LEGISLATION
AS A SOURCE
OF LAW
ANU SOLANKI KAMBLE
By Anu Solanki Kamble
Agenda
a. Introduction & Background
b. Definition & Meaning
c. Nature
d. Kinds & Types
e. Essentials
f. Features
g. Merits
h. Demerits
i. Impact
By Anu Solanki Kamble
BACKGROUND
Parliament has sovereign power to make law.
The creation of law begins with policy decisions normally made by government.
Individual MPs (Ministers of Parliament – Politicians) can propose legislation
through private members’ bills.
Before an item of legislation becomes law it may be known as a bill, and may be
broadly referred to as "legislation", while it remains under consideration to
distinguish it from other business.
Legislation can have many purposes: to regulate, to authorize, to proscribe, to provide
(funds), to sanction, to grant, to declare or to restrict.
It may be contrasted with a non-legislative act which is adopted by an executive or
administrative body under the authority of a legislative act or for implementing a
legislative act.
There may be more than one legislative body in a country - central, provincial or state
and municipal authorities may each have separate power to legislate. Rules will
determine the extent to which and in what areas one legislative body has priority over
another.
By Anu Solanki Kamble
INTRODUCTION*
Legislation (or "statutory law") is law which has
been promulgated (or "enacted") by a legislature or other governing
body or the process of making it.
Legislation is regarded as one of the three main functions of
government, which are often distinguished under the doctrine of
the separation of powers.
Those who have the formal power to create legislation are known
as legislators; a judicial branch of government will have the formal
power to interpret legislation (under statutory interpretation);
the executive branch of government can act only within the powers
and limits set by the law.
Legislature is the direct source of law. Legislature frames new laws,
amends the old laws and cancels existing laws in all countries. In
modern times this is the most important source of law making.
By Anu Solanki Kamble
‘Legis’ means law and ‘latum’ means making. Etymologically,
legislation means the making or the setting of law.
Salmond- Legislation is that source of law which consists in
DEFINITIO
the declaration of legal rules by a competent authority.
Horace Gray- Legislation means the forma utterance of the
N*
legislative organs of the society.
John Austin- There can be no law without a legislative act.
Analytical Positivist School of Thought- This school believes
that typical law is a statute and legislation is the normal source
of law making. The majority of exponents of this school do not
approve that the courts also can formulate law. They do not
admit the claim of customs and traditions as a source of law.
Thus, they regard only legislation as the source of law.
Historical School of Thought- Legislation is the least
creative of the sources of law. Legislative purpose of any
legislation is to give better form and effectuate the customs and
traditions that are spontaneously developed by the people.
Thus, they do not regard legislation as source of law.
By Anu Solanki Kamble
MEANING*
The term legislation includes every expression of the legislature whether the
same is directed to the making of law or not. An Act of Parliament may
amount to nothing more than establishing a uniform time throughout the
realm or altering the coinage.
Law that has its source in legislation may be most accurately termed enacted
law, all other forms being distinguished as un-enacted.
The more familiar term, however, is statute law as opposed to the common
law; but this, though sufficiently correct for most purposes, is defective,
inasmuch as the word statute does not extend to all modes of legislation, but
is limited to Acts of Parliament.
Blackstone and other writers use the expressions written and unwritten law to
indicate the distinction in question. Such law, however, is reduced to writing
even in its inception, besides that which originates in legislation.
The terms are derived from the Romans, who meant by jus non scriptum
customary law, all other, whether enacted or un-enacted, being jus scriptum.
By Anu Solanki Kamble
NATURE*
There are three types of legislation: statutes, regulations and
bylaws, all have the force of law, but each are enacted differently.
Statutes: are publicly debated by the federal parliament or provincial
legislatures and voted upon before coming into force. Statutes state
the broad principles or rules that govern our lives.
Regulations and Bylaws: regulations, created by federal or
provincial bodies, and bylaws, created by municipal bodies, are the
details that operationalize and allow for implementation of the statute.
For example, a motor vehicle statute may state there will be a
maximum speed limit. The regulations under that might state the
actual what the actual limit is.
