# [1952] 1 S.C.R. 110

- **Citation:** [1952] 1 S.C.R. 110
- **Court:** Supreme Court of India
- **Decided:** 1950-08-18
- **Case number:** CRIMINAL APPELLATE JuR1smcTION: Criminal Appeal No. 5 of 1951
- **Bench:** Mehr Chand Mahajan, V1v1AN BosE JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1952-1-s-c-r-110-211
- **Pages:** 6

## Headnote

[1952]
Jaipur Laws Act, 1923, .<. 3 (b)-faipur Opium Act, 1923-Laa,
Passed by Council of i'vlinisters not promulgated or published in
Gazette-Validity of latv-Necessity of pron1ulgation
of lawsNatural justice.
Natural justic;e requires that before a la\v can .become operative it must be promulgated or published. It inust be broadcast
in ·some recognisable \Vay so that all men inay 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 Representative ·for the gov_ernment and administration of the : Jaipur. St.ate
passed a Resolution in 1923 purporting to enact a law cailed the
Jaipur Opium Act,. Out this law was neither promulgated or
published in the Gazette nor made knoy,rn to the public.
The
Jaipur La\vs Act, 1923, \vhich \Vas also passed by the Council
aqd which came into force on the 1st NoYetnber, 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 territories and the
enactments
and
regulations
that may hereafter be passed f_ron1 time to ti1ne by the State. and
·published in the Official Gazette."
Jn 1938 the Jaipur Opium
1\ct \Vas amcnde<l by adding a clause to the effect that "it shaH
come into force frotn the 1st of September, 1924."
Held, that the 1nere passing of the Resolution
of the C0uncil
without further publication or promulgation of the law was not
sufficient to make the law operative and the Jaipur Opiun1 Act
was not there.fore a valid la\v.
l-lcld further, that the said Act
was not saved by s. 3 (b) of the Jaipur Laws Ac~ 1923, as it
was not a valid la\v 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.
CRIMINAL
APPELLATE
JuR1smcTION:
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 Kishm<o
C. J. and Dave J.) in Criminal Reference No. 229 of
Sambat 2005.
H. /. Umrigar for the appellant.
G. C. Mathur for the respondent.
I
I '
S.C;R.
SUPREME COURT REPORTS
111
1951. September 24. The Judgment of ·the f::onrt
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 chronologically.
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
!o 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 Gazette, or other means to make
the Act known to the public, was sufficient to make it
la:w. 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 Offici

## Text

1951
Sept. 24.
110
SUPREME COURT REPORTS
HARLA
ti.
THE STATE OF RAJASTHAN
[MEHR CHAND MAHAJAN and V1v1AN BosE JJ.J
[1952]
Jaipur Laws Act, 1923, .<. 3 (b)-faipur Opium Act, 1923-Laa,
Passed by Council of i'vlinisters not promulgated or published in
Gazette-Validity of latv-Necessity of pron1ulgation
of lawsNatural justice.
Natural justic;e requires that before a la\v can .become operative it must be promulgated or published. It inust be broadcast
in ·some recognisable \Vay so that all men inay 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 Representative ·for the gov_ernment and administration of the : Jaipur. St.ate
passed a Resolution in 1923 purporting to enact a law cailed the
Jaipur Opium Act,. Out this law was neither promulgated or
published in the Gazette nor made knoy,rn to the public.
The
Jaipur La\vs Act, 1923, \vhich \Vas also passed by the Council
aqd which came into force on the 1st NoYetnber, 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 territories and the
enactments
and
regulations
that may hereafter be passed f_ron1 time to ti1ne by the State. and
·published in the Official Gazette."
Jn 1938 the Jaipur Opium
1\ct \Vas amcnde<l by adding a clause to the effect that "it shaH
come into force frotn the 1st of September, 1924."
Held, that the 1nere passing of the Resolution
of the C0uncil
without further publication or promulgation of the law was not
sufficient to make the law operative and the Jaipur Opiun1 Act
was not there.fore a valid la\v.
l-lcld further, that the said Act
was not saved by s. 3 (b) of the Jaipur Laws Ac~ 1923, as it
was not a valid la\v 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.
CRIMINAL
APPELLATE
JuR1smcTION:
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 Kishm<o
C. J. and Dave J.) in Criminal Reference No. 229 of
Sambat 2005.
H. /. Umrigar for the appellant.
G. C. Mathur for the respondent.
I
I '
S.C;R.
SUPREME COURT REPORTS
111
1951. September 24. The Judgment of ·the f::onrt
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 chronologically.
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
!o 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 Gazette, or other means to make
the Act known to the public, was sufficient to make it
la:w. 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 that was
1911
-· -··-·
Harl'O·
v.
State of
Rajasthan·
-·-·-
Bose· I•·
1951
Hor/4
v.
State of
'&julhan
Bose /.
112
SUPREME COURT REPORTS
[19521
not necessary because it was a "regulation" alrea<ly
in force on that date.
The only other fact of consequence is that on ~
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 ht al
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 publication 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 publication
in
1938,
though that point was argued.
That throws us baek
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 regarding 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 jwtice requires that
S.C.R.
SUPREME COURT REPORTS
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 ·nhought 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 publication 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 ass.ent, 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 Halbury'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
highe.~t
kind of law, other than an Act of Parliament, known to
the British Constitution; and even the publication in the
London Gazette will not make the proclamation valid
in Scotland nor wiU 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
1951
H111U.
v.
S111u ot
Rtljas1b1m
Bose J.
1951
Htirla'
v.
Stilte of
Raja>ehan'
Bose·/. ·
114
SUPREME COURT REPORTS
[1952J
making of rules by Order in Council for the best
means of making Proclamations known to the public.
The British Parliament 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 m<;>des 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 be.<t
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 Proclamations
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
judicially considered in England.· For example, on a
somewhat lower plane, it was held in fohnson. v.
Sargant(') 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 Acr of the British
Parliament is
stressed.
The difference is obvious. Acts of the British
Parliament are pμblicly enacted.
The debates are open
to the public and the Acts are passed by the accredit-
'ed representatives of the people who in theory can be
trusted to see that their constituents know what has
been do11e. They also receive 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 necessarily be the best in another.
But reasonable publication of some sort there must be.
Nor is the principle peculiar to England.
It was
applied 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
(!) (1918] I K.B. 101; 67 L.J.K.B. 122.
I
-<
.J
l
s.c.R..
SUPREME COUllT REPORTS
115
promulgation can have been known." . So also it has
been applied in India in, for instance, matters ansmg
under Rule 119 of the Defence of India Rules.
See,
for example, (Crown v. Manghumal Tekumal(1), Shakoor
v. King Emper01'(
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 founded 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
Representative, and
the Jaipur Gazette
Notification dated the 11th August, 1923, defined and
limited its powers. We are entitled 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 contemplated the creation of a body which could wield powers so
. abhorrent to
t;he
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 respondent: P. A. Mehta.
(1) I.L.R. 1944 Karachi 107.
(2) I.L.R. 1944 Nag. 150.
(3) I.L.R. 1945 Nag. 762.
1~1
.IIarl(I
\I v. l
State of
Rajasthan
Ba&e f.
\