24 September 1951
Supreme Court


Case number: Appeal (crl.) 5 of 1951






DATE OF JUDGMENT: 24/09/1951


CITATION:  1951 AIR  467            1952 SCR  110  CITATOR INFO :  R          1962 SC 562  (2)  RF         1978 SC1675  (194)  RF         1980 SC1230  (19)  RF         1988 SC 440  (23)  RF         1990 SC1256  (27)

ACT:     Jaipur  Laws  Act,  1923,  s.  3(b)--Jaipur  Opium  Act, 1923--Law passed by Council of Ministers not promulgated  or published in Gazette--Validity of law--Necessity  of promul- gation  of laws-Natural justice.

HEADNOTE:     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 least there must be some special rule  or regulation  or  customary channel by or through  which  such knowledge  can  be  acquired with the exercise  of  due  and reasonable diligence.     The  Council of Ministers appointed by the Crown  Repre- sentative  for  the  government and  administration  of  the Jaipur State passed a Resolution in 1923 purporting to enact a law called the Jaipur Opium Act, but this law was  neither promulgated  or published in the Gazette nor made  known  to the  public.   The  Jaipur Laws Act, 1923,  which  was  also passed  by the Council and which came into force on the  1st November,  1924,  provided by s. 3 (b) that the  law  to  be administered  by the court of the Jaipur State shall  be..." (b) all the regulations now in force within the said  terri- tories and the enactments and regulations that may hereafter be  passed from time to. time by the State and published  in the  Official  Gazette."  In 1938 the Jaipur Opium  Act  was amended by adding a clause to the effect that "it shall come into force from the 1st of September, 1924."     Held,  that  the mere passing of the Resolution  of  the Council  without further publication or promulgation of  the law  was  not sufficient to make the law operative  and  the Jaipur  Opium Act was not therefore a valid law.  Held  fur- ther,  that  the said Act was not saved by s. 3 (b)  of  the Jaipur Laws Act, 1923, as it was not a valid law in force on the 1st November, 1924, and the mere addition of a clause in



1938 that it shall come into force in 1924 was of no use.

JUDGMENT:     CRIMINAL APPELLATE  JURISDICTION:  Criminal Appeal No. 5 of  1951.   Appeal from the Judgment and  Order  dated  18th August, ’1950, of the High Court of Judicature for Rajasthan at  Jaipur  (Nawal  Kishore C.J. and Dave  J.)  in  Criminal Reference No. 229 of Sambat 2005.       H. J. Umrigar for the appellant.       G. C. Mathur for the respondent. 111     1951.   September  24.  The Judgment of  the  Court  was delivered by     Bose J.--The appellant was convicted under section 7  of the  Jaipur Opium Act and fined Rs. 50. The case as such  is trivial  but the High Court of Rajasthan in  Jaipur  granted special  leave to appeal as an important point touching  the vires of the Act arises.  We will state the facts chronolog- ically.     It is conceded that the Rulers of Jaipur had full powers of government including those of legislation. On the 7th  of September,  1922, the late Maharaja died and at the time  of his death his successor, the present Maharaja, was a  minor. Accordingly,-the Crown Representative appointed a Council of Ministers to look after the government and administration of the State during the Maharaja’s minority-     On  the  11th of December, 1923, this Council  passed  a Resolution  which purported to enact the Jaipur  Opium  Act, and  the  only question is whether the mere passing  of  the Resolution  without promulgation or publication in  the  Ga- zette,  or other means to make the Act known to the  public, was sufficient to make it law. We are of opinion that it was not.  But before giving our reasons for so holding, we  will refer to some further facts.     About  the same time (that is to say, in the  year  1923 we  have  not been given the exact date)  the  same  Council enacted the Jaipur Laws Act, 1923. Section 3(b) of this  Act provided as follows :--     "3.  Subject to the prerogative of the Ruler the law  to be  administered  by the Court of Jaipur State shall  be  as follows:     (b)  All  the regulations now in force within  the  said territories,  and  the enactments and regulations  that  may hereafter  be  passed  from time to time by  the  State  and published in the Official Gazette."     This law came into force on the 1st of November, 1924.     It  is  admitted  that the Jaipur Opium  Act  was  never published  in the Gazette either before or after the 1st  of November, 1924. But it is contended that was 112 not necessary because it was a "regulation" already in force on that date.     The  only other fact of consequence is that on the  19th of May, 1938, section 1 of the Jaipur Opium Act was  amended by the addition of sub-section (c) which ran as follows: "(c)  It  shall come into force from the 1st  of  September, 1924."     The  offence for which the appellant was convicted  took place on the 8th of October, 1948.     Dealing  first with the last of these Acts,  namely  the one of the 19th of May, 1938, we can put that on one side at once because, unless the Opium Act was valid when made,  the mere addition of a clause fourteen years later stating  that



