Publication and Previous Publication

In one line

Publication tells people what the rule is; previous publication asks them what it should be; and only the second is a real control, because only the second happens before the rule exists.

In the wording a student can write in an exam: section 23 of the General Clauses Act 1897 applies 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, and requires the authority before making them to publish a draft for the information of persons likely to be affected, in such manner as it deems sufficient or as the Government prescribes, together with a notice specifying a date on or after which the draft will be taken into consideration, and requires the authority, and any authority whose sanction, approval or concurrence is needed, to consider any objection or suggestion received with respect to the draft before that date; and provides that publication in the Official Gazette of a rule purporting to have been made in exercise of such a power shall be conclusive proof that the rule has been duly made.

Publication

What it is. The making of the instrument known, ordinarily by notification in the Official Gazette.

Why it is required. Because a rule is law, enforceable by penalty, and a person cannot be expected to obey what he cannot find. The requirement is an application of the elementary principle that law must be promulgated before it binds.

Where the requirement comes from. Not from any general provision of the General Clauses Act, but from the parent Act itself. Chapter 680 read section 20(1) of the Central Vigilance Commission Act: the Central Government may "by notification in the Official Gazette" make rules; and section 21(1) for regulations. Chapter 810 read section 3 of the Delhi Special Police Establishment Act: the Central Government may "by notification in the Official Gazette" specify the offences. Each Act says how its instruments are to be made, and publication is part of the making.

Which explains a distinction worth marks. Where an Act says a rule shall be made by notification in the Official Gazette, publication is part of the act of making and the rule does not exist until it is published. Where an Act merely says the rule shall be published, publication is a separate step, and the Atlas Cycle question of chapter 1240 arises: is the requirement mandatory or directory?

Previous publication: section 23

It applies only where the parent Act asks for it. Section 23 opens: where, by any Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication. If the Act does not use that condition, section 23 has no application at all.