LEGISLATION

MOHAMMAD SHAHZEB | LEGAL METHOD |

Humans are social creatures who depend on each other for survival.
This dependence creates relationships. In modern society, it has
become essential to regulate these relationships. As time has passed,
the relationships between individuals and groups have also evolved to
include the relationship between man and the state. In order to
exercise control over its citizens and to maintain authority, the state or
the sovereign creates laws. This creation of laws is termed legislation.
It is one of the most important functions of the sovereign. The people
of India are the sovereign because the ultimate power rests with them.
The government is elected by the people of India and, hence, it
becomes a medium through which power is exercised. From a basic
transaction between two individuals to massive contracts between
multinational companies, from the manufacturing of toothbrushes to
the manufacturing of rockets, everything is regulated by these laws. It
is through these laws that the government ensures the ideal Behav of
the citizens towards each other and towards the country. But it is not
only Parliament that makes laws. There are others entrusted with this
duty. Also, there is more than one type of legislation.

LEGISLATION
The term “Legislation” is derived from two Latin words Legis meaning
law and latum meaning to make, put, or set. Legislation means the
making or the setting of law.

According to SALMOND: “legislation is that source of law which

consist in declaration of legal rules by a competent authority.”

According to GRAY: “legislation means the formal utterances of the

legislative organ of the society”.

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According to Holland: “the making of general orders by our judges is
as true legislation as is carried on by the crown

According to Austin: “There can be no law without a legislative act.”

According to ANOTHER WRITER , legislation consist in “the

declaration of legal rule by a competent authority, conferring upon
such rule the force of law’.

Thus, legislation may be defined as the promulgation of laws by an

authority that is empowered to do so. It is made by the legislature in
anticipation of the needs of society. The legislation includes laws made
by sources such as precedents, customs, conventional laws, etc. The
lawmaking body is known as the legislature. Under the Doctrine of
separation of powers, legislation is one of the three important
functions of the government. These include:

• Legislature – It is the body that makes laws.

• Judiciary – It is the body that interprets laws.
• Executive – It is the body that applies laws.

Legislation can have a wide and narrow meaning. In its wide sense, it
includes all the methods of lawmaking. In its narrow sense, it includes
laws made by the sovereign or subordinate legislator.

Wide Sense of Legislation

As we discussed above, it includes every method of lawmaking.

• Addition or alteration: Acts made by the Parliament that

add to the existing laws or alter them.
• Precedent set by Court: While judges pronounce judgement,
they apply certain principles to arrive at their decision. This
decision then becomes a precedent to guide the courts in

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 future cases. This is also a method of lawmaking. For example,
the landmark judgement of the Supreme Court
in Kesavananda Bharati v. State of Kerala laid down the
Doctrine of Basic Structure. This meant that no law made by
Parliament could alter the basic structure of the Constitution.
• Every other expression of the will of the
Legislature: Every expression of the legislature, whether
directed to making rules or not, like Acts that ratify a treaty,
declare war, etc falls within the wide sense of legislation.
• Customs, rituals, and past practices can also be included in
this broad sense. These are mostly unwritten laws.

Narrow Sense of Legislation

In its strict sense, only the legislation as a source of law. These include:

• Legal Rules: Laying down legal rules by the sovereign or

subordinate legislator through enactments or subordinate
legislation.

• Enacted law: Statute law made by the Parliament or the State

Legislature. It would not include delegated legislation.
Blackstone uses the terms “written and unwritten law” to draw
the distinction.

TYPES OF LEGISLATION
‘legislation’ can be divided into different types based on its
interpretation and function.

Salmond said that legislation is either supreme or subordinate. The

first kind of division is on the basis of authority; i.e., into Supreme
and Subordinate legislation.

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Supreme Legislation
It is the legislation that is made by the sovereign authority of the State.
It cannot be repealed, annulled, or controlled by any other legislative
authority. For example, in India, the Parliament is the supreme
legislator.

Subordinate Legislation
This kind of legislation includes legislation made by some other
authority other than the Supreme Legislator. The power of delegated
legislation is given by the Supreme Legislator to the Subordinate
Legislator, and the latter has to work within the limits set by the
former. It can be altered or abrogated by the sovereign authority. It is
dependent for continued existence and validity on some superior
authority. It is important to note that there is no provision in the
Constitution that enables Parliament to delegate its powers, but there
is no provision that prevents it either.

SALMOND also categorize the subordinate legislation into

five types

➢ Colonial legislation
➢ Executive/delegated legislation
➢ Municipal legislation
➢ Autonomous legislation
➢ Judicial legislation

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Colonial legislation
The countries which are colonised make laws to regulate their
populace. These countries are under the control of a different state and
do not have supreme authority to make laws. Laws made by these
countries are subject to guidelines prepared by the state under whose
control they are. For example, the British Parliament was the supreme
legislator when it ruled over colonies and had given them powers to
exercise self-governance. But the laws made by them could be annulled
or modified as per the wishes of the British Parliament.

Executive/delegated legislation
Another kind of subordinate legislation is executive legislation or
delegated legislation. It is true that main function of the executive is to
enforce law but in certain cases, the power of making rule is delegated
to various department of government. This is technically called
subordinate or delegated legislation. It is become more and more
important in modern time. Some degree of autonomy is required when
powers are delegated. For example, the Defence of India Act.

Judicial legislation
The judiciary also possesses certain delegated powers to make rules for
their purposes. The superior courts have the power to make rules for
the regulation of their own procedure. This is different from the
legislative action of creating laws by precedent Although judiciary
cannot create by way of precedents. For example, the Delhi High Court
Rules govern the Delhi High Court.