it  shall come into force at a date fourteen  years  earlier would  be useless.  In the year 1938 there was a  law  which required all enactments after the 1st of November, 1924,  to be  published in the Gazette.  Therefore, if the  Opium  Act was not a valid Act at that date, it could not be  validated by the publication of only one section of it in the  Gazette fourteen years later.  The Jaipur Laws Act of 1923  required the whole of the enactment to be published; therefore publi- cation  of only one section would not validate it if it  was not already valid. We need not consider whether a law  could be made retroactive so as to take effect from 1924 by publi- cation in 1938, though that point was argued. That throws us back to the position in 1923 and raises the question whether a  law could be brought into operation by a mere  resolution of the Jaipur Council.     We  do not know what laws were operative in  Jaipur  re- garding the coming into force of an enactment in that State. We  were not shown any, nor was our attention drawn  to  any custom  which  could be said to govern the  matter.  In  the absence of any special law or custom, we are of opinion that it  would  be against the principles of natural  justice  to permit  the subjects of a State to be punished or  penalised by  laws  of which they had no knowledge and of  which  they could  not  even with the exercise of  reasonable  diligence have acquired any knowledge. Natural justice requires that 113 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  the  exercise  of due and  reasonable  diligence.  The thought that a decision reached in the secret recesses of  a chamber to which the public have no access and to which even their accredited representatives have no access and of which they  can  normally know nothing,  can  nevertheless  affect their  lives, liberty and property by the mere passing of  a Resolution  without anything more is abhorrent to  civilised man.  It shocks his conscience. In the absence therefore  of any  law,  rule, regulation or custom, we hold  that  a  law cannot come into being in this way. Promulgation or publica- tion of some reasonable sort is essential.     In  England the rule is that Acts of  Parliament  become law  from the first moment of the day on which they  receive the Royal assent, but Royal Proclamations only when actually published  in  the  official Gazette. See  footnote  (a)  to paragraph  776.  page  601, of Halsbury’s  Laws  of  England (Hailsham  edition),  Volume VI and 32  Halsbury’s  Laws  of England  (Hailsham  edition), page 150 note  (r).  But  even there it was necessary to enact a special Act of  Parliament to enable such proclamations to become law by publication in the Gazette though a Royal Proclamation is the highest  kind of law, other than an Act of Parliament, known to the  Brit- ish  Constitution;  and even the publication in  the  London Gazette will not make the proclamation valid in Scotland nor will publication in the Edinburgh Gazette make it valid  for England.  It  is clear therefore that the mere  enacting  or signing  of a Royal Proclamation is not enough.  There  must be publication before it can become law, and in England  the nature of the publication has to be prescribed by an Act  of Parliament.     The  Act  of Parliament regulating this  matter  is  the Crown Office Act of 1877’ (40 and 41 Victoria Ch. 41).  That Act,  in  addition to making provision  for  publication  in certain official Gazettes, also provides for the



114 making  of rules by Order in Council for the best  means  of making  Proclamations known to the public. The British  Par- liament has therefore insisted in the Crown Office Act  that not  only  must there be publication in the Gazette  but  in addition  there  must be other modes  of  publication,if  an Order in Council so directs, so that the people at large may know  what  these  special laws are. The  Crown  Office  Act directs   His Majesty in Council carefully to  consider  the best  mode  of  making these laws known to  the  public  and empowers that body to draw up rules for the same and  embody them in an Order in Council. We take it that if these  Proc- lamations are not published strictly in accordance with  the rules so drawn up, they will not be valid law.     The  principle underlying this question has  been  judi- cially  considered in England.  For example, on  a  somewhat lower  plane, it was held in Johnson v. Sargant (1) that  an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is  made known to the public, and the difference between  an Order  of that kind and an Act of the British Parliament  is Stressed.  The  difference is obvious. Acts of  the  British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representa- tives of the people who in theory can be trusted to see that their  constituents know what has been done. They  also  re- ceive wide publicity in papers and, now, over the  wireless. Not  so Royal Proclamations and Orders of a Food  Controller and  so  forth.  There must therefore  be  promulgation  and publication  in  their cases. The mode  of  publication  can vary;  what is a good method in one country may  not  neces- sarily  be the best in another.  But reasonable  publication of some sort there must be.     Nor  is the principle peculiar to England.  It  was  ap- plied  to France by the Code Napoleon, the first Article  of which  states that the laws are executory "by virtue of  the promulgation  thereof" and that they shall come into  effect "from the moment at which their (1) [1918] 1 K.B. 10I; 67 L.J.K.B. 122. 115 promulgation  can  have been known."  So also  it  has  been applied  in  India in, for instance, matters  arising  under Rule  119 of the Defence of India Rules.  See, for  example, Crown  v. Manghumal Tekuml(1), Shakoor v. King  Emperor  (2) and  Babulal v. King Emperor (3). It is true none  of  these cases  is analogous to the one before us but they  are  only particular applications of a deeper rule which is rounded on natural justice.     The  Council of Ministers which passed the Jaipur  Opium Act was not a sovereign body nor did it function of its  own right.   It was brought into being by the Crown  Representa- tive,  and  the Jaipur Gazette Notification dated  the  11th August,  1923, defined and limited its powers. We are  enti- tled  therefore to import into this matter consideration  of the principles and notions of natural justice which underlie the  British  Constitution, for it is inconceivable  that  a representative  of His Britannic Majesty could have  contem- plated  the creation of a body which could wield  powers  so abhorrent  to the fundamental principles of natural  justice which  all freedom loving peoples share.  We hold  that,  in the absence of some specific law or custom to the  contrary, a  mere resolution of a Council of Ministers in  the  Jaipur State without further publication or promulgation would  not be sufficient to make a law operative.     It is necessary to consider another point.  It was urged



that  section 3(b) of the Jaipur Laws Act of 1923 saved  all regulations then in force from the necessity of  publication in the Gazette. That may be so, but the Act only saved  laws which  were valid at the time and not resolutions which  had never acquired the force of law.     The  appeal succeeds.  The conviction and  sentence  are set aside.  The fine, if paid, will be refunded.                      Appeal  allowed.  Agent  for  the appellant: R.A. Govind. Agent for  the  re- spondent: P.A. Mehta.  (1)  I.L.R.  1944 Karachi 107.            (3)  I.L.R.  1945 Nag. 762.  (2) I.L.R. 1944 Nag. 150. 116