CHAPTER 9

LEGISLATION AS A SOURCE OF LAW'

Introduction
In modern times legislation is considered as one of the most important
sources of law. In fact, this source of law is comparatively of recent growth.
We may say that custom precedes legislation, and, as society advances is
replaced by it. Moreover, most of the early statute law is no more than
formal promulgation of well established customs.12 According to Saimond,
legislation is that ‘Source of law which consists in the declaration of rules
by a competent authority.3 For Gray,4 ‘legislation’ is the formal utterances of
the legislative organs of the society.
In its most significant present day sense, the term ‘Legislation’ is
applied to the deliberate creation of legal precepts by an organ of
government which is set up for two purposes and which gives articulate
expression to such legal precepts in a formalised legal document. These
characteristics of legislative law distinguish it from customary law, which
manifests its existence through actual observance by the members of a
group or community unaccompanied by authoritative approval by a
governmental organ. Legislation as stated above must also be differentiated
from normative pronouncements emanating from judicial tribunals. The
verbal expression of a legal rule or principle by a judge does not have the
same degree of fin ality as the authoritative form ulation of a legal
proposition by a legislative body.
In most countries, legislative authority is vested in a body of persons
elected by the adult citizens of the country. Whether the legislature consists
of a single chamber, or two, and if there are two chambers, what powers are
possessed by each are questions of constitutional law. So, too, is the
1. For details following readings are suggested—Dicey A. V, The Law of the Constitution
(10th Ed.) Chaps. 1 and 13, Allen C.K., Law in the Making (7th Ed. Oxford 1967), pp.
926-969; Holdsworth WS.A.. History of English Law, Vol. II, pp. 435-446: Gray J.C.. The
Nature and Sources of Law (2nd Ed.) p. 74; Bryce J., Studies in History and
Jurisprudence (Oxford 1901) W. 1, pp. 206, 207; Cohen J. on the Teaching of Legislation
(1947) 47 Col LR 1301; Horack F.E., The Common Law of Legislation, Cohen M.R. The
Process of Judicial Legislation (1914) 48 Ain. L.R. 161 at pp. 178-187; Landis J.M.A.,
Note on Interpretation (1929-30) 43 Harv LR 886; Bradley F.E., Modem Legislation in
the United Kingdom, 10 LR 32.
2. Jenks, Law and Politics in the Middle Ages, pp. 17, 31.
3. Keeton (op. cit. p. 84) remarks that ‘the definition given by Saimond is not correct,
though Saimond endeavour to differentiate legislation in the strict sense, from the
broader sense of law-making in general, his definition nevertheless does include all
methods of law-making, since all legal rules in the last resort are declared by the
‘competent, authority’ the judges.
4 Gray, Nature and Sources of Law (2nd Ed.) p. 145; Gray’s definition is fully correct as
by using the terms ‘formal utterances’ and ‘legislative organs’ he clearly made a
difference in the manner of construction existing between this and other sources of law.
136 JURISPRUDENCE

