LEGISLATION

as
Source of Law
LAW 109
LEARNING OUTCOMES –

• Understanding how codification of law

begun.

• Evaluating value of Legislation as source

of law

• A comparative analysis of legislation vis-

à-vis other sources of law.
ETYMOLOGY OF LEGISLATION

• Latin terms - Legis + Latum

• Legis = Law

• Latum = to make

• Legislation = making of law

• Legislation consists in the declaration of legal rules by a

competent authority.
• In its broadest sense, legislation includes all methods of law-
making while in technical sense it is limited to expression of its
will by the Legislature.

• Strictly speaking, legislation implies enacted law or statute law

assed b the supreme or subordinate legislature.

• Legislation a law or set of laws suggested by a government and

made officially by legislature. It is a formal act.

• Process of legislation involves preparing and enacting of laws

by local provincial or national legislatures.
• Blackstone - law that has its source in legislation may be
termed as enacted law, and all other forms may be
distinguished as un-enacted law.

• Acts enacted by Parliament are statutory laws as they proceed

from legislation whereas the customs which have assumed the
shape of law are called common law in England. The common
law is therefore, customary law and unwritten in its nature.

• Austin - legislation includes activities which result into law-

making or amending, transforming or inserting new provisions
in the existing law.
• Austin further holds that when a Judge establishes a new
principle by means of his judicial decision, he is said to exercise
legislative power and not judicial power.

• Salmond - legislation is that source of law which consists in the

declaration of legal rules by a competent authority.

• According to him, the term 'legislation' as a source of law is

used in three different senses –

• Strict sense - source from where the rules of law declared

by competent authority are framed.
 • Widest sense - includes all methods of law-making including
direct and indirect. The law declared by legislature is called
direct legislation whereas all other actions through which law
is made are species of indirect legislation

• Last sense - Legislation includes every expression of the will

of the legislature whether making law or not.

Supreme and Subordinate Legislation

• Legislation is supreme when it proceeds from the sovereign
power in the State and is incapable of being repealed, annulled
or controlled by any other legislative authority .
• Subordinate legislation proceeds from an authority other than
sovereign power. It is dependent for its continued existence and
validity on some supreme authority.

Validity of Subordinate Legislation –

• The parent Act, i.e., the Act under which the power to make
subordinate legislation is exercised, must be valid.

• The delegation clause in the parent Act must be valid.

• The statutory instrument so made, must be in conformity

with delegation clause in substance, procedure and form.
• The statutory instrument must not violate general norms laid
down by judicial decisions.

• The statutory instrument must not violate any of the

fundamental rights.

Kinds of Subordinate Legislation

• Colonial Legislation - British colonies and dependencies were

conferred limited power of self-government. The colonies in
exercise of this power, enjoyed limited power of law-making
• In 1931 Statute of Westminster was passed allowing the self
governing dominions to make law independently under Crown’s
authority.

• 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 and given rise to a vast body of rules known as
administrative law
• Judicial Legislation - -In certain cases, legislative power of
rule-making is delegated to the judiciary and the superior courts
are authorized to make rules for regulation of their own
procedure in exercise of this power.

• It must not be confused with judicial precedents where the-

Court formulates a new principle of law through its judicial
decision.

• Article 145 of Constitution of India confers rule making power

on Supreme Court of India.
• Supreme Court make rules for regulation of matters like -

o norms for practicing lawyers; (Advocate on record)

o procedure of appeals and time-limit for such appeals;
o proceedings relating to enforcement of fundamental rights;
o transfer of cases to different High Courts;
o disposal of criminal appeals coming from High Courts;
o conditions for review petitions;
o costs and fees;
o grant of bail, bonds, security etc.;
o stay of proceedings;
• The rules framed by the Supreme Court under Article 145
should be made under a law enacted by Parliament and the
rules must be approved by President of India.

• Municipal Legislation - Municipal authorities are allowed

within their sphere make bye-laws for limited purposes such as
water-tax, land urban cess, property tax, town planning, public
health, sanitation etc.

• Autonomous Legislation - The State may allow private

entities or bodies such as universities, companies, corporation
etc. to make rules for regulating the conduct of their business.
Delegated Legislation
• 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.

• Delegated legislation primarily means the exercise of power of

rule-making by the Executive under the authority delegated to it
by the Legislature.

• When the function of legislation is entrusted to organs other

than legislature, the legislations made by such organs are
called delegated legislation.
• Delegated legislation is not to be confused with the executive
legislation.

• In former, legislature further devolves its power to create rules

to some other bodies not a part of the legislature.

• In later executive authorities create laws in absence of

delegation of power by legislature.

• E.g. Ordinance making power of Governor / President under

Articles 213 / 123 of the Constitution respectively.
• Concept of welfare State has caused tremendous increase in
the work of the government which necessitated drawing up of
vast body of rules to deal with various situation.

• Legislature cannot create such wide range of rules in efficient

manner.

• Thus, it make essential legal principles leaving the detailed

rules to be worked out by the executive authority to whom
legislative power is delegated by legislature.
• Many a times Legislature lacks expertise and adequate
knowledge to deal with technical matters such as nuclear
energy, electricity, gas, atomic energy, etc. which can be
efficiently handled only by the experts in the respective field.

• Delegated legislation is also deemed necessary to meet

unforeseen contingencies providing power to constantly adapt
to unknown future conditions without resorting to amendment of
legislation.

• In emergency situation like war, disasters, economic

depressions, epidemics executive needs rule making power for
 immediate remedial actions without following the lengthy
legislative process.

