CONDITIONAL LEGISLATION: A STUDY

RESEARCH PAPER SUBMITTED IN PARTIAL FULFILLMENT OF COURSE ADMINISTRATIVE LAW For

ATTAINING THE DEGREE OF B.A. LL.B. (Hons.)

PROPOSAL SUBMITTED BY:

Aditya Bhardwaj
Course: B.A. LL.B. (Hons.)
Roll No: 1705

PROPOSAL SUBMITTED TO:

Dr. Fr. Peter Ladis F
Faculty of “ADMINISTRATIVE LAW”

CHANAKYA NATIONAL LAW UNIVERSITY NYAYA NAGAR,

MITHAPUR, PATNA – 800001

January, 2020
 ACKNOWLEDGMENT
I would like to thanks my faculty Dr. Fr. Peter Ladis F whose guidance helped me a lot
with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that
helped me out at every stage of my project.

THANK YOU,
Name: Aditya Bhardwaj
B.A. LL.B.
6 th sem
ROLL NO: 1705

2
 DECLARATION
I Aditya Bhardwaj student of B.A. LL.B. (3rd year) in Chanakya National Law
University declare that the research project entitled “CONDITIONAL
LEGISLATION: A STUDY” submitted by me for the fulfilment of Administrative
law course is my own work. This project has not been submitted for any other Degree
/ Certificate / Course in any Institution / University.

3
 Content

Table of Contents

DECLARATION ......................................................................................................................... 3
Content........................................................................................................................................... 4
INTRODUCTION ......................................................................................................................... 5
Aim ................................................................................................................................................ 7
Objectives ...................................................................................................................................... 7
Scope and Limitations ................................................................................................................... 7
Review of Literature ...................................................................................................................... 7
Research Questions........................................................................................................................ 8
Research Methodology .................................................................................................................. 8
Historical Growth .......................................................................................................................... 9
The Need For Conditional Legislation .......................................................................................... 9
Judical Control on Delegated Legislation ................................................................................... 13
BIBLIOGRAPHY ....................................................................................................................... 16

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INTRODUCTION

Conditional Delegation, is a statutory act wherein, the subordinate authorities are not
delegated to legislate but only to perform some ancillary functions in regards to the
legislation. It is contingent and conditional. Upon reaching certain time or circumstance, the
Act (legislated by supreme legislative authority) is put into force by the Administrative. The
subordinate authorities cannot use their discretionary power in regards to delegated
legislation. The administrative is merely to overlook the time and place appropriate for such a
law to be applied. It is their only duty to apply the law after fact finding. The conditional
legislation delegate’s power is that of determining when a legislative declared rule of conduct
shall become effective. The Delegated legislation can be classified under various classes
depending on the purpose to be achieved: Discretion-based classification (Conditional
Legislation) is one of the classifications: Another classification of administrative rule-making
may be based on discretion vested in rule-making authority. On the basis of ‘discretion’
administrative rule-making may be classified into subordinate and contingent or conditional
legislation.

In India, modest delegation of legislative power was upheld by the courts under the provision
of “conditional legislation”. The idea behind this term is that the legislature makes the law
which is full and complete in all respects, but it is not brought into enforcement immediately.
The implementation of the law is made dependent upon the fulfilment of a condition, and
what is delegated to the outside agency is the, authority to determine. This is done by
exercising the own judgment of the outside agency, whether or not the condition has been
fulfilled is left to the discretion of the agency’s authority. Thus in conditional legislation, the
law is there but its taking effect is made to depend upon determination of some fact or
condition by an outside agency. In Lachmi Narain V. India1, the Supreme Court has itself
stated that no useful purpose is served by calling a power conferred by a statute as conditional
legislation instead of delegated legislation.

There is no difference between them in principle, for “conditional” legislation like delegated
legislation has “a content, howsoever small and restricted, of the law-making power itself,”
and in neither case can the person be entrusted with the power act beyond the limits which
circumscribe the power.