question of the extent of the authority of the legislature to make laws. In

United Kingdom Parliament has unlimited legislative power1 but this is not
so in case of India and America where the authority of all the main organs
of government is defined by the Constitution,
Meaning
The term ‘Legislation’ is derived from the Latin words ‘Legis’ a law and
‘Laterm’ meaning to ‘make’, ‘put’, ‘set’. Thus etymologically, legislation
means making or setting the law. Broadly, this term is used in three
senses : Firstly, in its broadest sense it includes all methods of law making.
In this sense legislation includes judge-made rules of law, and even the
particular rules of law or the rights created at law between parties to
contract. In the second sense, legislation includes every expression of the
will of the legislature, whether directed to the making of law or not. Every
act of legislature, in this sense, is an instance of a legislation, irrespective
of its purpose and effect. The legislature does not confine its action to the
making of law, yet all its functions are included within the term ‘legislation’,
for example, the legislature may enter into a treaty with a foreign state. In
this example, there is no creation of new rule of law. Thirdly, legislation is
used in a strict sense. In this sense it means the making of rules and laws
to be followed and enforced in the Courts of the state. These rules or laws
can only be made by a competent law making body, i.e., a body which, under
the Constitution of the State, is empowered to make laws. This third sense
is more popular and while considering legislation as a source of law, we take
the third meaning of the term 'legislation'.
Kinds of Legislation
Legislation are of two kinds—
1. Supreme Legislation
2. Subordinate Legislation
This classification of legislation has been given by Salmond which is
based upon British legislative system and practice. According to him,
legislation is either supreme or subordinate. The supreme legislation is that
which proceeds from the supreme or sovereign power in the state and which
is, therefore, incapable of being replaced, annulled or controlled by any other
legislative authority, For example, the laws enacted by the Parliament in
England are supreme legislation. The British Parliament, in every sense, is
a sovereign law making body,2 because there is no restraint on its absolute
1. "Historically in England the sovereignty of Parliament is the product of the 17th
century struggle between the Crown and Parliament which ended in the emphatic
vindication of Parliamentary Supremacy. This received further extension in the political
sphere after the accession of the House of Hanover and the gradual emergence of the
Cabinet System, and the enforcement of the collective responsibility of the executive to
Parliament. In the sphere of legislation, the omnipotence of Parliament implies that
Parliament has the legal capacity to make or unmake any law whatever"—Keeton, op.
cit. p. 85.
2. The House of Lords also submitted to the supremacy of the Parliament in Lee v. Biuie
and Torrington Junction Hail Co. (1871) LR 6 CP 576 and observed that "we sit there
as servants of the Queen and the Legislature. Are we to act as agents over what is done
by Parliament with the consent of the Queen, Lords and Common ? I deny that any
 LEGISLATION AS A SOURCE OF LAW 137

authority to make laws. Its laws cannot be questioned in the British Courts,
Subordinate legislation is that which proceeds from any authority other
than the sovereign power, and is, therefore, dependent for its continued
existence and validity on some superior or supreme authority. Enactment of
legislative bodies inferior to the sovereign constitute subordinate legislation.
Such legislation is subordinate in that it can be replaced by, and must give
way to, sovereign legislation. Salmond, enumerated five kinds of subordinate
legislation—
1. Colonial legislation
2. Executive legislation
3 . Judicial legislation
4. Municipal legislation
5. Autonomous legislation

Colonial Legislation
Formerly England had a vast empire with numerous colonies. The
powers of self-government entrusted to the colonies and other dependencies
of the Crown were subject to the control of the Imperial legislature.
Executive Legislation
The essential function of the executive is to conduct the administrative
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. This is now known as delegated
legislation a principle which has been recognised by most of the countries of
the world.
Municipal Legislation
The Parliament entrusts the municipal authorities with the task of
making special laws in limited authority and scope. The laws as made by
the m unicipal authorities are called bye-laws and is also a form of
legislation.

Judicial Legislation
Certain delegated legislative powers are also possessed by the
judicature. The superior courts have the power of making rules for the
regulation of their own procedure. This is known as judicial legislation and
is different from judicial precedent.
Autonomous Legislation
Autonomous bodies like universities, churches, corporations, etc. have
the power to make rules for the conduct of their business. These rules too
are made by them in accordance with an Act of Parliament hence these
constitute examples of subordinate legislation.
This classification of legislation into supreme and snhnrHinnt*. r.»t
 138 JURISPRUDENCE

sense as it is in England. We have our Constitution which specifies the

powers of Indian Parliament and State Legislatures and also imposes limits,
restrictions and restraints upon the power of these bodies. Articles 245, 246,
247, 248, 250, 257 and 368 of the Constitution are some of the very
important instances of the fact that restriction is there so far as the
sovereign character of the Indian legislature is concerned.
In India, we have, however, recognized one form of subordinate
legislation (as mentioned by Salmond) which is more popularly known as
delegated legislation.

