Login / Sign Up

Legislation as a Source of Law

Dec 28, 2022 Jurisprudence

ISHITA CHANDRA

: 3 Minutes

INTRODUCTION

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 authority1. The most
powerful and independent method of enacting laws is through
legislation. It is the only source with the authority to pass new laws,
repeal old ones, and amend existing laws2. However, the term
"legislation" is only used to refer to a specific type of law-making, i.e.,
when a competent authority declares legal principles in statutory form.
It means that the State's legislature has passed/promulgated a law. The
law that has its source in legislation is called the enacted law or statute
law.

Gray pointed out that legislation includes "formal utterances of the

legislative organs of the society"3. According to Salmond: "Legislation
is that source of law which consists in the declaration of legal rules by a
competent authority"4. Salmond noted that legislation is the type of
source of law that entails the proclamation of legal rules by an
appropriate and competent body5. He claims that there are three
different meanings associated with the term "legislation" as a source of
law. 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
may either be (i) direct, or (ii) indirect. The law declared by legislature is
called direct legislation whereas all other actions through which law is
made are species of indirect legislation. In this third sense, legislation
encompasses every expression of the will of the legislature whether
making law or not. According to Austin: "There can be no law without a
legislative act".

LEGISLATION AS A SOURCE OF LAW

As per the analytical school, 'typical law' is a 'statute' and 'legislation' is

the normal process of law-making6. The historical school holds that
among all the sources of law, legislation is the least creative. According
to James Carter "It is not possible to make law by legislative action". Its
utmost power is provide a further incentive to influence behaviour by
promising a reward or threatening a punishment in response to a
certain action. The historical school and the analytical school both go
to extremes. The analytical school makes the error of seeing legislation
as the exclusive source of law and it gives precedent and custom little
weight. The historical school makes the error of not seeing legislation
as a source of new law. Mr. J.S. Khehar observed in the case of Nidhi
Kaim v. State of Madhya Pradesh7 that the legislation is enacted, only
with the object of social good, and only in support of societal causes.
Legislation flows from reason and logic.

CLASSIFICATION OF LEGISLATION

Salmond divides legislation into two types:

1. Supreme Legislation - When a law is passed by a supreme

authority or a sovereign law-making body, such as the legislature
of an independent and sovereign state, it is referred to as supreme
legislation. It is supreme because no other authority has the power
to revoke, alter, or regulate it. Such laws cannot be revoked or
overturned by another legislative body8.
2. Subordinate legislation: Subordinate legislation on the other hand,
is that which comes from any authority other than the sovereign
power. It is dependent on a higher power in order to remain valid
and to continue its existence. India's Parliament is endowed with
supreme legislative authority. But, there are other organs which
have powers of subordinate legislation.

Validity of Subordinate Legislation

Certain requirements must be met for the delegation of legislative
authority to be valid. These prerequisites are as follows:

i. The parent Act, i.e., the Act under which the power to make
subordinate legislation is exercised, must be valid.
ii. The Parent Act's delegation clause must be valid.
iii. The statutory instrument must not violate certain general norms
laid down by judicial decisions, e.g., norms regarding ouster of
court jurisdiction, imposing a penalty or tax, giving retrospective
effect etc.
iv. The statutory instrument must not violate any provisions of the
Constitution9.

The different kinds of Subordinate Legislation include:

1. Colonial Legislation - The Imperial legislature, namely the British

Parliament granted varied degrees of limited autonomy to the
British colonies. With the use of this power, the colonies had some
degree of legislative authority. But, the Imperial legislature had
the authority to repeal, amend, or replace the laws created by the
colonial administrations. 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 may delegate its rule-
making power to certain departments of the Executive. 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. In India, the Executive
has powers to make bye-laws on matters such as deciding the
suitable place for market10, fixing of prices, etc.
3. Judicial Legislation - In certain cases, rule-making power is
delegated to the judiciary and the superior courts are allowed to
make rules for the regulation of their own procedure. This is also
known as judicial legislation and it should not be mistaken with
judicial precedents where the Court formulates a new principle of
law via its judicial decision. The Constitution of India has
conferred the power of rule-making to the Supreme Court and the
High Court under Articles 145 and 227 respectively. Article 145
empowers the Supreme Court to make rules relating to the
following matters :
 1. for setting up norms for practicing lawyers
2. for the procedure of appeals and time-limit for such appeals
3. for making rules relating to costs and fees, etc.
4. Municipal Legislation - The municipal authorities have the power
to make rules for the areas under their jurisdiction concerning
water, land, urban cess, house tax, etc. Such bye-law making power
of municipal authorities is another form of subordinate legislation.
5. Autonomous Legislation - The State may occasionally allow
private entities or bodies, such as universities, companies,
corporations, etc. to make bye-laws for controlling the conduct of
their business. These bye-laws are formulated in exercise of the
rule-making power granted to these bodies by the State. For
example, Railways have their own rules for the conduct of their
business.

