2 Reading Material

2.1 Meaning, Classification and Reasons for growth of Delegated Legislation

2.2 Constitutionality of Delegated Legislation

2.3 Parliamentary Control and Procedural Control of Delegated Legislation

2.4 Judicial Control of Delegated Legislation

2.5 Conditional Legislation and Retrospective Rule Making

2.1 Meaning, Classification and Reasons for growth of Delegated Legislation

there are multifarious functions that have to be performed by the Legislature in welfare states
and it is not an easy task for the legislature to look after every matter.

In contrast to this increasing legislative activity, the legislatures are not able to find adequate
time to legislate on every minute detail. They have limited themselves to policy matters and
have left a large volume of area to the Executive to make rules to carry out the purposes of
the Legislature. In such types of situation, the system of delegated legislation should be
applied

the need for delegation is necessary and is sought to be justified on the ground of flexibility,
adaptability and speed. This delegation is also known as secondary legislation or subordinate
legislation. The Act that gives the executive the power to legislate is called the Enabling
Statute or Parent Act.

Delegation has been defined by Black's Law Dictionary as an act of entrusting a person with
the power or empowering him to act on behalf of that person who has given him that power
or to act as his agent or representative. Delegated legislation means exercising of legislative
power by an agent who is lower in rank to the Legislature, or who is subordinate to the
Legislature.

By delegating the legislation by Parliament to the Executive or any subordinate, it empowers

different people or bodies to integrate more details to an Act of Parliament. Parliament along
these lines, through essential enactment (for example an Act of Parliament), licenses others to
make laws and guidelines through delegated legislation.
Delegated legislation is, referred to as Subordinate, Ancillary, Administrative legislation, and
Quasi-Legislation

Delegated legislation is a type of law made by the executive authority as per the powers
conferred to them by the primary authority in order to execute, implement and administer the
requirements of the primary authority.

It can be said that it is the law made by any person or authority under the power of
parliament.

It is also known as subordinate legislation in administrative law.

The important object of this is that any legislation by such delegation should be according to
the purposes as laid down in the act.

The main feature is that it allows the local authority to amend the laws if there is any need
without delaying for the new act to be passed by the Parliament.

For example, the local authority has power conferred by the superior one to make or amend
laws according to the requirement of their respective areas.

History of Delegated Legislation

The origin of delegated legislation can be traced back to the British legal system. Historically,
it evolved as a means to manage the growing administrative complexities during the 19th and
20th centuries. With the emergence of welfare states, the sheer volume and complexity of
necessary legislations exceeded the capacity of legislatures, leading to the delegation of
certain powers to expert bodies or individuals.

► Charter Act of 1833 when the East India Company was recapturing political impact in
India. The Charter Act of 1833 vested the administrative powers only in the hands of
the Governor-General-in Council, which was an official body. He was enabled to
make laws and guidelines for revoking, correcting or modifying any laws or
guidelines, which were for all people regardless of their nationality.

► In the case of Queen v. Burah 1878, nature and extent of Legislature power and the
feasibility of its delegation was considered by the Privy Council. The Privy Council,
in this case, held that Councils of Governor-General was supreme Legislature and has
ample number of powers and who are entitled to transfer certain powers to provincial
 executors. At the time of passing of New Delhi Act of 1912, the Privy Council
accepted the transfer of Legislature power to the Executive.

Difference Between Delegated Legislation and Delegated Powers

Basis of Delegated Legislation Delegated Powers

Differenciation

Definition Process of granting authority Powers granted by one branch of government to

to create laws and regulations. another to exercise authority and carry out
governmental functions.

Purpose Allows for detailed Distributes and balances governmental

implementation and authority for effective governance.
administration of laws.

Granting Body Legislature Legislature

Recipient Executive branch or regulatory Executive branch or individuals

agencies

Examples Regulations, bylaws, orders, Executive orders, appointments,

rules conduct foreign relations, manage
administrative agencies

Types of Delegated Legislation

Delegated legislation comes in various forms, each characterized by its unique elements and
purposes. Here are the three main types of delegated legislation:

o Orders in Council: These are issued by the Queen and Privy Council, often used for
situations of national importance.

o Statutory Instruments: This is the most common form of delegated legislation,

typically issued by government ministers.

o By-laws: These are laws created by local authorities or certain public corporations and
apply to specific geographical areas or industries.

Delegated Legislation in India

In the Indian legislative framework, the concept of delegated legislation has been adopted to
ensure effective governance. The Indian Constitution, while not explicitly providing for
delegated legislation, implicitly acknowledges its existence and necessity through various
provisions.

