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“Legislation”
Prof. S.D. Bhosale
(..4 c..)
LEGISLATION
QUESTION BANK
Q. 1 Explain the Legislation as a source of law. Enumerate the kinds of Legislation.
Q.2
Explain the Legislation as a source of law and state the differences between
Legislation and, precedent and custom.
Explain Legislation as a source of law and explain the merits of Legislation over
precedent.
Q.3
Synopsis
I. INTRODUCTION-
II. Kinds of Legislation-
1) Supreme Legislation-
2) Subordinate Legislation-
(i) Colonial Legislation-
(ii) Municipal Legislation-
(iii) Judicial Legislation-
(iv) Autonomous Legislation-
(v) Executive Legislation-
III. Codification -
a) Kinds of Codification-
(i) A creative Code-
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(ii) A consolidating Code-
(iii) Creative and consolidating code-
b) Merits of Codification-
“Legislation”
Prof. S.D. Bhosale
(i) Creativity-
(ii) Simplicity-
(iii) Logical arrangement-
(iv) Stability-
(v) Planned development-
(vi) Unity-
c) Demerits of Codification-
(i) Codification brings rigidity to the legal system-
(ii) Regimentation of life-
(iii) In coherent-
(iv) Loopholes of laws become visible-
(v) No Codification can be complete-
IV. Legislation and other sources of law-
a) Legislation and precedent-
(i) Source of law-making-
(ii) Nature of law-
(iii) Before case-
(iv) General / Particular-
(v) Abstract/definite-
(vi) Prospective / Retrospective-
b) Legislation and custom-
(i) Point of time-
(ii) Base of source-
(iii) De-Jure / De-Facto-
(iv) Superior source-
(v) Govern relations between-
I. INTRODUCTION-
In Modern times and in democratic societies, legislation is one of the important
sources of law. Legislation as a source of law is of recent origin. As societies advanced,
custom as a source was replaced by legislation.
Legislation is a source of law which consists of the declaration of legal rules by the
competent authority. The term legislation is used in different senses. In its widest or most
generic sense, it includes all forms of law-making. In this sense, legislation includes law-
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making in any form, such as judge-made laws, laws between parties created by contracts,
rules made by legislatures etc. However, in its narrower sense, legislation is the laying
down of legal rules by a sovereign or subordinate legislation. In this sense, in modern times
and in this topic, the term legislation is considered. Therefore, legislation in this sense is
called an ‘enacted law’; all other forms of laws are called ‘un-enacted’ laws. In other words,
legislation consists of ‘the declaration of legal rules by a competent authority, conferring
upon such rules the force of law”.
In modern democratic states, legislation is vested in a separate legislative body,
which usually consists of elected members from citizens of the country. In England,
Parliament legislates, and it has unlimited power of legislation. In India also, the Indian
Parliament legislates; however, it has some constitutional restrictions. The same is the case
with the American senate (legislation).
II. Kinds of Legislation-
There are the following kinds of legislation, viz-
1) Supreme Legislation-
Supreme legislation is enacted by the highest law-making authority in the State.
Supreme legislation comes from or is enacted by the supreme or sovereign power in the
state. In other words, no supremacy of such legislation and no legality of such laws enacted
can be challenged. Thus, legislation by the King of Saudi Arabia, the Sultan of Brunei, the
Parliament of India, England and America, etc., are examples of supreme legislation.
Supreme legislation is legislation in the Austinian sense. Such laws cannot be
repealed, annulled, challenged or controlled by any other legislative authority. Legislation
by the British Parliament is unchallengeable; the British Parliament being a sovereign law-
making body, its legislation cannot be challenged in a court of law. However, a law enacted
by the Indian Parliament or the Senate of the USA can be challenged in the courts. They
may be declared unconstitutional, ultra vires, etc.
In Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Limited
(AIR 2015 SC 2978)
The Supreme Court held that “Delegatee cannot frame regulations that would not be in
accordance with statutory provisions”. It means delegated legislation must be within the
framework imposed upon it.
In conclusion, we may say that supreme legislation comes from the supreme law-
making body of the state.
2) Subordinate Legislation-
Legislation by any authority other than the supreme authority is called ‘subordinate
legislation’ or ‘delegated legislation’. In other words, it is law-making by an authority other
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“Legislation”
Prof. S.D. Bhosale
than the supreme legislation.
However, such legislation is made under the powers delegated to it by the supreme
authority. Such subordinate legislation depends upon the supreme legislative body for its
existence, validity and continuance. Therefore, subordinate legislation may be called
‘delegated legislation’.
Subordinate legislation can be classified as follows-
(i) Colonial Legislation-
The countries which were not independent and were under the control of some other
states were called colonies, dominions, protectorates or trusts. Other states which used to
dominate colonies were known as ‘Imperial States’. Between imperial rule and
independence, there was a transition period. In that transaction period, powers of self-
governance were given to colonies. However, such colonial legislation or rules made by
colonies for their governance were subject to or dependent on imperial legislation. Such
colonial laws were subject to alteration, repeal or supersession by Imperial power or
legislation. Britain had a number of colonies. India was one of them. During the period of
1935 to 1947 Indian government used to make colonial legislation.
(ii) Municipal Legislation-
Municipal authorities are allowed to make laws for limited purposes within their
areas for good governance. Such laws are called ' bye–laws’. Thus, Municipal
Corporations, Municipal Boards, Zilla Parishads, etc., make bye-laws for proper
administration.
