Blog # 27. Conditional Legislation

 

Law reaches its end of serving justice and equity only if the medium of transportation and execution of the equivalent is prime. Having a law just in books and having a working, known, very much actualized and executed law are two different circumstances. Former is an instance of legislature at work and the latter is that of legislature and executive working together for reaching the end.

Thus, conditional legislation is that thin line where these organs function independently as well as are interdependent in their exercise. Since, lawmakers cannot be present everywhere at every time, they delegate their legislative powers to subordinates where they can implement law to the extent of power they have been delegated. When conditions are added to such delegated power in matters of implementation, it becomes a conditional legislation. In the Venn diagram of Legislation , if delegation of power is a subset then conditional legislation is a sub-sub-set shown by “A” , “B” and “C” respectively.

A – LEGISLATION

B – DELEGATED LEGISLATION

C- CONDITIONAL LEGISLATION

It is the concept of delegation of power which has given rise to what is currently known as Administrative Law. It is an uncodified law which has gained supreme importance in working of the organs of the nation. The major function of these authorities is to exercise their functions within the sphere of powers allotted.

It is clear that parliament isn’t accessible consistently to take decisions in trivial issues of processing laws or when there is a requirement for adaptability be it in crisis circumstances or climatic calamities or in issues where the requirement for specialists in specialized issues can’t be overlooked that delegated legislation comes in salvage. But the question which arises is how and where the concept of conditional legislation is acquainted in the law systems.

DEFINITION OF CONDITIONAL LEGISLATION

When the law is complete and certain conditions are laid down as to how and when the law would be applied by the delegate, it is conditional legislation. It includes no law-making powers but only the power of determining when it should come into force or when it should be applied.

Supreme Court in Hamdard Dawakhana v. Union of India [1] stated that in conditional legislation, the delegate’s power is that of determining when a legislative declared rule of conduct shall become effective.

Conditional Legislation can be found in the occurrences where :- [2]

I. The legislature empowers the executive to expand the activity of a current law to a specific area or region.

II. To determine and decide the time of application of an Act to a given area.

III. To broaden the span of a Temporary Act, subject to maximum period fixed by the legislative assembly.

IV. To determine and decide the degree and limits within which the statute or Act should be employable and operative.

V. Lastly, to introduce a special law if the contemplated situation has arisen in the opinion of the government.

Conditional Legislation allows better implementation and better reach of laws as it gives them ample discretion to work and to make decisions regarding implementation in the best manner possible. Thus, all the modern socio-economic welfare schemes are a formation of the legislature, but they have become successful in the country because of their implementation. All the “when, where and how” aspects of implementation have been ticked generously by the government because of the discretion that they have been given by the legislature for the implementation of the Acts framed by the lawmakers. But this discretion cannot be exercised beyond the power that has been delegated. If exceeded, then that action is null and void.

Conditional Legislation can be classified in 3 categories :– [3]

1. In the first category, when the Legislature has completed the task of enacting a Statute, the entire structure of the legislation is ready but its future appropriateness to a given region is left to the subjective satisfaction of the delegate who being fulfilled and satisfied about the conditions showing the correct time for applying the provisions of the said Act to a given region exercises that power as a delegate of the parent legislative body. At the point when the Act itself is finished and is sanctioned to be consistently applied in future to each one of the individuals who are to be secured by the scope of the Act, the Legislature can be said to have completed its task. This would be an act of pure and simple conditional legislation depending upon the subjective satisfaction of the delegate as to when the said Act enacted and completed by the parent Legislature is to be made effective.

2. The second category of conditional legislations wherein the delegate has to decide whether and under what circumstances a completed Act of the parent legislation which has already come into force is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class of persons who are otherwise admittedly governed by the Act. In such type of cases, the delegate has to act negatively by withdrawing the operating act, fully or partially due to any causes of action of governance.

3. The third category of cases wherein the exercise of conditional legislation would depend upon satisfaction of the delegate in objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. In such type of cases the satisfaction of the delegate has necessarily to be based on objective consideration of the relevant data for and against the exercise of such power.

The landmark case for delegation of legislation is the Re : Delhi Laws Act Case [4], which revolved around the question of whether giving the Lt. Governor the power to extend the application of law is delegation of power? Privy council observed that Indian legislature is not an agent or delegate but was intended to have plenary powers of legislation and of the same nature of the parliament itself. It was observed that Indian legislature had exercised its judgement as to the place, person, law, powers and what the governor was required to do was to make it effective upon fulfilment of certain conditions. This is called conditional legislation which was upheld by the court. [5] In Jatindra Nath v. Province of Bihar [6], it was held that there could be no delegated legislation in India beyond conditional legislation.

CONDITIONAL LEGISLATION AND DELEGATED LEGISLATION :-

Conditional legislation though a kind of delegated legislation is different from it as the latter includes conferring law-making power to another body, but the former is only for bringing the law in force by another body without having any law-making power. Both the jobs are being done by delegates, but one involves law making and the other involves implementing the same. The point of commonality being that both are done by delegates with a motive of better implementation and usage of law. One with framing supporting rules, guidelines, notifications and the other with method and satisfying conditions for execution of the law made by the assembly accordingly. In the end, delegated legislation be it of any kind is working under the umbrella of powers given by the law-making bodies of central and state governments respectively.

References

[1] AIR 1960 SC 554.

[2] Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory, 8th Edition, Central Law Agency, Pg. 331.

[3] In Re the Delhi Laws Act, 1912 v. The Part C States (Laws) Act, 1951 AIR 332 read along with Conditional Legislation and Delegated Legislation, available at https://www.lawyersclubindia.com/articles/Conditional-legislation-and-delegated-legislation-1126.asp

[4] AIR 1951 SC 347.

[5] IN RE DELHI LAWS ACT CASE : LANDMARK IN CONCEPT OF DELEGATED LEGISLATION IN INDIA , MANUPATRA ARTICLES, available at http://www.manupatra.com/roundup/333/Articles/In%20re%20Delhi%20Laws%20Act%20Case.pdf

[6] ( 1949 ) 2 FCR 595.