1
Lachmi Narain Etc. Etc vs Union Of India & Ors, AIR 714, 1976 SCR (2) 785, 1976

5
In course of time, through a series of decisions, the Supreme Court has confirmed the
principle that the legislature can delegate its legislative power subject to its laying down legal
principles and provide standards for the guidance of the delegate to promulgate delegated
legislation, otherwise the law will be bad on account of “excessive delegation”.

In the case of conditional legislation, the legislation is complete in itself but its operation is
contingent on the fulfilment of certain conditions and what is delegated to an outside
authority, is the power to determine according to its own prerogative without regards to, if
conditions are fulfilled. While in the case of delegated legislation proper, some portion of the
legislative power of the legislature is delegated to the outside authority in that, the
Legislature, though it is competent to perform both the essential as well as ancillary
legislative functions. But it only performs only the former and parts with the latter, i.e., the
ancillary function of laying down details in favour of another for executing the policy of the
statute enacted.

The distinction between the two exists in this that whereas conditional legislation contains no
element of delegation of legislative power and is, therefore, not open to attack on the ground
of excessive delegation, delegated legislation does confer some legislative power on some
outside authority and is therefore open to attack on the ground of excessive delegation. In
Sardar Inder Singh v. State of Rajasthan,2 it was laid down that when an appropriate
Legislature enacts a law and authorizes an outside authority to bring it into force in such area
or at such time as it may decide, that is conditional and not delegated legislation.

This means that legislature; having laid down the broad principles of its policy in the
legislation can then leave the details to be supplied by the administrative authority. In other
words by delegated legislation the delegate completes the legislation by supplying details
within the limits prescribed by the statute, while, in the case of conditional legislature the
power of legislation is exercised by the legislature conditionally leaving to the discretion of
an external authority, the time and manner of carrying its legislation into effect as to also the
determination of the area to which it is to extend.

2
AIR 1957 SC 510

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Aim

To analyze the judicial views on conditional legislation and its effect and implication on the
contemporary legislative system.

Objectives

I. To understand the doctrine of conditional legislation.

II. To analyze the origin of the principle and a comparison of the common law
precedents to contemporary Indian law.
III. To familiarize with the judicial views on the doctrine of conditional legislation
and its impact on Indian legal system.

Scope and Limitations

The scope and ambit of the project was too wide that it was practically impossible for the
researcher to comprehend all the aspects of the knowledge into this paper due to the paucity
of time and resources. The topic of Delegated Legislation involves inter-action of legislative
matters which is not provided for under the Doctrine of Separation of Powers. Separation of
powers is important to keep in check the powers of the different organs of the government.
But in such delegation of powers, there lies a concern of encroachment or over-exercise of
discretion by either organ of the government. Hence, the scope of this reach would
encompass the Legislative as well as the Executive aspects of delegation of power.

Review of Literature

1. Takwani C.K, LECTURES ON ADMINISTRATIVE 5thed., 2012, Eastern Book

Company, Lucknow.
Rule of eschews arbitrariness or decision according to whim or caprice of authority which
flows from the guarantee of equality before the law and equal protection under Art 14 of the
Constitution. This bounds the actions of the Government to the law and their prescribed
bounds. This book contains a section devoted to the issue of Delegated Legislation, different
aspects of judicial control, substance of ultra-vires to issue of unconstitutional delegation
have been discussed at length. The book provides a detailed analysis of the topic with case
laws and rationales.

2. Sathe S.P, ADMINISTRATIVE LAW, 7thed., 2004, Lexis-Nexis Buttersworth

Wadhwa, Nagpur

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Control of Delegated Legislation is elaborately explained and supplemented with domestic
case laws. The history of Delegated Legislation starting with the publication of delegation
legislation in the countries of England, The United States of America and India has been
emphasized upon with excerpts from different committees and consultation with experts. The
jurisprudence behind this provision is an issue of deliberation and this book provides wide
scope of information on the topic from different legal scenarios viz. doctrine of ultra vires
and excessive delegation.