The increasing complexities of administrative functions and social services, coupled with the
need for specialist knowledge in certain areas, have necessitated the delegation of legislative
powers. In India, the practice of delegated legislation includes:

o Rule Making Power: Most of the modern legislation delegates rule-making power to
the executive.

o Subordinate Legislation: This includes legislation by local authorities such

as Municipal Corporations, District Boards, Panchayats, and similar bodies.

o Administrative Adjudication: Quasi-judicial bodies are vested with powers to

adjudicate upon the rights of the citizens.
2.2 Constitutionality of Delegated Legislation

Prior to India gaining independence, the Government of India Act, 1935, governed the legal
system. Under this Act, legislative powers were delegated to the executive branch, enabling
them to create laws in specific domains.

o In the case of Queen v. Burah (1878), the Privy Council authorized conditional
legislation.

o This meant that the power of the legislature was transferred to the executive.

o In particular, the administration of civil and criminal justice in a territory could

be entrusted to officials selected by the Lieutenant-Governor on a regular
basis.

o In another case, King v. Banwari Lal Sharma, the Privy Council once again applied
legislative conditions, similar to what they did in Queen v. Burah.

o In this case, the validity of the Governor-General of India's Emergency

Ordinance was challenged, among other things.

o The challenge was based on the argument that the Governor-General was
trying to take power away from the Provincial Government.

o The Governor-General was establishing special criminal courts for specific

types of offenses, but only the Provincial Government had the authority to
establish courts.

o The Privy Council considered this situation to be different from delegated

legislation.

o They explained that it represented an exceptional legislative authority where

the local administrative body determines the application of state legislation
within its locality as and when required.

To put it simply, in Queen v. Burah, the Privy Council authorized transferring legislative
power to the executive for the administration of justice. In King v. Banwari Lal Sharma, they
upheld the Governor-General's power to establish special courts, as it was seen as an
exceptional legislative authority granted to the local administrative body.

After India gained independence and adopted its Constitution in 1950, the framework for
delegated legislation underwent significant changes. The Constitution of India explicitly
recognized and allowed for delegated legislation. It empowered the legislature to delegate its
legislative powers to other entities, with certain limitations and safeguards.

The constitutionality of delegated legislation in the post-independence era has been affirmed
through several landmark court cases. These cases have established the principles and
boundaries within which delegated legislation operates.
 o In the case of Raj Narain Singh v. Chairman, Patna Administration Committee (1954),
the Supreme Court of India upheld the delegation of power from the legislative body
to the executive body.

o This case specifically empowered the local government to extend provisions

of the Bengal Municipality Act.

The Indian Constitution does not expressly prohibit the delegation of legislative power by the
legislature. However, there are two constitutional limitations on legislative delegation, as
established in the case of Re Delhi Laws Act (1951):

o The legislature cannot delegate its essential legislative functions.

o This means that the core and fundamental aspects of lawmaking must remain
with the legislature itself and cannot be transferred to another authority.

o The power conferred on a subordinate authority or executive body should not suffer
from excessive delegation.

o This means that the delegation of power should be limited and must be within
reasonable bounds, ensuring that the delegated authority does not exceed the
scope or purpose intended by the legislature.

In simpler terms, the Supreme Court, in the Raj Narain Singh case, allowed the legislature to
delegate power to the executive body. However, the Constitution imposes two limitations on
this delegation: the essential legislative functions must remain with the legislature, and the
delegated power should not be excessively broad or unlimited.

Supreme Court’s Opinion on Delegated Legislation

The Supreme Court of India, on various occasions, has upheld the constitutionality of
delegated legislation, recognizing its necessity in the modern administrative framework. The
Court has held that as long as the legislative policy and guidelines are provided in the
enabling Act, the delegation of subsidiary or ancillary powers is valid.

Need for Delegated Legislation

The rising complexities of administrative functions and social services, coupled with the
requirement of specialist knowledge in certain areas, have warranted the delegation of
legislative powers. In modern governance, delegated legislation helps ensure that the laws
keep pace with societal changes and technological advancements.

Reasons for Growth of Delegated legislation

There are many reasons for rapid growth of delegated legislation in todays’ world, some of
them are:
 o Pressure upon time of Parliament: The expanding scope of state activities and the
Parliament's limited time pressures them to delegate law-making power to the
executive. The Parliament provides the broad outline of legislation, leaving the details
to be filled by the executive or its subordinates, ensuring the necessary rules and
regulations are followed for a functioning law.

o Technicality in the matters: In today's complex and advanced society, matters have
become more intricate and technical. To comprehend the intricacies of various topics,
the legislature requires experts who possess in-depth knowledge of specific matters.

o Flexibility: Delegated legislation provides flexibility and expedites the lawmaking

process by involving the executive branch, enabling swift regulation in areas like
police, banking, trade, and foreign exchange. It allows for addressing unforeseen
contingencies and ensuring efficient workload management, making it essential for
effective governance.

o Emergency: In times of emergency or crisis, quick action is needed, and the

legislature may not possess the necessary skills to provide immediate solutions.
Delegated legislation becomes crucial in such situations, allowing the executive to
have broad powers to address emergencies.

o Experiment: Delegated legislation allows the Executive to experiment with new laws
and assess their effectiveness. This approach enables the utilization of experience and
implementation of necessary changes based on the application of provisions,
considering the interests and impact on people at the ground level.

