Is Gazette Publication Mandatory for Enforcing Subordinate Legislation?

In a constitutional democracy governed by the rule of law, the enforceability of subordinate legislation depends not only on the authority under which it is made but also on the manner in which it is brought into existence. Executive notifications, rules, and orders can impose serious civil and economic consequences, yet their legitimacy hinges on proper promulgation in accordance with statutory requirements. The Supreme Court’s 2026 decision in Viraj Impex Pvt. Ltd. v. Union of India & Anr. reaffirms a settled but often contested principle: subordinate legislation acquires binding legal force only upon its publication in the Official Gazette, and not through website uploads or informal executive dissemination.

Subordinate Legislation: Meaning and Nature

Subordinate or delegated legislation refers to rules, regulations, notifications, orders, schemes, or bye-laws made by the executive or statutory authorities under powers delegated by Parliament or State Legislatures.

Unlike plenary legislation:

• It is not enacted after open legislative debate.
• It is framed within executive chambers.
• It often directly affects commercial, civil, and personal rights.

Because of these features, courts have consistently subjected delegated legislation to stricter procedural scrutiny, especially concerning publication and notice.

Factual Background

A. Parties Involved

The appellants, Viraj Impex Pvt. Ltd. and connected entities, are private limited companies engaged in the import and trading of steel products such as Hot Rolled Coils, Cold Rolled Coils, and steel plates. The respondents were the Union of India and its authorities under the Ministry of Commerce and Industry.

B. Import Regime Prior to Dispute

Before February 2016, the steel products imported by the appellants were freely importable under Chapter 72 of the Indian Trade Classification (Harmonised System), 2012, governed by the Foreign Trade Policy (FTP) 2015–2020.

C. Commercial Commitments by Importers

Between 29 January and 4 February 2016, the appellants entered into firm contracts with foreign suppliers from China and South Korea. On 5 February 2016, they opened irrevocable Letters of Credit (LCs) in favour of those suppliers.

D. Government Notification on Minimum Import Price (MIP)

On 5 February 2016, the Directorate General of Foreign Trade (DGFT) uploaded Notification No. 38/2015–20 on its website, introducing a Minimum Import Price (MIP) regime for certain steel products. Crucially, the uploaded document itself stated:

“To be published in the Official Gazette of India.”

The notification was actually published in the Official Gazette only on 11 February 2016.

E. Transitional Protection Claimed

Anticipating restrictions, the appellants applied on 8 February 2016 for registration of their Letters of Credit under Paragraph 1.05(b) of the FTP, which grants protection to pre-existing contractual obligations when new trade restrictions are imposed.

Procedural History

The appellants challenged the notification before the Delhi High Court, contending that:

1. The notification could not be enforced before 11 February 2016, the date of Gazette publication.
2. Imports backed by Letters of Credit opened before that date were entitled to transitional protection.

The Delhi High Court held that although the notification became effective on 11 February 2016, uploading it on the DGFT website on 5 February 2016 amounted to sufficient notice. It further held that the notification was not delegated legislation and dismissed the writ petitions.

Aggrieved, the appellants approached the Supreme Court.

Arguments of the Parties

A. Appellants’ Submissions

The appellants contended that:

1. Law must be published to exist; until 11 February 2016, the notification was non est in law.
2. The phrase “date of this notification” must mean the date of Gazette publication, not the date of website upload.
3. Paragraph 1.05(b) of the FTP was incorporated into the notification and entitled them to protection.
4. Website publication cannot impose legal burdens absent Gazette publication.
5. Reliance was placed on precedents such as B.K. Srinivasan v. State of Karnataka and Harla v. State of Rajasthan.

B. Respondents’ Submissions

The Union of India argued that:

1. Although the notification came into force on 11 February 2016, the cut-off date for the transitional benefit could be 5 February 2016.
2. Website upload constituted sufficient notice to importers.
3. In case of conflict, a statutory notification prevails over policy.
4. The notification was administrative in nature and not delegated legislation.

Supreme Court’s Analysis

A. Nature of Subordinate Legislation

The Court decisively held that the notification was delegated legislation, issued under statutory authority, affecting the rights and obligations of citizens. It rejected the High Court’s view to the contrary.

The Court emphasised that delegated legislation is framed without parliamentary debate and, therefore, strict procedural safeguards such as Gazette publication are constitutionally essential.

B. Gazette Publication as a Condition Precedent

The Court reaffirmed a long-settled principle:

A law cannot bind unless it is made known in the manner prescribed by the legislature.

Citing Harla v. State of Rajasthan and B.K. Srinivasan v. State of Karnataka, the Court held that publication is not a mere formality but the act that transforms executive intent into enforceable law.

Where the parent statute mandates publication in the Official Gazette, no alternative mode of communication can substitute it.

C. Website Upload Is Not Lawful Promulgation

The Court categorically rejected the argument that uploading a notification on a government website amounts to promulgation. It held that:

• Website upload may serve administrative convenience.
• It cannot override statutory requirements.
• Accepting such a proposition would allow unpublished laws to burden citizens, undermining the rule of law.

The Court noted that the notification itself admitted incompleteness by stating “to be published in the Gazette,” confirming that it had not yet acquired legal force.

D. Interpretation of “Date of This Notification”

The Court held that the expression “date of this notification” can only mean the date of its Gazette publication, i.e., 11 February 2016.

Any other interpretation would result in a notification operating in a fragmented manner, which is impermissible in law.

E. Transitional Protection Under FTP

Since the appellants opened irrevocable Letters of Credit before 11 February 2016 and complied with the registration requirements, they were held to be entitled to the benefit of Paragraph 1.05(b) of the FTP.

Denying such protection would:

• Defeat the plain language of the policy.
• Undermine commercial certainty.
• Offend the rule of law by imposing retrospective trade burdens.

Key Highlight

Justice Pamidighantam Sri Narasimha and Justice Alok Aradhe held:

“Law, to bind, must first exist. And to exist, it must be made known in the manner ordained by the legislature. 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, therefore, serves a dual constitutional purpose i.e. (a) it ensures accessibility and notice to those governed by the law, and (b) 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.”

Final Holding

The Supreme Court held that:

1. A notification issued under Section 3 of the FTDR Act acquires legal force only upon publication in the Official Gazette.
2. The expression “date of this notification” necessarily refers to the date of Gazette publication.
3. Website publication cannot substitute Gazette notification.
4. The appellants were entitled to transitional protection.
5. The Delhi High Court judgment was set aside.

The appeals were allowed without costs.

Conclusion

The Supreme Court has decisively affirmed that Gazette publication is an indispensable constitutional requirement for the enforceability of subordinate legislation, as delegated law cannot bind citizens unless it is formally promulgated in the manner mandated by the parent statute. Mere website upload or administrative circulation cannot substitute official publication. Any contrary approach would undermine legal certainty, commercial confidence, and the rule of law.

The judgment reinforces that executive intent matures into binding law only upon Gazette notification, ensuring transparency, accountability, and fairness in the exercise of delegated legislative power.

Important Link

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