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Question Bank
Question
What is the key distinction between "delegation of legislative power" and "conditional legislation"?
Solution
The key distinction lies in the nature and extent of authority transferred. Delegation of legislative power involves the legislature conferring its essential law-making functions—such as determining legislative policy and formulating rules of conduct—to another body, like the executive. This is often viewed with caution as it may amount to an abdication of the legislature's primary role. In contrast, conditional legislation does not involve transferring core legislative functions. Instead, the legislature itself enacts a complete law but leaves its application or enforcement contingent upon certain conditions or facts to be determined by an executive authority. The efficacy of actions under conditional legislation derives directly from the parent statute, not from the subordinate authority's independent will.
Question
What is meant by the power to apply laws with "restrictions and modifications," and what are its permissible limits?
Solution
The power to apply laws with "restrictions and modifications" allows a designated authority (often the executive) to adapt an existing statute for application to a new territory or context. This power is intended to be ancillary, enabling necessary adjustments to suit local conditions without altering the fundamental character of the law. Permissible modifications are those that do not affect the core identity, essential purpose, or basic structure of the parent Act. They should be confined to changes of a machinery or procedural nature and cannot radically transform the legislative policy or the substantive rights and obligations established by the original law.
Question
Under what principle can a non-sovereign legislature, established by a written constitution, delegate its law-making functions?
Solution
A non-sovereign legislature, such as one created by a statute like the Government of India Act, 1935, or the Indian Constitution of 1950, operates on the principle of possessing "plenary powers within a prescribed sphere." This means that while its authority is limited by its founding document, within those boundaries, it is supreme. It can delegate legislative functions provided it does not abdicate or efface itself entirely. The delegating legislature must retain its ultimate control and capacity to repeal or amend the delegated authority. The actions of the subordinate body derive their legal force not from their own authority but from the original delegating statute.
Question
What constitutional principle prevents a legislature from creating a "new legislative power" not authorized by its founding statute?
Solution
This restriction is rooted in the doctrine that a legislature is a creature of its constitution. It cannot create a new legislative power—that is, a new, independent, and co-ordinate law-making body with general legislative authority. Such an act would be ultra vires because it would fundamentally alter the constitutional framework established by the superior instrument (e.g., an Act of Parliament or a written Constitution) that created the legislature in the first place. A legislature can delegate power to a subordinate agency, but it cannot endow another body with the same independent legislative status it possesses.
Question
How does the legal principle against "abdication" function as a check on a legislature's power to delegate?
Solution
The principle against abdication serves as a crucial constitutional check to ensure that a legislature does not surrender its essential legislative role. Abdication occurs when a legislature, either wholly or in relation to a specific subject matter, effectively renounces its law-making function and transfers it to another authority without retaining meaningful control. The test is not whether the power can be technically withdrawn later, but whether the legislature, through its enactment, has set up a parallel or independent law-making authority. The legislature must preserve its own legislative capacity intact and cannot divest itself of its primary responsibility to legislate.
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