Complexity of modern administration: Modern administration has taken on additional

responsibilities in areas such as employment, health, education, and trade regulation, leading
to increased complexity. This expansion of state functions in the social and economic spheres
has necessitated the creation of new legislation and granting wide powers to various
authorities.

Advantages and Disadvantages of Delegated Legislation

In the grand scheme of legislative procedure, delegated legislation comes with its unique set
of advantages and disadvantages. This mixed bag of benefits and challenges warrants a
deeper dive to appreciate its role and implications fully.

Advantages of Delegated Legislation

Some of the advantages of delegated legislation are as follows:

o Time Efficiency: One of the primary benefits of delegated legislation is that it aids in
efficient time management. The parliament often finds itself inundated with a
multitude of issues that require legal attention. Delegating some legislative powers
allows for a smoother, quicker process of law-making.
 o Flexibility: Delegated legislation provides a higher degree of flexibility compared to
primary legislation. Given its ability to be modified, expanded, or revoked relatively
easily, it can be tailored to meet changing needs and circumstances more efficiently.

o Expert Input: Certain domains demand specific technical knowledge that the
parliamentarians may not possess. Delegated legislation enables experts in specific
fields to contribute to law-making, thereby ensuring laws are comprehensive,
practical, and well-informed.

o Prompt Response: In times of crisis or emergency, swift legislative action becomes

crucial. Delegated legislation allows for the prompt formulation and implementation
of laws without having to wait for the parliamentary process, ensuring a swift
response to immediate issues.

Disadvantages of Delegated Legislation

While delegated legislation comes with its strengths, it is not without its pitfalls.

o Risk of Power Imbalance: Delegating legislative powers to the executive or other

bodies may lead to an imbalance of power. It could potentially result in the
overstepping of boundaries, thus blurring the lines of separation of powers, a
fundamental principle of democracy.

o Lack of Public Scrutiny: As delegated legislation is often crafted behind the closed
doors of administrative or executive bodies, it may lack the public scrutiny integral to
the democratic process. This could lead to laws that may not entirely align with public
interest or sentiment.

o Potential for Overlegislation: There is a risk that bodies vested with legislative power
may overuse or misuse this power, leading to overlegislation. This can result in an
excessive number of rules and regulations, making the law too complex and difficult
for the common citizen to navigate.

o Lack of Uniformity: Different bodies exercising legislative powers may lead to

inconsistencies in the laws enacted. This lack of uniformity can create confusion and
challenges in the application and interpretation of these laws.

Classification of Delegated Legislation

Power to bring Act into Action As it is already given that in a specified date this Act will
come into force prescribed by Central or State Government by giving a notice in the Official
Gazette.

In A.K. Roy vs. Union of India, 1982 AIR 710

 o The case dealt with the constitutionality of the National Security Ordinance,
1980, which provided for preventive detention in certain cases.

o The Court held that as long as a preventive detention law is made within the
legislative power arising out of a legislative entry and adheres to the
conditions and restrictions on that power, it is not disallowed under the Indian
Constitution.

o In other words, delegated legislation (such as ordinances) is permissible as

long as it falls within the constitutional framework and does not exceed the
authority granted by the legislature.

o The Supreme Court clarified that the President’s power to issue ordinances
is not beyond judicial review. While the President has the authority to issue
ordinances, this power is subject to scrutiny by the courts.

Conditional Legislation the rules are framed or designed by the legislature but to implement
or enforce it, is done by the executive organ, so executive has to look that what all conditions
need to be fulfilled to bring it in operation. If all conditions are satisfied then it is well and
good otherwise notice will be issued to bring the law into operation and it is known as
Conditional Legislation.

Condition legislation is of following types

● Power to bring the act into action.

● Power to extend the time period or life of the act.

● Power to extend the application of the act to any territory and to make restriction or
make an alteration in the act itself.

● Exempt the operation on certain ground or subjects of territories.

Power to fill in the blanks of the format – A rough format is prepared by the legislature and
pass on to the executive to fill up with all the necessary blanks or elements needed by the
subordinate legislation.

Power face in removing difficulties – Power to modify the statute maybe given to the
government by removal of difficulties clause.
2.3 Parliamentary Control and Procedural Control of Delegated Legislation

Control of Delegated Legislation

There are three kinds of Control given under Delegated Legislation:

1. Parliamentary or Legislative Control

2. Judicial Control

3. Executive or Administrative Control

Parliamentary or Legislative Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only
the right but the duty of the legislature to look upon its agent, how they are working.

It is a fact that due to a delegation of power and general standards of control, the judicial
control has diminished and shrunk its area.