• To enable the executive to devise new forms of laws for the

effective realization of the goals of socio-economic justice and
implementation welfare schemes state.

Control of Delegated Legislation

• Procedural Control
• Parliamentary Control
• Judicial Control
Procedural Control
• Prior consultation of interests which are likely to be affected by
the proposed delegated legislation.

• Prior publicity of proposed rules and regulations;

• Publication of delegated legislation made mandatory.

• Under Section 23 of general Clauses Act, 1897 the publication

of delegated legislation is essential. In absence of compliance
with this rule, the delegated legislation may be declared invalid
by courts. (Raza Buland Sugar Co. v. Rampur Municipality AIR 1965 SC 895)
Parliamentary Control
• Condition to lay delegated legislation 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.

• Congressional control of delegated legislation is mostly indirect

through requiring the administrative agencies to submit
periodical and special reports etc. India also follows more Or
less the same method
• This control is exercised through

• proceedings in Parliament

• the committee on subordinate legislation of both the

Houses of Parliament which maintains vigilance on
Government's rule-making power and scrutinizes the
rules framed b the executive.

• Objective is is to keep watch over the rule-making authorities

and provide an opportunity to criticize them if there is abuse of
such power on their part.
Judicial Control
• Whenever a law made by the executive is found to be

• inconsistent with the Constitution

• Ultra-vires the parent Act from which the law-making

power has been derived,

it is declared null and void by the court

 Deepak Sibal v. Punjab University (AIR 1989 SC 909)

Supreme Court held that Punjab University Rules for

admission to the evening LL.B. classes were discriminatory
and violative of Article 14 because they restricted admission
only to the employees of government, semi-government and
similar institutions and excluded the employees of private
sectors and meritorious students.

After the Menaka Gandhi vs UOI case (AIR 1978 SC 597),

an administrative rule cab be challenged before court if it
found to be unreasonable and against ethos of justice.
Sub Delegation of Power of Delegated legislation

• The general rule is that where Parliament gives a power to

make law for some specified purpose to an entity, it can be
exercised by that entity alone.

• In India sub-delegation of delegated legislative power without

express authority would be invalid.

• However, if the Parent Act allows sub-delegation, then it will be

valid.
 Legislation Precedent

• Source is the Law-making will of the • Source is Judicial decisions of the

State expressed via Legislature. Courts.

• It is imposed on courts by legislature as • It is create by the Courts through their

binding rules in interpretation of laws actions.

• It signifies a formal declaration of law by • It signifies recognition and application of

the Legislature. new principles of law by courts in course
of administration of justice.

• Usually legislation comes into being • It comes into being only after a litigation
before initiation of process of litigation. has arisen and comes into force only
Infact, it is published even before I comes after a decision is taken in consequence
into force. of it by the Court.
 Legislation Precedent

• It is generally prospective (not ex-post • It is retrospective in nature i.e. ex-post

facto) facto law.

• Primary intention of legislature is to • Primary intention is to settle a specific

create law and binding rules dispute once for all parties concerned.
Law formulated therein is by product in
form of ratio decidendi and obiter dicta
emerging from the decision

• It a comprehensive law on the subject • Law formulated by the courts is limited in

dealt with by statute. its scope only to identically situated
litigations / cases.

• Legislative law is easily known by the • As voluminous case law is generated by

public at large as it is properly notified by court everyday, it is relatively difficult for
the State to ensure it is widely the public and even advocates to be
disseminated. aware of latest precedents even though
ignorance of law is not excused.
 LEGISLATION CUSTOM

• It is a law that is in existence de jure. • It is a law that is in existence de facto.

(has a legal status as binding rule of (has factual existence but may or may
positive law) not be a part of positive law)

• It grows out certain theoretical principles • It grows out of the long existing and
considered essential for regulation. already accepted practices of a society.

• From perspective of stages in • It is the oldest form of law.

development of law, legislation is a
relatively new method of creation of law.

• It is an essential feature of modern legal • It was primary method of law making for
systems. primitive societies but is losing its value
under modern legal systems.
 LEGISLATION CUSTOM

• It is formulated in a written form was is • It is mostly found in an uncodified or

easily accessible in its complete and unwritten form making its difficult to trace
precise form. or establish its contents in a precise
manner.

• It is an outcome of intentional and • It has emerged through a natural

deliberate action on part of the a evolutionary process occurring in society.
competent authority under aegis of State.

• It is a declaration primarily dealing with • It primarily deals with the relationship of

the relationship between the State and its members of a society a society or
subjects. community amongst themselves.
Merits and Demerits of Codification

• The greatest merit of codified law is its

• simplicity
• certainty
• uniformity
• intelligibility
• logical coherence

• The main object of codification is to acquaint people with a

particular law so that they can regulate their conduct accordingly
and avoid law-violation
• Salmond and Austin have asserted that codification is
necessary and useful for the development of society.

• Pollock, Paton and Savigny have opposed codification of laws.

• Savigny holds that codification obstructs natural growth of law

by making it stagnant and rigid.

• Paton says that codified law cannot be as useful to developing

society as the uncodified law is due to lack of its flexibility to
adapt to varying conditions of society.
• In spite of these shortcomings, codification has emerged as
most organized and systematic way of making laws.

• In modern time, codification of laws has become one of the

essential attributes of an ideal judicial system.

• Most of the countries have already codified their laws and they
are constantly revising or amending them to meet the
exigencies of time.