14

LEGISLATION AS A SOURCE OF LAW

There are two obvious reasons for legislation being regarded as one of the most
effective sources of la~• Firstly, it involves l~ying down of legal rules by the legislature
which the State recognises as law. Secondly, 1t has the force and authority of the State. It
is for this reason that Dias and Hughes have rightly said that deliberate law-making by an
authoritative power, i.e., the State is called 'legislation' provided that authority is duly
recognised as the supreme power by the courts. 1 Undoubtedly, deliberate law-making is
indispensable for the efficient regulation of modem State.
Legislation-Defined
The term 'legislation' is derived from latin words, legis meaning law and latum
which means "to make" or ''set". Thus the word 'legislation' means 'making of law'.
Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.
The term 'legislation' has been used in different senses. In its broadest sense, it
includes all methods of law-making. However, in its technical sense, legislation·includes
every expression of the will of the legislature, whether making law or not. Thus
ratification of a treaty with a foreign State by an Act of Parliament shall be considered
law in this sense. But in strict sense of the term, legislation means enacted law or statute
law passed by the supreme or subordinate legislature.
Jurists have expressed divergent views about legislation as a source of law.
According to Bentham and John Stuart Mill, legislation includes both, the process of
law-making and the law evolved as a result of this process. The term 'legislation', is,
however, restricted to a particular form of law-making, namely the decl~ration of rules of
law in statutory form by a competent authority. It denotes promulgation of law by the
legislature of the State. The law that has its source in legislation is called the enacted law
or statute law.
Prof. Gray pointed out that legislation includes "formal utterances of the legislative
organs of the society".

Crown" . In h'1s view,

. .m leg1s
. 1at'10n, both the contents
11
T. E. Holland has interpreted the term legislation in its_ wi~est sense ~nd observed,
"the making of general orders by our Judges is as true leg1slat10n as cdarr~eddon th~
_ .and the
od ruleswritten
are ev1se
law an ega
force is given to it by Acts of the sovereign power which pr uce ·
. E land Blackstone pointed out that
Referring to legislation as a so~rce of_law 10 .:e_g t' accurately termed as enacted
the law that has its source in legislation which may mods w In England the former is
law , and a11 other forms may be d'ts t'mgu ished as unenacte 1a ·
l Blackstone prefers' to call them
cal_led statute law while the latter as common awP~rliament are statutory laws as they
wntten and unwritten law. Thus the Acts enacted :.y h have assumed the shape of law are
proceed from legislation whereas the customs w ;~w is therefore, customary law and
called common law in England. The common
unwritten in its nature.
I. Dias & Haghes: Jurisprude11ce, <1957 ) P· 94 ·
( 231 )
 .JURISPRUDENCE AND LEGAL THEORY
232
· . . t' includes activities which • . to Iaw-mak'mg or
resuIt m
According to Au_5lm, le_gis1a ~on ew rovisions in the existing law. Thus there can
amending, t~ansformm~ fr !nseltl~f :usti~ further holds that when a Judge establishes-a
be no l~w ~ 1thout a leg1s afuhv~ . cd: : l decision he is said to exercise legislative power
new pnnc1p\e by means o ts JU 1c1a ·'
and not judicial power. . .
James Carter, a staunch supporter of the historical school of JUOS_P~dence, ho~ever,
thinks that legislation is the least creative of the so~es of law as ti is n~t possible to
make law by legislative action alone. At the most !I may !~reaten a. ~umsh~ent as a
consequence of a particular conduct and thus furnish add1t10nal3 motive to rnfluence
conduct. It can be effectual law when it is reinforced by custom.
Salmond observed that legislation is that source of law which consists in the
declaration of legal rules by a competent authority .4 According to him, the term
'legislation' as a source of law is used in .three different senses. In its strict sense, it is
that source from where the rules of law declared by competent authority are framed. In its
widest sense, legislation includes all methods of law-making. In this sense, legislation
mar eit_her be (i) direct, or (ii) indirect. The law declared by legislature is called direct
leg!slat~on wher~as a!l other actions through which law is made are species of indirect
leg!slat1on. In this third sense, legislation includes every expression of the will of the
leg1slature whether making law or not.
Supreme and Subordinate Legislation
Legislation
proceeds maysovere·
from the either be supreme
. Or su bord'mate. ·Leg1slat1on
. . .ts supreme when it
tgn power m the State and is . bl f b . Id
annulled or controlled by any oth 1 . 1 . ·· . . mcapa e o emg repea e ,
th
legislation proceeds from any auth:ri:g•~:tav~ au onty · 0~ the other hand, subordinate
its continued existence and validity~~ er t an th e sovereign power. It is dependent for
doct_rine of parliamentary sovereignty im s~me supreme authority. Thus in England the
Parliament. Therefore, it possesses the p~ ies s~premacy and omnipotence of the British
the _Parl!am~nt is ~ove~eign but not supre:ee:l~hi~pre_me legislation. In India, however,
leg1slat1on. Leg1slat1on by bodies int ; gh it possesses the power of supreme
legislation. - enor to th e sovereign constitutes subordinate