Regulations and bylaws are "delegated legislation; " the power to
enact regulations is delegated by statute to a particular minister, or to
cabinet or to an administrative body.
By Anu Solanki Kamble
KINDS & TYPES*
1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the
sovereign power of the state. It cannot be repealed, annulled or controlled by any other
legislative authority.
2. Subordinate Legislation- a legislative instrument made by an entity under a power
delegated to the entity by the Parliament. It is that which proceeds from any authority other
than the sovereign power and is dependant for its continual existence and validity on some
superior authority.
Primary legislation may delegate powers to a particular ministry or regulator to prepare
secondary legislation designed to supplement and develop the principles set out in the primary
legislation.
For example, tariff setting guidelines for a regulatory authority that is established by primary
legislation may be set out in secondary legislation.
Secondary legislation is usually not subject to full parliamentary scrutiny guidelines and so is
faster to enact. However, it may be more difficult to identify than primary legislation as it may
be recorded in subsidiary documents.
By Anu Solanki Kamble
Types of Subordinate
Legislation*
Colonial: means legislations by the Legislature of the colonies or their
dependencies. The Parliament can repeal, alter or supersede any colonial
enactment.
Judicial: In the same way, certain delegated legislative powers are
possessed by the judicature. The superior courts have the power of making
rules for the regulation of their own procedure. This is judicial legislation
in the true sense of the term, differing in this respect from the so-called
legislative action of the courts in creating new law by way of precedent.
Municipal: Municipal authorities are also allowed to make bye-laws for
limited purposes within their areas. All these matters and their many
analogs in local government; count for no less in the daily lives of ordinary
citizens than the enactments of Parliament.
By Anu Solanki Kamble
Types of Subordinate
Legislation*
Autonomous: Sometimes the State allows private persons
like universities, railway companies, etc., to make bye-laws
which are recognized and enforced by law courts. Such
legislation is usually called autonomic. The railway
company may make bye-laws for the regulation of its
undertaking. Likewise a university may make statutes for
the board of its members.
Executive / Delegated Legislation: It is true that the main
function of the executive is to enforce laws but in certain
cases, the power of making rules is delegated to the various
departments of the government.
By Anu Solanki Kamble
Reasons for Delegation*
It can be necessary for legislative power to be delegated for
any of the following reasons:
to save pressure on parliamentary time
the legislation is too technical or detailed to be suitable for
parliamentary consideration
to deal with rapidly changing or uncertain situations
to allow for swift action in the case of an emergency.
By Anu Solanki Kamble
Delegated Legislation*
This is a type of subordinate legislation. It is well-known that the main function of the executive is
to enforce the law. In case of Delegated Legislation, executive frames the provisions of law in the form
of orders, by laws etc.
Often, a legislature passes statutes that set out broad outlines and principles, and delegates authority to an
executive branch official to issue delegated legislation that flesh out the details (substantive regulations)
and provide procedures for implementing the substantive provisions of the statute and substantive
regulations (procedural regulations).
In India, the power to make subordinate legislation is usually derived from existing enabling acts. It is
fundamental that the delegate on whom such power is conferred has to act within the limits of the
enabling act.
The main purpose of such a legislation is to supplement and not to supplant the law. Its main justification
is that sometimes legislature does not foresee the difficulties that might come after enacting a law.
Therefore, Delegated Legislation fills in those gaps that are not seen while formulation of the enabling
act.
Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the light of
experiences gained during the working of legislation.
By Anu Solanki Kamble
Controls over Delegated Legislation*
Direct Forms of Control
Indirect Forms of Control
1. Parliamentary Control - Parliament has
always general control. When a bill is before
it, it can modify, amend or refuse altogether
the powers which the bill proposes to confer
on a minister or some other subordinate 1. Judicial Control & review- This is an indirect
authority. form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable
in special circumstances. By doing so, the rules
framed do not get repealed or abrogated but they
By Anu Solanki Kamble
surely become dead letter as they become ultra
Unauthorized Delegation
It arises when legislative power is sub delegated by the
person or body to whom the power has been delegated.
