Subordinate Legislation Operates Only from the Date of Official Gazette Publication

Source: Supreme Court

Why in News? 

The bench of Justices PS Narasimha and Alok Aradhe in the case of VIRAJ IMPEX PVT. LTD. v. Union of India & Anr. (2025) ruled that subordinate legislation does not become binding unless it is published in the Official Gazette, and it is the date of such Gazette publication, not the mere date of issuance of the notification, which renders it binding.

What was the Background of VIRAJ IMPEX PVT. LTD. v. Union of India & Anr. (2025) Case? 

• The appellants were steel importers who had entered into contracts with foreign suppliers between 29 January 2016 and 4 February 2016. 
• The appellants opened irrevocable Letters of Credit (LCs) on 5 February 2016. 
• On the same day (5 February 2016), the Directorate General of Foreign Trade (DGFT) uploaded a Minimum Import Price (MIP) notification on its website, bearing the endorsement "To be published in the Official Gazette." 
• The notification was eventually published in the Gazette of India on 11 February 2016. 
• Paragraph 2 of the notification provided exemption to imports under irrevocable LCs opened before "the date of this notification," subject to Para 1.05(b) of the Foreign Trade Policy (FTP). 
• Para 1.05(b) of the FTP protects contracts concluded before the imposition of any new restriction. 
• The authorities treated 5 February 2016 (the date of website upload) as the "date of notification" and denied exemption to the appellants. 
• The authorities contended that since the LCs were opened on the same day as the website upload, they did not qualify for protection under the exemption provision. 
• The Delhi High Court upheld the Respondent authority's decision to deny the appellants exemption from the Minimum Import Price (MIP). 
• Aggrieved by the Delhi High Court's decision, the steel importers moved to the Supreme Court.

What were the Court's Observations? 

• The Court observed that "Once the legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it." 
• The bench emphasized that "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." 
• The Court stated that "To hold otherwise, would permit unpublished delegated legislation to burden citizens, a proposition expressly rejected by this Court in long line of decisions." 
• The Court explained that delegated legislation, unlike plenary legislation enacted by the Parliament, is framed in the executive chambers without open legislative debate. 
• The Court noted that the requirement of publication in the Gazette serves a dual constitutional purpose: (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 bench emphasized that "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." 
• The Court noted that it has been settled in a long line of precedents that "the true test of the effective commencement of a statutory order or subordinate legislation is whether it has been published in a manner reasonably calculated to bring it to the notice of all persons who may be affected by it." 
• The bench clarified that "The expression 'date of this Notification' must necessarily mean the date of such publication." 
• Since the appellants had invoked the letter of credit before the date of publication (11 February 2016), the Court found there was no reason for the Respondent authorities to deny them the benefit of the exemption under the FTP. 
• The Court observed that "The appellants having opened irrevocable Letters of Credit prior to 11.02.2016 and having complied with procedural requirements under para 1.05(b) of the FTP are clearly entitled to the benefit of transitional provision contained therein." 
• The Supreme Court set aside the Delhi High Court's decision and allowed the appeal, entitling the appellants to the protection under the FTP. 

What is Subordinate Legislation? 

Definition and Nature: 

• Subordinate legislation is the legislation made by an authority subordinate to the legislature, proceeding from any authority other than the sovereign power and dependent for its continued existence and validity on some superior or supreme authority. 
• Most enactments provide powers for making rules, regulations, bye-laws or other statutory instruments which are exercised by specified subordinate authorities within the framework of powers delegated by the legislature. 
• Subordinate legislation is also known as delegated legislation and includes rules, regulations, bye-laws, schemes, and other statutory instruments. 
• 'Subordinateness' in subordinate legislation refers not merely to the level of the authority making it but also to the nature of the legislation itself. 
• Delegated legislation under such delegated powers is ancillary and cannot, by its very nature, replace or modify the parent law nor can it lay down details akin to substantive law. 

Necessity for Subordinate Legislation: 

• Modern socio-economic legislations passed by the legislature lay down guiding principles and legislative policy, but legislatures, because of time limitations, hardly go into matters of detail. 
• Provision is made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation in a modern welfare state. 
• In modern times, law-making has become increasingly complicated and technical, making it impossible for legislatures to make laws providing every detail. 
• The legislature lays down the policy and purpose of legislation and leaves it to the executive, experts and technocrats to provide working details within the framework of the enactment. 
• Delegated legislation is increasingly assuming an important role in the process of law-making, comprising an important component of legislation. 
• Powers have been conferred under various provisions of the Constitution of India on different functionaries to frame rules, regulations or schemes dealing with various aspects. 

Control of Legislature on Delegated Legislation: 

• While subordinate legislation has become an important constituent element of legislation, it is equally important to reconcile this process with democratic principles and parliamentary control. 
• Legislation is an inherent and inalienable right of Parliament and it must be ensured that this power is not usurped nor transgressed under the guise of subordinate legislation. 
• The most important mechanism evolved by the legislature to exercise control over delegated legislation is the constitution of the Committee on Subordinate Legislation. 
• The Committee examines if powers conferred by the Constitution or delegated under an Act have been duly exercised and are within the conferment or delegation, and not beyond. 
• The Committee ensures that delegated legislation does not transgress into areas not prescribed for it and does not intrude into the sphere which is the sole concern of the legislature itself. 
• There are instances where pieces of subordinate legislation which tended to replace or modify provisions of the basic law or attempted to lay down new law by themselves had been struck down as ultra vires.