In India “Parliamentary control” is an inherent constitutional function because the executive

is responsible to the legislature at two stages of control.

1. Initial stage

2. Direct and Indirect stage

In the Initial stage, it is to decide how much power is required to be delegated for completing
the particular task, and it also observed that delegation of power is valid or not.

Memorandum on Delegation: At the central level, the first step in the chain of
Parliamentary control over delegated legislation is taken at the stage of delegation by
Parliament. A rule of procedure of each House of Parliament requires that a bill involving
proposal for delegation of legislative power shall be “accompanied by a memorandum
explaining such proposals and drawing attention to their scope, and stating also whether they
of exceptional or normal character”.

The purpose of memorandum is to focus the attention of the Member of Parliament to the
provisions of the bill involving delegation of legislative power.

The Speaker may also refer bills containing provision for delegation of legislative power to
the committee to examine the extent of such powers sought to be delegated
Now, the second stage consists of two different parts.

1. Direct control

2. Indirect control

Direct control

The second link in the chain of Parliamentary Control comes into play after the rules are
made. This is achieved by the mechanism of the ‘laying procedure’.

The underlying idea is that if Parliament is to exercise any control, it is necessary that the
House of parliament be informed of the content of the delegated legislation made by the
Government from time to time under various statutes.

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement which means that after making the rule it should be placed before the Parliament.
It includes three important part as per the degree of control needs to be exercised.

1. Simple Laying:

This is the procedure of ‘Laying on the Table’ of the Legislature It serves two purposes:
firstly, it helps in informing the legislature as to what all rules have been made by the
executive authorities in exercise of delegated legislation, secondly, it provides a forum to the
legislators to question or challenge the rules made or proposed to be made.

2. Negative Laying:

Laying subject to negative resolution implies the coming into force of the rules with the

exception that it shall cease to have effect if the House annuls it.

3. Affirmative Laying

Laying subject to affirmative resolution where the rules need approval for coming into effect
or else, they cease to be in operation until such resolution

“test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory Where in the provision is mentioned that the rules should be drafted in a
particular format then it becomes mandatory to follow the format.

Test of Directory – Where the laying need is to enforce the rule into operation then it will be
directory in nature.
Indirect control

This is a control exercised by Parliament and its committees. Another name for such type of
committee is Subordinate legislation. The main work of the committee is to examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect ways.

3. Whether it has retrospective effect or not.

4. Whether it safeguard or destroy the Principle of Natural Justice.

5. Expenditure involved in it is from Consolidated fund.

Parliamentary Scrutiny:

In the negative resolution which now prevails in India, everything depends on the vigilance
of each individual member of Parliament

To make parliamentary supervision over delegated legislation more effective, two committees
on subordinate Legislation, one in each House of Parliament, have been established. (Lok
Sabha Rules 317 – R 322, Rajya Sabha rules 204- R 212)

Recommendation by the Committee on Subordinate Legislation: The Committee on

Subordinate Legislation (For the first time the Committee was constituted in December, 1953
and has been constituted since then from year to year. The functioning of the Committee on
Subordinate Legislation, Lok Sabha is largely governed by the Rules 317 - 322 of Rules of
Procedure and Conduct of Business in Lok Sabha and Directions 103 – 108 of Directions by
the Speaker, Lok Sabha.) has made the following recommendation in order to streamline the
process of delegated legislation in India:

(i) Power of judicial review should not be taken away or curtailed by rules.

(ii) A financial levy or tax should not be imposed by rules.

(iii) Language of the rules should be simple and clear and not complicated or
ambiguous.

(iv) Legislative policy must be formulated by the legislature and laid down in the
statute and power to supply details may be left to the executive, and can be
worked out through the rules made by the administration.

(v) Sub-delegation in very wide language is improper and some safeguards must
be provided before a delegate is allowed to sub-delegate his authority to
another functionary.

(vi) Discriminatory rules should not be framed by the administration.

(vii) Rules should not travel beyond the rule-making power conferred by the
parent Act.

(viii) There should not be inordinate delay in making of rules by the

administration.

(ix) The final authority of interpretation of rules should not be with the
administration.

(x) Sufficient publicity must be given to the statutory rules and orders.
Procedural and Executive Control

There is no particular procedure for it until the legislature makes it mandatory for the
executive to follow certain rules or procedure.

To follow a particular format it may take a long time which will definitely defeat the actual
objective of the act. Hence, procedural control means that under Parent act certain guidelines
are given which need to be followed while whether it is mandatory or directory to follow it
or not. It includes three components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation :

According to Section 23 of General Clauses Act, 1897, the authority shall publish the draft
rules for information of affected interests in such manner as it deems sufficient

The term Publication refers ‘to the act of publishing anything; offering it to public notice, or
rendering it accessible to public scrutiny…an advising of the the public; making known of
something to them for a purpose.’ something generally known. It comes from the Old English
word ‘ publicatio’ whose origin can be traced back to ‘publicare’, which means to make
public. The simple concept which ascertains the publication of delegated legislation revolves
around two important principles. Firstly, it is to provide the parties which are going to be
affected by the said legislation an opportunity of being heard as provided by the Principle of
Natural Justice.