Validity of Subordinate Legislation .

. In order that the exercise of delegat d 1 . .
· fi1ed. These conditions
con dI·t·ions mus t be sat1s e are:-
eg1slat1ve power may be valid, certain
(i) The parent Act, i.e., the Act under h'1ch the
• J • • • w
Ieg1s at10n 1s exercised, must be valid. power to make subordinate
(ii) The delegation clause in the parent Act. must be valid
(iii) The statutory instrument so made, must b . '
clause in point of (a)
substance6, (b) proced: m confirmity with the delegation
. . . re, and (c) form
(iv) The statutory mstrument must not violate certain ·
judicial decisions, e.g., norms regarding ouster of gene~I n_orms laid down by
a penalty or tax, giving retrospective effect etc. coun Junsdiction, imposing

Austin : Jurisprude11ce, Vol. III. p. 555. . .

2. , , •, Origill Growlh and Fu11ctwn, p. 130.
3. Carter ·.d.
,~JW, ' s ' (12th ed.) p. 115 ·.
Jurisprudence . .
4. Salmon · . . . supreme hence Parliament 1s subJect to constitution I r .
5 In India Consucuuon I5 967 SC 1823. a imitations.
. S. O. T. v. Abraham, AIR I
6.
 LEGISLATION AS A SOURCE OF LAW
233

The statutory instrument

. must
. not violate any of the fund amental nght . 7
(V) uaranteed by the Const1tut1on
g . · or any other provisions of the c onst1tut1on-
. . s

J(inds of Sµbordinate Legislation ·

The chief forms of subordinate legislation are as follows :-
1· Colonial
. Legislation.-The British. colonies
. and other
. dependenci·es were
conferred lim•!ed pow~r of s_elf~govemment !n vary!n~ .degrees by the Imperial legislature.
The colonies m exerc1s_e of this power, enJoyed hm1ted power of law-making. But the
laws so mad~ by colonial govemme~!s could_ be repealed, altered or superseded by the
Jmperial leg1slature, namely, the Bnt1sh Parliament. However, after the passing of the
Statute of Westminster of 1931, the self-governing Dominions under the Crown have
been given power to make law independently subject to nominal supremacy of the British
Crown.
2. Executive Legislation.-The legislature, i.e., the Parliament quite often
delegates its rule-making power to certain departments of the executive organ of
Government. The rules made in pursuance of this delegated power have the force of law.
They may, however, be repealed or superseded by the legislature as and when deemed
necessary to do so. Keeton suggests that this species of subordinate legislation has given
rise to a vast body of rules known as administrative law which is commonly called
'public law' because it describes the nature of the activity of the executive department of
the government in action.9 In France, it is known as droit administratif. Si.r Ivor J~nnings
has defined administrative law as "the law relating to administration which determines the
organisation, powers and duties of administrative authoritie~ in the State."
Executive legislation in India includes power to make rules, regulations and bye-la_:vs
d · · · fi · f · 10 or deciding suitable place ,or
,or a mm1strat1ve matters such as 1xmg o pnce, 13
market, 11 taxation, 12 setting up incorporated' bodies etc. . .
. I tive power of rule-makmg is
3. Judicial Legislation.-In certain caseS, legis a . . d ke rules for
dI · ts are authonse to ma
e egated to the judiciary and the supenor co~r Th' . also known as judicial
reg~lation of their own procedure in exercise o~ th•~ P~":e~. r~~~~ents where the Court
legislation which should not be confused with Judict~ . P
fo l h h ·ts J·udicial decision.
rmu ates a new principle .of law t ~oug 1 ower of rule-makmg . to the Supreme
. 227
The Constitution of India has con~erred the P the High Courts under Article d
Court under Article 145 Similar power is conferred onH. h. Court may frame rules anh
of th C ·
e onstitution. The Supreme O ·
c urt and thercising ig •
its supervisory
pawer over t e
lating to
regulations for the conduct of its business and exe e Court to make rules re
subordinate courts. Article 145 empowers e Supremth
the following matters :-
tising lawyers;
(l) for setting up norms for prac . . · •t for such appeals:
l and ume- 11m1 AIR 1981 sc
(2) for the procedure of appea s d. .,
36· Air In ,a •· Nergesh Merza,
- - : : - - - - - - - - - - - . AIR 1960 SC 4 ' nd . AIR 1955 SC 626;
1. Narendra Kumar v. Unioll of 111d'a, Mills v. Union °! ' ,a,
1829 (1853). R 1954 sc 140; o.S.

