Recently, a 3-Judge Bench of the Supreme Court headed by Dr. D.Y. Chandrachud, J. in Union of India v. G.S. Chatha Rice Mills[1], held that an e-notification issued at a particular entry of time shall take effect from that fraction of minute, when it is issued and not prior thereto. The judgment delved into multiple facets spanning from the effect of the provisions of Section 8-A of the Customs Tariff Act, 1975 and the Customs Act, 1962 to time from which a notification under the enactment operates and the moment from which it becomes enforceable; the change of regime of issuance of notifications from analog to digital mode and effect of notifications issued as paperless (e-)notifications being treated at par with paper notifications. Eventually the Supreme Court answered the question posed to it by holding that the e-gazette notification shall take effect from the time stamp, when it was exactly published after taking note of the background preceding the paradigm shift from publication in paper gazette notifications to e-notifications.
This article traces the necessity of notifying any legislative or sub-legislative provision like rules, regulations, etc. and the nuances involved in the same as a mandatory precondition for making legislative provisions operational and enforceable in the eye of the law.
Prelude
Like its deities, India boasts of more than 10,000 enactments for governing the conduct and lives of its inhabitants. No wonder, why, therefore it becomes a herculean task to even be vaguely informed about each of them. Despite this, an Indian citizen’s ignorance of law is not an excuse in view of the celebrated maxim “ignorantia juris non excusat”. Though right from the 1st year of our law course, all of us are aware of this maxim, but a few (including myself, till I settled down to author this piece) know that an exception exists to this as was carved out in Blackpool Corpn. v. Locker[2]. Scott, L.J. in this lesser-known judgment propounded that maxim “ignorantia juris non excusat” will be applicable on all fours only when the entire enactment with its limbs is made publicly accessible and known to the general masses.
An appropriate way to make an individual aware about any notification/order released by Government, which he is obliged to obey is to serve the same personally on him, or to offer it for public sale in a way that awareness is on a personalised scale. Ensuring individual service of notices to each person may compound the problem much more than it seeks to redress. Therefore, the only alternative left is to expect the lawmakers to oversee that it is published, so that any interested person is conveniently able to acquaint themselves with the contents of that law.
The Courts have time and again discussed the compelling necessities of publication of the parent and subordinate legislations through gazette publications. Such an exercise makes the common man aware of the legislations whenever it’s given effect to, after its promulgation by the framing authority. Publishing and publicising (both) the legislative enactments, rules, orders, etc. is mandatory because unless the said happens, its subject cannot be held liable for any acts or omissions covered by the legislative measure or enactment. Therefore, the clear intention behind this hyped exercise is to import or attribute knowledge about the birth of such provisions for enabling the society to act within the limitations prescribed therein.
Mapping the roots
One of the starting points of notification as a genesis of any law has been the judgment of Johnson v. Sargant and Sons[3]. In this case, the Food Controller under the Defence of the Realm Regulations, 1914 passed an Order which in part required importers of beans to hold them at the disposal of the Controller, unless they had been sold and paid for. The said Order was made on 16-5-1917, but was not published until May 17. To which Lord Bailhache, J. held that imported beans, which had been paid for on May 16, were not covered by the Order. His Lordships said he was unable to hold that the Order came into operation before it was known till its formal publication in the Gazette on May 17.[4] He held that the test to find out effective publication would be published (in India) in a way that it is brought to the notice of everyone who intends to pass through the country, essentially in the usually acceptable form. Bailhache, J. towards this drew support from various provisions engrafted in various statutes mandating publications of amendments and subordinate legislations in the Official Gazette. Therefore, there cannot be any gainsaying that publication in the Official Gazette is the generally accepted norm of bringing an amended provision or subordinate legislation into existence.[5]
Vis- à-vis
(a) Position in UK
In the United Kingdom, this issue garnered attention in Evans v. Bartlam[6] holding that one must never presume that everyone is aware of the law, the precondition for which is to disseminate the information, in the first place.
Wade and Forsyth, in their celebrated treatise, Administrative Law, (Oxford, 10th Edn.) also state that the very justification for the basic maxim is “the whole of our law, written or unwritten, is made accessible to the people in such a way, that, its legal advisers have access to it, at any moment, as a matter of right”. The Statutory Instruments Act, 1946 contains specific provisions to officially publish the statutory instruments, so that the public would know of the delegated legislation.
