Foreign Trade (Development and Regulation) Act, 1992 — Section 3 — Delegated legislation — Enforceability — Publication in Official Gazette — Mandatory requirement
Order regulating imports or exports issued under Section 3 of the Act acquires force of law only upon publication in the Official Gazette — Uploading of notification on official website prior to gazette publication does not create enforceable law — Delegated legislation cannot bind citizens unless published in the manner prescribed by the parent statute — Gazette publication is not an empty formality but a condition precedent to legal enforceability.
(Paras 16–19, 22–23)
Delegated legislation — Date of operation — “Date of Notification” — Meaning
Expression “date of this Notification” occurring in subordinate legislation must be construed as the date of its publication in the Official Gazette, and not the date mentioned on the face of the notification or the date of uploading on website — Notification is “born in law” only upon gazette publication — Executive cannot prescribe an alternative mode of promulgation.
(Paras 12, 19–22)
Foreign Trade Policy 2015–2020 — Para 1.05(b) — Transitional protection — Scope
Where goods freely importable under FTP are subsequently subjected to restriction or regulation, imports covered by irrevocable letters of credit established prior to imposition of restriction are entitled to protection under Para 1.05(b) — Such transitional provision stands incorporated when expressly referred to in the notification — Benefit cannot be denied by adopting an artificial or retrospective interpretation.
(Paras 9, 14–15, 20–22)
Import Policy — Minimum Import Price (MIP) — Steel products — Notification No. 38/2015-2020
Minimum Import Price introduced under Notification dated 05.02.2016 published in Official Gazette on 11.02.2016 — Notification cannot apply to imports made under irrevocable letters of credit opened prior to 11.02.2016 — High Court erred in holding that website uploading constituted sufficient notice.
(Paras 5–8, 19–24)
Rule of Law — Commercial certainty — Fiscal and trade restrictions
Imposition of fiscal or trade burdens on the basis of unpublished delegated legislation would erode commercial confidence and offend the Rule of Law — Trade regulation requires transparency, predictability and legal certainty — Courts must guard against enforcement of unpublished executive action.
(Paras 16, 21)
Interpretation — Subordinate legislation — Harmonious construction
Notification expressly incorporating Para 1.05(b) of FTP must be read harmoniously with the policy — No conflict arises between statutory notification and FTP where the notification itself adopts the policy provision — Transitional protection cannot be nullified indirectly.
(Paras 20–21)
High Court — Error of law
High Court committed error in holding that uploading of notification on 05.02.2016 amounted to sufficient notice — Publication in Official Gazette alone confers statutory force — Judgment set aside.
(Paras 8, 19, 24)
ANALYSIS OF THE JUDGMENT
1. Central Issue
The Supreme Court framed a narrow but significant issue:
Whether the expression “date of this Notification” in Para 2 of Notification No. 38/2015-2020 could mean any date other than the date of its publication in the Official Gazette.
(Para 12)
2. Statutory Scheme
-
Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 mandates that import restrictions must be imposed by order published in the Official Gazette.
(Paras 13–14) -
Para 1.05(b) of the Foreign Trade Policy provides transitional protection where restrictions are imposed after irrevocable letters of credit are opened.
(Para 15)
3. Nature of Delegated Legislation
The Court emphasised fundamental constitutional principles:
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Delegated legislation is framed without parliamentary debate.
-
Publication ensures:
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accessibility and notice, and
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accountability in executive law-making.
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Gazette publication is therefore transformative — it converts executive intention into binding law.
(Paras 16–17)
4. Binding Precedents Applied
The Court relied upon long-standing precedent holding that:
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Law must be promulgated in a manner reasonably calculated to inform affected persons.
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Where the statute prescribes publication in the Gazette, that mode is mandatory.
Authorities relied upon include:
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Harla v. State of Rajasthan
-
B.K. Srinivasan v. State of Karnataka
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Gulf Goans Hotels Co. Ltd. v. Union of India
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G.S. Chatha Rice Mills
-
Nabha Power Ltd.
(Paras 17–18)
5. Rejection of “Website Upload” Theory
The Court categorically rejected the High Court’s reasoning that:
-
Uploading of notification on DGFT website on 05.02.2016 amounted to sufficient notice.
The Court held:
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The notification itself admitted incompleteness by stating “to be published in the Gazette of India”.
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Until publication, it remained only an intention, not law.
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Executive cannot invent alternative modes of promulgation.
(Para 19)
6. Interpretation of Para 2 of the Notification
Para 2 exempted imports under letters of credit entered into before the date of this notification.
The Court held:
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Once notification becomes operative only on 11.02.2016,
-
The expression “date of this notification” must necessarily mean the date of publication.
Any other interpretation would allow unpublished law to impose civil consequences.
(Paras 20–22)
7. Applicability of Para 1.05(b) FTP
The Court rejected the Union’s argument that Para 1.05(b) was irrelevant:
-
Para 2 of the notification expressly incorporates Para 1.05(b).
-
Hence, transitional protection formed an integral part of the notification.
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Denial of benefit would defeat both the FTP and the parent Act.
(Paras 20–21)
8. Final Holding
Since:
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Gazette publication occurred on 11.02.2016; and
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Appellants opened irrevocable letters of credit on 05.02.2016; and
-
Procedural requirements were complied with,
the Minimum Import Price could not be applied to the appellants’ imports.
(Paras 22–25)
RATIO DECIDENDI
A notification issued under Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 acquires enforceable legal force only upon its publication in the Official Gazette, and the expression “date of this Notification” occurring therein must be construed as the date of such publication; consequently, trade restrictions introduced by the notification cannot be applied to imports covered by irrevocable letters of credit opened prior to the date of gazette publication.