Manubha1 v. U.C.J., AIR 1

tJ
8. Harman ~ingh v. R.T.A,, 1 SC 21. ed) P· 281.
. rudence, (2 nd . 02
9. KeeLon C. G.: E/eme~ts ofj.;~:;., AIR t987 1
1
SC I 127,
lO. Union of India v. Cy,ude In arashtra, AIR
l l. Ramesh Chandra v. Swte of 1;'~
1 3
l 978 SC 3()6. AIR 1990 SC 06.
12. Dharumal v. Pu11am CJui~id,. 1 collector, pune,
l3. Sunder Jus Blwtllija v. Di 5 tr1C
 ., .

JURISPRUDENCE AND LEGAL THEORY

234

(3) for proceedings relating to enforcement of fundamental rights;

(4) for transfer of cases to different High Courts;
(5) for disposal of criminal appeals coming from High Courts;
(6) for laying down conditions for review petitions;
(7) for making rules relating to costs and fees etc.;
. (8) for making rules for grant of bail, bonds, security etc.;
(9) for making rules relating to stay of proceedings;
(10) for laying down the procedure for the removal of the Chairman or a member of
the Public Service Commission on charges of misconduct.
The rules framed by the Supreme Court under Article 145 are subject to two
limitations, namely, : (l) They should be under the law enacted by the Parliament, and
(2) the approval of the President is necessary for such rules.
4. ·Municipal Legislation.-The municipal authorities are allowed .within their
areas to make bye-laws for limited purposes such as water-tax, land urban cess, property-
tax, town planning, public health, sanitation etc.
5. Autonomous Legislation.-The State may oc~asionally allow private entities or
bodies, such as universities, companies, corporation etc. to make bye-laws for regulating
the.conduct of their business. These bye-laws are framed in exercise of the rule-making
power conferred on these bodies by the State.
Delegated Legislation
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
its 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
others than the legislature itself, the legislation made by such organs is called delegated
legislation, which may I><: in t~e for~ of rules, regulations, bye-laws, orders, schemes,
directions, circulars or not1ficat1ons, etc.
It is significant to note t~at t~ere has been enormous increase of delegated legislation
in India in recent ti~e. ~he situation today has reached a point where delegated legislation
out-num bers the legislauve enactments.
Delegat e d Legislation Differentiated from Executive . Legislation
st h0 wever be stated that delegated legislation is not to be confused with the
It ~u , . 1 t" on 'The former stands for the laws made by the authorities other than
executi_ve l~gis on whom the Legislature delegates its legislative power. The l~tter
the legislative b de by the President and the Governor respectively under Art1c_les
th
stands for e laws i:nstitution of India. These laws are in the form of Ordinances which
123 and 213 of the
 LEGISLATION AS A SOURCE OF Li\W , 235

