Notification of an Act in the Official Gazette- A Prerequisite
Notification in the legal terminology refers to a publication in the official gazette, the legal newspaper of a country that publishes the text of new laws, decrees, regulations, treaties, legal notices and court decisions. Most of the acts contain a clause that necessitates its notification in the official gazette by an organ of the government without which, the act cannot come into force. The following article aims to scrutinise the clause, its constitutional validity and the consequences and possible course of action in the event of the failure to notify such an act.
It also looks at section 243 of the IBC, a classic instance of the same and analyses its possible aftermath.
Section 5 of the General Clauses Act
Section 5 of the General Clauses Act states that
- Where a central act is not expressed to come into operation of a particular day, it shall come into force on the day it receives the assent of the
- Governor General in the case of an act made before the commencement of the constitution.
- President in the case of an act before the act of the parliament.
- Unless contrary expressed, an act would come into operation immediately on the expiration of the day preceding its commencement.
Section 5 is only applicable when the act, in any of its provisions, does not expressly provide for a date of commencement. The words ‘unless the contrary is expressed’ in section 5(3) simply mean that only when such an express provision is not stated will the act come into force on the date it received presidential assent. In such cases, the act is said to be enacted on the night immediately before it receives the assent of the president.
Constitutional Validity of Delegating Legislative Functions
The practice of upholding the constitutional validity of provisions delegating legislative functions dates back to Privy Council Decisions. Post independence, in the case of Re Delhi Laws Act (1951), The judges unanimously accepted these decisions, permitting conditional legislation by the legislature to an outside agency.
As held by a ratio of 3:2 in the case of AK Roy, provisions necessitating the publication of such an act in the official gazette is neither contradictory to, nor ultra vires to the constitution of India. Such provisions merely regulate the manner in which the act or provisions are brought into force. There is no harm in the constitutional body itself appointing a specific date on which the act comes into force. The law making agency does not lose its power by empowering or conferring upon another organ of the State such as the executive to bring a legislation into force.
Whether publication in the gazette is mandatory?
Acts containing a provision empowering the state government to appoint a date to notify the same in the official gazette cannot come into force unless the same is complied with. Further, as long as the acts do not contemplate different dates of its commencement, the obvious intention of the legislature is to let the State Government appoint the date of the same. This principle is not unique to India; It can be seen in the legal practices of England as well as France where ‘promulgation’ or reasonably and publicly enacting an act to make it known to the public is an important aspect of enforcing an act. Similarly, it was also held in Atar Singh v. State of Allahabad that though the Arms Act was passed by the parliament and received the assent of the president, it did not become a law until its notification was issued and published in the official gazette. This stance was reiterated while deciding the date of enforcement of the Arbitration and Conciliation Act, Karnataka Industrial Areas Development Act and Nagaland Work-Charged and Casual Employees Regulation Act, 2001.
Therefore, publication of such notifications in the official gazette is mandatory and such acts come into force only from such date of notification in the gazette.
Whether a writ of Mandamus directing the government to notify a statute can be issued?
It was held in the case of A.K. Roy that such provisions leave the question of the time within which such provisions should be brought into force to the unfettered judgement of the body entrusted to do so and hence, it was not for the court to cue the Central Government to act in a particular manner upon a matter that was left entirely to its discretion. An order of mandamus on the ground that the government has failed to act would create an anomaly in the sense that it would be equally permissible that the time was not yet ripe for notifying such an act. Unless the parliament lays down an objective standard or test directing the central government to act in a prescribed time limit, it is impossible for the judiciary to examine the cause of inaction.
However, in the case of Aeltemesh Rein v. Union of India, it was held that while it may not be open to the court to issue a writ of mandamus compelling the central government to bring a statutory provision into force, issuing a mandamus directing the government to consider whether the time for bringing an act into force is not hinged upon. Considering the fact that more than two decades had passed since the act had received president’s assent, a writ of mandamus was issued to the Central Government to consider within a period of six months whether the act should be brought into force or not.
Be that as it may, if the executive intent behind delaying the notification of such an act is based on bonafide considerations and delays, neither a mandamus to bring the act into force nor a mandamus to prescribe a time limit for the same can be issued.
Notification of Insolvency and Bankruptcy Code
Section 243 of the Insolvency and Bankruptcy code in its clause 1 states that the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 are hereby repealed. Its sub-section 2 begins with a non-obstante clause, stating that all proceedings pending under the two acts immediately before the commencement of the shall continue to be governed by those acts. Similarly, any order, rule, notification, regulation, appointment, conveyance, mortgage, deed, document or agreement made, fee directed, resolution passed, direction given, proceeding taken, instrument executed or issued, or thing done under or in pursuance of any repealed enactment shall, if in force at the commencement of this Code, continue to be in force, and shall have effect as if the aforementioned Acts have not been repealed.
However, this particular section of the IBC has not been notified in the official gazette yet; therefore, the Ministry of Finance advised stakeholders to pursue their insolvency cases under existing laws rather than approaching debt-recovery tribunals. Sub section 2 of the act makes it very clear that pending proceedings under the acts repealed will be continued in accordance with the same provision. The non obstante clause in section 243 would mean that once notified, this code would override these acts. This might be one reason why the section has not been notified yet.
The concluding and prevailing position of law therefore, is that if there is any initiation of proceedings under the IBC, it would effectively put the pending proceedings as well under the ambit of IBC. These proceedings will then not be governed under the Presidency Towns Insolvency Act, 1909 and Provincial Insolvency Act 1920.
From a thorough reading of the cases listed above, it can be concluded that clauses necessitating the publication of the notification in the official gazette are constitutionally valid and need to be complied with. Further, as long as the executive government does not unreasonably delay the publication of the same without any well-founded reasons, writ of mandamus cannot be issued. However, if the delay is unreasonable, the court can issue a writ of mandamus directing the executive organ to decide a time limit within which such an act must be notified.
Written by – Jhanvi Shah