Publication of Delegated Legislation

Publication of delegated legislation refers to the process of making rules, regulations, notifications, bye-laws and other subordinate legislation known and accessible to the public after they are made by a competent authority.

Publication is an important procedural safeguard in administrative law because a person should ordinarily have a reasonable opportunity to know the law before being expected to comply with it.

Meaning

Delegated legislation may take the form of:

• Rules;
• Regulations;
• Bye-laws;
• Notifications;
• Orders;
• Schemes; and
• Other statutory instruments.

Once validly made, such legislation generally needs to be properly published or otherwise made available in the manner required by the parent statute.

The precise publication requirement depends on the relevant legislation.

Importance of Publication

Notice to the Public

Publication informs citizens about their legal rights, duties and obligations.

Rule of Law

People should not ordinarily be bound by a legal requirement that has not been properly made known through the legally prescribed mechanism.

Fairness

Publication allows affected persons to understand the requirements they are expected to follow.

Legal Certainty

It establishes an identifiable point from which the delegated legislation can operate.

Judicial and Administrative Accountability

Publication creates an accessible record of the rule and helps courts and affected persons determine what the competent authority actually enacted.

Statutory Requirement of Publication

The parent Act may prescribe the manner in which delegated legislation must be published.

For example, legislation may require rules to be:

• Published in the Official Gazette;
• Published after prior notice;
• Made available through a prescribed government publication; or
• Subject to another specified procedure.

Where the statute prescribes a mandatory publication procedure, the delegated authority must comply with it.

Publication in the Official Gazette

Publication in the Official Gazette is one of the most common methods of publishing delegated legislation.

The Gazette provides an authoritative public record of:

• Rules;
• Regulations;
• Notifications;
• Orders; and
• Other government instruments.

However, whether Gazette publication is legally necessary depends upon the relevant statute.

Prior Publication

Prior publication is different from final publication.

Prior Publication

The authority publishes a draft of the proposed rules and provides an opportunity for affected persons to make objections or suggestions.

Final Publication

After considering the required procedure, the authority makes and publishes the final rules.

Therefore:

Draft → Public notice → Objections/Suggestions → Final rules → Publication

Prior publication is required only where the parent legislation makes it applicable.

Section 23 of the General Clauses Act, 1897

Section 23 of the General Clauses Act, 1897 contains a general procedure concerning the making of rules where previous publication is directed.

It provides a framework involving publication of the proposed rules, consideration of objections and suggestions, and subsequent publication of the final rules.

The section is relevant where the statutory conditions for its application are satisfied.

Publication and Commencement

Publication and commencement are related but distinct concepts.

Publication:
Makes the delegated legislation publicly available.

Commencement:
Determines when the legislation legally begins to operate.

A rule may be published on one date and, depending upon the statute, come into force on:

• The date of publication;
• A specified future date; or
• Another date determined in accordance with the enabling legislation.

Publication and Knowledge of Law

A basic principle of law is that a person cannot ordinarily avoid the operation of a properly promulgated law simply by claiming that they personally did not know about it.

However, this principle does not remove the requirement of legally prescribed publication.

The important question is whether the delegated legislation was promulgated in the manner required by law.

Failure to Publish

Where publication is legally required and the authority fails to comply with the mandatory requirement, the validity or enforceability of the delegated legislation may be affected.

The consequence depends upon:

• The wording of the parent statute;
• Whether publication is mandatory or directory;
• The nature of the requirement; and
• The effect of non-compliance.

Courts therefore examine the statutory scheme rather than applying one universal rule to every publication defect.

Publication and Natural Justice

Publication is also connected with principles of fairness and natural justice.

Where a rule imposes obligations on the public, proper publication helps ensure that affected persons receive reasonable notice of the applicable legal requirements.

However, publication should not be confused with a universal requirement of individual notice.

Publication of Local Bye-Laws

Local authorities may have power to make bye-laws.

The relevant statute may require these bye-laws to be:

• Published;
• Notified;
• Made available for objections;
• Confirmed by a specified authority; or
• Published in a prescribed manner.

Failure to comply with mandatory requirements may affect their validity.

Important Case: Harla v. State of Rajasthan (1951)

Harla v. State of Rajasthan is one of the most important Indian cases concerning promulgation and publication of law.

The Supreme Court considered a situation where a law had not been properly promulgated or published.

The Court emphasised the fundamental importance of making a law known through an appropriate process before it can be treated as binding.

The case is frequently cited for the principle that law must be promulgated or published so that the public can know of its existence.

Important Case: B.K. Srinivasan v. State of Karnataka (1987)

In B.K. Srinivasan v. State of Karnataka, the Supreme Court considered the publication of subordinate legislation and the requirements applicable to delegated legislation.

The Court recognised that where legislation prescribes a particular mode of publication, compliance with the statutory requirement is important.

Where no specific mode is prescribed, the court may consider whether there has been reasonable publication sufficient to make the law known.

Publication and Delegated Legislation: Key Distinction

Concept	Meaning
Prior publication	Publication of draft rules before finalisation
Final publication	Publication of rules after they are made
Official Gazette	Formal government publication used for statutory instruments
Commencement	Date on which the legislation begins to operate
Promulgation	Making the law known to the public
Parliamentary laying	Placing delegated legislation before Parliament

Publication vs Parliamentary Laying

These are separate requirements.

Publication

Its primary purpose is to make the delegated legislation available to the public.

Parliamentary Laying

Its purpose is to provide legislative scrutiny and control over delegated legislation.

A rule may therefore be required to satisfy both requirements.

Publication and Retrospective Legislation

Publication is particularly important where delegated legislation is intended to operate retrospectively.

The authority must have legal power to give the rule retrospective effect, and the rule must be properly promulgated according to the applicable statutory requirements.

Publication itself does not create a retrospective power that the delegate does not otherwise possess.

Publication and Judicial Review

Courts may examine whether delegated legislation has been properly published.

A challenge may concern:

• Failure to publish;
• Wrong mode of publication;
• Failure to comply with mandatory publication requirements;
• Failure to follow prior publication requirements; or
• Attempted enforcement before lawful publication or commencement.

Key Points for Exams

• Publication is an important procedural requirement for delegated legislation.
• It ensures that laws are made reasonably accessible to the public.
• The parent statute determines the applicable publication requirements.
• Official Gazette publication is a common method but is not universally required in every case.
• Prior publication involves publishing draft rules and inviting objections or suggestions.
• Prior publication and final publication are distinct.
• Section 23 of the General Clauses Act, 1897 deals with procedure concerning rules where previous publication is directed.
• Publication and commencement are different concepts.
• Failure to comply with a mandatory publication requirement may affect the validity or enforceability of delegated legislation.
• Harla v. State of Rajasthan (1951) is a leading case on promulgation and publication of law.
• B.K. Srinivasan v. State of Karnataka (1987) is important concerning publication of subordinate legislation.
• Publication is different from laying delegated legislation before Parliament.
• Proper publication supports the principles of rule of law, fairness and legal certainty.

Conclusion

Publication is an important safeguard in delegated legislation because legal rules affecting the public should be properly promulgated and made accessible in accordance with the law.

The exact consequences of non-publication depend upon the parent statute and the nature of the publication requirement. Where publication is mandatory, failure to follow the prescribed procedure can provide grounds for judicial challenge.

A delegated rule cannot ordinarily be enforced against the public through a process that ignores the legally prescribed requirements for its promulgation and publication.