ave the force of law.hSuch Ordinances. are issued

Le . l . by
. the respective execut·ive heads on th
hroun of urgency
. .
w en g1s ature 1s not m session and they cease to ha · f~ . e
k ft h bl f . . ve e iect if not .
g d
•fi d within six wee s a er t e assem y o the Legislature. The source of d 1
·ratl 1e . . h A f ·h p . · e egated
1eg1'slation 1s always. t .e ct o t. .e ar1iament whereas
. the source of the execut1ve .
legislation .is a const1tutiona1 prov1s1on. · . .
· Growth _of J?el~gated Legislation.-Pro~essor Grifith writes that the growth of
delegated legislation m the 19th _and 20th centunes was inevitably due to fundamental
changes in the the?r~ an~ pract1c~ of .the Government. For the performance of their
executive and adm1mstr~t1ve funct1o~s, the ~overnment required legislative powers in .
their own fields. The mam factors which contnbuted to the growth of delegted legislation
inay briefly be stated as follows :- .
l. 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 principles and leaves the details to
be worked out by the executive. .
2. The Parliament found it difficult to lay down details especially in certain fields of
technical nature and therefore, entrusted this task to the departments and ministers
concerned. Members of legislature may be seasoned politicians but they lack expertise and
adequate knowledge to deal with highly technical matters such as nuclear energy,
electricity, gas, atomic energy, etc. which can be efficiendy handled only by the experts
in the respective field.
, 3. Besides the pressure of work on the Parliament . •• · and )solack
deemedof adequate
necessarytechnical
to meet
· k nowledge about certain subiects
J delegated
' • legis 1 adon f is a .
tant adaptatloP to unknown
unforeseen contingencies. lt provides for_a po~er o co~s .
future conditions without the necessity of amending the legislation. tO meet the cases of emergency
4. Delegated legislation is further deemed neces~ary • epidemics etc. The
•. . fl d nomic depression,
ansmg out of war, insurrection, oo S, eco . 0 that it may initiate
Executive must therefoe, be armed with rule-makt~~ pofwerlasw to be passed by the
. . . . d' I 'thout wa1ung or
appropriate remedial action 1mme ,ate Y wt
legislature which is a lengthy process. . . . schemes, .impos1uon . . of import or exportbl'c
. 5. In certain specific areas such as ratiomng ds that law should not become pu
duties, exchange regulations, etc. expedienc~ d:m;:onfidentialilY becomes nec~ss~ry
till it finally comes into operation. Some ktn o s to delegate power of legis auon
th authortP
s ehpublic interest and therefore, the ·legislature 1~e
ies.er · ·ons of
uc matters to the concerned execuuvesblic administrauon . an d expending dimens,1 .
ation of leg1slauve
6. The complexities of modem pu . have necessitated deleg for the effective
st
the socio-economic functions of the ated vice new forms of la~~ n of the welfare
powers so as to enable the executive to_ tice and imptementa ,o
realization of the goal of socio-economic JUS d legislation
sche f that delegate
mes o the state. rder to ensure 1 ( 1) Procedural
. Control of Delegated Legts a
· · 1 t'1on - 1n
•
° .fold contro S, ·
t name Y,
, . ted to three l
s not misused, it has been subJec d (3) Judicial contro · p rliament to exercise
control, (2) Parliamentary control, an I ays possible for the 'a rds are therefore,
· not a w dural sa1egua
1. Procedural Control.-It 15 . certain proce
effective control over delegated legislatton.
236 JURISPRUDENCE AND LEGAL THEORY

necessary to keep a constant watch over the exercise of power by the executive or
administrtive authorities. The methods of procedural control may include :-
(a) Prior consultation of interests which are likely to be affected by the proposed
delegated legislation;
(b) Prior publicity of proposed rules and regulations; and
(c) Publication of delegated legislation being made mandatory.
In United States, prior consultation with the concerned associations, such as Medical
Association or Country Councils Association or Board of Trade etc. is common and
interested parties are given opportunity to express their views on the proposed legislation;
In India, however, there14is no express provision of law for prior consultation but "prior
publication" is essential under Section 23 of the General Clauses Act, 1897. Likewise,
Section 2 of the Statutory Instruments Act, 1946 makes it mandatory that a statute must
be published as soon as it is laid· before the House of Parliament. Though there is no
such provision15 in India but the courts have recognised the importance of this provision in
several cases. .

Publication of delegated legislation has been taken by the Courts as a corollary of

natural justice. The Supreme Court in Raza Buland Sugar Co. v. Rampur Municipality 16
held that the statutory provision requiring publication of rules before imposition of tax
was mandatory but the manner in which the rules were required to be published was
directory,
rules wereand
heldastothere was sufficient compliance with the requirement of publication, the
be valid.

2. Parliamentary Control.-Another method of controlling delegated legislation

is to lay it before the Parliament so that members get an opportunity to discuss and at
times amend it. In United States, the executive is not responsible to the legislature and
therefore, congressional control of delegated legislation is mostly indirect through
requiring the administrative agencies to submit r,riodical and special reports etc.11 India
also follows more or less the same method. 1 This control is exercised through the
committee on subordinate legislation of both the Houses of Parliament which maintains
vigilance on Government's rule-making power and scrutinises the rules framed by the
executive. 19
The principle underlying Parliamentary control is to keep watch over the rule-making
authorities and provide an op~rtunity to cr!ticise them if the_re is abuse of such power on
their part. The control so e~erc1sed_ll_lay m the for~ of-(1) proceedings in Parliament,
(Z) requiring the offendmg prov1s10n m the d~legatmg statute to be laid on the table of
ohr I islature, or (3) exercise of control by Parliament through Scrutiny Committees.20
t e eg J d' . l . f~ .
3 Judicial Control.- u 1c1ary a so exercises e ,ective control on delegated
. • . Whenever a law made by the executive is found to be (i) inconsistent with the
Constitution or (ii) ultra vires the parent Act from which the law-making power has been
legisl~tlO?·

