest control in this label in what it requires, and clause (5) is the reason it is rarely the ground on which a rule falls.

Does non-publication invalidate?

Distinguish two situations, and the distinction decides the question.

Where the Act requires the rule to be made "by notification in the Official Gazette", publication is part of the making. An unpublished rule has not been made, and the question of validity does not arise: there is nothing to be invalid.

Where the Act separately requires publication or previous publication, the Atlas Cycle test applies, chapter 1240: is the requirement mandatory or directory, on the whole scope, nature and design of the statute, the two considerations being whether the section provides for the contingency of non-compliance and whether serious general inconvenience and prejudice to the general public would follow from invalidity.

And in the previous publication case, clause (5) will ordinarily foreclose the inquiry once the rule is in the Gazette.

A worked example

An Act empowers the Government, "by notification in the Official Gazette and after previous publication", to make rules prescribing standards for a trade.

A draft is not published and the rules appear in the Gazette. Section 23(1) required a draft to be published before making them, for the information of persons likely to be affected. The duty was breached.

Can a trader challenge the rules on that ground? He faces clause (5): publication in the Official Gazette of a rule purporting to have been made in exercise of a power to make rules after previous publication is conclusive proof that the rule has been duly made.

A draft is published but no date is specified. Clause (3) requires a notice specifying a date on or after which the draft will be taken into consideration, and without it clause (4)'s duty has no reference point. The breach is plainer, and clause (5) is still in the way once the rule is gazetted.

A draft is published with a date, objections are received, and the authority does not read them. Clause (4): the authority shall consider any objection or suggestion received before the date so specified. That is a duty to consider, and a decision taken without considering a relevant matter is the classic ground of administrative review even where clause (5) proves the rule was "duly made", because the complaint is not that the procedure was omitted but that the mind was not applied.

The rules require the sanction of another authority, which sanctions without seeing the objections. Clause (4) in terms binds that authority too.

And the Act had not used the words "after previous publication" at all. Section 23 does not apply. It operates only where the power is expressed to be given subject to the condition of previous publication.

What beginners get wrong

That section 23 applies to all rule-making. It applies only where the Act expresses the power subject to the condition of previous publication.

That publication and previous publication are the same. Publication makes the rule known; previous publication publishes a draft so that those affected may object before it is made.

That previous publication requires the objections to be accepted. It requires them to be considered.

That non-publication always invalidates. Where publication is part of the making, an unpublished rule does not exist. Where it is a separate requirement, the directory or mandatory question of Atlas Cycle arises.

That clause (5) makes the procedure optional. The duty in clauses (1) to (4) stands; clause (5) governs proof, and it is why a challenge on this ground rarely succeeds.

Quick revision

Publication: makes the rule known, ordinarily by notification in the Official Gazette; required by the parent Act, as in ss.20 and 21 of the CVC Act and s.3 of the DSPE Act. Where the Act says a rule is made by notification, publication is part of the making.

Previous publication, s.23 of the General Clauses Act 1897, applying only where the power is expressed to be given subject to that condition: (1) publish a draft before making, for persons likely to be affected; (2) in such manner as the authority deems sufficient or the Government prescribes; (3) with a notice specifying a date on or after which the draft will be taken into consideration; (4) the authority, and any sanctioning, approving or concurring authority, shall consider any objection or suggestion received before that date; (5) publication in the Official Gazette is CONCLUSIVE PROOF that the rule has been duly made.

Why it is the strongest control: it reaches the governed and not the legislature; it operates before the rule exists; and it imposes a duty to consider.

Why it rarely succeeds as a ground: clause (5).

Test yourself

1. What is previous publication and when does section 23 apply? Previous publication is the publication of a draft of proposed rules before they are made, so that persons likely to be affected may object. Section 23 of the General Clauses Act 1897 applies only where, by a Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules being made after previous publication; if the Act does not impose that condition, the section has no application. Where it applies, the authority must publish a draft before making the rules for the information of persons likely to be affected, in such manner as it deems sufficient or as the Government prescribes; must publish with the draft a notice specifying a date on or after which the draft will be taken into consideration; and must, together with any authority whose sanction, approval or concurrence is required, consider any objection or suggestion received from any person before that date. Publication in the Official Gazette of a rule purporting to have been made in exercise of such a power is conclusive proof that it was duly made.

2. Why is previous publication the strongest of the controls in this label? Because it operates before the rule exists and upon the people the rule will bind. Laying occurs after the instrument is made and, on Atlas Cycle, a bare requirement of it is directory so that non-compliance invalidates nothing; the Committee on Subordinate Legislation reads a rule already in force and reports upon it. Previous publication requires a draft to be circulated while the rule can still be altered, requires those likely to be affected to be informed, fixes a date, and imposes on the rule-making authority and on any concurring authority a duty to consider the objections and suggestions received. It is therefore the only device in this label that consults the governed rather than the legislature, and the duty to consider is a real administrative-law duty of the same kind as that imposed by section 17(3) of the Central Vigilance Commission Act.

3. What is the effect of clause (5), and why does it matter? It provides that publication in the Official Gazette of a rule purporting to have been made in exercise of a power to make rules after previous publication shall be conclusive proof that the rule has been duly made. It matters because it forecloses, once the rule is gazetted in the proper form, a challenge founded on non-compliance with the procedure in clauses (1) to (4). The duty imposed by those clauses remains real, and an authority which ignores it acts in breach; but the clause governs proof, and it is the reason why previous publication, though the most demanding of the procedural controls, is rarely the ground on which a rule is actually set aside. A challenge is more likely to succeed where it is framed not as an omission of procedure but as a failure to apply the mind to a relevant matter, which is the classic ground of administrative review.

4. Does a failure to publish invalidate a rule? It depends on how the parent Act frames the requirement. Where the Act empowers the making of rules by notification in the Official Gazette, publication forms part of the very act of making, so that an unpublished rule has not been made and no question of its validity arises. Where publication or previous publication is imposed as a separate requirement, the question is the one Atlas Cycle poses, namely whether the provision is mandatory or directory on the whole scope, nature and design of the statute, the two considerations being whether the section provides for the contingency of non-compliance and whether serious general inconvenience and prejudice to the general public would result if acts done under the rule were declared invalid. In the case of previous publication the inquiry will ordinarily be foreclosed in any event by clause (5) once the rule appears in the Gazette.