Procedural Control over Delegated Legislation: Consultation, Previous Publication, Publication and Mandatory or Directory

Procedural control is the third of the controls on delegated legislation, standing beside legislative and judicial control. It works not by questioning the content of a rule but by prescribing the steps that must be taken in making it: whom the rule-maker must consult, what must be published in draft and when, what objections must be considered, and how the finished rule must be notified. The steps are worth taking for their own sake, because they improve the rule and give notice to those bound by it. They matter legally because non-compliance with a step the statute makes essential renders the rule ineffective. This topic gathers the elements of procedural control, and then addresses the question that decides most litigation in this area: when is a prescribed procedure mandatory and when is it directory?

1. The Basis of Procedural Control

Procedural control is almost entirely statutory. The principles of natural justice do not attach to rule-making, because rule-making is legislative in character: there is no general right to notice or hearing before a general norm is laid down, as Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 confirms in holding price fixation to be legislative activity. Whatever participation exists in the Indian rule-making process therefore comes from the parent Act, supplemented by section 23 of the General Clauses Act, 1897 where a power is made subject to previous publication.

There is one element of procedural control that is not statutory. Publication of the completed rule is required by general principle, because a law that has not been promulgated cannot bind, as Harla v. State of Rajasthan, AIR 1951 SC 467 held and B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 restated. Where the parent Act prescribes no mode, publication must still be effected through the Official Gazette or another reasonable mode.

2. The Elements of Procedural Control

Element	What it requires	Source
Consultation with a named body	Reference of the proposal to a board, council, expert committee or State Government, with a genuine opportunity to express views	The parent Act
Consultation with affected interests	Reference to the industry, trade or class to be regulated, individually or through representative bodies	The parent Act
Previous publication	Publication of a draft, statement of a date for consideration, and consideration of objections received	The parent Act, with the procedure supplied by section 23, General Clauses Act, 1897
Official drafting and approval	Preparation or vetting of the draft by the law department, and approval by the competent authority	Rules of business and departmental practice
Publication of the rule	Notification in the Official Gazette, or in the mode the Act prescribes, before the rule operates	The parent Act and the general requirement of promulgation
Laying before the legislature	Placing the instrument before the House in the form the Act prescribes	The parent Act

The first three elements operate before the rule is made and are directed at the quality of the rule and at participation; the last two operate after it is made and are directed at notice and at supervision. Publication straddles the two, since it is both the final step of making and the first condition of operation.

3. Consultation

Statutory consultation takes several forms: consultation with an expert or advisory body whose composition the Act prescribes; with a body representing the interests affected; with another government or authority whose functions the rule touches; and, in the wider sense, consultation with the public through previous publication. Four propositions govern its legal effect.

Consultation must be genuine. The consultee must receive the proposal in a form on which a view can be expressed, with sufficient information and adequate time. A reference made after the decision has been taken, or a communication that does not disclose what is proposed, is not consultation.
The authority is not bound by the advice. Unless the statute says that the rule shall be made 'in accordance with' the advice, or with the concurrence of the consultee, the duty is to consider the views expressed and then to decide.
The requirement may be mandatory. Where the consultee's participation is integral to the statutory scheme, omission invalidates the rule; where consultation is an aid to good rule-making without being integral, a defect may be treated as directory.
Consultation cannot be delegated away. The authority on which the duty lies must itself consider what the consultation produces, consistently with the ordinary requirement of application of mind.

4. Mandatory or Directory: The Governing Test

Nearly every dispute about procedural control reduces to one question: does failure to take the prescribed step invalidate the rule? The Indian courts answer it by construing the provision, and the leading statement of the approach is a decision on publication of a municipal tax proposal.

📖 Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895

Facts: Section 131(3) of the U.P. Municipalities Act, 1916 required a municipal board proposing to impose a tax to publish its proposals and draft rules in the manner prescribed in section 94(3), which required publication in a local Hindi newspaper. The Board published its proposals in an Urdu newspaper instead. A water tax imposed after that publication was challenged on the ground that the procedure had not been followed.

Held: A Constitution Bench held the requirement of publication itself to be mandatory, but the requirement as to the manner of publication, that is, publication in a Hindi newspaper, to be directory, so that publication in another newspaper circulating locally amounted to substantial compliance and the tax was validly imposed. The Court laid down the approach to the question: the distinction between a mandatory and a directory provision is not determined by the use of the words 'shall' or 'may', but by considering the purpose for which the provision was enacted, the object of the statute, and the consequences that would follow from holding it one way or the other. The purpose of the provision was to give notice to the ratepayers, and that purpose had been served.