14. . I Agar;al
Bam":a.nla_ v. Stale
1965 of Bihar, AIR 1961 SC 841 ; see also Raw Buland Sugar Co. v. Rampur
SC 895. .
Mumcipallly, AlifO R . /hall AIR 1951 SC 467; see also Narendra Kumar v. Union of hulw, AIR
15. Haria
1960 SCv. 430
S1ateand 8a11ga
°JllS Lor~ Universily v. St. Joh11 Medical College, AIR 1980 SC Kamataka 142
etc.
16 AIR 1965 SC 8 .
95 p rliament, p. 69.
· 1 y . Congress & a . . (A endment} Act, 1985.
17. Gal owa ·Le islation Prov1s1ons m Delc ated Legislation", Jain Public Law, 1964. . .
18. Delegat~d g "Parliamentary Control?' rd ~gislation was established under th~ Const_llut1on ?f
19. For detatlsSseebh
The Lok a a Committee on SuboC
R ·yu Sabha om mamt~,ttee on Subordinate Legislation came into existence m
20. India in 1953 und the aJ
1964.
 LEGISLATION AS ASOUR
CEOFLAW
237
d ·ved, it is declared null and void by the court Th
e~gated legislation is vested in the Supreme C~ rt e pdower ~f examining the validity of
de . u an the High Courts
In Re Delhi Laws Act case, 21 the Supreme Co rt b . . ·
f delegated law-making power was invalid becu yhmaJonty. held that the exercise
o I 1· . . . . ause t e enabling Act e ed d h
constitutiona im1ts m permtttmg the executive to re al a law . . . xce e t e
this case the Supreme Court laid down the grounds~n ,h· h exh1st~ng. I~ the area. ~n
· d Th C rt I d h · I · "· IC t e Jud1c1al control 1s
exerc~se . . e. ou ru eh t at m . nd1a the Legislature cannot delegate its essential
funcuons or power to t e execut1 ve. The essential function of th Le . 1 .
· · f h I ·I · 1. e g1s ature 1s
deternunauon
. o . t e . eg1s alive. po icy and. enacting that poli'\;"Y ·mto a b'md'mg ru1e of
conduct. Therefore, the function of laym~ down. the policy and enacting that policy
cannot be deleg~ted. However, once the pohcy havmg been laid down by the Legislature
and a ~tandard 1s ~et. by the _st~tute, the executive may be given the power to make
subordinate rules w1thm that hm1t and such delegation will not be unconstitutional. Thus
.once the principles affording guidance to the subordinate law-making body are·laid down
by the law, the details may be left to be filled up by the executive or by other authorities
with quasi-legislative power.22
Again, in Chintaman Rao v. State of Madhya Pradesh, 23 the Central Provinces
Regulation of Manufacture of Bidis . Act~ 1948, permitting imposition of a total
prohibition upon those carrying on business of manufcture of Bidis during agricultural
season was held to be violative of Article 19 O) (g) of the Constitution because it
interferred with the private business, hence notification under the Act was void.
In yet another land-mark decision, namely, Air India v. Nargesh Meerza, 24 the
Supreme Court struck down the delegated legislation on the ground of non-conformity
with the provisions of Article 14 of the Constitution. The regulation provided that the
services of the Air-hostess would be terminated if she marries within first four years of I
,, I

her service or on the first pregnancy. The Supreme Court found the firS t cond ition !

