Requirement of Previous Publication: Section 23 of the General Clauses Act, Consultation and Case Laws

Previous publication is publication of a rule in draft, before it is made, so that those whom it will affect may see it and object. It is the nearest thing Indian administrative law has to the notice-and-comment procedure of the American Administrative Procedure Act, and it exists because the principles of natural justice do not ordinarily apply to legislative action: a person has no general right to be heard before a rule is made, and where the legislature thinks that a hearing of some kind is desirable, it says so by subjecting the rule-making power to previous publication. Where it has done so, the procedure is not a formality. This topic sets out the statutory machinery in section 23 of the General Clauses Act, 1897, the consequences of non-compliance, and the related question of statutory consultation.

1. Why the Requirement Exists

Rule-making is a legislative function, and the courts have consistently held that the rules of natural justice do not attach to it: there is no right to notice and hearing before a general norm is laid down. That position was affirmed in Union of India v. Cynamide India Ltd., (1987) 2 SCC 720, where price fixation under a control order was characterised as legislative activity, so that no hearing was required of the persons affected. The consequence is that any opportunity to be heard in the rule-making process must come from the statute, and previous publication is the standard statutory device by which it is given.

The requirement serves three purposes: it brings the proposal to the notice of those who will be governed by it; it enables objections and suggestions to be made and considered, improving the quality of the rule; and it provides a check on the delegate, who must confront the consequences of the proposal before adopting it.

2. The Machinery: Section 23, General Clauses Act, 1897

Where an Act confers a rule-making power subject to the condition of previous publication, the procedure to be followed is supplied by section 23 of the General Clauses Act, 1897, unless the parent Act itself prescribes a different one.

Section 23, General Clauses Act, 1897: the steps in substance

(1) A draft of the proposed rules or bye-laws must be published for the information of persons likely to be affected by them. (2) The publication must be in the manner the authority making the rules deems sufficient, or, if the parent Act prescribes a manner, in that manner. (3) The publication must specify a date on or after which the draft will be taken into consideration. (4) The authority must consider any objection or suggestion received before that date from any person with respect to the draft. (5) The publication in the Official Gazette of a rule purporting to have been made in exercise of a power subject to previous publication is conclusive evidence that the rule has been duly made.

Several features of the section deserve notice. The obligation is to publish a draft, not the final rule, and the draft published must be of the rules eventually made; a rule materially different from the draft may not satisfy the requirement, because those affected will not have had the opportunity to object to what was actually enacted. The authority must fix and state a date after which the draft will be considered, and must allow the interval to run. The duty is to consider objections, not to accept them or to give reasons for rejecting them: previous publication confers a right to be heard in writing, not a right to prevail. And the conclusive evidence clause protects duly published rules from later challenge on the ground of procedural irregularity in their making, once they have been published in the Gazette as rules made under a power subject to previous publication.

3. Mandatory or Directory

Whether non-compliance with previous publication invalidates a rule is a question of construction of the particular statute. The courts have looked at the language used, the purpose of the requirement, and whether treating it as directory would defeat that purpose.

📖 Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra, (1975) 2 SCC 482

Facts: Under the Gujarat Agricultural Produce Markets Act, 1964, notifications declaring a market area and regulating produce were required to be published in the Official Gazette and in Gujarati in a newspaper circulating in the area. The appellant was prosecuted under section 36 read with section 8 for purchasing ginger without a licence. The Magistrate acquitted him because it was not shown that the notification bringing ginger within the regulation had been published as the Act required; the High Court convicted him.

Held: The Supreme Court restored the acquittal. The requirement of publication in Gujarati in a newspaper circulating in the area was held to be mandatory and not directory. Its evident purpose was to bring the notification to the notice of the agriculturists and traders of the locality, who could not be expected to read the Official Gazette, and to treat it as directory would defeat the very object for which the legislature prescribed it. The notification not having been shown to be so published, it could not support a conviction.

Ratio: A publication requirement designed to give actual notice to the class affected is mandatory, and non-compliance renders the notification ineffective. The purpose of the requirement, not the word used in the statute, decides the question.