Ratio: The leading Indian statement of the mandatory or directory test in procedural control. The substance of a procedural requirement, where it exists to protect those affected, is mandatory; the form or manner in which it is carried out may be directory where the object has in fact been achieved.

The approach in Raza Buland Sugar explains the apparent divergence in the later cases. In Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra, (1975) 2 SCC 482, the requirement of publication in Gujarati in a local newspaper was held mandatory, because the persons affected were local agriculturists and traders who could not be expected to read the Official Gazette, so that treating it as directory would defeat its object and, on the facts, they had received no notice at all. In Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849, a departure in point of form from the previous publication procedure did not invalidate regulations where the substance had been complied with and the object achieved. The cases are consistent: the question in each is whether the purpose of the requirement was served.

5. The Indicators

Points towards mandatory	Points towards directory
The step exists to give notice to the persons the rule will govern, and they did not receive it	The step is formal or record-keeping in character
The statute attaches a consequence to non-compliance	The statute prescribes no consequence and fixes no period
The step is a condition precedent to the making or operation of the rule	The step is to be taken after the rule is made
The rule creates an offence, a penalty or a liability	The substance of the requirement has been complied with and its object achieved
Treating it as directory would defeat the purpose of the provision	Treating it as mandatory would disturb settled transactions without corresponding benefit

⚠ Substance and manner are separated

The most useful lesson of Raza Buland Sugar is that a single procedural provision can be mandatory in one respect and directory in another. The requirement that proposals be published was mandatory, because without publication the ratepayers would know nothing; the requirement that publication be in a Hindi newspaper was directory, because publication in another local newspaper achieved the same object. A challenge based on a procedural defect therefore has to identify which aspect was not complied with, and whether the object of that aspect was nonetheless served.

6. The Three Controls Compared

Control	What it examines	Sanction
Legislative	Whether the delegate has used the power as the legislature intended	Modification or annulment where the laying clause permits; committee reports; amendment or withdrawal of the power
Procedural	Whether the steps prescribed for making the rule were taken	The rule is ineffective where a mandatory step was omitted
Judicial	Whether the rule is within the parent Act and the Constitution	The rule is struck down as ultra vires, or the enabling provision as excessive delegation

Procedural control occupies a middle position. Unlike legislative control, it carries a legal sanction, because a rule made without a mandatory step does not operate. Unlike judicial control, it says nothing about the content of the rule: a rule made with perfect procedure may still be ultra vires, and a rule of unimpeachable content may fail for want of publication. In practice the two are enforced by the same forum, since it is the courts that decide whether a procedural requirement was mandatory and whether it was complied with.

7. The Position in Summary

Procedural control prescribes the steps to be taken in making a rule: consultation, previous publication, publication of the finished rule and laying before the legislature.
It is almost entirely statutory, because natural justice does not apply to rule-making (Cynamide India); the exception is publication, required by general principle so that a law may be knowable (Harla; B.K. Srinivasan).
Consultation must be genuine and must be considered, but the rule-making authority is not bound by the views expressed unless the statute so provides.
Whether a procedural requirement is mandatory is decided by its purpose, the object of the statute and the consequences of either view, and not by the words 'shall' or 'may' (Raza Buland Sugar).
A requirement designed to give notice to those affected is mandatory where they did not receive it (Govindlal), while a departure in form may not invalidate where the object has been achieved (Banwarilal Agarwalla).

8. Related Topics and Provisions

Publication of Delegated Legislation (Topic 38) and Requirement of Previous Publication (Topic 39): the two publication controls in detail.
Laying of Rules Before Legislature (Topic 40) and Simple, Negative and Affirmative Procedures (Topic 41): the post-making procedural step.
Legislative Control over Delegated Legislation (Topic 42): the companion control and its limits.
Judicial Control of Delegated Legislation: the ultra vires jurisdiction that tests the content of rules.
Principles of Natural Justice: the doctrine whose non-application to rule-making makes statutory procedure necessary.
Statutes: section 23, General Clauses Act, 1897; Constitution of India, Articles 14 and 21.