(b) Position in USA
As in England, the USA also has “The Federal Register Act, 1935”. The US Supreme Court in Federal Crop Insurance Corpn. v. Merrill[7], where the Federal Crop Insurance Corporation, a wholly government-owned corporation was created by the Federal Crop Insurance Act to insure producers of wheat against crop losses due to unavoidable causes, including drought. This was promulgated and published as part of the Federal Register Regulations specifying the conditions when insured wheat crops, under certain conditions became ineligible for insurance. Without actual knowledge of this provision, a wheat grower applied to the corporation’s local agent for insurance on his wheat crop, informing the local agent that his wheat crop was covered by insurance clause. Most of the crop on the reseeded acreage was destroyed by drought, but however the insurance claim was denied applying the exemption clause in the insurance deed. It was held by the Court that once a provision has been published in the Federal Register, it will be presumed that people know about it and they will be made subject to the said Regulation. One cannot claim that he applied in ignorance of the same as it was not made publicly known.
Judgments of the US Federal Circuit Courts in Building Officials & Code Administrators v. Code Technology Inc.[8] and Cervase v. Office of the Federal Register[9] are the landmark classics, which all underscore that the citizen’s right to effective access to laws casts a simultaneous duty upon the Government to provide its citizens with such an opportunity. People, under the broad umbrella of right to information deserve to know about the laws they are subjected to.
Position in India
Unlike England and the USA, India does not have any statutory provision which mandates the publication of delegated legislation. However, the principle has evolved through Court made law i.e. judgments. The earliest exposition on this can be discovered in Harla v. State of Rajasthan[10], wherein a resolution was passed by Council of Ministers which purported to enact the Jaipur Opium Act, 1923. When the appellant was convicted and fined under Section 7 of the said Act, the question arose that whether mere passing of the Resolution without promulgation or publication through means to make the Act known to the public, was sufficient to make it a binding law. The Supreme Court speaking through Vivian Bose, J. observed that any law without its publication in the Official Gazette would be deemed to be unenforceable and stillborn and cannot affect the rights of its subjects.
In B.K. Srinivasan v. State of Karnataka[11], an Outline Development Plan prepared by the Bangalore Metropolitan Board was approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13-7-1972. The Bangalore Improvement Trust Board desired to develop Raj Mahal Vilas Extension under the provisions of the City of Bangalore Improvement Act, 1945 and one of the conditions of allotment was that high-rise buildings were not to be constructed on each of the sites, but the high-rise buildings were constructed. This construction of high-rise buildings was opposed and challenged by the local residents, which was repelled by the Supreme Court. The Supreme Court reiterated publication in “some form or the other is compulsory for making the delegated legislation effective”. It was emphasised that if the Act or the delegated legislation itself provides for the mode of publication, then that prescribed mode of publication should be abided by as an inderogable rule. However, where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases, publication or promulgation by other means may be sufficient.
The Supreme Court again in 1985 in yet another judgment of State of Orissa v. Sridhar Kumar Mallik[12] accentuated the importance of the language of such publication in the Official Gazette. In this case, the adequacy of the publication of a notification issued by the Government of Orissa was involved. Under Section 417 of the Orissa Municipal Act, 1950, the Government could create “notified areas” to which the provisions of the Municipalities Act could be applied. In August 1972 two villages were selected for being notified as a “notified area” through notification published in English language. The legality of these were challenged inter alia on the ground that publication in Oriya language was a precondition for it to become enforceable. Observing that since the publication was not in the vernacular language, it failed in serving the desired purpose viz. to make the masses aware about the said legislation as most people subjected to it were unable to read the notification, the Supreme Court acceded to the submissions of the petitioners. This judgment is an authority for the proposition that that publication alone would not serve the purpose, other than it being an effective one.
Digression in New Tobacco Co.[13] and its restoration in Ganesh Das[14]
The Supreme Court in a matter arising under the Central Excise Act in CCE v. New Tobacco Co.[15], went a step beyond holding Official Gazette as a precondition of making any law enforceable. It held that any notification becomes effective only “from the date it was made available to the public”. It elucidated “The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the notification within the meaning of Rule 8(1) of the Rules.” The Court held that neither the date of the notification nor the date of printing, nor the date of gazette counts for notification within the meaning of the rule, but “only the date when the public gets notified in the sense, the gazette concerned is made available to the public”. The “date of release of the publication towards the aforesaid purpose” is the decisive date to make the notification effective.
However, this view was referred to the larger Bench of 3 Judges in view of conflicting judgments by the very same Court in Union of India v. Ganesh Das Bhojraj[16]. Therein a notification was issued under Section 25 of the Customs Act on 4-2-1987, amending an earlier notification of the year 1976, limiting the exemption (granted earlier) to the duty in excess of 25 per cent. The bill of entry was filed on 5-2-1987. The larger Bench of the Supreme Court took the view that under Section 25 of the Customs Act, since the Notification dated 4-2-1987 has been published in the Gazette, it had come into force immediately and constituted the rates prevalent on 5-2-1987, when the respondent had filed the bill of entry. Affirming the view taken in its earlier judgments in State of Maharashtra v. Mayer Hans George[17] and Pankaj Jain Agencies v. Union of India[18], the Court held that for bringing the amending notification into operation, the only requirement of the section is its publication in the Official Gazette and no further mode of publicity is contemplated or additional requirement of offering it to public or putting it on sale as was stipulated as a precondition in New Tobacco case[19].
