1.

Meaning of Legislation

The common meaning of ‘legislation’ is the making of law. It may be defined as the
promulgation of legal rules by an authority which has the power to do so. In its ordinary
use, it may include the law made by any source, such as precedents, customs, conventional
laws etc. Sometimes, the term is used to include every expression of the will of the
legislature whether it lays down a legal rule or something else, such as declaration of war
or peace or ratifying a treaty with a foreign state, etc. but when we use the term ‘legislation’
as a source of law, we mean law making by a defined person or body and not customary or
conventional law or judicial decisions.

• Wide and Narrow Meanings of Legislation

Legislation may be used in two senses-in its wide sense in its strict sense. In its wide
sense, it includes all methods of law making in its strict sense it means laying down legal
rules by the sovereign or subordinate legislator.While studying Legislation as a source of
law we are concerned with Legislation in its strict sense of the term i.e. as laying down
legal principles by the sovereign.

a. In wide sense of Legislation

As stated above that in its wide sense it will include every kind of law making.
Broadly speaking, in its wide sense, it includes:

i. Additions or alterations in law:all acts which have the effect of adding to or

altering the law.
ii. New principle through court: When judges lay down a new principle through
their judgment, they can be said to exercise legislative and not just judicial
power. E.g. Keshvanand Bharati v. State of Kerala,1 laid down the doctrine of
basic structure of the Constitution of the first time; the whole concept of Public
Interest Litigation, the principle of sustainable development in Vellore Citizen’s
Forum v. Union of India.2

1
AIR 1973 SC 1461
2
AIR 1996 Sc 2715. In the International Sphere sustainable development as a concept came to be known for the first
time in Stockholm Declaration of 1972. The same was applied & recognized in Vellore’s case.
 iii. Every Expression of will of the legislature:Legislation includes every
expression of will of the legislature whether directed to making of rules or not.
As for example, Acts ratifying a treaty, altering to coinage, declaring war etc.
they come within the meaning of legislation in the borad sense of the term.
b. In the Strict sense of Legislation

Legislation is source of law also. If we take its loose meaning, customs, rituals, past
established practices will also be within the ambit of legislation which will destroy the real
meaning of legislation while taking it as source of law. In the strict sense of legislation, the
following are the points to be noted:

i. Legal rules laid down by legislator: Legislation is laying down of legal

rules by a sovereign or subordinate legislator either through enactments or
subordinate legislation.
ii. Rules for future: There is a difference between law-making by the legislator
and by the courts. Legislator lay down rules for the future and without any
reference to disputes. The courts lay down legal rules only while applying
the law to the disputes before them. Legislative law making is central to the
function of the legislator. Judicial law making is only incidental to the
function of the courts. Its main function is to resolve disputes.
iii. Enacted law:Laws which have their source in legislation may be described
as enacted law and the rest as Un-enacted. Or it may be described as a Statute
law and the rest as common law. The term statute is limited to only the Act
of the Parliament or the State Legislature. It would not include delegated
legislation. Blackstone uses the term written and unwritten law to draw the
distinction. These terms are derived from Romans. By jus no scriptum they
meant customary law. The rest whether enacted or unenacted was jus
scriptum.

According to Blackstone- English law has its origin either in legislation or in

custom. Common law was customary and therefore unwritten. All the rest was enacted and
therefore written law.
 We have a written Constitution. All laws whether enacted by the Parliament or the
State Legislature or the unwritten laws or the customary laws have to be in conformity with
the Constitution or else the Courts have the constitutional power to declare them void.

2. Legislation and other Sources of Law

• Legislation and Custom

a. The existence and authority of legislation is de jure whereas the existence of

custom is de facto.

b. The authority of legislation lies in the express will of the state. Customs are
generally based on the will of the people. They have only an implied authority
of the State.

c. Legislation is an advanced method of legal development and is the

characteristics mark of mature legal system. Customs have their sway mainly in
a primitive society. With the advancement of civilization, either they are
abrogated or embodied in legislation.

d. Generally, customs deal with the relationship between man and man. Legislation
always brings to into picture, the state. It cannot come into being until state or
some entity akin it comes into existence.

e. Legislation is considered to be superior and more authoritative source of law

than customs.

