Institutional Understanding of

Law
Prerna
Legal Methods
2024
 Sources of Law
• Ideational – what we did in the first module
( schools of thought and other key concepts)

• Institutional – entity authorized to make law

 Institutional Sources of Making Law
• Which are the entities authorized to make law?
- Legislature
- Executive
- Judiciary
• Where do we find their authorization?
- Constitution
- Legislation
- Subordinate Legislation (rules, regulations, orders,
notifications)
Creation of Legislatures at Centre and in the
States
Art 79 Constitution of Parliament.-
There shall be a Parliament for the Union which shall consist of the President and
two Houses to be known respectively as the Council of States and the House of the
People.

Art [Link] of Legislatures in States.-

1) For every State there shall be a Legislature which shall consist of the Governor, and
(a) in the States of Bihar, Madhya Pradesh, Maharashtra, Karnataka and Uttar Pradesh,
two houses:
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as
the Legislative Council and the other as the Legislative Assembly, and where there
is only one House, it shall be known as the Legislative Assembly.
 Allocation of Legislative Power
[Link] of laws made by Parliament and by the
Legislatures of States.-
• (1) Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any
part of the territory of India, and the Legislature of
a State may make laws for the whole or any part of
the State.
• (2) No law made by Parliament shall be deemed to
be invalid on the ground that it would have extra-
territorial operation.
 Allocation of Legislative Power (2)
• [Link]-matter of laws made by Parliament and by the
Legislatures of States.-
• (1) Notwithstanding anything in clauses(2) and (3), Parliament has
exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the "Union List").
• (2) Notwithstanding anything in clause (3), Parliament, and, subject to
clause (1), the Legislature of any State also, have power to make laws
with respect to any of the matters enumerated in List III in the Seventh
Schedule (in this Constitution referred to as the "Concurrent List").
• (4) Parliament has power to make laws with respect to any matter for
any part of the territory of India not included (in a State)
notwithstanding that such matter is a matter enumerated in the State
List.
 Allocation of Legislative Power (3)
Art 248 Residuary powers of legislation-

(1)Parliament has exclusive power to make any law with

respect to any matter not enumerated in the
Concurrent List or State List.

(2) Such power shall include the power of making any law
imposing a tax not mentioned in either of those Lists.
 Allocation of Legislative Power (4)
Art [Link] of Parliament to legislate with
respect to a matter in the State List in the
national interest.
[Link] of Parliament to legislate with
respect to any matter in the State List if a
Proclamation of Emergency is in operation.
[Link] of Parliament to legislate for two or
more States by consent and adoption of such
legislation by any other State.
• [Link] between laws made by Parliament and laws made by the
Legislatures of States.-
• (1) If any provision of a law made by the Legislature of a State is repugnant to
any provision of a law made by Parliament which Parliament is competent to
enact, or to any provision of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to the provisions of clause (2),
the law made by Parliament, whether passed before or after the law made by
the Legislature of such State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State shall, to the extent of
the repugnancy, be void.
• (2) Where a law made by the Legislature of a State with respect to one of the
matters enumerated in the concurrent List contains any provision repugnant to
the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of the President and has
received his assent, prevail in that State:
• Provided that nothing in this clause shall prevent Parliament from enacting at
any time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislature of the State.
 Conclusion on constitution of
legislative powers
• How Federalism operates
• The Subject Matters in the Union, State and
Concurrent Lists
• Cooperative Federalism
• Some provisions indicating that it is the Union
which is being given primacy in determining
what is needed and where-Is that
problematic?
 Executive Power of the Union
Art 53. Executive power of the Union.-

(1) The executive power of the Union shall be vested in the President and shall be exercised by
him either directly or through officers subordinate to him in accordance with this
Constitution.

(2) Without prejudice to the generality of the foregoing provision, the supreme command of
the Defense Forces of the Union shall be vested in the President and the exercise thereof
shall be regulated by law.

(3) Nothing in this article shall-

(a) be deemed to transfer to the President any functions conferred by any existing law on the
Government of any State or other authority; or
(b) prevent Parliament from conferring by law functions on authorities other than the
President.
 Executive Power of the Union (2)
• 73. Extent of executive power of the Union.-
• (1) Subject to the provisions of this Constitution, the executive power of the Union
shall extend-
• (a) to the matters with respect to which Parliament has power to make laws; and
• (b) to the exercise of such rights, authority and jurisdiction as are exercisable by
the government of India by virtue of any treaty on agreement:
• Provided that the executive power referred to in sub-clause (a) shall not, save as
expressly provided in this constitution or in any law made by Parliament, extend in
any State to matters with respect in which the Legislature of the State has also
power to make laws.
• (2) Until otherwise provided by Parliament, a State and any officer or authority of a
State may, notwithstanding anything in this article, continue to exercise in matters
with respect to which Parliament has power to make laws for that State such
executive power or functions as the State or officer or authority thereof could
exercise immediately before the commencement of this Constitution.
 Legislative Power of the Executive(1)
123. Power of President to promulgate Ordinances during recess of Parliament.-
(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinance as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of
Parliament, but every such Ordinance-

(a) shall be laid before both House of Parliament and shall cease to operate at the expiration of
six weeks from the reassemble of Parliament, or, if before the expiration of that period
resolutions disapproving it are passed by both Houses, upon the passing of the second of
those resolutions; and
(b) may be withdrawn at any time by the President. Explanation.- Where the Houses of
Parliament are summoned to reassemble on different dates, the period of six weeks shall be
reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would
not under this Constitution be competent to enact, it shall be void.
Art [Link] of Governor to promulgate Ordinances during recess of Legislature
 Conclusions on constitution of executive
power
Reflective Questions
• What qualifies as ‘circumstances that require
immediate action’ for ordinance to be
promulgated?
• How is this power used by the Executive in the
recent years?
• Does its unjustified use violate parliamentary
supremacy?
 Constitution of Judiciary
Art 124. Establishment and constitution of Supreme Court.-
(1) There shall be a Supreme Court of India constituting of a Chief Justice
of India and, until Parliament by law prescribes a larger number, of
not more than seven other Judges.
Art [Link] Courts for States.-
There shall be a High Court for each State.
Art [Link] of district judges.-
(1) Appointments of persons to be, and the posting and promotion of,
district judges in any State shall be made by the Governor of the State
in consultation with the High Court exercising jurisdiction in relation
to such State.
 Law making power of the judiciary
Art [Link] declared by Supreme Court to be binding on all courts.-
The law declared by the Supreme Court shall be binding on all courts within the territory of India.

[Link] of decrees and orders of Supreme Court and unless as to discovery, etc.-
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order
as is necessary for doing complete justice in any cause or matter pending before it, and any
decree so passed or orders so made shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by order prescribe.

Art [Link] of Court, etc.-

(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to
time, with the approval of the President, make rules for regulating generally the practice and
procedure of the Court including-
Law making power of the Judiciary (Contd.)

• Art. 131 Original jurisdiction of the SC

• Art. 132 Appellate jurisdiction of SC in appeals
from High Courts in certain cases
• Art. 133 Appellate jurisdiction of SC in appeals
from High Courts in regard to civil matters
• Art 134 Appellate jurisdiction of SC in regard to
criminal matters
• Art 143 Advisory jurisdiction of the SC-
Power of President to consult Supreme Court
 Power of Judicial Review
• Article 32 (Writ Jurisdiction of SC)
• Article 226
• Art 136 Special Leave Jurisdiction of the SC
• Art 129 SC as a ‘court of record’
• Art 142 Residuary power
‘pass any such decree or make such order as is
necessary for doing complete justice in any
cause or matter pending before it”.