The contrasting line of authority shows when the requirement, or a defect in complying with it, has been treated as not fatal. In Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849, the Supreme Court considered regulations made under mining legislation subject to previous publication and held that where the substance of the requirement has been complied with and the object of the provision achieved, a departure in point of form does not invalidate the regulations. The two positions are reconciled by asking what the requirement was for: where it exists to secure notice to those affected and they have not received it, non-compliance is fatal; where the object has substantially been met, a formal irregularity is not.

4. Previous Publication and Statutory Consultation

Previous publication is one of two devices by which statutes introduce participation into rule-making; the other is consultation with a named body or interest. A statute may require the rule-making authority to consult a board, a council, an expert committee, an affected industry or a State Government before making rules. The legal questions are parallel.

Is the consultation mandatory? Decided on the same reasoning as previous publication: where the consultee's views are integral to the statutory scheme, the requirement is mandatory and omission invalidates the rule; where consultation is an aid to good rule-making without being integral, a defect may be treated as directory.
What does consultation require? A genuine opportunity to express a view on a real proposal, with sufficient information and time; a formal reference after the decision is made is not consultation.
Is the authority bound by the views expressed? No, unless the statute says so. As with objections under previous publication, the duty is to consider, not to agree.
Is the absence of a hearing otherwise a ground of challenge? No. Apart from statutory previous publication or consultation, no hearing is required before legislative action (Cynamide India).

5. Previous Publication and Publication Compared

Basis	Previous publication	Publication
Stage	Before the rule is made; a draft is circulated	After the rule is made; the final rule is notified
Purpose	To invite objections and suggestions from those affected	To bring the completed rule to the knowledge of the public and to make it operative
Source of the obligation	The parent Act, where it makes the power subject to previous publication; procedure supplied by section 23, General Clauses Act, 1897	The parent Act, and, where it is silent, the general requirement of promulgation (Harla; B.K. Srinivasan)
Content of the duty	Publish a draft, state a date, consider objections received	Publish in the prescribed manner, or in the Official Gazette or another reasonable mode
Effect of non-compliance	Invalidates the rule where the requirement is mandatory (Govindlal); not where the object has substantially been met (Banwarilal Agarwalla)	The rule does not come into operation at all
Is a hearing required otherwise?	No; there is no general right to be heard before legislative action (Cynamide India)	Not applicable; the question is one of notice, not of hearing

⚠ The duty is to consider, not to comply with, the objections

Previous publication is often described as giving those affected a right to be heard before a rule is made. The description is accurate only in a limited sense. The right conferred is to see the draft, to object within the stated time, and to have the objection considered by the rule-making authority. There is no right to an oral hearing, no right to reasons for rejection of an objection, and no right to prevent the rule being made in the form proposed. The requirement improves rule-making and gives notice; it does not convert a legislative process into an adjudicative one.

6. The Position in Summary

Natural justice does not apply to rule-making, so any opportunity to participate must come from the statute; previous publication is the standard device (Cynamide India).
Where a power is made subject to previous publication, section 23 of the General Clauses Act, 1897 supplies the procedure: publish a draft, state a date for consideration, and consider objections received before that date.
Publication of the rule in the Gazette as one made under a power subject to previous publication is conclusive evidence that it was duly made.
Whether the requirement is mandatory depends on its purpose: a requirement designed to give actual notice to the class affected is mandatory (Govindlal), while substantial compliance may suffice where the object has been achieved (Banwarilal Agarwalla).
Statutory consultation raises parallel questions, and in both cases the duty of the rule-making authority is to consider the views expressed, not to accept them.

7. Related Topics and Provisions

Publication of Delegated Legislation (Topic 38): publication of the completed rule and the consequences of its absence.
Laying of Rules Before Legislature (Topic 40): the control that operates after the rule is made.
Administrative Action: Meaning and Classification (Topic 15): why legislative action attracts no hearing.
Principles of Natural Justice: the doctrine whose non-application to rule-making creates the need for this statutory procedure.
Control of Delegated Legislation: the procedural controls taken as a whole.
Statutes: section 23, General Clauses Act, 1897; Constitution of India, Articles 14 and 21.