• Legislation and Precedent

a. In precedents, rules and principles are laid down by inductive method. In

legislation, the deductive method is resorted to. The courts take the rules from
the statue and apply it to particular cases.

b. Legislation has abrogative power also. It not only created law but it can abrogate
and existing law, existing in whatever from statute, precedent or custom.
Precedent is only constitutive and judge is bound by the precedents of the higher
 courts and the enacted law. If a precedent checks the operation of a rule it is only
on the ground that it is not law. But, when a rule is established as law, a precedent
cannot abrogate it. Thus, precedents can worked successfully only for any legal
growth and not for any legal reform which can be done only by legislation.

c. Statute law is definite, brief, clear and easily understandable. Therefore, in form
it is superior to precedent. In precedent, to know principles and rules one will
have to look into the details of the case. Salmond puts the same thing in the form
of an allegory: ‘case law is gold in the mine of a few grains of the precious metal
to the tons of useless matter while statue law is coin of the realm ready for
immediate use.’

d. Legislation is general and comprehensive. Precedents have none of those merits.

e. Statute can make rules for future cases which may arise, in other words, a statute
can lay down law beforehand. A precedent can lay down a rule when a case
comes before it. Thus, its emergence depends on litigation.

f. The very aim of the legislation is to make law. The main purpose of the
precedents is to interpret and to apply the law.

g. For the most part, the operation of legislation is prospective though it may be
retrospective also if it so chooses. In certain countries, in some branches of law,
there can be no retrospective legislation. 3 A precedent makes law in the very act
of enforcing and applying it. Thus, its operation is mostly of a retrospective
nature. The rules laid down in a decision operate from the date of the transaction
which is the subject matter of the dispute. An interpretation given to a statute
operated from the date of the passing the statute unless there is some interposing
contrary decision.

3. Place of Legislation among the Sources of Law

Analytical jurists; Historical jurists

3
See Article 29(1) of the Indian constitution.
 There is a difference of opinion among the jurists about the importance and the place
of legislation among the sources of law. Analytical jurist’s emphasis the importance of
legislation. They say that law can be made only through legislation. They regard the judge
made law as ‘an unauthorized encroachment upon the power of a legislator to make law’.
About customs, they same that they are not law, but only a source of law. On the other
hand, historical jurists attach no importance to legislation. According to them it is not
possible to make law by legislative action. At the very highest, we may say that legislation
only furnishes an additional motive to influence conduct. The function of legislator,
according to these jurists, is only to collect customs and give a better from to them.

It is submitted that both the views need modification. In modern time, legislation is
the most potent source of law. In the early times, there was no legislation. The relations
and conduct of individual s were regulated by customs. Legislation takes its birth when the
state comes into being. With the advancement of society, legislation starts replacing
customs. In the beginning, legislation only embodies custom. But when new problems
arise, law is made by legislation. In civilized societies, it becomes the exclusive source of
law. Maine rightly observes that ‘the capital fact in the mechanism of modern states is the
energy of legislature.’4 Since the 19th century, in civilized countries, legislation has become
the dominant law-making force. In recent the most ordinary conduct of individuals, such
as walking on the road. Thus, in modern times legislation is the most important source of
law.

4. Parliament and Legislation

• British Position
a. Supreme Legislation
5
Salmond has divided legislation in two categories supreme legislation and
subordinate legislation. The division of legislation in the above two categories is based
upon the British legislative system and practice. In England Parliament is said to be a
supreme law making body and al legislation directly emanating from British Parliament is
the example of supreme legislation- for laws enacted by the Parliament cannot be declared
illegal or ultra vires by the courts in England. The Maxim that ‘king can do n wrong’
4
Early History of Institutions.
5
Salmond, 141, (1957)
robbed the king of his prerogatives. The House of Lords also submitted to the supremacy
of the Parliament and observed:6

“We sit there as servants of the Queen and Legislature. Are we to act as regents over
what is done by parliament with the consent of the Queen, Lords and Commons? I
deny that any such authority exist……..”

With this background in view, Salmond divided legislation in the above two
categories. He says7 legislation is either supreme or subordinate. The former is that which
proceeds from the supreme or sovereign power in the State, and which is therefore
incapable of being repealed, annulled or controlled by any other legislative authority.
Subordinate legislation is that which proceeds from any authority other than sovereign
power and is, therefore, dependent for its continued existence and validity on some superior
or supreme authority.