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Municipal legislation
Municipal bodies are entrusted with subordinate powers to
establish laws specific to the districts under their control.
These bodies make bye-laws and these bye law binding upon
the public generally, for good health and for `good order and
government `such legislation may be termed municipal. The
range of subjects they deal with is immense for example
building, advertisements, cleanliness of dwelling-houses, housing of
the working classes, town-planning, care of sick etc.

Autonomous legislation
The State can allow private institutions to make laws for their
functioning. These institutions include universities, the Railway
Company, the Bar Council of India, the University Grants Commission,
etc. They can make bye-laws that are recognized and enforced by the
courts. For example, UGC Regulation by the University Grants
Commission.

Legislation as a custom
A custom is a habitual course of conduct observed uniformly and
voluntarily by the people. In all societies, custom plays a huge role in
regulating human conduct. The word ‘custom’ is derived from the
French word “costume,” meaning tradition, practice, or usage. In
Hindi, custom means “reeti” or “riwaaj.” It was created by the people,
and its authority lies in its long-continued use by the people.

Legislation and custom have some things in common. They are:

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 • Both legislation and custom are considered sources of law.

• Legislation and custom have the same function of regulating

human conduct in a society.

• Both are followed by a majority of the population.

To understand the nature of custom and legislation, an insight into

their differences is necessary. The differences between the two are as
follows:

• Legislation is actively made by the sovereign using its definite

power, whereas custom is something that has evolved as a
practice over the years.

• Legislation requires the existence of an authority to make it.

Without the existence of a competent authority, there could be
no law as such, because nobody would abide by it. A custom
doesn’t have such requirements as it is followed and promoted
by the people voluntarily.

• Legislation is specific when it comes to things like who are the

parties involved, what is their relationship, what are the
consequences of action and inaction, etc. Customs, on the other
hand, are not clear or specific. This is because customs are not
codified and are thus prone to modification by different
societies.

• Legislation derives its authority from the will of the State.

Customs derive their authority from the will of the people.

• Legislation is considered superior and more authoritative

compared to customs.

• Legislation is more flexible compared to customs because it can

be changed according to the demands of society and the current
scenario. Customs, on the other hand, cannot change as quickly
because their evolution is gradual.

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 • Legislation ceases to exist when it is abolished by the sovereign.
Customs cease to exist when they are gradually unfollowed by
their followers.

Advantage of legislation over precedent

1.Abrogative Power
Legislation is both constitutive and abrogative whereas precedent
merely possesses constitutive efficacy. Legislation is not only a source
of law, but it is equally effective in amending or annulling the existing
law.

Precedent, on the other hand, cannot abrogate the existing rule of law
although it may produce very good law and in some respects better
than legislation. What it does, it docs once for all. It cannot retrace its
steps. Legislation as a destructive and reformative agent has no equal.

2. Efficiency
Legislation allows an advantageous division of labour by dividing the
two functions of making the law and administering it. This results in
increased efficiency. Precedent, however, unites those two functions in
the same hands.

3. Declaration

Legislation satisfies the requirement of natural justice that laws shall

be known before they are enforced. law is declared in the form of
legislation and same is enforced by courts. Formally law is declare for
people and if they violate they will punished. However that is not the
case with precedent. It is created and declared in the very act of
applying and enforcing it.It operate retrospectively and apply to fact
which are prior in date to law itself.

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4. Provision for future cases

Legislation makes rules for cases that have not yet risen but precedent
must wait until the actual concrete incident comes before the courts
for decision. So we can say that Precedent is dependent on the
accidental course of litigation but legislation is independent of it. A
precedent must wait till such time as a case is brought for decision
before a court of law. Legislation can move at once to fill up the
vacancy or settle a doubt in the legal system.

5. Form

Legislation is superior in form brief, clear, easily accessible and

understandable, whilst valuable part of case law has to be extracted
from a ton of dross. One has to wade through the whole judgment
before the ratio decided can be found out or case law discovered.
Figuratively, as Salmond observes, ease law is gold in mine a few grams
of precious metal to the ton of useless material while statute law is
19coin of the realm, ready for immediate use.

The advantages of precedent over statute law may also be studied.

“The morality of the courts”, says Professor Dicey “is higher than the
morality of politicians.

Legislation is the product of the will of politicians who are affected by

the popular feelings and passions. That is why the judiciary often
denounces statutes as wrong, tyrannical, unjust or contrary to
fundamental principle laid down in the written Constitution.”

John Salmond points out that enacted law is rigid, strictly bound w
within the limits of authoritative formulae, while the case-law, with all
its imperfections, is flexible.

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In the case of statute law the letter of the law supersedes the true spirit
of law. The phraseology may fail to convey the true meaning intended
by the enactment, but the courts are bound by the literal expression.

Conclusion
As a source of law, legislation is considered the most important. By
looking at the various differences between legislation, custom, and
precedent, we can safely conclude that legislation is the most powerful
and thus carries the most authority. The codification of laws makes
them easier for both citizens and foreigners to understand. When
information is presented in a structured manner, it instantly becomes
more favourable as a source of knowledge.

Many countries in the world use legislation as a source of law and a

tool to regulate everything that is happening in the country. Some
countries have also imbibed a few customs of their society into their
laws. India is one of those countries. There are a lot of factors to be
considered while making the decision to include a custom into the
country’s law. Precedents, on the other hand, also play a big role in the
country’s overall legal ecosystem. Hence, it is safe to say that all three
play their part in the functioning of a country.

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BIBLIOGRAPHY

• CUSTOM AS A SOURCE OF LAW – LAW CORNER

• LEGISLATION DEFINITION AND MEANING –

MERRIAM WEBSTER

• KESAVANANDA BHARTI VS STATE OF KERELA AND ANR ON

24 APRIL, 1973

• JURISPRUDENCE AND LEGAL THEORY by V D MAHAJAN

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