Notification of an Act in the Official Gazette- A Prerequisite

 

Introduction

The publication of legislative enactments in the official gazette represents a fundamental aspect of India’s legal system, serving as the bridge between legislative intent and actual enforceability. The official gazette, which functions as the legal newspaper of the nation, publishes comprehensive texts of new laws, executive decrees, regulatory frameworks, international treaties, legal notices, and judicial pronouncements. This mechanism ensures that citizens have proper notice of the laws that govern them, embodying the principle that law must be public and accessible. Many parliamentary acts contain specific provisions requiring their notification in the official gazette before they can acquire legal force. This requirement raises important questions about the separation of powers, the extent of legislative delegation to the executive, and the remedies available when such notification is unreasonably delayed or withheld.

The intersection of legislative power and executive discretion becomes particularly significant when an act passed by Parliament and assented to by the President remains unenforceable due to lack of gazette notification. This situation creates a legal vacuum where the democratic will expressed through legislation cannot be implemented, yet the executive retains discretion over timing. The tension between these constitutional imperatives has generated substantial jurisprudence examining the boundaries of executive discretion and judicial oversight. This article examines the constitutional framework governing gazette notification, analyzes relevant judicial precedents, and explores the specific case of Section 243 of the Insolvency and Bankruptcy Code, which remains unnotified despite the Code’s enactment in 2016.

The General Clauses Act and Commencement of Legislation

Section 5 of the General Clauses Act, 1897 establishes the default rule for when central legislation comes into operation. [1] This provision states that where a central act does not expressly specify a particular day for commencement, it shall come into force on the day it receives the assent of the appropriate authority. For acts made before the Constitution’s commencement, this authority was the Governor General, while for acts of Parliament after constitutional commencement, it is the President of India. The section further clarifies that unless contrary intention is expressed, an act comes into operation immediately on the expiration of the day preceding its commencement, meaning it is deemed enacted at midnight before the date of assent.

However, Section 5 operates only as a residuary provision. Its application is specifically excluded when the act itself contains express provisions regarding the date of commencement. The phrase “unless the contrary is expressed” within the section creates this exception, making the General Clauses Act’s default rule inapplicable when the legislation itself prescribes a different mechanism for commencement. This express provision typically takes the form of a clause empowering the Central Government or appropriate State Government to appoint a date for the act’s commencement through notification in the official gazette. When such a provision exists, the legislative intent is clear that the act shall not automatically come into force upon presidential assent, but rather shall await executive action through gazette notification. This arrangement reflects the practical reality that immediate implementation of complex legislation may not always be feasible or desirable, necessitating time for administrative preparation, rule-making, and establishment of implementing machinery.

Constitutional Validity of Legislative Delegation

The constitutional permissibility of delegating the power to appoint commencement dates has been examined extensively by Indian courts, building upon principles established even during the British colonial period. The Privy Council, which served as the highest appellate court for India before independence, upheld the validity of conditional legislation whereby the legislature could delegate certain functions to external agencies. This jurisprudential foundation was affirmed and expanded following independence, establishing that such delegation does not violate constitutional principles when properly structured.

In the landmark case of Re Delhi Laws Act, decided in 1951, the Supreme Court of India comprehensively addressed the doctrine of legislative delegation. [2] The judges unanimously accepted that the legislature could validly permit conditional legislation by delegating certain functions to agencies outside the legislative body itself. This acceptance recognized that modern governance requires flexibility and that legislatures cannot always prescribe every detail of implementation. The court distinguished between essential legislative functions, which cannot be delegated, and ancillary or supplementary functions, which may be delegated without constitutional infirmity. The power to determine when a law comes into force was recognized as falling within the permissible sphere of delegation.

The constitutional validity of provisions requiring gazette notification was definitively addressed in the case of A.K. Roy versus Union of India, decided in 1982. [3] The Supreme Court held by a majority of three to two that provisions necessitating publication of an act in the official gazette are neither contradictory to nor ultra vires the Constitution of India. The majority opinion emphasized that such provisions merely regulate the manner and timing in which the act or its provisions are brought into force. The court reasoned that there is no constitutional prohibition against the lawmaking body itself appointing a specific date for an act’s commencement, and consequently, no prohibition against delegating this function to another organ of the State, such as the executive. The legislative authority does not surrender or lose its lawmaking power by empowering the executive to bring legislation into force. Rather, this arrangement represents a practical division of functions between legislation and implementation, with each branch of government performing its appropriate role within the constitutional framework.