DELEGATED LEGISLATION

Although the executive's main duty is to enforce the laws enacted by

the Legislation, still, its departments have the authority to make rules
for itself. Subordinate law includes legislation passed by the executive
branch. Delegated legislation is, strictly speaking, any law passed by an
authority other than the legislature. It means the rules, orders or bye-
laws made by the executive authorities under the law passed by the
Parliament11. In simple words, when Legislature bestows the law-
making power on some other body, then the legislative power is said to
be delegated and this is known as delegated legislation.

Reasons for Delegated Legislation are:

1. Want of Time: Parliament is a busy body. If it devotes its time on

entertaining minor and subsidiary issues and attempts to lay down
all rules itself, all of its time will be consumed in preparing only a
few Acts. Thus, it has to confer rule making power to the
executive12.
2. Technicality of the Matters: Many rules are technical in nature and
require consultations with the experts. It is, therefore, more
convenient to delegate such rule-making power to the experts
who are none else than the executive itself.
3. Local Matters: There are matters which concern only a particular
locality or particular group or profession. Any legislation on these
matters needs consultation with the people of that particular
locality, group or profession. Thus, some departments are given
 powers to make changes and rules in consultation with the people
acquired with and interested in it.

Delegated legislation should not to be mistaken with the executive

legislation. The former refers to the laws made by the authorities other
than those to whom the Legislature has delegated its legislative
authority. The latter refers to the legislation passed by the President
and the Governor under Articles 123 and 213, respectively, of the
Indian Constitution. These laws are in the form of Ordinances which
have the force of law. Such Ordinances are issued by the respective
executive heads on the ground of urgency when Legislature is not in
session and they cease to have effect if not ratified within six weeks
after the assembly of the Legislature. The source of delegated
legislation is always the Act of the Parliament but the source of the
executive legislation is a constitutional provision.

Control of Delegated Legislation

The following safeguards have been applied to delegated legislation to

make sure that it is not abused:

1. Procedural control - Certain procedural safeguards are necessary

to keep a constant watch over the exercise of power by the
executive or administrative authorities13. These 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.
2. Parliamentary control - 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 scrutinise the rules framed by the executive. Its
goal is to keep an eye on the rule-making authorities and provide
with a chance to criticise them if they abuse their authority.
3. Judicial control - Whenever a law made by the executive is found
to be inconsistent with the Constitution or ultra vires the parent
Act from which the law-making power has been derived, it is
declared null and void by the court. The Supreme Court and the
High Courts have the authority to determine whether delegated
legislation is lawful or not. In the land-mark case of Air India v.
Nargesh Meerza14, the Supreme Court struck down the delegated
 legislation on the ground of non-conformity with the provisions of
Article 14 of the Constitution.

SUB-DELEGATION

It is common for a person or a body to get delegated powers and

authority, indirectly from a statute. The legislation created in this
manner is recognised as sub-delegated legislation. This state of affairs
would appear to be in conflict with the general principle that a delegate
is 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.
Therefore, it would be unlawful to sub-delegate a legislative power
without specific and express authority15. The Parent Act occasionally
allows sub-delegation to authorities or officials who are not below a
certain rank. Only those officers or authorities are eligible to receive
the delegated power in this situation.

CONDITIONAL LEGISLATION

A conditional delegation occurs when the Legislature creates the law

and transfers to another entity, merely the authority to decide when it
should come into effect or when it should apply to a certain region or
territory of the State. The Supreme Court observed in the case of
Hamdard Dawakhana v. Union of India16 that "In conditional legislation,
the delegate's power is that of determining when a legislative declared
rule of conduct shall become effective, and the delegated legislation
involves delegation of rule-making power to an administrative agent.
That means the Legislature after having laid down the broad principles
of its policy in the legislation, can leave details to be supplied by the
administrative authority".

COMPARISON OF LEGISLATION WITH OTHER SOURCES OF LAW

Legislation is today the most important instrument of legal evolution

and in the opinion of many, it is the exclusive material source of law. In
countries where there is common law, precedent or case law takes
rank as a material source of law. It is therefore, desirable to compare
legislation with other sources of law, namely, precedent and custom.

Comparison between Legislation and Precedent