Research Questions

I. What is the meaning of the expression ‘conditional legislation’?

II. What is the view of judiciary on the application of doctrine of conditional
legislation in Indian legal system?
III. What are the impacts of judicial view on Indian legislative system?

1.4. Research Methodology

Research Method – Doctrinal Method
Source of Data Collection – Primary and Secondary Source of Data
Research Design – Descriptive Research Design
The research methodology adopted for this research is doctrinal in nature. There shall
be extensive review of books, articles, journals, literature and statutory law of India
on the point at hand. Various judgments related to the subject matter shall be
addressed.

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Historical Growth

The research discusses the problem of Constitutional legitimacy posed by the Executive
branch's use of delegated legislative powers. After careful consideration on the necessity of
delegated legislation and the problem of legitimating such delegation, the approach taken up
in India has been examined. A first means of democratic legitimation is parliamentary
predetermination of the executive role. A second technique of democratic legitimation is that
parliament in some way participates in the rule-making procedure. German and British law
show that by means of subsequent approval the proper legislature assumes political
responsibility for subordinate legislation beyond the original empowerment. The US Supreme
Court, however, considers the legislative veto to be unconstitutional. Therefore, American
law developed a third approach to solve the problem of democratic legitimacy. American
approach makes clear that the Constitutional legitimation of secondary legislation can also be
secured by means of comprehensively involving the public in the delegated legislative
process.3 The separation of powers was originally rooted in the fear of tyranny. Montesquieu
stated 1748 in his considerations ‘Spirit of the Laws’; he states, 'Si le monarque prenoit part
a' la legislation par la faculte de statuer, il n 'y auroit plus de liberte.' This directly translate to
’If the monarch prenoit part in ' the legislation by the faculty to decide, there would be more
freedom’. There is an echo of this in the Blackstone's Commentaries.

The Need For Conditional Legislation

Most democratic countries which adhere generally to the principle of separation of power(s)
find themselves in a perplexed situation. To an extent, law in such situations is made not by
the proper legislature, that is the elected parliament, but rather by the executive branch. The
urgent requirement of modem States have led legislators to transfer much of their lawmaking
powers to administrators. Recent economic and political developments have placed
administrators in a very powerful position. Thus, it has become one of the major tasks of
constitutional and administrative law to channelize this power. Individual statutory acts
acknowledge this departure from the traditional doctrine of separation of powers, but the
Legislature equally have to ensure that delegated legislation carries sufficient democratic

3
Democratic Legitimation of Delegated Legislation: A Comparative View on the American, British and
German Law, Hermann Pünder, The International and Comparative Law Quarterly, Cambridge University
Press on behalf of the British Institute of International and Comparative LawVol. 58, No. 2 (Apr., 2009), pp.
353-378

9
legitimation. Other countries and European Union Law will be referred to en-passant.
Constitutional purists may complain about the shift of lawmaking authority from the
legislative to the executive branch since it is at odds with the idea of the separation of powers,
an idea that is considered a major guarantee for freedom. The Constitutional purist may also
mourn that the authority shift departs from the basic principle that 'delegatus non potest
delegare'. As John Locke stated, the Legislative cannot transfer the Power of Making Laws to
any other hands. Since, the Legislature itself by virtue of the Constitution has been delegated
with Legislative powers which acts as nothing but a delegated ‘Power for the People, they,
who have it, cannot pass it over to others.' These considerations, however, have long been
bypassed by the need for administrative institutions to exercise lawmaking authority. The
German Constitution, the 'Grundgesetz' (Basic Law), explicitly states in Art 80 paragraph 1
sentence 1 that '(t)he federal government or a Federal Minister ... may be authorized by
statute to issue rules having the force of law'.4 It is the purpose of the norm to disencumber
the legislature.5

Democratic Legitimation By Parliamentary Predetermination Of The Executive Rule:

