Supreme Court: No law without Official Gazette publication, website upload not enough

The Supreme Court has said a notification issued under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 acquires the force of law only upon its publication in the Official Gazette and the expression ‘date of this notification’ must necessarily mean the date of such publication.

"Law, to bind, must first exist. And to exist, it must be made known in the manner ordained by the legislature,'' a bench of Justices P S Narasimha and Aloke Aradhe said, while setting aside the Delhi High Court's judgment of December 21, 2018, in a batch of writ petitions, whereby the writ petitions filed by the appellants, Viraj Impex Pvt Ltd were dismissed.

The court declared the appellants are held entitled to protection of para 1.05(b) of the Foreign Trade Policy, 2015-2020.

The bench underscored, the imposition of fiscal or trade burdens on the basis of an unpublished notification would erode commercial confidence and offend the Rule of Law, the result which the court must steadfastly guard against.

The court noted, delegated legislation, unlike plenary legislation enacted by the Parliament, is framed in the executive chambers without open legislative debate.

The requirement of publication in the Gazette, therefore, serves a dual constitutional purpose i.e. (a) it ensures accessibility and notice to those governed by the law, and (b) it ensures accountability and solemnity in the exercise of delegated legislative power, it emphasised.

"The requirement of publication in the Gazette, is therefore not an empty formality. It is an act by which an executive decision is transformed into law. It is precisely for this reason that courts have consistently insisted that strict compliance with the publication requirements is a condition precedent for the enforceability of delegated legislation,'' the bench said.

The High Court dismissed the challenge laid by the appellants to a notification issued by the Central Government imposing a Minimum Import Price on certain steel products.

The controversy before the court lied in narrow compass and turned primarily on the interpretation of the expression ‘date of this notification’ occurring in para 2 of the 2016 notification, issued under the Foreign Trade (Development and Regulation) Act, 1992 (Act).

On February 05, 2016, the Directorate General of Foreign Trade (DGFT), uploaded th notification on its website, introducing Minimum Import Price (MIP) for specified steel products. The uploaded document itself contained an endorsement ‘To be published in the Official Gazette of India’. Admittedly, the notification was published in the Official Gazette on February 11, 2016.

The appellants, on February 08, 2016, applied for registration of their Letters of Credit under transitional protection contemplated by para 1.05(b) of the FTP.

They contended the notification having been published in the Official Gazette on February 11, 2016, could not be applied to imports covered by Letters of Credit opened earlier.

The High Court held that the notification is not an act of delegated legislation.

The court noted the pivotal issue was whether the expression ‘date of notification’ mentioned in para 2 of the notification issued under the Act, can be interpreted to mean any date, other than the date of its publication in the Official Gazette.

The bench said the true test of the effective commencement of a statutory order or subordinate legislation is whether it has been published in a manner reasonably calculated to bring it to the notice of all persons who may be affected by it, namely, through a mode which is ordinarily and generally accepted for that purpose.

The court also pointed out, it has been held that natural justice requires that before a law can become operative, it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with exercise of due and reasonable diligence.

"Once the legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it. A notification cannot operate in a fragmented manner. In law, it is born only upon publication in the Official Gazette, and it is from that date alone that rights may be curtailed or obligations imposed. To hold otherwise, would permit unpublished delegated legislation to burden citizens, a proposition expressly rejected by this court in a long line of decisions,'' the bench said.

The court also pointed out, the delegated legislation is an instrument to give effect to the policy and purpose of the parent statute. It, therefore, has to be construed in the manner that advances the object of the Act, namely to regulate foreign trade through transparent, predictable and legally certain measures.

"Tested on this legal principles, coupled with requirement of publication in the Official Gazette, contained in parent statute, it is manifest that the notification could not have acquired the force of law prior to its publication in the Official Gazette on 11.02.2016. Indeed, the notification itself acknowledges its incompleteness by declaring that it is ‘to be published in the Gazette of India’. The acknowledgement is a confession that, until such publication, the notification had not crossed the threshold from intention to obligation,'' the bench said.

Case details: Viraj Impex Pvt Ltd vs Union of India & Anr, decided by a bench of Justices P S Narasimha and Aloke Aradhe decided on January 21, 2026.