Secondly, according to the maxim ignorantia juris non excusat‘ (i.e. ignorance of law is
no excuse) and according to this rule no person can claim the ignorance or him not
knowing the law as an excuse. But this can be applied only when the public were made
aware of the existence of such law and this can be done by the means of publication

3. Laying of rules.

It can be either Mandatory or Directory, to know, certain specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.

3. Language used for drafting purpose.

4. Inconvenience caused to the public at large scale.

And these four parameters were given in the case Raza Buland Sugar Co. vs. Rampur
Municipal Council. (1965 AIR 895)
2.4 Judicial Control of Delegated Legislation

Judicial review upgraded the rule of law. The court has to see that the power delegated is
within the ambit of the constitution as prescribed. Judicial review is more effective because
court do not recommend but it clearly strikes down the rule which is ultra vires in nature. As
per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate
that State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:

1. It is ultra vires to the Constitution of India: (parent Act and/ or delegated

legislation)

If the parent statute or the enabling Act is in non- conformity with the Constitution then the
different rules and regulations framed under such statute will also be deemed to be
unconstitutional, if it is in violation with the express or implied limits of the constitution. The
express limit under the constitution are those provisions which specifically set the limits on
the powers of the state authorities such as no violation of the fundamental rights specified
under Part III of the constitution, strict adherence with the distribution of the legislative
powers as specified under List I, II and III of the Seventh schedule, no retrospective effect of
criminal legislation as provided under Article 20 etc.

Article 20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of a law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

It is necessary that both the Parent statute as well as the delegated legislation should
be in compliance with these express limits of the constitution for the purpose of legal
enforcement.

The parent statute may be constitutional, but the delegated legislation emanating there
under may be in conflict with some provision of the constitution. In that case, the
delegated legislation will be invalid.

It is ultra vires to the enabling Act

Cases

In the case of Narendra Kumar v. Union of India, 1960 AIR 430

1. Background:

o The case revolved around the Essential Commodities Act, 1955 (Act), which
aimed to regulate essential commodities to ensure their availability and
prevent hoarding.

o The government, exercising its powers under Section 3 of the Act, issued
the Non-ferrous Metal Control Order, 1958. This order fixed prices and
required permits for trading in imported copper.

2. Petitioners’ Argument:

o The petitioners, who had entered into contracts to purchase copper, challenged
the validity of the order.

o They contended that the order violated their fundamental rights:

▪ Article 19(1)(f) (right to acquire property).

▪ Article 19(1)(g) (right to carry on trade).

3. Issue:

o The central issue was whether the order, which placed total restraint on trading
in imported copper, was constitutional.

4. Court’s Reasoning:

o The court held that while reasonable restrictions on fundamental rights are
permissible, a total prohibition could be problematic.

o It analyzed the provisions of the Act and the order in light of Articles 14,
19(1)(f), 19(1)(g), 19(5), and 19(6) of the Constitution of India.

o The court emphasized that restrictions must be reasonable and not arbitrary.

5. Decision:

o The court struck down the order as unconstitutional because it amounted to a

total restraint on trading in imported copper.

o The order failed to meet the test of reasonableness and proportionality.

6. Significance:
 o The case established that delegated legislation must adhere to constitutional
principles.

o It highlighted the need for a balance between regulatory measures and

individual rights.

In Chandra Bhan And Ors. vs State of UP, AIR 1954 ALL 39

1. Background:

o The appellants were convicted under Section 147 (rioting) and Section
302 (murder) read with Section 149 of the Indian Penal Code (IPC).

o The incident occurred on 28th July 1950 in village Bachhgaiya, police

station Jaitpur, district Agra.

o The dispute centered around plot No. 62, which had been the subject of a
protracted litigation.

2. Plot Ownership Dispute:

o Phooljari, Gangadin, and their brother Sheo Dayal had filed a suit
for ejectment regarding plot No. 62 under Section 180 of the U.P. Tenancy
Act.

o After a prolonged legal battle, they obtained possession of the plot on 21st
September 1949.

o However, due to a stay order issued by the Board of Revenue, the possession
was later redelivered to another party (Chhotey).

3. The Incident:

o On the day of the occurrence, while Phooljari and Gangadin were cultivating
the disputed plot, the appellants (along with two others) armed themselves
with lathis and ploughs.

o The appellants demanded that Phooljari and Gangadin stop ploughing, but
upon refusal, they beat them severely.

o As a result, Phooljari died on the spot, and Gangadin succumbed to his

injuries later in the hospital.

