Delegated And Conditional Legislation
The term ‘legislation’ is derived from latin word legis meaning law and latum which mean “to make” or “set”. Thus the word legislation mean ‘making of law’. Legislation is that source of law which consists in the declaration of legal rules by the competent authority.
Legislation has been used in different senses. In its broadest sense, it includes all method of law making. It includes both, the process of law making and the law evolved as a result of this process.
There are two obvious reason for legislation being regarded as one of the most effective source of law. Firstly, it involves laying down of legal rules by the legislature which the state recognised as law. Secondly, it has the force and authority of the State.
It may be reiterated that legislation by executive is a kind of subordinate legislation.
Undoubtedly, the main function of executive is to enforce law, but for the regulation of his departments, the power of rule making is delegated to them. Strictly speaking, delegated legislation is a legislation made by any authority other than the legislature. It denotes the rules, orders, notifications, bye-laws or directions made by the executive authorities under the law passed by the parliament.
The term ‘delegated legislation’ is generally used in two senses. In one sense, it means the exercise of power of rule making by the executive under the authority delegated to it by the legislature. In the other sense, it means the output of the exercise of that power. In other words, when the function of legislation is entrusted to organs other than the legislature itself, the legislation made by the such organ is called delegated legislation, which may be in the form of rules, regulation, bye-laws, orders, schemes, directions, circulars or notifications, etc.
It is significant to note that there has been enormous increase of delegated legislation in India in recent time. The situation today has reached a point where delegated legislation out-numbers the legislative enactments.
The factor which contributed to the growth of delegated legislation are as follows:-
1) The newly evolved concept of welfare state has caused tremendous increase in the work of the government which necessitated a huge bulk of legislation. The parliament hardly has time to deal with this wide range of legislation efficiently and, therefore, it concentrates only on defining the essential legislative principle and leave the detail to be worked out by the executive.
2) Besides the pressure of work on the Parliament and lack of adequate technical knowledge about certain subjects, delegated legislation is also deemed necessary to meet unforeseen contingencies. It provides for a power of constant adapation to unknown future conditions without the necessity of amending the legislation.
3) Delegated legislation is further deemed necessary to meet the cases of emergency arising out of war, insurrection, floods, economic depression, epidemics etc. The executive must therefore, be armed with rule-making power so that it may initiate appropriate remedial action immediately without waiting for law to be passed by the legislature which is lengthy process.
4) In certain specific areas such as rationing schemes, imposition of import or export duties, exchange regulations, etc. expediency demand that law should not become public till it finally come into operation. Some kind of confidentiality become necessary in the public interest and therefore, the legislation prefers to delegate power of legislation on such matter to the concerned executive authorities.
5) The parliament found it difficult to lay down details especially in certain field of technical nature and therefore, entrusted this task to the departments and ministers concerned. Members of legislature may be seasoned politicians but the lack expertise and adequate knowledge to deal with highly technical matters such as nuclear energy, electricity, gas, atomic energy etc. which can be efficiently handled only by the experts in the respective field.
6) The complexities of modern public administration and expending dimensions of the socio-economic function of the state have necessitated the delegation of legislative power so as to enable the executive to device new forms of laws for the effective realization of the goal of socio- economic justice and implementation of the welfare schemes of the State.
Conditional delegation take place where the legislature empowers the executive to:
1 ) Extend the operation of an existing law to a particular area or territory;
2) Determine the time of application of an Act to a given area;
3) Extend the duration of a temporary Act, subject to maximum period fixed by the legislature;
4) Determine the extent and limit within which it should be operative;
5) Introduce a special law if the contemplated situation has arisen in the opinion of the Government.
Conditional legislation has proved to be very useful in implementing the modern socio-economic welfare scheme. The legislature usually formulates the development scheme, and leave it to the administrative authority as to when and where to implement them. Thus it confers ample discretion to the government to implement various welfare legislations.
Difference Between Delegated Legislation and Conditional Legislation
When a legislature confers law making power up on some other body, the legislative power is said to be delegated and it is a case of delegated legislation. But when the legislature itself enacts the law and give to some other body only the power of determining when it should come into force or when it should be applied to a particular area or territory of the state, there is no delegation of legislative power. Instead, it would be a case of conditional delegation.
Thus in delegated legislation, power of legislation are transferred or delegated which is not the case with conditional delegation.
” In Conditional legislation, the delegate’s power is that of determining when a legislative declared rule of conduct shall become effective, and the Delegated legislation involves delegation of rule- making power to administrative agent. That means the legislature after having laid down the broad principles of its policy in the legislation, can leave detail to be supplied by the administrative authority.”
The above distinction was reiterated by the Patna High court in “Raghunath Pandey Vs State of Bihar (1982) pat.1”, wherein the Court observed that in a conditional legislation, the law is complete in itself and certain condition are laid down as to ‘how’ and ‘when’ the law would be applied by the delegate.
Author: vivek khandelwal,
Amity University Rajasthan, 2nd Year/ BBA.LL.B(Hons.)