In all the countries which exercise such delegation of powers, however, enabling statutes
provide for a basic democratic legitimation of executive rules. In the US, as in Germany, the
executive has no inherent legislative power.6 As a general proposition, the executive can
exercise only such legislative powers as are specifically delegated by the legislature. In this
respect German and American law clearly differ from French law which recognises an
inherent power with the executive to legislate through regulations with respect to all matters
not specifically assigned to the legislature.7 Portugal for example follows a comparable
approach.8 British law is more similar to the German and American legal systems putting

4
Art 80, Grundgesetz für die Bundesrepublik Deutschland
5
Ibid.p.3

6
See for the US eg Bowen v Georgetown University Hospital (1988) 488 US, 204, 471.
7
Art. 34, 37 of French Constitution. Compare eg Favoreu et al. Droit constitutionnel (lOth edn, 2007) 197 ff,
777 ff, Chapus, Droit administratif general, vol I (15th edn, 2001) 209, 652 ff; Gaudemet, Droit administratif (
18th edn, 2005) 252 ff; and Schwartz, Administrative Law and the Common Law World (1954) 89 ff; O
HoodPhillips, P Jackson and P Leopold (n 9) 11; LN Brown and J Bell, French Administrative Law (5th edn,
1998) 11; P Lindseth, 'The Paradox of Parliamentary Supremacy: Delegation, Democracy, and Dictatorship in
Germany and France, 1920s-1950s' (2003-2004) 13 Yale L J 1341, 1404 ff.
8
The room for inherent legislation, however, is rather limited. Compare to the 'decretos leyes' eg JJ Gomes
Canotilho, Direito Constitucional (4th edn 1989) 649 ff.

10
aside an exceptional and very limited power of legislation under the prerogative9 (which can
also be found in Italy10 and Spain11), the British executive can legislate only if authorized to
do so by Parliament. As Cecil Carr poetically phrased it, delegated legislation 'is directly
related to Acts of Parliament, related as child to parent...’12. Consequently, in all jurisdictions
the terms of secondary legislation are subject to judicial review to ensure that they do not
exceed the competence the proper legislators have granted in primary legislation. While the
necessity of a delegating statute is shared in the compared countries, the requirements on its
content diverge.

Reasons for the Growth of Delegated Legislation in India:

The grounds that have led to this increase in delegated legislation may be summed up as
follows, in agreement with the Report of the Committee of Ministers Powers 1932.

(1) Pressure on parliamentary time. Pressure of parliamentary time is so great that it is not
able to cope with the volume of the Parliament needs time to concentrate on discussion of
high policy and basic problems of legislation. In order to do this, it has no choice but to thrust
away subordinate problems to the executive to as large an extent as possible.

(2) Technicality of subject-matter of legislation. Modern legislation is highly complicated and

of technical nature and can be satisfactorily handled by experts only. Parliament, for example,
may place restrictions on the sale of drugs and poisons. It may lay down that the sale of such
substances may be made under proper licence. It will have to leave the work of compiling a
list of such drugs to experts of medicine in the Health Ministry.

(3) Unforeseen contingencies. In the case of large and complex matters, it is not possible for
the legislature to foresee all contingencies and local conditions and to work out the
administrative machinery to the last detail. Therefore these matters are left to the departments
to be regulated appropriately.

9
Refer to O Hood Phillips, P Jackson and P Leopold (n 9) 318 ff; C Turpin, The British Government and the
Constitution (5th edn, 2002) 415 ff.
10
Compare on the 'decretazione d'urgenza' eg P Caretti and U de Sievo, Instituzione di diritto pubblico (1992)
273 ff; Baschiera, 'Introduction to the Italian L
11
Compare on the 'decretos-leyes' Santamar?a Pasto, Fundamentos de Derecho Administrativo, vol I
(1988/1991) 627 ff.
12
C Carr, Delegated Legislation: Three Lectures (1921) 2.