4. Legal Issues:
 o The case raised questions about the constitutionality of the actions taken by
the appellants during the dispute over plot No. 62.

o It also highlighted the importance of reasonable restrictions in delegated

legislation.

5. Court’s Decision:

o The court held that while delegated legislation is permissible, it must

be reasonable and not suffer from unreasonableness.

o The actions of the appellants, which led to severe injuries and death, were
deemed unlawful and unreasonable.

o The court emphasized the need to protect the rule of law and prevent
arbitrariness in delegated legislation.

6. Significance:

o The case underscores the importance of judicial scrutiny over delegated

legislation to ensure it aligns with constitutional principles.

o It serves as a reminder that even when exercising delegated powers, authorities

must act reasonably and within legal bounds
2.5 Conditional Legislation and Retrospective Rule Making

Conditional legislation may also be called contingent legislation. In this type of legislation, a
statute provides powers to the administrative authority to determine when a law should be
applied or when it comes into force. but adds some specifications along with them. These
specifiers are conditions, and when these conditions are fulfilled, the powers of the delegated
authority become activated.

In other words, conditional legislation refers to a type of legislative enactment where the law
is fully and clearly specified, but its application or enforcement is made subject to certain
conditions or circumstances. In other words, the law itself is complete, and the conditions laid
down specify the contingencies under which it will be implemented or applied.

the legislature provides a set of rules or regulations, often in detail, and delegates the
authority to decide when and how those rules will come into effect or be applied to a
particular authority or agency.

The delegate, usually an executive body or administrative authority, does not have the power
to create or modify the law itself but exercises the discretion to determine the timing and
manner of its application based on the specified conditions.

The conditions specified in the legislation can be various types, such as specific dates, events,
or the satisfaction of certain criteria. The purpose of incorporating such conditions in the
legislation is to ensure that the law is applied in a manner that aligns with the legislative
intent or to accommodate practical considerations that may affect its implementation.

Conditional legislation is often used to provide flexibility in the application of laws,

especially when precise timing or specific circumstances are relevant to the successful
enforcement of the law. It allows the executive to adapt the law’s implementation to changing
circumstances or contingencies without having to seek further approval from the legislature.

Usage of Conditional Legislation

1. Empowering the executive to expand the activity of an existing law to a specific

area or region:

2. Determining the time of application of an Act to a given area: Conditional

legislation may involve specifying the timing or sequence in which an Act or law
should come into effect in different areas.
3. Broadening the span of a Temporary Act, subject to a maximum period fixed by
the legislative assembly: Temporary Acts or laws may be enacted for a limited period
to address specific issues or situations. Conditional legislation allows the legislature to
empower the executive to extend the duration of such temporary laws within the
maximum period set by the legislative
 4. Determining the degree and limits within which the statute or Act should be
employable and operative: This may include delineating the scope of applicability
based on factors such as the size of the population, the nature of the offense, or the
jurisdiction of a particular authority.
5. Introducing a special law if the contemplated situation has arisen in the opinion
of the government: This allows the government to address emerging issues or
circumstances that were foreseen by the legislature but require immediate action.

Categories of Conditional Legislation

The first category involves a completed statute where the legislature has enacted the entire
structure of the legislation. However, the decision of applying the provisions of the Act to a
specific region is left to the subjective satisfaction of the delegate.

The delegate, acting on behalf of the parent legislative body, determines the appropriate
timing for implementing the Act in the given region. This type of conditional legislation
relies on the delegate’s subjective satisfaction regarding when the enacted Act should come
into effect.

In the second category, the delegate is tasked with deciding whether and under what
circumstances a completed Act, which has already come into force, should be partially
withdrawn or made inapplicable to a specific area or a particular class of persons.

The delegate exercises the power of withdrawal based on specific causes of action or
governance, leading to the Act no longer being applicable to the affected class of persons.
Here, the delegate acts negatively by removing or limiting the application of the Act.

The third category of conditional legislation arises when the delegate’s exercise of
conditional power depends on objective facts presented by one group of individuals seeking
benefits, with the intention of depriving another rival group of persons who have already
obtained statutory benefits under the Act.

In such cases, the delegate’s satisfaction must be based on objective considerations, taking
into account relevant data and arguments presented by both sides. The delegate evaluates the
facts and makes a decision regarding the exercise of the conditional power, considering the
potential impact on both groups.

Jotindra Nath Das And Ors. vs Lala Prasad Sao And Ors., AIR1956PAT496

This case pertains to the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar
Act 3 of 1947), which was extended multiple times by the Government of Bihar. The
appellants contended that the power given to the Provincial Government under Section 1 (3)
of the Buildings Control Act was a case of delegated legislation, and therefore, not only that
particular provision was void but that it invalidated the entire Act 3 of 19472.

