Publication Of Promulgation Is Indispensable To Enforceability Of Subordinate Legislation: Supreme Court

The Apex Court was considering an appeal filed against the judgment of the Delhi High Court dismissing the challenge laid by the appellants to a Notification issued by the Central Government imposing a Minimum Import Price on certain steel products.

The Division Bench of Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe held, “Delegated legislation is an instrument to give effect to the policy and purpose of the parent statute. It, therefore, has to be construed in the manner that advances the object of the Act, namely to regulate foreign trade through transparent, predictable and legally certain measures. Tested on the aforesaid legal principles, coupled with requirement of publication in the Official Gazette, contained in parent statute, it is manifest that the Notification could not have acquired the force of law prior to its publication in the Official Gazette on 11.02.2016. Indeed, the Notification itself acknowledges its incompleteness by declaring that it is ‘to be published in the Gazette of India’.”

“Once the legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it. A Notification cannot operate in a fragmented manner. In law, it is born only upon publication in the Official Gazette, and it is from that date alone that rights may be curtailed or obligations imposed. To hold otherwise, would permit unpublished delegated legislation to burden citizens, a proposition expressly rejected by this Court in long line of decisions referred to supra”, it added.

Factual Background

The appellants are private limited companies engaged in the import and trading of mild steel items such as Hot Rolled Coils, Cold Rolled Coils, Hot Rolled Steel Plates and Pre-Painted Steel Coils, etc. Admittedly, before February 2016, the said items were freely importable and fell under Chapter -72 of the Indian Trade Clarification (Harmonized System), 2012 (ITC-HS), Schedule-I of the Foreign Trade Policy, 2015-2020 (FTP). Between January 29, 2016 and February 4, 2016, the appellants entered into firm sale contracts with exporters from China and South Korea. The appellants opened irrevocable letters of credit in favour of foreign suppliers. On the same date, i.e., February 5, 2016, the Directorate General of Foreign Trade (DGFT) uploaded a Notification on its website, introducing a Minimum Import Price (MIP) for specified steel products.Anticipating restriction, the appellants, on February 8, 2016, applied for registration of their Letters of Credit under transitional protection contemplated by para 1.05(b) of the FTP.

The appellants approached the High Court, contending that the Notification, having been published in the Official Gazette on February 11, 2016, could not be applied to imports covered by Letters of Credit opened earlier. The appellants sought relief to quash the Notification, and a declaration was sought that the Notification does not apply to Letters of Credit opened by the appellants before publication of the Notification in the Official Gazette. The High Court, by a Common Order, though held that the Notification would operate from February 11, 2016, i.e., the date of its publication, yet it held that the uploading of the Notification on February 5, 2016, constituted sufficient notice to bind importers whose letters of credit were not opened before February 5, 2016. The High Court further held that the Notification is not an act of delegated legislation. Accordingly, the writ petitions were dismissed. Aggrieved thereby, the appellants approached the High Court.

Reasoning

The Bench explained that delegated legislation, unlike plenary legislation enacted by the Parliament, is framed in the executive chambers without open legislative debate. The requirement of publication in the Gazette serves a dual constitutional purpose as it ensures accessibility and notice to those governed by the law, and it ensures accountability and solemnity in the exercise of delegated legislative power. “The requirement of publication in the Gazette, is therefore not an empty formality. It is an act by which an executive decision is transformed into law. It is precisely for this reason that courts have consistently insisted that strict compliance with the publication requirements is a condition precedent for the enforceability of delegated legislation”, it added.

The Bench noted that Paragraph 2 of the Notification dated February 5, 2016, provides that imports/shipments under Letter of Credit already entered into before the date of this Notification shall be exempt from MIP condition subject to para 1.05(b) of the FTP. The Bench noted that the Notification incorporated 1.05(b) of the FTP, which provides that in case an export or import i.e. permitted freely under FTP is subsequently subjected to any restriction or regulation, such export or import will ordinarily be permitted, notwithstanding such a restriction or regulation, otherwise stipulated. “We do not, therefore, find any force in the submission that para 1.05(b) of the FTP has either no relevance or the same is in conflict with the Notification”, it added.

The Bench was of the view that the benefit of the transitional provision contained in para 1.05(b) of the FTP could not be denied to the appellants, as the same would defeat the plain language of the FTP and would undermine the object of the parent Act. “The imposition of fiscal or trade burdens on the basis of an unpublished Notification would erode commercial confidence and offend the Rule of Law, the result which the court must steadfastly guard against”, the order read.

Considering that the Notification became operative only on February 11, 2016, the Bench held that the expression ‘date of this Notification’ occurring in para 2 must necessarily be construed to mean the date of its publication in the Official Gazette. The Bench clarified that the appellants, having opened irrevocable Letters of Credit prior to February 11 and having complied with procedural requirements under para 1.05(b) of the FTP, were entitled to the benefit of the transitional provision contained therein. “The MIP introduced by the Notification with effect from 11.02.2016 cannot be applied to imports effected by the appellants pursuant to irrevocable Letters of Credit prior to 11.02.2016”, it stated.

Allowing the appeals and holding the appellants entitled to the protection of para 1.05(b) of the FTP, the Bench concluded, “We accordingly hold that the Notification issued under Section 3 of the Act acquires the force of law only upon its publication in the Official Gazette. The expression ‘date of this Notification’ must necessarily mean the date of such publication.”

Cause Title: Viraj Impex Pvt. Ltd. v. Union of India (Neutral Citation: 2026 INSC 80)

Click here to read/download Judgment