Thus, effectively the view taken in New Tobacco case[20] stands overruled and is no more a good law post verdict of Ganesh Das Bhojraj case[21].
Publicity through publication of laws
Publication and publicity of laws is a basic tenet of natural justice. Acts of Parliament and the State Legislatures are publicly enacted. The debates are open to the public and enactments are passed by the public representatives receiving wide publicity. As stressed by the Supreme Court in Gulf Goans Hotels Co. Ltd. v. Union of India[22], the same does not hold true for delegated legislations, on which logic, they must also be promulgated and published.
The Supreme Court in Gulf Goans case[23] was delving into challenges to environmental guidelines issued as directives, departmental orders from time to time. The validity and enforceability of these were challenged by owners of hotels and resorts in Goa subjected to demolition exercise on the basis of these orders. The challenge was anchored on ground that guidelines and orders enforced and cited against them were not an enforceable piece of law and were not in existence when the said hotels/resorts were built. The Supreme Court accepting the challenge laid on behalf of the petitioners held “law must possess a certain form; contain a clear mandate/explicit command which may be prescriptive, permissive or penal and the law must also seek to achieve a clearly identifiable purpose. While the form itself or absence thereof will not be determinative and its impact has to be considered as a lending or supporting force, the disclosure of a clear mandate and purpose is indispensable”. It went on to further hold that in the context of Article 77 of the Constitution, if the law is not duly authenticated and promulgated, then it would not be binding.
For understanding the import of word “publication”, reference can be made to the State of M.P. v. Shri Ram Ragubir Prasad Agarwal[24], wherein whilst elucidating the word “publish” in Section 3(2) of the M.P. Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, the Supreme Court observed that, “in our view, the purpose of Section 3 animates the meaning of the expression ‘publish’ ”. “Publication” was explained to intend “offering to public notice, or to make it accessible to public scrutiny; making known of something to people for a purpose”. In other words, “publication” is meant by something which has a wider publicity rather than minimal communication to the departmental officialdom.
From paper to paperless gazettes: E-notifications
On 30-9-2015, the Ministry of Urban Development, Government of India through an office memorandum completely discontinued the practice of physical printing and replaced it with the electronic gazette. The decision taken under Section 8 of the Information Technology Act, 2000, was taken in consultation with the Department of Legal Affairs to switch over to exclusive e-publishing of the Central Gazette notifications on its official website with effect from 1-10-2015 and for dispensing with their physical printing. The date of publishing shall be the date of e-publication on an official website by way of electronic gazette in respect of gazette notification.
This paradigm shift of the legislative process from analog to the digital mode for the publication of gazette notifications raised important questions about when they came into force and whether the shift to e-gazettes has brought about a change in the legal position of existing qua physical publications.
The law on e-notifications
The edifice of e-governance emanates from Information Technology Act, 2000, which is evident from its “Statement of Objects and Reasons” indicating to “enable the conclusion of contracts and the creation of rights and obligations through the electronic medium”. The IT Act legalised the use, acceptance of electronic records and digital signatures in governmental offices and agencies towards facilitating electronic governance and to “make the citizens’ interaction with the governmental offices hassle-free”.
Section 2(t) of the IT Act defines “electronic record” to mean any data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. Chapter III of the IT Act pertains specifically to electronic governance which provides for:
(i) Legal recognition of electronic records (Section 4);
(ii) Legal recognition of electronic signatures (Section 5);
(iii) Use of electronic records and electronic signatures in
Government and its agencies (Section 6);
(iv) Authorisation by Government to service providers to set up, maintain
and upgrade computerised facilities (Section 6-A); and
(v) Retention of electronic records (Section 7).
Section 6(1) comprises provisions pertaining to use of electronic records and electronic signatures in Government and its agencies stating that requirement of any law shall be deemed to have been satisfied if filing, issue, grant, receipt of any document or payment for any transaction as the case may be, is effected through an electronic form prescribed by the Government. As per Section 13 of the IT Act, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. All these provisions have been incorporated in the law to enable the dispatch and receipt of a record in the electronic form to be defined with precision with reference to both time and place.
Section 8 of the Act is cardinal to the discussion under hand, which categorically states that wherever any law requires publication of any rule, regulation, order, bye-law, notification or any other matter in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or electronic gazette.
Under the IT Act, the Central Government has formulated the Information Technology (Electronic Service Delivery) Rules, 2011, where under the government authorities have been obligated to maintain “time stamps” of the creation of electronic records, reference in which respect can be made to Rule 5 as comprising such a requirement Rule 6(2) requires the person authorised to making changes to any electronic document, must also electronically sign the change with its corresponding “time stamps” of the original creation and modification of the electronic record. All these provisions go on to demonstrate that “time stamp” has an important role to play in the issuance of e-notifications.
