A Notification acquires force of law only upon its publication in Official Gazette – SC

Notification issued acquires the force of law only upon its publication in the Official Gazette – Supreme Court

In a recent judgment, Hon’ble Supreme Court has held that a Notification issued acquires the force of law only upon its publication in the Official Gazette. The expression ‘date of this Notification’ must necessarily mean the date of their publication in Official Gazette.

ABCAUS Case Law Citation:
5013 (2026) (01) abcaus.in SC

In the instant case, High Court had dismissed the challenge of the appellants to a Notification issued by the Central Government imposing a Minimum Import Price on certain steel products.

The controversy involves interpretation of the expression ‘date of this Notification’ occurring in a Notification issued under the Foreign Trade (Development and Regulation) Act, 1992 (the Act). 

Prior to February, 2016, the items imported by the appellant company were freely importable under Foreign Trade Policy (FTP). The appellant had entered into firm sale contracts with exporters and opened irrevocable letters of credit in favour of foreign suppliers.

However, the day the appellant opened LC, the Directorate General of Foreign Trade (DGFT), uploaded a Notification No. 38/2015-20 on its website, introducing Minimum Import Price (MIP) for specified steel products. The said notification itself contained an endorsement ‘To be published in the Official Gazette of India’. The Notification was actually published in the Official Gazette a week after.

The case of the assessee was that the said Notification having been published in the Official Gazette later could not be applied to imports covered by Letters of Credit opened earlier.

Though the High Court held that the Notification would operate from its publication in official gazette yet it held that uploading of the Notification, constituted sufficient notice to bind importers whose letters of credit were not opened before that date. The High Court further held that the Notification is not an act of delegated legislation. Accordingly, the writ petitions were dismissed.

The Hon’ble Supreme Court noted that Section 3 of the Act empowers the Central Government to regulate imports and exports by an order published in the Official Gazette.

The Hon’ble Supreme Court observed that Law, to bind, must first exist. And to exist, it must be made known in the manner ordained by the legislature. 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.

The Hon’ble High Court opined that 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 Hon’ble Supreme Court observed that it had held that 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.

Also, a Division Bench had held that that publication of promulgation is indispensable to enforceability of subordinate legislation. It was further held that when the parent statute prescribes a particular mode of publication, that mode must be strictly followed. The aforesaid position was reiterated, in subsequent decisions.

The Hon’ble Supreme Court opined that in the instant case, tested on the 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.

The Hon’ble Supreme Court further noted that the Notification itself acknowledged 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. Once the legislature has prescribed the specified mode of promulgation, the executive cannot introduce an alternative mode and attribute legal consequences to it.

The Hon’ble Supreme Court further observed that 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 long line of decisions.

Accordingly, the Hon’ble Supreme Court held that the Notification issued under Section 3 of the Act acquires the force of law only upon its publication in the Official Gazette. The expression ‘date of this Notification’ must necessarily mean the date of such publication.

As a result, the order and judgment of the High Court was quashed and set aside. The appellants were held entitled to protection of para 1.05(b) of the FTP. 

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