11
(4) Flexibility. The method of delegation makes possible a speedy and flexible adjustment to
fresh circumstances and technical new developments, without the necessity of continually
setting the legislative machinery in motion.

(5) Opportunities for Experiment. The method of delegation enables experiments to be

carried out which would be impossible if the slow parliamentary method had to be issued on
each occasion. Moreover, rules or orders if found unsuitable can be revoked or amended
which is not easily possible in the case of statutes.

(6) Emergency Powers. In situations of emergency where the national interest demands rapid
and effective action, it will be essential to equip the government with extraordinary powers.

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Judical Control on Delegated Legislation

Parliamentary scrutiny of delegated legislation is done through the various forms of 'laying'
of rules before the two Houses of Parliament as prescribed under the Act under which they
are made.13 One is laying in full and not to be presented in dummy. The procedure to this was
defined in the judgement by Speaker Clifton Brown on 9th April 1951. He noted, that "on the
rare occasions during the last 50 years when statutory rules and orders have been laid before
the House in dummy, my predecessors have held that the time during which a Motion for
Annulment might be moved against them did not begin to run until a complete copy was
available to Members. But I am satisfied that this practice must now be changed in order to
comply exactly with the terms of the Statutory Instrument Act, 1946, and to avoid any
possible conflict with the courts .... I have therefore instructed the Votes and Proceedings
Office that, in future Statutory Instruments and other rules or orders which are similarly
subject to annulment during a statutory period cannot be accepted as laid before the House,
unless they are presented complete and in full. In other words, such papers will no longer be
accepted for presentation in dummy".14 Ten days later, on 19th April 1951, Mr. Speaker gave
a Ruling that S. 1. 1951, No. 413 made by the Board of Trade was not in conformity with the
Rules that he had laid down and that it was not in order.15 Another provision (ii) is simple
laying without further provision for control. Section 10 (2) of the Statutory Instrument Act
provides that the Act is to come into force on such date as Her Majesty may by order in
Council appoint, (iii) third is laying with immediate effect but subject to annulment. This is
governed by Section 5 of the Statutory Instrument Act.16 (iv) A fourth one is laying with
operation deferred until Approval given by Affirmative Resolution. In this the instrument is
actually made but it does not come into operation until approved by each House of
Parliament. An instance of this is regulation made by the Minister of Transport under Section
14(4) of the Road Traffic Act, 1930, varying the rates of speed laid down in the five
schedules to the Act for specified roads. Proviso (b) to the sub-section states that the
regulations are to be of no effect until approved by each House. (v) fifth one is laying with
immediate effect but requiring Affirmative Resolution as condition of continuance. This
method combines prompt operation with parliamentary control. This procedure is laid down

13
2 Report of the Committee on Ministers' Powers, p. 41.
14
8 486 H. G. Deb. 660 9th April 1951
15
486 H. G. Deb. 2147 19th April 1951
16
Sections of the Statutory Instrument Act prescribes a period of 40 days during which time a negative
resolution may be passed

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in Section 19(2) of the Import Duties Act. The order is to cease to have effect on the
expiration of the period of 28 days from the date on which, it is made, unless before the
expiration of the period it is approved by a resolution passed by the House of Commons. A
similar provision is made in the Emergency Powers Act, 1920, authorising the proclamation
of a State of Emergency in face of threats to the life of the community. The proclamation
remains in force for one month only; it must be immediately communicated to Parliament.
During that month a code of regulations may operate, but the regulations have effect for only
seven days unless both Houses resolve that they .be continued for the rest of the month.
Recourse to this method of subordinate legislation was taken at the time of the General Strike
in 1926. A State of Emergency was proclaimed month by month and the Executive had to ask
the legislators for an affirmative resolution in order to keep the regulation alive. This is a very
strict system of parliamentary control over delegated legislation.

These methods of Parliamentary control did not prove effective due to a number of reasons.
Firstly, Parliament in the midst of pre-, occupation would overlook a set of regulations that
come before it.