He says the laws enacted by the Parliament in England are the examples of supreme
legislation and other rules, by-laws, regulations made by other bodies in pursuance to the
Act of Parliament are the examples of the subordinate legislation because such rules and
regulations can be controlled by the Parliament itself and reviewed by the judicial courts.
The examples of subordinate legislation, according to Salmond are: (1) Colonial
legislation; (2) Executive Legislation; (3) Judicial Legislation; (4) Municipal Legislation
and (5) Autonomous legislation.

b. Subordinate Legislation

The chief forms based on British system of subordinate legislation are five in
number:

i. Colonial Legislation: The Power of self-government entrusted to the colonies

and other dependencies of the Crown are subject to the control of the Imperial
legislature. The Parliament at Westminster may repeal, alter, or supersede any
colonial enactment, and such enactments constitute, accordingly, the first and
most important species of subordinate legislation. It has been held. However that

6
Lee v. Bude and Torrington junction Rail Co., (1871) L.R. 6 C.P. 576.
7
Salmond, 141 (1957).
 for the purpose of the maxim Delegates non potestdelegarecoloniallegislature is
not a mere delegate of the Imperial Parliament, and hence can delegate its
legislative power to other bodies that in turn are dependent upon it (m).

ii. ExecutiveLegislation: The essential function of the executive is to conduct the

administering departments of the state, but it combines with this certain
subordinate legislative powers which have been expressly delegated to it by
Parliament, or pertain to it by the common law. Statutes, for example, frequently
entrust to some department of the executive government the duty of
supplementing the statutory provisions by the issue of more detailed regulations
bearing on the same matter (n). so it is part of prerogative of the Crown at
common law to make laws for the government of territories acquired by
conquest or cession, and not yet possessed of representative local legislatures.

iii. Judicial Legislation: In the same way, certain delegated legislative powers are
possessed by the judicature. The superior courts have the power of making rules
for the regulation of their own procedure. This is judicial legislation in the true
sense of the term. Differing in this respect from the so-called legislative action
of the courts in creating new law by way of precedent.

iv. Municipal Legislation: Municipal authorities are entrusted by the law with
limited and subordinate powers of establishing special law for the districts under
their control. The enactments so authorized are termed by laws, and this form of
legislation may be distinguished as municipal.

v. Autonomous Legislation: All the kinds of legislation which we have hitherto

considered proceed from the state itself, either in its supreme in or one or other
of its many subordinate departments. But this is not necessarily the case, for
legislation is not a function that is essentially limited to the state. The declaration
of new principles amounts to legislation not because it is the voice of the state,
but because it is accepted by the state as sufficient legal ground for giving effect
to those new principles in its courts of justice. In the allowance of new law the
state may hearken to other voice than its own. In general indeed, the power of
legislation is far too important to be committed to anyperson or body of persons
 save the incorporate community itself. The great bulk of enacted law is
promulgated by the state in its own person. But in exceptional cases it has been
found possible and expedient to entrust this power to private hands. The law
gives to certain groups of private individual’s limited legislative authority
touching matters which concern themselves. A railway company, for example is
able to make by-laws for the regulation of its undertaking. A university may
make statutes binding upon its members. A registered company may alter those
articles of association by which its constitution and management are determined.

• Indian Position

The characteristic supremacy of the British Parliament is not found in any

legislature in a federation. The basic difference between the British Parliament and the
American Congress, Indian Parliament and the legislatures of Canada and Australia arises
from the fact that Britain has no written Constitution which may serve as a touch stone for
the British Parliament. Further in England there is no difference between the ordinary law
and the constitutional law. The doctrine of ultra vires is not known to statute passed by the
British Parliament. Obviously the position is different in Unites States of America and
India. So far as India is concerned the Constitution of Indian imposes limits, restrictions
and restraints upon the powers of the Indian Parliament and state legislatures. To that extent
these bodies cannot be as sovereign as the British Parliament. In other words, when it is
said that Indian Parliament and State Legislature are not sovereign bodies it only means
that they are not sovereign bodies like the British Parliament and their powers are limited
by the Constitution. The non-sovereign character of the Indian Legislature is the result not
only of the enactment of the Fundamental Rights in the Constitution and the Provision of
Article 13 but by the very fact that the Indian Legislature, unlike the British Parliament,
derives its power from a written Constitution and hence every enactment that it passes is
liable to be tested from the point of view of its conformity to the provisions of the
Constitutions. Articles dealing with Fundamental Right and Articles 145, 246, 247, 248,
250, 253, 257, and 368 of the Constitution are some of the instances which admittedly
restrict the sovereign character of the Indian Legislature. Hence Salmond’s classification
of supreme and subordinate legislation does not apply to India. For in India, if judged from
the British test all legislation passed by Indian Legislature is subordinate one Constitutions
being the supreme. Again the doctrine of ultra vires is deeply rooted in the Indian soil and
the courts have always exercise this power to judge the validity of an enactment with
reference to Government of India Act, 1935 8 and the Constitution9 of 1950. Accordingly
we have to examine the position of Indian Parliament from different stand point.