reasonable but so far condition of first pregnancy was concerned, it was clearly moSt
unreasonat>le and arbitrary as it amounted to compelling the Air-hoStesses not to bear any
children and this was "an open insult to Indian womanhood." The Supreme.Court held
that the regulation was not only, "manifestly unreasona bl e an d arbitrary"
. . but 1t .was most
le 14 of
unfair and exhibited 'naked despotism' and was therefore, held v10lat1ve of Artie
th e Constitution
L'k · . · . . • 25 the Supreme Court held that
p . 1 ew.1se, m Deepak Sibal v. PunJab Unzve~Sity, s were discriminatory
8 01
unJa~ Unaversity Rules for admission to the evenmg L~- .· : : : to the employees of
and violative of Article 14 because they restricted adm1ssd1on I yded the employees of
govemm
. .
ent, semi-government . ·1 ar .ms t'tutions
and s1m1 1 an exc u
Pnvate secto . .
. . rs and mentonous students. do not interfere with the
s1 11
· rea It is gnificant to note that in India the Court ~or~a yof some of the decisions of
sonablen 1 26 But mdia view
the S ess or otherwise of a statutory rue.. 21 it can be concluded that any
upreme Court after Maneka Gandhi v• Umon of In '
21.
22. ~!R 1951. SC 347. . 1965 SC 110.
23. rporat,011 of Calcutta v. Liberty Cmema, AIR
24. AIR 1951 SC 118
25. AIR 1981 SC 1829
26. AIR 1989 SC 909 · / r. Commr., AIR 1952 Mad 127.
M I · I Subbarao v. · ·
27. u cliand v. Mulcand AIR 1952 Born. 296; a so
AIR 1978 SC 597. •
 . LEGAL THEORY
JURISPRUDENCE AND
238
· · ed on the ground of unreasonableness within
administrative rule-making can b~ challen: Maharashtra v. Chan~r~ Bha~ Tale,28 the
h ·ew of Article 14. Thus m State () (b) of the Bombay C1v1l Service Rules on
ts e purv1 Court struck down Rule 151 (1) (uR I s ·provided that a convicted government
upreme· able The u e · . h ·d .
the ground that they were unreason : allowance even dunng t e pen ency of his
. rupee one as subsistence
servant shall be paid k t say that · subsistence
· · awarded when the
ts
· d "'t was moc ery O •
appeal. The Court observe ' I I there'"ore held v01d.
. · h" The rue was 1
' ' • • • •
award 1s rupee one a mont · · S bh 29 the constitutional validity of Section
. c Mill Mazdoor a h a,llenged before the Supreme Court. The
In Jalan Tradmg o. v.
1965
37 of the Payment of ~onus ~~t, f ~ea~~taultra vires on the groun~ of excessive
Court·declared the said provisions O t
delegation and observed : . d bts and difficulties in
"Normally it is for t~e. Legis~a~~re ~:;e;i::r ~: remove the doubts or -
giving effect to the prov1S1on~ ef h ·Act would in substance amount to
difficulties by altering the pro~1s1ons oh t e t be delegated to an executive
-exercise of Legislature authority and t at canno ·
authority."
Sub-Delegation . .
It is not uncommon for a body or a person to receive delegated pow~rs 1~directl_y
under a statute. The legislation so produced is in known is s~b-delegated leg1slat10n. Th~s
state of affairs would appear to be in conflict with the general principle that a delegate 1s
· not able to delegate further,' i.e.,. the maxim delegatus non potest delegare. In other
words, the general rule is that where Parliament gives a power to make law for some
specified purpose to a body or person, it can be exercised only by that body or person
alone. Thus in India, sub-delegation of delegated legislative power without express
authority would be invalid30 because a sub-delegated person or body cannot go beyond his
31
authority, e.g., if Parliament confers power upon A, the evident intention is that it
shall be exercised by A alone and not by anyone else.32
The Essential Commodities Act, 1955 provides a good illustration of the process 0f
sub-delegation. Section 3 of the Act confers rule-making power on the Central .
Government. This may obviously be called as the first stage of delegation, namely, by
Parliament to the Executive. Sec_tion 5 of the Act further empowers the Central
Government to delegate powers to its officers, the State Government and their officers.
This m~y be regarded as the second stage of delegation (i.e., sub-delegation). When the
power 1s further sub-delegated by the State Government to its officials it may be
characterised as the third stage of delegation. '
As a mat_ter of fact sub-delegation is contrary to the maxim delegatus non pot~st
delegare wh,~h means a delegate cannot funher delegate his power. But the maxi~
~ereJy embodies a rule of cons~r~ction of~ statute and does not lay down a rule ~flaw. e
1s tru~ that ~enerally sub-delegatton of legislative powers is impermissible, yet 11 can :e
permitted either whe_n su~h power is expressly conferred under the statute or can
inferred by necessary 1mphcat1on.33
28. (1983) 2 sec 387.
29. AIR 1967 SC 691. p ,j
30. StateofPu11jabv.AmirC/umdAIR19S 3 p ' l·p· ifP ' b AJRJ957 ui
145. ' unJ , rtUtm Bus Lid. v. Swte o 11n;a ,
31. B~nnett Coleman v. Union of India, AIR SC
24)
1973
32. King Em~eror v. Be11oari Lal Sanna, 0945 ) A.C. 106( p C
14
33. Bhagwa11 v. State of Uttar Pradesh, AIR 1959 All 332. . .
 LEGISLATIO~ ~SA SOURCE OF LAW
239
At times, the Parent A~t permits sub-delegation to authorities or officers not below a
particular rank. In such a circumstance, the power can be delegated only to those officers
or authorities. Thus whe_re the enabling Act conferred power on the Chief Commissioner .I
. to make rules f~r the m~mtenance of ~roper system of conservancy and sanitation at fairs, I
further delegation of this power to District Magistrate was held to be ultra vires as the • I