In relation to conditional legislation, it’s important to understand that conditional legislation

refers to a type of legislative enactment where the law is fully and clearly specified, but its
application or enforcement is made subject to certain conditions or circumstances. In other
words, the law itself is complete, and the conditions laid down specify the contingencies
under which it will be implemented or applied

In the context of this case, the court held that the power given to the Provincial Government
under Section 1 (3) of the Buildings Control Act was not a case of delegated legislation but
rather a case of conditional legislation. The court reasoned that all that has been left for the
decision of the Provincial Government under Section 1 is to extend its operation to the areas
which they think proper or to cut away its life to a period fixed and thereafter to extend it
again if they so like. Therefore, the court concluded that the law laid down in AIR 1949 FC
175 (A) cannot be said to be applicable to the facts of these cases.

Retrospective Rule Making

The term ‘retrospective’ essentially means speculating or looking into the events or incidents
that have taken place in the past. When any law that was already existing is changed, altered,
or some portion of it is removed, it doesn’t remain the same as it was previously. However,
the new changes still have an influence on the events that occurred in the past. In other
words, if a person commits an act that was not considered to be an offence at that point under
any legislation, but becomes one after some changes in the existing laws or the introduction
of a new law, the person could be held liable even for the acts committed by him in the past.

Retrospective and retroactive

The prospective statute operates from the date of its enactment conferring new rights. The
retrospective statute operates backwards and takes away or impairs vested rights acquired
under existing laws. A retroactive statute is the one that does not operate retrospectively. It
operates in future. However, its operation is based upon the character or status that arose
earlier.

Retroactivity’ is used to cover at least two distinct concepts. The first, which may be called
‘true retroactivity’, consists in the application of a new rule of law to an act or transaction
which was completed before the rule was promulgated. The second concept, which will be
referred to as ‘quasi-retroactivity’, occurs when a new rule of law is applied to an act or
transaction in the process of completion…the foundation of these concepts is the distinction
between completed and pending transactions

Expostfacto laws and retrospective laws

from a thing done afterward

An ex post facto law is a law that retroactively changes the legal consequences (or status) of
actions that were committed, or relationships that existed, before the enactment of the law.
In criminal law, it may criminalize actions that were legal when committed; it may aggravate
a crime by bringing it into a more severe category than it was in when it was committed; it
may change the punishment prescribed for a crime, as by adding new penalties or extending
sentences; it may extend the statute of limitations; or it may alter the rules of evidence in
order to make conviction for a crime likelier than it would have been when the deed was
committed.

Conversely, a form of ex post facto law commonly called an amnesty law may decriminalize
certain acts. (Alternatively, rather than redefining the relevant acts as non-criminal, it may
simply prohibit prosecution; or it may enact that there is to be no punishment, but leave the
underlying conviction technically unaltered.) eg. Communtation, pardon, etc.

Article 72, Prez powers to

Pardon

Reprieve

Remit

Respite and

Commute

Types of Pardoning Powers of the President

S.No Type Detail

1. Pardon When the President pardons, both the sentence and the conviction of the convict
completely absolve the sentences, punishments and disqualifications

2. Respite When the President uses the pardoning power of ‘Respite’, he chooses to award a
lesser sentence in place of one originally awarded to the convict. For example,
due to some special fact, such as the physical disability of a convict or the
pregnancy of a woman offender, the President can use this power

3. Reprieve When the President chooses the pardoning power of ‘Reprieve’; he stays the
execution of a sentence (especially that of death) for a temporary period. By
doing this, he enables the convict to have time to seek pardon or commutation
from him

4. Remit When the President chooses the pardoning power of Remit, he acts to reduce the
period of the sentence but the character of the sentence remains the same. For
example, a sentence of rigorous imprisonment for two years may be remitted to
rigorous imprisonment for one year but the imprisonment remains rigorous

5. Commute When the President chooses to use this pardoning power of ‘Commute; he
substitutes one form of punishment for a lighter form. For example, a death
sentence may be commuted to rigorous imprisonment, which in turn may be
commuted to simple imprisonment.
Karnataka Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands)
Act, 1978, which was retrospective in nature. This Act aimed to prohibit the transfer of land
granted by the government to people belonging to the Scheduled Castes and the Scheduled
Tribes. This law was also applicable on the land under the ownership of the Scheduled Castes
and the Scheduled Tribes before the enactment of this law. Nobody was even allowed to
purchase the land owned by the people belonging to SC and ST communities.

Ratan Lal v. State of Punjab, 1965 AIR 444

In this particular case, a boy who was 16 years old was held liable for committing trespass
and for outraging the modesty of a 7-year-old girl. He was ordered to rigorous imprisonment
by the magistrate and a certain amount of fine was also imposed upon him. However, later
on, the legislation known as the Probation of Offenders Act, 1958, came into force, in which
it was stated that any person below the age of 21 should not be imprisoned. The Court in this
case held that any legislation could be operated in a retrospective manner for the benefit of
that person to reduce the punishment. Hence, any form of ex-post facto law which is required
for the benefit of the accused is not prohibited from being introduced retrospectively under
Article 20(1) of the Indian Constitution.

