Conditional legislation may be defined as ‘ statute that provides controls but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute’.
When conditional legislation is passed by the legislature, the law is full and complete. No legislative function is delegated to the executive. However, such Act is not brought into force. It is left to the executive to bring the Act into operation on fulfilment of certain conditions and for that reason the legislation is called ‘conditional legislation.’
According to Cooley : It is not always essential that a legislative Act should be a completed statute which must in any event take effect as law at the time it leaves the hands of legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.”
The question of permissible limits of delegation of law-making power as conditional legislation can be considered in three different periods for the sake of better comprehension.
- Privy Council and conditional legislation- The doctrine of conditional legislation was laid down by the Privy Council in Queen v. Burah. 1878 , In this case the view of Privy Council was that where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may well be exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence is no uncommon thing and, in many circumstances, it may be highly convenient.
The doctrine of conditional legislation has been applied in a number of cases.
In Emperor v. Benoari Lal 1945, an ordinance promulgated by the Governor General provided for setting of Special Courts. But the operation of the ordinance was left to the Provincial Government on being satisfied that emergency had come into existence. The validity of the ordinance was upheld. According to the Privy Council it was a piece of conditional legislation as the legislation was complete and what had been delegated was the power to apply the ordinance on fulfilment of certain conditions.
- Federal Court and Conditional Legislation : In Jatindra Nath Gupta v. Province of Bihar 1949, the Federal Court held that there could be no delegation of legislative power in India beyond “conditional legislation.” The Court took a restrictive view of the concept of conditional legislation.
- Supreme Court and Conditional Legislation – Federal Court had taken a narrow view with regard to the concept of conditional legislation while the Supreme Court has taken a liberal view.
In Inder Singh v. State of Rajasthan 1957, an ordinance was promulgated for two years, but the Governor was empowered to further extend the life of the said ordinance by a notification. The Governor extended the life of the ordinance first by two years and then again by two years. The Supreme Court held, the power to extend the life of ordinance valid as being conditional legislation. This is a provision similar to that involved in Jatindra in which it was decided that the power to extend the operation of an Act was delegated legislation and not conditional legislation and therefore bad and void. In this way, the Supreme Court has broadened the concept of conditional legislation.
In applying the doctrine of conditional legislation in the cases coming before it, the Supreme Court has adopted a liberal approach in Basant Kumar v. Eagle Rolling Mills.1964,
Section 1 (3) of the Employees’ State Insurance Act, 1948 passed by Parliament provided that the “Act shall come into force on such date or dates as the Central Government may by notification in the official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States and for different parts thereof.” The Supreme Court held the provision valid as conditional legislation.
In A. K. Roy v. Union of India the Court upheld the validity of a provision in a constitutional amendment giving unfettered discretion to the executive to bring the amendment into force.
- Liberalisation of the concept of conditional legislation.
The Supreme Court has liberalised the concept of conditional legislation. In Kerala State Electricity Board v. Indian Aluminium 1976, a Kerala Act was passed to regulate production, supply and distribution of ‘essential articles’. But the statute provided no list of articles; it left it to the government to notify an article as an “essential article” and bring it within the purview of the Act. The Supreme Court upheld the delegation of power as conditional legislation.
A special reference may be made to Tulsipur Sugar Co. Ltd. v. Notified Area Committee 1980, In this case, a notification was issued under section 3 of the U.P. Town Areas Act, 1914 extending the limits of Tulsipur Town to village Shitalpur where the sugar factory of the plaintiff was situated. The notification was challenged, inter alia, on the ground that the procedure under the Act was not followed and hence the subordinate legislation was bad. Rejecting the contention, the Supreme Court held that it was a case of conditional legislation and not of subordinate legislation. Referring to a number of cases, the Supreme Court said that the effect of making the Act applicable to geographical area is in the nature of a conditional legislation and that “it cannot be characterised as a piece of subordinate legislation.
Distinction between Conditional and Legislative Legislation:
|Sr. No.||Delegated legislation||Conditional Legislation|
|1.||In this, the subordinate authorities are delegated and empowered to ‘legislate’||In this, the subordinate authorities are not delegated to legislate.|
|2.||There is no such condition or contingency.||It is contingent and conditional. It is only a time factor. Upon reaching certain time or circumstance, the readymade Act (legislated by supreme legislative authority) is put into force.|
|3.||The subordinate authorities use their ‘OWN DISCRETION’ in making the legislation.||The subordinate authorities cannot use their discretionary power. It is their only duty to apply the law after fact finding (e.g. to inquire whether facts requiring operation of the Act exist).|
|4.||The Supreme Court in HAMDARD DAWAKHANA’S case pointed out the distinction between them as follows: “delegated legislation involves delegation of rule-making power which constitutionally may be exercised by the administrative agent.||The conditional legislation delegate’s power is that of determining when a legislative declared rule of conduct shall become effective.|