Subordinate legislation that includes a sub delegation
would be invalid if the empowering Act does not authorize
the subordinate legislation to include the sub delegation.
For example, unauthorized sub delegation would arise if an
Act authorizes the Governor to make a regulation to deal
with an issue, but the regulation the Governor makes does
not substantively deal with the issue itself and instead
purports to allow a chief executive to deal substantively
with the issue under a public notice.
By Anu Solanki Kamble
DELEGATED LEGISLATION
ADVANTAGES DISADVANTAGES
Time Saving. It is quick to make Legality- allows non-elected people to make
law.
delegated legislation and it saves
Accountability. The constitutional role of
Parliamentary time for more complicated
Parliament is eroded as civil servants, unelected
law to be debated. and unanswerable to the electorate, make law.
Scrutiny. Politicians cannot check what is being
enacted into law as they do not understand the
Access to special expertise. The majority subject-matter.
Bulk. There is a huge amount of delegated
of politicians are not experts in the field
where they are making law. By delegating legislation being created. It is difficult for MPs
to read it all.
the power to make law, external expertise Parliamentary control over delegated
can be used to formulate regulations.
legislation. Parliament authorizes delegation.
The problem is that MPs do not understand what
[Link] problems can be they are delegating.
lack of publicity
dealt with more quickly and on an ad hoc
obscure wording which can lead to difficulty in
basis.
understanding the law.
Case - In re Delhi Laws Act
AIR 1951 SC 332*
The Doctrine of Separation of Powers is well recognized by all the
civilized nations of the world.
In India too such distinction of powers of a sovereign are classified
under the Legislative, Executive and Judiciary.
This distinction is blurred, as some would contend, when powers are
delegated or sub-delegated.
After independence, there was a lot of confusion regarding the concept
of delegation i.e. whether it is possible and if so, to what extent.
To clarify this, the President of India referred this question to the apex
court under Article 143 of the Constitution.
The Re Delhi Laws Act is a landmark judgment of the 7 Judge Bench
of the Supreme Court wherein each judge had a difference of opinion.
By Anu Solanki Kamble
Issue before the Court*
Was section 7 of the Delhi Laws Act, 1912, or any of the provisions
thereof and in what particular or particulars or to what extent ultra
vires the Legislature which passed the said Act?
Section 7 of the Delhi Laws Act, 1912, mentioned in the question runs
as follows:
“The Provincial Government may, by notification in the official
gazette, extend with such restrictions and modifications as it thinks fit
to the Province of Delhi or any part thereof, any enactment which is
in force in any part of British India at the date of such notification”
This act delegated to the provincial Govt. the power to extend to
Delhi area with such restrictions and modification any law in force in
any part of British India.
This was held valid by the majority
By Anu Solanki Kamble
Stands of the Counsels*
There were two extremist views put forth by the counsels:
M C Setalvad took the view that power of delegation comes
along with the power of legislation and the same does not
result in abdication of the powers.
The other counsel took the view that there exist separation
of powers in the country and India follows delegates non
potest delegare. Therefore, there is an implied prohibition
on delegation of power.
As both the views were extremely extremist, the court took
the middle view.
By Anu Solanki Kamble
Factors in consideration by
court*
Separation of power is not a part of Indian Constitution
Indian parliament was never considered as an agent of
anybody. Therefore doctrine of delegates non potest
delegare is not applicable
Parliament completely cannot abdicate itself by creating a
parallel authority
Only ancillary functions can be delegated
There is a limitation on delegation of power. Legislature
cannot delegate its essential functions. Essential function
involving laying down the policy of the law and enacting
that policy into binding rule of conduct.
