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PETITIONER:

HARLA

Vs.

RESPONDENT:

THE STATE OF RAJASTHAN

DATE OF JUDGMENT:

24/09/1951

BENCH:

BOSE, VIVIAN

BENCH:

BOSE, VIVIAN

MAHAJAN, MEHR CHAND

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

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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.

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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

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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

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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

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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

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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.

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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

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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.

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