Mandatory Requirement of Publication in the Official Gazette

The question of whether gazette publication is truly mandatory when required by statute has been consistently resolved in favor of mandatory compliance. Acts containing provisions that empower the State Government or Central Government to appoint a date through notification in the official gazette cannot legally come into force until such notification is actually published. The legislative intent behind such provisions is clear: the act shall remain dormant until the executive takes affirmative action to activate it through proper publication. This principle applies regardless of how much time has elapsed since presidential assent or how urgent the legislation’s subject matter may be.

The principle that notification is mandatory finds support not only in Indian jurisprudence but also in the legal traditions of other nations. In England, the requirement of “promulgation” ensures that laws are reasonably and publicly enacted so that citizens have actual notice of their content. Similarly, French legal tradition emphasizes that laws must be properly published before they bind citizens. These international parallels reflect a universal principle that the rule of law requires public accessibility and notice. The Supreme Court of India embraced this principle in Atar Singh versus State of Uttar Pradesh, where it was held that although the Arms Act had been passed by Parliament and received presidential assent, it did not become enforceable law until its notification was issued and published in the official gazette. [4] The court emphasized that assent alone does not suffice to bring into force an act that expressly contemplates notification.

This position has been consistently reiterated across diverse statutory contexts. When determining the enforcement date of the Arbitration and Conciliation Act, 1996, courts examined when the relevant notification was published rather than when presidential assent was granted. Similarly, in cases concerning the Karnataka Industrial Areas Development Act and the Nagaland Work-Charged and Casual Employees Regulation Act, 2001, courts held that these statutes came into force only from the date of their gazette notification, not from any earlier date. The consistency of this jurisprudence establishes beyond doubt that publication of notifications in the official gazette is mandatory when required by statute, and such acts acquire legal force only from the date of actual notification.

Judicial Authority to Direct Notification in the Official Gazette Through Mandamus

While the mandatory nature of gazette notification is well-established, a more complex question arises regarding the judiciary’s power to compel the executive to actually issue such notification. The Supreme Court has approached this issue with considerable nuance, recognizing both the principles of separation of powers and the need to prevent indefinite executive inaction that frustrates legislative will. In A.K. Roy versus Union of India, the court addressed this question directly, holding that provisions requiring notification leave the question of timing to the unfettered judgment of the body entrusted with that function. [3] The court reasoned that it is not for the judiciary to direct the Central Government to act in a particular manner upon a matter that Parliament has left entirely to executive discretion. An order of mandamus compelling notification would create an anomaly because it would be equally open to argue that conditions were not yet appropriate for implementation.

The court emphasized that unless Parliament lays down an objective standard or test directing the executive to act within a prescribed time limit, the judiciary cannot examine the reasons for inaction or substitute its judgment for that of the executive. This deference reflects the constitutional principle that each branch of government must respect the others’ spheres of authority. The executive’s assessment of when conditions are suitable for implementing legislation involves policy considerations and practical judgments that courts are ill-equipped to make. However, the court’s holding in A.K. Roy was not absolute. The judgment recognized that while courts may not compel the executive to bring a statutory provision into force at a particular time, judicial intervention might be appropriate in cases of unreasonable delay or evident bad faith.

This limitation on judicial power was refined in the case of Aeltemesh Rein versus Union of India, decided in 2001. [5] The Delhi High Court distinguished between issuing a mandamus to compel notification and issuing a mandamus to compel consideration of whether notification is appropriate. The court held that while it may not be open to direct the government to actually bring an act into force, issuing a mandamus directing consideration of whether the time has arrived for implementation is permissible. In that case, more than two decades had passed since the relevant act received presidential assent without any notification being issued. The court found this delay so prolonged as to suggest that the executive might have simply forgotten about the legislation altogether. Accordingly, the court issued a writ of mandamus directing the Central Government to consider within six months whether the act should be brought into force or not.

The Aeltemesh Rein decision establishes an important principle: executive discretion over timing must be exercised in good faith and with reasonable expedition. While the executive need not implement legislation immediately, it cannot simply ignore legislation indefinitely without any consideration of implementation. The remedy available to citizens is not a mandamus to compel notification itself, but a mandamus to compel consideration and decision-making. This approach balances separation of powers concerns with the need to ensure that executive discretion does not become a tool for executive nullification of legislative will. However, courts have emphasized that if executive delay is based on bona fide considerations and legitimate concerns about implementation conditions, neither a direct mandamus to bring the act into force nor a mandamus to prescribe a specific time limit can be issued.

The Insolvency and Bankruptcy Code: Section 243

Section 243 of the Insolvency and Bankruptcy Code, 2016 presents a contemporary example of the issues surrounding unnotified legislation. [6] The section’s first clause provides that the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 are hereby repealed. This represents the legislative intent to replace the colonial-era insolvency framework with a modern, comprehensive code. However, the section’s second subsection begins with a non obstante clause stating that all proceedings pending under the repealed acts immediately before the commencement of Section 243 shall continue to be governed by those acts. Similarly, any orders, rules, notifications, regulations, appointments, conveyances, mortgages, deeds, documents, agreements, fees, resolutions, directions, proceedings, instruments, or things done under the repealed enactments shall, if in force at commencement, continue in force and have effect as if those acts had not been repealed.

