Jurisprudence -Legislation as a source of Law

Prepared by Law Expert Dr. Rekha Khandelwal

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Meaning of Legislation

The word ‘Legislation’ has been originated from two Latin words, legis and Latin [latum].

Meaning of Legis – ‘law’ and Meaning of latum – ‘to make’, Meaning of Legislation is ‘the making of Law’

In common sense, Legislation may be defined as “the promulgation of legal rules by an authority which is competent to do so.”

In the strict sense, “Legislation means the statutory law passed by the legislature [parliament or state]”

Definitions of Legislation

According to Bentham: –“Legislation implies both the process of law making, as well the law evolved as a result of such process.”

According to Austin: – “Legislation includes those activities which result in the making of a new law, or amendment, transformation or addition of new provisions in the existing law.”

According to Gray: – “Legislation means the formal utterances of the legislative organ of the government.”

Salmond- “Legislation is that source of law which consists in the declaration of legal rules by a competent authority.”

According to Salmond-

The expression ‘ legislation’ as a source of law is utilized in three different senses.

It is the source from which the rules of law announced by competent authority are framed in its strictest sense.

Legislation, encompasses all techniques of producing laws in its broadest meaning. Legislation can be either direct or indirect in this sense.

Direct legislation refers to the declaration of law by the legislature, whereas indirect legislation refers to all other actions that result in the creation of law.

legislation encompasses any statement of the legislature’s will, whether or not it makes law in a third sense.

Thus, legislation refers to the process of producing laws. Legislation is the process of producing laws in which a responsible authority is given the responsibility with developing and enacting the laws in a state.

Classification of Legislation: –

Supreme Legislation: –Legislation is supreme when it comes out from the supreme Legislation authority (sovereign power) in the state. there is no other authority in the state that can control it. Such Legislation cannot be repealed, amended, annuled or controlled by any authority other than the supreme legislative authority.

Subordinate Legislation :- Subordinate legislation, as opposed to supreme legislation, is that which originates from a source other than the sovereign power. Legislation is considered subordinate when it comes from a source other than the supreme legislative power of the state. It is made with the permission of the supreme legislative authority. The supreme legislative authority governs its existence, legitimacy, and continuity.

Kinds of Subordinate Legislation

Colonial Legislation:- It means, the law made by an imperial country for its colony. The british colonies enjoyed very limited law making power. But the laws made by the colonies were subject to scrutiny (repealed, altered or superseded by the British parliament. However, in the present period, practically all countries are independent and have the authority to set their own laws.

Autonomous Legislation :-The supreme authority can confer power on a group of people to legislate on the matter which are of concern to them as a group.The law enacted by such organisation in the exercise of such authority is known as autonomous legislation.The group as a whole is referred to as an independent body. For example, the state can empower institutions, businesses, and corporations.

Judicial Legislation :-Power are conferred upon the superior courts to make rules for the regulation of their own procedure in India ,both the supreme court and the high courts have been entrusted to make rules for regulating the practice and procedure of the courts. The supreme court and high court regulate their own procedure under articles 145 and 227. The supreme Court and the high court may frame rules and relations for the conduct of its business and exercising its supervisory power over the subordinate courts.

Executive Legislation :-The supreme authority can allow the executive authorities to frame certain rules and by laws and the power to issue certain notifications. Executive Legislation refers to the regulations, bylaws, notifications, and so on issued or made by the executive in exercise of this competence conferred by the supreme authority. They also have legal authority.

Municipal Legislation :-The supreme authority can allow municipal bodies to frame rules and make by laws for areas falling within their jurisdiction for some purposes like property tax ,town planning ,public health, Sanitation, water –tax, land urban cess etc. Municipal Legislation refers to the laws enacted by municipal authorities in the exercise of their powers. In India, municipal bodies include municipal corporations, municipal councils, panchayats, and block samitis, among others.

Delegated Legislation

Delegated Legislation can be defined as the enactment of law by any authority other than the supreme legislature . It denotes the rules, regulation, orders, notifications, by laws or directions made by the subordinate authorities under the power delegated to them by the supreme legislature authority, like the legislature [parliament or state ]. In other word, when the function of Legislation is entrusted to some other organs, the law made by such organs is called delegated Legislation .