5. Indian Legislature

The powers of the Indian Parliament and State Legislatures are limited but within
the defied and limited sphere their powers are full and sovereign. Besides the express
limitations in the various provisions of the Constitution there is no other limitation on the
legislative powers of the Indian Parliament. Parliament is not delegate of any other
sovereign body. It exercises its sovereign powers on behalf of the people under the
Constitution. It is also not bound by its own predecessor Parliament. It is free to repeal,
annul, cancel, its own previous enactment. It has full powers over internal conduct of its
business. No authority can override the will of the Parliament. Of course, the Supreme
Court and the High Courts can review the legislation passed by the Parliament and State
legislature. But this power of the courts is limited to testing and examining the vires of the
legislation. It thus sovereign and supreme bound within the framework of the Constitution
subject to constitutional limitation it is sovereign and know s no limitations. Late Mr.
Justice Kania, the former Chief Justice of Indian succinctly described the position of the
Indian Parliament in these words. 10

“Under the Constitution of India, the Ministers are responsible to the legislatures
and to that extent the scheme of British Parliament is adopted in the Constitution.
While, however, that characteristic of British Parliament is given to the Indian
Legislature, the Principle point of distinction between the British parliament and the
Indian Parliament is that the Indian Parliament is the creature of the Constitution of
India. It is not a sovereign body, uncontrolled with unlimited powers…there can be
no doubt the subject to all these limitations (Articles 14-31 etc.) within the scope of

8
Jatindranath Gupta v. Province of Bihar, AIR 1949 FC 175. See also Queen v, Burah , 51A 178.
9
In re Delhi Laws Act Case, AIR 1951 SC 332; Hari ShankerBagla v M. P. State, AIR 1954 SC 465; Ram Jawaya v.
State of Punjab, AIR 1955 SC 549; Sardar Singh v. State of Rajasthan, AIR 1957 SC 510.
10
In re Delhi Law Act, AIR 1951 SC 332 at 337 Gwalior Rayon Co. v. Asstt. Commr. Of Sales Tax; AIR 1974 SC p.
1660; Laxmi Narain v. Union of India AIR 1976 SC p. 714.
 its power and on the subjects on which it is empowered to make laws, the Legislature
is supreme and its powers are plenary.”

1. In India, Constitution is supreme 11 and sovereign12. It is true Constitution can be

amended by the Parliament but this is possible because Article 368 of the
Constitution itself and by following the procedure prescribed by the
Constitution.

2. Parliament in India is sovereign body subject to constitutional limitations.13

3. The doctrine of judicial review is applicable to statutes passed by the Indian

Legislature. The Courts in Indian unlike England are not the servants of the
Parliament.

4. Ordinance making power of the President under Article 123 and of State of
Governors under Article 213 and rulemaking power of the Supreme

• Delegated/Subordinate Legislation in India

When Parliament passes a legislative proposal in the form of a Bill through the
normal stages, and the assent of the President of India is obtained the proposal becomes
law in the shape of an Act of Parliament. Apart from a limits power which lies in the
President to make prerogative orders without Parliamentary assent, no person or body can
exercise legislative powers unless Parliament has expressly in an Act, delegated its
authority. The term “subordinate” or “delegated” legislation is used to describe the laws
made under this authority.

These subordinate laws are known by diversity of names and cover an infinite
variety of subjects. They may be called rules, regulations, orders, schemes, bye-laws,
license, directions, warrants, instruments of approval, minutes. Good deals of legislation
take place in Government departments rather than in Legislature and them cover
innumerable variety of subjects. The majority of these laws that are enacted by

11
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
12
Kesavnanda Bharti v. State of Kerala, AIR 1973 SC 1461.
13
Raghunath Rao Ganpat Rao v. Union of Indian, AIR 1993 SC 1265; R.C. Roudyal v. Union of Indiam AIR 1993
SC 1804.
administrative authorities are required to be registered, numbered and published. Under the
present set up Parliament is obliged to delegate very extensive law making power relating
to matter of detail and content, itself with providing a frame work to more or less skeleton
statutes. This type of subordinate law-making power is also vested in local authorities, in
statutory corporations such as, nationalized industries, in professional bodies like the Bar
Council and in the various other bodies authorized by the statue.