By Anu Solanki Kamble
Decision of the Court*
a. Power to Legislate Includes Power to Delegate
b. limits of Delegation - the legislative function in its true and intrinsic sense
cannot be delegated. Therefore what can be delegated are only the non
essential functions.
c. Delegation of power to make modifications and alterations - power to
change necessary things is incidental to apply the law. If modifications are
done within the framework and does not change the identity or structure no
objection could be taken.
d. Repeal of law - power to repeal a law is essentially a legislative power and
hence, delegating that to the Govt. is at once ultra vires the power to
delegate. held all the sections to be perfectly valid. The majority based its
opinion on the maxim expression unis est exclusion alterious , and ruled that
an express provision permitting delegation contained in article 357 would
mean uncontrolled legislation was not permitted under the constitution.
Essential functions could not be delegated under any condition.
By Anu Solanki Kamble
Guidelines laid down by the
Court*
The Chief Justice declared that, whether sovereign or
subordinate, the legislative authority can delegate if it stands the
three basic tests:
(1)It must be a delegation in respect of a subject or matter which
is within the scope of the legislative power of the body making
the delegation.
(2) Such power of delegation is not negatived by the instrument
by which the legislative body is created or established; and
(3) It does not create another legislative body having the same
powers and to discharge the same functions which it has, if the
creation of such a body is prohibited by the instrument which
establishes the legislative body itself.
By Anu Solanki Kamble
JUDICIAL AUTHORITIES
ON DELEGATED
LEGISLATION*
AK Roy vs. Union of India (1982)
1.
while examining the constitutionality of the National Security
Ordinance, 1980, which sought to provide for preventive
detention in certain cases, the Court argued that the President’s
Ordinance making power is not beyond the scope of judicial
review.
However, it did not explore the issue further as there was
insufficient evidence before it and the Ordinance was replaced
by an Act.
It also pointed out the need to exercise judicial review over the
President’s decision only when there were substantial grounds
to challenge the decision, and not at “every casual and passing
challenge”.
By Anu Solanki Kamble
2. T Venkata Reddy vs. State of
A. P. (1985)*
While deliberating on the promulgation of the Andhra
Pradesh Abolition of Posts of Part-time Village Officers
Ordinance, 1984 which abolished certain village level posts,
the Court reiterated that the Ordinance making power of the
President and the Governor was a legislative power,
comparable to the legislative power of the Parliament and
state legislatures respectively.
This implies that the motives behind the exercise of this
power cannot be questioned, just as is the case with
legislation by the Parliament and state legislatures.
By Anu Solanki Kamble
3. DC Wadhwa vs. State of
Bihar (1987) *
It was argued that the legislative power of the executive to
promulgate Ordinances is to be used in exceptional circumstances
and not as a substitute for the law making power of the
legislature.
Here, the court was examining a case where a state government
(under the authority of the Governor) continued to re-promulgate
ordinances, that is, it repeatedly issued new Ordinances to replace
the old ones, instead of laying them before the state legislature.
A total of 259 Ordinances were re-promulgated, some of them for
as long as 14 years.
The Supreme Court argued that if Ordinance making was made a
usual practice, creating an ‘Ordinance raj’ the courts could strike
down re-promulgated Ordinances.
By Anu Solanki Kamble
ESSENTIALS*
Legal Effectiveness. The new law should reflect what was intended by the original policy.
Procedural Legitimacy. The Act should be drawn up into clauses.
Timeliness. Time pressure can lead to poorly drafted and defective provisions.
Certainty. Clear language should be used so that individuals know the scope and effect. However this does not
always happen. To reach certainty, drafters produce extremely long and complex sentences. This increases
confusion over the meaning.
Comprehensibility. The Law should be comprehensible or understandable. But to whom? Normal people who have
to abide by the law? Politicians who vote on the creation of the law? Or, lawyers who advise clients on the effect of
the law?
Acceptability. The Act should be written in uncontentious language and in a normal prose style.
Brevity. The Act should be as short as possible as long as it achieves its purpose.
Debatability. The Bill should be written in a way that allows the policies behind it to be debated in Parliament.
Legal Compatibility. The Act should fit in with existing law. If it does not, it should clearly alter or repeal the
previous law that it conflicts with.
By Anu Solanki Kamble
FEATURES
1. Abrogation- By exercising the power to repeal any legislation, the
legislature can abrogate any legislative measure or provision that has
become meaningless or ineffective in the changed circumstances.