Necessity of Delegated Legislation

Lack of time
Lack of technical knowledge
Emergency
Flexibility
Local matters
Experience
Experimentation

Deficiencies of Delegated Legislation

Excessive delegation
Less time for scrutiny
No Responsibility

India’s Delegated Legislation: -The Indian constitution established a welfare state. Which requires the state to legislate on a wide range of activities affecting human lives in order to promote “the maximum happiness of the greatest number of people.”

Sub Delegation: When the parliament delegated authority to a subordinate authority to supplement the legislation with rules, that authority could only be exercised by that subordinate body. Sub delegation legislation occurs when a subordinate authority further delegated its powers to another authority.

The state of affairs would appear to be in conflict with the general principle that a delegate is not able to delegate further;

the maxim ‘delegatus non potest delegare;

In other word, the common rule is that where Parliament gives a power to make law to a body or person for some specific purpose , it can be exercised only by that body or person alone.

Sub- delegation of delegated legislative power without express authorisation would thus be invalid in India. For example, if Parliament bestows power to A, the clear aim is that it be wielded alone by A and no one else.

The Essential Commodities Act of 1955 is a good example of sub delegation; section 3 of the Act grants the central government rule-making authority. This is clearly the first level of delegation by Parliament to the executive. Section 5 of the legislation also allows the central government to delegate authority to its officials, as well as the state governments and their officers. This could be considered the second level of delegation.

Sub – delegation, in fact, contradicts the maxim ‘delegatus non potest delegare,’ which states that a delegate cannot further transfer his power, but the maxim merely incorporates a rule of construction of a statute and does not establish a rule of law. Although sub- delegation of legislative powers is normally not permitted, it can be permitted when such power is specifically conferred by statute or can be inferred by necessary implication.

Conditional legislation

It is a case of conditional delegation where the legislature enacts the law and provides another entity merely the power to determine when it comes into force or when it applies to a certain area or territory of the state.

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 within which it is should be operative;

5. introduce a special law if the contemplated situation has arisen in the opinion of the government.

Advantages of legislation to other sources;

1. Abrogative power

2. Division of labour

the duty of the legislature to make law, the duty of the judiciary to interpret and apply it.

3. Declaration before application

4. it can by way of anticipation make rules for cases that have not yet arisen.

5. Finally, statute law is greatly superior, the product of legislation assumes the form of abstract propositions,

Statute law is general is brief, clear, easily accessible knowable.

Control over Delegated Legislation: –

Procedural Control : – Certain procedural controls are required in order to maintain a consistent check on the exercise of power by subordinate authorities. These limitations are required to prevent them from misuse their power.
Parliamentary Control : – Parliamentary control over delegated legislation is required in order for members of parliament to scrutinise, debate, and amend the rules passed by the subordinate authorities. The parliament is the ultimate check on subordinate legislation and executive powers. It prevents lower officials from abusing their authority.
Judicial Control :- The Supreme Court of India, as well as all high courts in India, have the authority to exercise control over delegated legislation. Delegated Legislation may be challenged on any of the following three grounds:

Firstly, that it is ultra-vires the enabling act.

Secondly that it is ultra-vires constitution.

Thirdly That it is not made in accordance with the procedure prescribed by the enabling act.

The first two are the instances of substantive ultra-vires. Where as the third is an instance of procedural ultra-vires.

MCQs

Which is a type of legislation as a source of law in jurisprudence?

(a) Judicial decisions
(b) Customary practices
(c) Written laws and statutes
(d) International treaties

Answer (c) Written laws and statutes

2. Which branch has the primary authority to create legislation?

(a) The executive branch
(b) The legislative branch
(c) The judicial branch
(d) Local governments

Answer (b) The legislative branch

3. Which is an example of primary legislation given in below?

(a) Case law
(b) Administrative regulations
(c) Statutory law
(d) International treaties

Answer (c) Statutory law

4. what is the role of legislation in a common law legal system?

(a) Sole source of law
(b) Primary source of law
(c) No role
(d) Secondary source of law

Answer (b) Primary source of law

5. Which branch of government is responsible to interpret and apply legislation in the legal system?

(a) Executive
(b) Legislative
(c) Judicial
(d) Administrative

Answer (c) Judicial

6. The process through which legislation is formally adopted into law…..

(a) Ratification
(b) Codification
(c) Enactment
(d) Amendment

Answer (c) Enactment

FAQs

What role does legislation have in the legal system?

Legislation is important in the legal system because it establishes the rules, regulations, and standards that govern numerous parts of society. It establishes a foundation for persons’ and entities’ rights and obligations.

Jurisprudence