When we consider the scope of Delegated Legislation under the Indian Constitution,
a very important question arises as to whether there is any limit on the power of Parliament
or State legislature to delegate its legislative power to the Executive.

There is one very important point that the Legislature cannot delegate its essential
functions. Though our Constitutions does not contain any express prohibition against
delegation or power by the Legislature to the Executive or any subordinate body, Supreme
Court has held in In re 14, that the Legislature under our Constitution, cannot delegate its
essential functions which have been entrusted to it by the Constitution. Such question has
no meaning in England, because in England, Parliament is supreme and it can delegate any
amount of the powers. But the position is different in United States of America. The
legislature, i.e.Congress functions under a written Constitution and does not have
uncontrolled power. In Hot Oil Case 15, the Court had laid down that the Congress can
delegate legislative powers to the executive subject to the conditions, that it lays down the
policies and establishes standards while leaving to the administrative authorities the
making of subordinate rules within the prescribed limits.

In India, the question arose for the first time in In re,16the majority view was (Fazal
Ali, Sastri and Das, JJ.) expressed that Indian Parliament was free to delegate its legislative
powers to the executive to any extent subject to only limitation that it must not efface itself
or abdicate its powers. Majority view, however was that Indian Parliament could not
delegate its essential legislative functions to another agency.

It is important to mention that in re. Delhi Laws Act case it failed to evolve a clear
principle regarding the permissible limits of delegation. But, in course of time the Supreme
14
Delhi Laws Act {A.I.R. 1951 S.C. 332) and Basu Lal v. State of Bombay (A.I.R. 1961 S.C. 4)
15
Panama Refining Co. v. Ryans, an American case, 293 US 238, 434 (1935)
16
Delhi Law Act Case (A.I.R. 1951 S.C. 332)
Court has settled the principle for ever that essential power of legislation cannot be
delegated17. Supreme Court clearly laid down the said principle.18 The Supreme Court took
a very broad view regarding the powers of delegation. It observed that the executive
authority can be authorized to modify either existing or future laws but not in any essential
feature. Exactly what constitutes an essential feature cannot be enunciated in general terms,
but this much is clear from the opinions set out in re, Delhi Laws Case Act case that it
cannot include a change of policy. The courts have in number of cases laid down the
principle that the Legislature cannot delegate uncontrolled and unguided power; that it
should lay down the policy subject to which delegation can take place. The discretion used
in this connection must not go-

(a) Beyond the permitted limit of parent Act, or

(b) Run counter to it, or

(c) Change the form or identity or policy the parent Act.

The Supreme Court has reiterated19that “The power to legislate carries within it the
power to delegate” but “excessive delegation may amount to abdication” and “delegation
unlimited may invited despotism uninhabited,” and “delegation unlimited may invite
despotism uninhabited,” Therefore, the principle is that: “The Legislative must be laying
down policy and principle and delegate ti may to fill in detail and carry out policy.

The power of repealing or amending any Act cannot be delegated. Such a delegation
is known as Henry VIII clause. This clause has been discarded in its homeland. But some
traces of it can be found in Indian Constitution. Article 372 of the Constitution empowers
the President to make adaption and modification of any law in force in the territory of India.
The object of clause (1) of this Article is to sanction the continuance of the existing
laws20until they are repealed or amended by a competent authority. The Supreme Court 21
has observed that if policy is laid down in the legislation delegating power to the
Government it cannot be said to be arbitrary or excessive. The court further said that

17
Bagla v. State of Madhya Pradesh, (A.I.R. 1954 S.C. 465)
18
Banarsi Das. V. State of M.P. (A.I.R. 1958 S.C. 909)
19
Registrar of Co-operative Societies v. K. Kunjabmu. (A.I.R. 1980 S. C. 350)
20
notwithstanding the repeal of the Government of India Act, 1935 by Article 395
21
In Quarry Owners Association v. state of Bihar (AIR 2000 SC 2870)
accountability of the State Government to the State Legislature is additional check against
arbitrary exercise of power.