The significance of Section 243 lies in what remains unnotified. While the Insolvency and Bankruptcy Code received presidential assent on May 28, 2016 and most of its provisions have been brought into force through various notifications, Section 243 specifically has never been notified in the official gazette. [7] This means that the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 have not been legally repealed despite Parliament’s clear intention to replace them. The Ministry of Corporate Affairs has consequently advised stakeholders to continue pursuing individual insolvency cases under the existing colonial-era laws rather than under the Insolvency and Bankruptcy Code’s provisions for personal insolvency.

The reasons for non-notification of Section 243 appear to relate to implementation preparedness. The subsection’s language makes clear that pending proceedings under the acts to be repealed will continue under those acts even after notification. However, the non obstante clause suggests that once Section 243 is notified, the comprehensive framework of the Insolvency and Bankruptcy Code would override the repealed acts for all new proceedings. This transition requires administrative preparation, training of adjudicating authorities, establishment of procedural rules, and coordination between various governmental departments. The executive may have determined that these prerequisites were not yet satisfied, justifying the delay in notification.

Nevertheless, the continued applicability of the 1909 and 1920 acts creates anomalies. These colonial-era statutes were designed for a different economic and social context and lack many features of modern insolvency law. Individual debtors and creditors must navigate outdated procedural requirements while corporate insolvency has been modernized under the notified portions of the Insolvency and Bankruptcy Code. This disparity has generated calls for expedited notification of Section 243, yet the executive retains discretion over timing. Under the principles established in A.K. Roy and Aeltemesh Rein, a court could issue a mandamus directing the government to consider whether the time has arrived for notification, but could not directly compel notification itself absent evidence of bad faith or arbitrary conduct.

Conclusion

The requirement for gazette notification of legislation represents a crucial safeguard ensuring that laws are publicly accessible before they bind citizens. The jurisprudence surrounding this requirement reflects careful balancing between legislative supremacy, executive discretion, and judicial oversight. Courts have consistently held that when an act expressly requires notification in the official gazette, such notification is mandatory and the act cannot come into force without it. This principle respects legislative intent while accommodating the practical reality that implementation may require preparation time.

The constitutional validity of delegating notification power to the executive has been firmly established, with courts recognizing that this delegation does not constitute an impermissible surrender of legislative authority. Rather, it represents a functional division of responsibilities between the legislative and executive branches, with Parliament retaining its lawmaking power while the executive determines implementation timing based on practical considerations. However, executive discretion is not unlimited. While courts will not dictate specific timelines for notification in the absence of statutory deadlines, they can intervene to compel consideration and decision-making when delays become so prolonged as to suggest abandonment or bad faith.

The case of Section 243 of the Insolvency and Bankruptcy Code illustrates these principles in practice. The section’s non-notification several years after the Code’s enactment demonstrates that executive discretion over timing can extend for substantial periods when legitimate implementation concerns exist. Yet this discretion must eventually yield to the legislative imperative for modernized insolvency law. The framework established by the Supreme Court provides mechanisms for ensuring that executive discretion does not become executive veto, while respecting the boundaries between judicial and executive functions within India’s constitutional democracy.

References

[1] The General Clauses Act, 1897, Section 5. Available at: https://legislative.gov.in/sites/default/files/A1897-10.pdf 

[2] In re: The Delhi Laws Act, 1912, AIR 1951 SC 332. Available at: https://indiankanoon.org/doc/1967505/ 

[3] A.K. Roy v. Union of India, AIR 1982 SC 710. Available at: https://indiankanoon.org/doc/1735815/ 

[4] Atar Singh v. State of Uttar Pradesh, AIR 1962 All 85. Available at: https://indiankanoon.org/doc/1589129/ 

[5] Aeltemesh Rein v. Union of India, (2001) 7 SCC 234. Available at: https://indiankanoon.org/doc/1090002/ 

[6] The Insolvency and Bankruptcy Code, 2016, Section 243. Available at: https://ibbi.gov.in/legal-framework/acts 

[7] Ministry of Corporate Affairs, Gazette Notifications. Available at: https://www.mca.gov.in/MinistryV2/insolvencybankruptcycode.html 

[8] Government of India, The Gazette of India. Available at: https://egazette.gov.in 

[9] Presidency Towns Insolvency Act, 1909. Available at: https://legislative.gov.in/sites/default/files/A1909-03.pdf

Published and Authorized by Dhruvil Kanabar