enabling
Magistrate.Act
34 conferred power on the Chief Commissioner and not on the District

Conditional Legislation
When a Legislature confers law-making power upon 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 gives to some other body only the power of i I

determining when it should come into force or when it should be applied to a particular
area or te1Titory of the State, there is no delegation of legislative power. Instead, it would
be a case of conditional delegation. Thus in delegated legislation, powers of legislation
are transferred or delegated which is not the case with conditional delegation. Conditional
delegation takes 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 limits witQin which it should be operative ;
(5) introduce a speci~I law i(the contemplated sit~atio~ has arisen in the opinion
of the Government. . .

made clear by the Supreme Court. In Re Delhi Laws Act case, ~he_rem t e :-~11
The distinction between subordinate legislation and condition;~ legislat_ion :asJeen

observed that when an· appropriate Legislature enacts a l~w and ~ut ·onsdes ~dn otuha: i:
. to brmg
authority . 1t. .mto force .m sue h ar~a Or• at such
• •
time as it distinction
t the may ec1 ebetween
· conditional legislation and not delegated legtSlation. Pomtmi 0 ~ if India 36 inter alia,
the two, the Supreme Court in Hamdard Dawakhana v. mon ° •
observed _:- . . . ·
wer is that of determmmg when
In cond1t1onal leg1slat1on, the delegates po ffective and the delegated
11 • • • · • ,

a legislative declared rule of conduct shall_ become e to an administrative agent.

legislation involves delegation of rule~ma~•~f ~ower the broad principles of its
That means the Legislature after havm~ ai b own plied by the administrative
policy in the legislation, can leave details to e sup
11
authority · • hp d
. . p t a High Court in Raghunat an ey
The above distinction was reiterated by th e : n ·n a conditional legislation, the law
18 State of Bihar, 37 wherein the Court. ~bserved
~. ~own as to how and when the law
complete in itself and certain cond1t1ons are 31
"'OUld be 8pPlied by the delegate. . • lementing the modem
C0 . . d b very useful .m imp
. nd1tional legislation has prove to . e ually formulates the development
socio-economic welfare schemes. The Legislature us
34
35 · Ga11pati Singhji v. State of Ajmer, AIR 1955 SC 188· .
36· AIR 19S1 SC 347.
37· AIR 196() SC 554.
· AIR 1982 Pat. 1.