Legislature can repeal a law with ease.
2. Division of function- Legislation is advantageous because of division of
functions. Legislature can make a law by gathering all the relevant material
and linking it with the legislative measures that are needed. In such a
process, legislature takes help of the public and opinion of the experts.
Thus, public opinion also gets represented in the legislature.
3. Prospective Nature of Legislation- Legislations are always prospective
in nature. This is because legislations are made applicable to only those that
come into existence once the said legislation has been enacted. Thus, once a
legislation gets enacted, the public can shape its conduct accordingly.
By Anu Solanki Kamble
4. Nature of assignment- The nature of job and assignment of a
legislator is such that he/she is in constant interaction with all
sections of the society. Thereby, opportunities are available to him
correct the failed necessities of time. Also, the decisions taken by
the legislators in the Legislature are collective in nature. This is not
so in the case of Judiciary. Sometimes, judgments are based on bias
and prejudices of the judge who is passing the judgment thereby
making it uncertain.
5. Form- Enacted Legislation is an abstract proposition with
necessary exceptions and explanations whereas Judicial
Pronouncements are usually circumscribed by the facts of a
particular case for which the judgment has been passed. Critics say
that when a Judge gives Judgment, he makes elephantiasis of law.
By Anu Solanki Kamble
Codification of Law
It implies collection, compilation, methodical arrangement,
systemization and reduction to coherent form the whole body of law
on any particular branch of it so as to present it in the form of a
systematic, clear and precise statement of general principles and rules.
KINDS-
A. Creative Code – makes law for the first time without any reference to
any other law. Eg. IPC
B. Consolidating Code – consolidates the statutory, customary and
precedent law on a particular subject and declares it so as to simplify
law. Eg. – Transfer of Property Act.
C. Creative & Consolidating Code – does both. Eg. – Hindu Marriage
Act.
By Anu Solanki Kamble
Legislation vs. Precedent*
Legislation
Precedent
Has its source in law making will of Has its source in ratio decidendi and
the State obiter dicta of judicial decisions
Formal and express declaration of Creation of law by the recognition
new rules by the legislature and application of new rules by courts
in administration of justice
Legislation comes before a case
requiring its application Precedent comes after the cause arises
General and comprehensive form Particular and limited form
Abstract Definite
Legislation v. Custom*
Legislation Custom
Grows out of theory Grows out of practice
Latest source of law Oldest source of law
Mark of advanced society and mature Mark of primitive society and
legal system undeveloped legal system
Expresses relationship between men Expresses relationship between man
and state and man
Complete, precise and easily Cannot be easily identified
accessible
Outcome of necessity, utility and
Result of deliberate positive process imitation
MERITS
Legislation has its source in theory and hence a more solid
base.
Abrogative in nature.
It allows advantageous division of labor.
It makes rules in anticipation.
Legislation is a mark of an advanced society and a mature
legal system.
Legislation expresses relationship between man and state
according to the status of the society.
Legislation is precise, complete and easily accessible.
Legislation is jus scriptum.
Legislation is the result of a deliberate positive process. By Anu Solanki Kamble
DEMERITS
Obscure language used
Over-elaborate provisions
Illogical structure
Confusion from amendments
Rigidity impeding free growth of law
Sometimes based on hypothetical facts / situations
Too much emphasis on expression rather than the intent or purpose.
Incoherent expression as it is a collective opinion of a lot of people.
Standing of law-makers in question.
Legislation makes law simple also allowing people to find ways out of a law.
Sometimes, statutes disturb the existing right and duties of people or create
contradictions therein.
By Anu Solanki Kamble
CURRENT IMPLICATON
AND IMPACT
Legislation is the most recent and definite source of law
making
Legislation makes it easy for the citizens to identify and
understand the laws
It makes it easy to modify and change rules. The definite
process of amendment helps the change to come into
immediate effect.
Helps in creation of a more stable and certain form of
governance. Designates roles to executive and judiciary
Creation of a uniform legal system makes it easier to track
the legal development of a society.
By Anu Solanki Kamble