Hitendra Vishnu Thakur v. State of Maharashtra, 1994 AIR 2623

This case defined the scope of the amendment brought in an CrPC (Is the 1993 Amendment,
amending Section 167(2) of the Code of Criminal Procedure by modifying Section
20(4)(b) and adding a new provision as 20(4)(bb), applicable to the pending cases i.e. is it
retrospective in operation?) and whether it should be allowed to operate retrospectively. The
Court laid down that if any given law affects the substantive rights of any individual, then it
should not be allowed to operate retrospectively. Apart from this, several other general
principles were also laid down in this case, which are as follows.

1. If any Act affects the substantive rights of an individual, it is assumed to be

prospective in its operation unless stated expressly, either in oral or written form that
the law is said to operate in a retrospective manner.

2. Each and every person who approaches the court for certain claims is said to have
certain rights stated in substantive law but these are not stated in any procedural law.

3. All the laws relating to forum and limitation are said to be procedural, but all the laws
relating to the right to appeal or the right to take any given action are substantive.

4. Any Act that changes the procedure or leads to a change in the period of punishment
shall be presumed as prospective in operation unless stated otherwise either in spoken
or through a written mode.

5. A procedural statute should not be applied retrospectively where the impact of the
same is going to create new rights or obligations or even impose new duties on any
transaction that has already taken place.
POSITION IN OTHER COUNTRIES

United Kingdom (UK)

Under English law, there is a presumption that, unless stated specifically, the statutes are not
assumed to have a retrospective effect. However, if a clear intention of any law being applied
retrospectively has been specified, there is no need to stop the same from being implemented.
An example of it was the Wireless Telegraph (Validation of charges) Act 1954, which
provided the basis of a statutory provision for the wireless license fees that have been
collected for the last 50 years. In the Supreme Court judgement of Walker v Innospec Ltd and
Ors, 2017 it had been clearly stated by the Court that any enactment unless a contrary
intention has been expressly stated, is going to be prospective in nature.

Australia

In Australia, both the state and the Central Government have the power to make retrospective
laws that would also apply to past events. However, this has been criticized time and again in
Australia for being violative of the rule of law. This is so because, under the Australian
principle of the rule of law, the law must be known to all so that they can comply with it. In
the case of R v Kidman (1915), the retrospective operation was challenged for the first time.
However, the High Court, in this case, stated that though the power of the Australian
Parliament is limited by the Constitution, there is no limit on either the State Legislature or
Parliament to formulate any retrospective law.

France

In France, the formulation of ex-post facto laws was completely prohibited, as per Article 2
of Code Civil or the Napoleonic Code. The basic reasoning given in this Article is that the
law should only look into the future and shouldn’t be retrospective in nature. However, it was
later determined by the Constitutional Council, one of the highest authorities in France, that
retrospective laws could be introduced within certain limits.

United States of America (USA)

Congress in America is prohibited from making any ex-post facto laws. This is one of the
very few restrictions imposed by the Constitution of the United States of America on both the
state and federal governments. When deciding upon the ex-post facto cases, the Court has
relied upon the judgement given in the case of Calder v Bull (1798). However, it has not
always been the case that ex-post facto laws aren’t allowed. There was an Act introduced in
2006 known as the Adam Walsh Child Protection and Safety Act that imposed certain new
rules for registration for convicted sex offenders, also applying to those who had committed
these offences in the past. Hence, for the common good of society, retrospective operation of
statutes is prohibited in most situations.
Difference between retrospective and prospective operation of statutes

A prospective operation of any statute essentially means that the statute as it is formulated is
solely focused on the future acts or offences that might be committed. Retrospective- the law
that has been passed or the amendment made to the current times is also going to be
applicable to the events carried out in the past

Retrospective operation of statutes Prospective operation of statutes

Such a statute focuses on the events of the Such a statute focuses solely on events
past, and the new laws introduced are resorting to wrongful acts after the
applicable to those past events. introduction of the act or the amendment.

Any statute introduced, unless expressly

No statute is presumed to ever be
stated otherwise, is considered to be
retrospective in nature.
prospective in nature.

A statute can have a retrospective

operation only when it is concerned with Any statute, whether concerned with civil or
civil matters and not criminal matters. criminal matters, is presumed to have
Criminal matters can only have a prospective operation.
retroactive operation.

Retrospective statutes are generally The prospective statutes enjoy acceptance

criticized by society and not from the general public and the governments
recommended by governments because of are also mostly in favour of such statutes.
their being unfair and unjustified toward These uphold the democratic values of justice
the citizens. and the rule of law.

The retrospective operation of statutes is

All countries generally accept all the new
still not recognized in most countries. In
laws to be applicable for future events, i.e.,
several other countries, these can be
prospective operation of the laws.
introduced with several restrictions.