Secondly, the average member would hardly realise the possible consequences of a set of
rules unless he happened to be already an expert on the topic to which; they related.

Thirdly, lack of Parliamentary time would prevent all but the most important rules being
debated even if a member called attention to them. Finally, the party machine and the whips
could be used to deal with serious opposition.17

17
ADMINISTRATIVE LEGISLATION IN MODERN INDIA : A PREFACE; Bangendu Ganguly, The Indian
Journal of Political Science, Published by: Indian Political Science Association, Vol. 29, No. 1 (January-March
1968), p.36-43

14
Conclusion

Conditional Delegation is a statutory demonstration wherein, the subordinate powers are not
assign essential legislative functions to administer but rather just to perform some auxiliary
capacities with respect to the enactment. It is conditional and contingent. At a certain time or
condition, the readymade Act (administered by preeminent authoritative power) is put into
power by the Administrative. The subordinate powers can't utilize their discretional power as
to the application of the Act. The regulatory is only to ascertain the time and situation for
proper application for such a law. It is their just obligation to apply the law after fact finding.
The conditional legislation delegate’s power is that of determining when a legislative
declared rule of conduct shall become effective.

The Indian courts maintained, unobtrusive appointment of administrative force under the
procurement of "Conditional Delegation". The thought behind this policy is that the
lawmaking body makes the law which is full and finish in all regards, yet it is not brought
into authorization quickly. The usage of the law is made ward upon the satisfaction of a
condition, and what is designated to the administrative is the, power to focus. This is finished
by practicing the own judgment of the Adiminstrative, whether the condition has been
satisfied is left to the attentiveness of the office's power.

The issue of Constitutional authenticity postured by the Executive branch's utilization of

delegated legislative functions falls under the grey area of the Doctrine of Separation of
Power. After cautious thought on the need of delegated legislation and the issue of
legitimating such designation, the methodology taken up in India is a issue of contention. The
first method for equitable legitimation is parliamentary prerogative of the essential legislative
part. The point of Delegated Legislation includes activity of administrative matters which is
not accommodated under the Doctrine of Separation of Powers. Separation of powers is
critical to hold under principles of division of powers between the organs of the Government.
However, in such assignment of functions, there lies a worry of arbitrariness or breach of
jurisdiction by either organ of the Government. The research comprises the study of the
inception of the rule and its correlation of the contemporary legal policy in reference to
contemporary Indian law.

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BIBLIOGRAPHY

BOOKS:

1) Takwani C.K, Lectures on Administrative 5thedn., Eastern Book Company,

Lucknow,2012\
2) Sathe S.P, Administrative Law 7thedn, Lexis-Nexis Buttersworth Wadhwa, Nagpur, 2004

ARTICLES:

1) Legislative Control of Delegated Legislation A Survey, Ramesh Narain Mathur, The Indian
Journal of Political Science, Published by: Indian Political Science Association, Vol. 21,
1960
2) Ilbert C.P., Journal of Comparative Legislation and International Law, Cambridge
University Press on behalf of the British Institute of International and Comparative Law,
Third Series, Vol. 4, 1922
3) Alexandrowicz C. H., The American Journal of Comparative Law, American Society of
Comparative Law, Vol. 3, (Winter, 1954),
4) Ganguly Bangendu, ADMINISTRATIVE LEGISLATION IN MODERN INDIA : A
PREFACE; The Indian Journal of Political Science, Indian Political Science Association,
Vol. 29, No. 1 (January-March 1968)

5) Carr C, Delegated Legislation: Three Lectures, Cambridge University Press, 1921 (2).

6) Pünder Hermann, Democratic Legitimation of Delegated Legislation: A Comparative View

on the American, British and German Law, The International and Comparative Law
Quarterly, Cambridge University Press on behalf of the British Institute of International
and Comparative Law, Vol. 58, No. 2 (Apr., 20

16
17