Earlier views on enforceability of e-notifications
In M.D. Overseas Ltd. v. Union of India[25], the Delhi High Court dealt with a situation where the Director General of Foreign Trade issued two Notifications dated 25-8-2017 restricting the importation of gold, including gold coins. Gold coins could no longer be imported freely and had to be imported in accordance with a public notice issued on that behalf. The gold coins imported by the petitioners were dispatched on 25-8-2017. The petitioners urged that the restrictive regime created by these notifications was inapplicable to them because the notifications, they contended, came into force only on 28-8-2017, when they were published in the Official Gazette and not prior thereto when published in e-notifications. The Delhi High Court accepting the petitioner’s view held the notifications to be inapplicable to the petitioners whilst observing that the endorsement on the electronic copy of the gazette, whereby the impugned Notifications Nos. 24 and 25, dated 25-8-2017, were actually notified and electronically published in the Official Gazette only at or after 10.47 p.m. on 28-8-2017. The High Court read Sections 8 and 13 of the IT Act conjointly with the OM dated 30-9-2015 of the Central Government, for holding the time stamp of publication as the relevant marker for determining the enforceability of the notifications.
This issue also arose before the Andhra Pradesh High Court in Ruchi Soya Industries Ltd. v. Union of India[26], wherein the assessee petitioner entered into a contract with its foreign supplier on 18-1-2008 for the import of 9500 metric tons of crude oil. The first consignment of 4000 metric tons was shipped by the supplier on 6-2-2018 from Dubai. The petitioner filed two bills of entry for 2000 metric tons of crude oil on 1-3-2018. They were assessed that day and levied with 30% customs duty and 10% social welfare surcharge. On the same date, a notification raised the basic customs duty from 30 to 44%. The petitioner filed four bills of entry for the remaining 2000 tons on 2-3-2018 and pleaded that the revised rate was not applicable to it because the e-notification was published only on 6-3-2018. The High Court accepting the assessee’s arguments held that the revised notification would come into force only after it was digitally signed by the competent official, uploaded, published in the Official Gazette and accordingly made available for the public at large.
Similar view was taken also by the Madras High Court in Ruchi Soya Industries Ltd. v. Union of India[27], following the Andhra Pradesh High Court judgment mentioned above to the case before it and allowing the writ petition on the same terms.
Controversy in Chatha Rice Mills case[28]
In the wake of Pulwama terrorist attack in February 2019, Notification No. 5/2019 was uploaded as e-gazette at time stamp 20:46:58 hours IST by the Central Government on 16-2-2019 under Section 8-A of the Customs Tariff Act, 1975. Through this notification was introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The custom authorities refused to release the goods on the basis of the bills of entry which were filed and self-assessed at the pre-existing rate and proceeded to recall them and reassess the goods at the enhanced rates of duty of 200% under Notification No. 5/2019. The Supreme Court in Chatha Rice Mills case[29] whilst dealing with the appeal of the Revenue was confronted to resolve the issue of applicability of this e-notification qua transactions and assessments completed prior to its issuance.
The Supreme Court held that in case of the publication of gazette notifications through the digital/electronic mode, the “time stamp” of its publication determines the moment of its enforceability in view of Section 6 read with Section 8 of the IT Act, 2000. The Court went on to observe also that such an e-notification, being a piece of delegated legislation cannot operate retrospectively to the prejudice of any assessee, unless authorised expressly by a statute. The notification was held to be operative only from the time stamp when it was so published online in digital mode and resultantly would not apply to self-assessments and transactions pertaining to bills of entry presented on the customs automated electronic data interchange (EDI) system prior to such online release. The Court in the said exercise copiously referred to the whole gamut of provisions pertaining to the e-notifications, their evolution and how the legislative process has migrated from the analog to the digital mode and why also the law needs to be abreast of the same.
† Advocate practising at the High Court of Madhya Pradesh and the Supreme Court.
†† 3rd year law student, NLIU, Bhopal.
[2] (1948) 1 KB 349 : (1948) 1 All ER 85.
[4] Id., at p. 103.
[5] Johnson v. Sargant and Sons, (1918) 1 KB 101.
[7] 1947 SCC OnLine US SC 123 : 92 L Ed 10 : 332 US 380 (1947).
[8] 628 F 2d 730 (1st Cir, 1980).
[9] 580 F 2d 1166 (3rd Cir, 1978).
[20] Ibid.
[23] Ibid.
[25] 2019 SCC OnLine Del 11885.
[27] 2020 SCC OnLine Mad 2769.
[28] Union of India v. G.S. Chatha Rice Mills, 2020 SCC OnLine SC 770.
[29] Ibid.