(iii) Judicial Legislation-
The superior courts have the power to make rules for the regulation of their own
procedure and procedure before subordinate courts. In India, the Supreme Court and High
Courts have such powers. Civil Manuals and Criminal Manuals are made by such courts
for the regulation of procedure before courts.
(iv) Autonomous Legislation-
Autonomous bodies like universities, corporations, companies, trusts, etc., have the
power to make rules for the conduct of their business. The legislation made by them is
called “autonomous legislation’.
(v) Executive Legislation-
In fact, the main function of the executive is to execute state laws and decisions.
However, sometimes the legislature delegates some legislative powers to the executive.
Rules, regulations, etc., made by executives under delegated powers are also known as
‘delegated legislation’.
Rules by Company Law Boards, Rules in Jail Manuals, Civil and Criminal Manuals
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of courts, etc., are some examples of subordinate legislation or legislation by executives.
Delegated legislation has assumed a very important place in recent years. (For a detailed
study, refer to the topic ‘delegated legislation’ from Administrative Law Notes).
III. Codification -
Codification is the promulgation, compilation, collection and systematization of the
body of law in a coherent form by an authority in a state competent to do so. In other words,
codification implies collection, compilation, systematisation, and deduction to coherent
form, the whole body of laws on any particular branch. In short, reducing the whole body
of laws into a written form in a systematic way is called ‘codification’.
a) Kinds of Codification-
(i) A creative Code-
A creative Code is that which makes a law for the first time without any reference
to any other law. It is law-making by legislators. Indian Penal Code, Cyber Crime Act, Anti
Corruption Act, etc., are some examples of creative Codes.
(ii) A consolidating Code-
Consolidating Code is that code which consolidates whole law scattered, i.e.
statutory, customary, and judge-made, on a particular subject. Code of Justinian, the
Transfer of Property Act of 1882, Hindu Succession Act are some examples of this Code.
(iii) Creative and consolidating code-
The code which makes law as well as consolidates existing laws on a particular
subject is called a ‘creative and consolidating code’. Hindu Succession Act, Hindu
Adoption Act etc., are some examples of this kind of codification.
b) Merits of Codification-
(i) Creativity-
Unlike customary law and precedent, codified law becomes certain. By codification,
law no longer remains vague and uncertain.
(ii) Simplicity-
Consolidation makes law simple and accessible to everybody.
(iii) Logical arrangement-
In codification, the law is arranged in a coherent form. Conflicts and inconsistencies
in scattered provisions are eliminated by codification.
(iv) Stability-
Codification makes law simple, specific and stable. Stability is the essence of the
law.
(v) Planned development-
Codification is one of the important means of planned judicial development in a
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Prof. S.D. Bhosale
country.
(vi) Unity-
Codification brings uniformity to the legal system. Ultimately, it helps in uniting all
people governed by the same law.
c) Demerits of Codification-
(i) Codification brings rigidity to the legal system-
As soon as the law of custom or precedent is codified, it loses its flexibility and
becomes rigid.
(ii) Regimentation of life-
Codification results in the regimentation of the lives of the people. Irrespective of
differences, codification enforces the same law upon all; it sets a particular pattern of living
for all.
(iii) Incoherent-
Codification is the work of a number of persons; therefore, sometimes, it becomes
incoherent.
(iv) Loopholes of laws become visible-
Codification makes law simple; therefore, the loopholes in it can be understood
easily. Many people, by taking loopholes into consideration, take disadvantage of it.
(v) No Codification can be complete-
No codification can be complete and self-sufficient. It frequently needs changes and
amendments.
Whatsoever may be the demerits of codification nevertheless, merits outweigh
demerits. In a modern and democratic form of government, codification is very important.
IV. Legislation and other sources of law-
a) Legislation and precedent-
Legislation and precedent are both sources of law. Legislation is comparatively of
recent origin. Precedents played a very important role before legislation in England and
other countries. Common law courts and the Courts of Equity were applying the law of
precedent even before the era of enactment (legislation). Still, we will discuss some of the
differences between these two viz-
(i) Source of law-making-
Legislation has a source in the will of the state, whereas precedent has its source in
judicial decisions.
(ii) Nature of law-
The legislation creates statute law, whereas precedent creates judge-made law.
(iii) Before case-
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The legislation comes before an actual case; however, precedent comes after the
case arises before a court.
(iv) General / Particular-
Legislation is expressed in a general and comprehensive form, whereas precedent is
“Law Master’s” Publication
“Legislation”
Prof. S.D. Bhosale
expressed in a particular and limited form.
(v) Abstract/definite-
Legislation is abstract, but the precedent is definite.
(vi) Prospective / Retrospective-
Legislation is always prospective, whereas precedent is always retrospective in
effect.
b) Legislation and custom-
(i) Point of time-
Custom is a very old source of law, whereas legislation is an advanced method of
law-making adopted by mature legal systems.
(ii) Base of source-
Legislation is based on the will of the state, whereas custom is based on the will of
the people.
(iii) De-Jure / De-Facto-
The existence and authority of Legislation are de-jure, whereas the existence of
custom is de-facto (in fact).
(iv) Superior source-
Legislation is considered to be a superior source of law to custom nowadays.
(v) Govern relations between-
The legislation deals with the relationship between man and the state, whereas
custom deals with relations between man and man.
In the modern era, legislation is considered to be a very important source of law-
making. It is adopted in all civilised countries. Legislation as a source of law outweighs
other sources of law.
*****