L
 LEGISLATION AS
. A SOlJRCE OF LAW
·
At umes, th e Parent Act permits sub-de! . 239
Particular rank. In such a circumstance th egataon to authorities or offi-
or .authon't'1es. Th us where the enabling• Ae power can be delegated onl 1cers
f hnot below a
to make rules for the maintenance of prop ct conferred power on the Ch1er°~ ose ~f~cers
further delegation of this power to Distri e; ~ste_m of conservancy and sani:tm1ss}o~er
enabling Act conferred power on the Cch' fag1strate was held to be ultra •_on at aihrs'
• 34 1e Comm· • vires, as t e
Magistrate. •ssioner and not on the District
Conditional Legislation
When a Legislature confers law-making .
power is said to be delegated and it is a capowefr udpon some other body, the legislative
·
Legislature itself enacts the law and givesset o ·elegated Iegis · Iation.
· But when the
O
determining when it should come into fiorce· or hsom_e oth er body only the power of
. . be app ried to a particular
· or te1Titory of the State, there is no delegati w enf It should
area
.. 1
on ot deg1s 1.alive. power• Ins tead, It. wou Id
be a case of cond1t1onal delegation. Thus in dele
are transferred or delegated which is not the case ;~; 1ef s.1ati~n, powe~s of legislation
delegation takes place where the Legislature empowersctohn ltiona. delegation. Conditional
e 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 ~he duration of a temporary Act, subje~t to maximum period fixed b
the Legislature ; y
(4) determine the extent and limits wit~in which it should be operative ;
(5) introduce a speci~I law ifthe contemplated situatio~ has arisen in the opinion
of the Government. . . .
The distinction between subordinate legislation and conditional legislation has been
made clear by the Supreme Court. In Re Delhi Laws Act case, 35 wherein the Couq
observed that when an appropriate Legislature enacts a law and authorises an outside
authority to bring it into force in such area or at such time· as it may decide that is
· conditional legislation and not delegated legislation. Pointing out the distinction between
the two, the Supreme Court in Hamdard Dawakhana v. Union of India, 36 inter alia,
observed_:-
"In conditional legislation, the delegate's power is tha~ of determining when
a legislative declared rule of conduct shall become effective, the ~elegated
legislation involves delegation of rule-making power to an admm1~tr~t1ve age~t.
That means the Legislature after having laid down t~e broad prmci~l~s of_its
policy in the legislation, can leave details to be supplied by the administrative
authority."
Th b · d b h p t a High Court in Raghunath Pandey
S . ea ove distinction was reiterate Yt e an. d'f al leg·islation the Jaw
v. tate of Bihar 37 wherein the Court observed that m a con • ion d h ' th I
is complete in i;self and certain conditions are laid down as to how an w en e aw
would be applied by th~ delegate. · · .
C ·· · seful in implementing the modern
s . onditaonal legislation has proved to ~e very u lly. formulates the development
ocio-economic welfare schemes. The Legislature usua
34
35 · Ganpati Si11ghji v. State of Ajmer, AIR 1955 SC 188 ·
· AIR 1951 SC 347.
36
37 · AIR 1960 SC 554.
- AIR 1982 Pat. t.
240 .JURISPRUDENCE AND LEGAL THEORY

scheme and leaves 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.
Legislation compared with other Sources of Law
Legislation as a source of law is gaining more and more importance in modern time
so much so that the significance of custom and precedent is gradually receding.
Historically also legislation has always been recognised as an important source of law as
compared with other sources. It is therefore, desirable to compare legislation with other
sources of law, namely, precedent and custom.
Legislation and Precedent
Legislation as a source of law when compared with precedent merits support for the
reasons stated below :-
1. The legislation has its source in the law-making will of the State whereas
precedent has its source in judicial decisions.
2. Legislation is imposed on courts by the Legislature but precedents are created by
the courts themselves.
3. Legislation denotes formal declaration of law by the Legislature whereas
precedents are recognition and application of new principles of law by courts in the
administration of justice. -
4. Legislation is enacted before a case actually arises but the precedent comes into
existence only after the case has arisen and taken for decision before the court.
5. Legislation is expressed in comprehensive form but the scope of judicial precedent
is limited to identical cases only.
6. Legislation is generally prospective whereas precedent is retrosp_ective in nature.
7. Legislation is declared or published before it is brought into force but precedent
comes into force at once, i. e., as soon as decision is pronounced.
8. Legislation is undertaken w!th ~he intention of law-making but it is not so in the
case of percedent. The precedent which mcludes ratio decidendi and obiter dicta is intended
to settle a specific dispute on the point of law once for aH.38
· 9. It is not difficult for the public to know the law enacted by Legislature but the
precedent based on case law is not easily known to the general public. At times even the
lawyers who deal with the law are ignorant about the existence of a particular ruling of
the Court.
10. Legislation involves law-making by deductive method whereas case-law is created
by resort to inductive method.
It would thus be seen that legislation as a source of law is far more advanta~eo~~
than that of the precedent. It is not merely a source of law but is equally effecuve h
amending or annulling the existing.law. Precedent, on the oth~r hand cannot abrogate t ed
existing rule of Jaw. Th 1s,. ·mother wo~ds, means that legislation is both,
' • · e an
consutuUY
abrogative but precedent is merely constitutive and lacks abrogative capability.
· ver
, Legislation and Custom.-Pointing out the importance of enacted laW 0 10
1
.customary law, Keeton observed that in earlier times legislation was supple~entaated
customary law but in modern time the position has reversed and customary Jaw 15 tre
38 . Austin : Lectures 011 Jurisprudence, (Vol. 11), pp. 621-23.