Delegated legislation
Delegated legislation means legislation made by bodies other than the
legislature. In other words, it means legislation made by bodies to whom
power of making law has been delegated by the supreme legislative
authority. Delegation of the legislative power under various types of statutes
is a normal feature of present day statutory legislation. Now it is simply
inevitable and indispensable. Its necessity must be realised in view of the
hunger for social, economic legislation, industrial laws, labour laws,
commodity control legislation, public welfare legislation and unavoidability
of the standing public security and emergency laws. The increasing volume
of the Parliamentary legislative business, increasing gap between demand
for legislation and the legislative performance, need for general standing
laws suitable for unforeseen situations. Lack of technological, scientific
know-how and expertise, so very necessary for modern legislation, and
limitations of the time have made delegation of authority and discretion an
unavoidable necessity.
In the words of Edgar Bodenheimer,1 "In a modern, highly developed
state, the tasks confronting a legislative body are so manifold and complex
that they cannot be performed in all of their details and technical minutes
without putting an exhorbitant burden and strain on the shoulders of such
a body. Furthermore, some types of legislative activity in the area of
sp ecialized governm ent regu lation demand such a thorough going
acquaintance with the organizational and technical problems existing in the
particular field that they can be discharged more adequately by a group of
experts than by a legislative assembly lacking the requisite specialized
knowledge. For those and other reasons modern legislatures frequently
delegate some legislative functions to an administrative agency of the
government, to a bureau or commission or to the chief executive of the
State."
In India, as it was observed in M is. Tata Iron and Steel Company Ltd.
v. Their Workmen2 the delegation of legislative power is however permissible
only when the legislative policy and principle is adequately laid down and
the delegate is only empowered to carry out the subsidiary policy within the
guidelines laid down by the legislature.
Causes of the growth of delegated legislation ;
In recent years there has been an enormous increase in delegated
. 1, Jurisprudence (Revised Edition) p. 331.
i
 LEGISLATION AS A SOURCE OF LAW 139

leg islatio n . The developm ent is not an isolated fact, but rather a
concomitant to the increased functions of the State. Individualism which
dominated the 19th century political thought, laid emphasis on the fact that
the individual was the best judge of his own interests and that the State
should let him free in his private affairs including his right of free trade and
business. The only legitimate function of the State was the maintenance of
law and order both within and without the country. The position is different
today. Now the State is assuming more and more responsibilities in
promoting the welfare of its citizens, supervising their health, education and
employment, regulating trade, industry and commerce, and providing a
great variety of other services. The concept of laissez faire State has turned
into a Welfare State. All this has involved the necessity of entrusting the
executive with great powers, including that of delegated legislation. The
circumstances favouring delegated legislation are as follows :
(i) P r e s s u r e o f w o rk .—P arliam ent is too bu sy a body. It is
overburdened with the legislative work. Within the short span of its life it
has to pass a number of legislations and has to take up such intensive
legislative work that it can hardly enact the provisions of law in details. If
it devotes its time in laying down minor and subsidiary details of every
legislation by making all the rules required under it, whole of its time would
be consumed in dealing with a few Acts only and it would not be able to
cope with the growing need of legislation. Thus the pressure of work
prevents the legislatures to provide all the required details in an Act and
compels it to delegate its legislative powers in a limited sense. In fact the
rule-making power is conferred on the executive to supplement the Acts,
passed by the competent legislatures.
(ii) T ech n ica lity o f su bject-m atter.—The legislature has to pass so
many laws in modern times, where their contents are technical in nature.
The legislators not being experts or technicians, cannot work out details of
such laws. The legislatures at the best, could lay down the policy or the
principles leaving the details to be filled up by the executive in an Act. It is
none else than the executive which is competent to fill up the details by
making the rules of technical nature.
(iii) To m e e t unforeseen contingencies.—The need of amplifying the
main provisions of social legislation to meet unforeseen contingencies or to
facilitate adjustments to new circumstances arises all too frequently, for
which the Parliamentary process involves delay, but delegated legislation
offers rapid machinery for amendment. T he practice, further, is valuable
because it provides for a power of constant adaptation to unknown future
conditions without the necessity of amending legislation. The method of
delegated legislation permits of the rapid utilization of experience, and
enables the rules of consultation with interest affected by the operation of
new Acts to be translated into practice.
(iv) E xpedien cy a n d flex ib ility.—In some cases, such as changes in
rationing schemes or imposition of import duty or control of exchange, public
interest requires that the provisions of law should not be made public until
the time fixed for its enforcement becomes ripe. Delegated legislation is the
only means to achieve this objective. Moreover, in the case of delegated
 140 JURISPRUDENCE

possible in the case of legislation by the Parliament.

(v) To m e e t em erg e n c y .-—In cases of emergency which may often
arise on account of war, insurrection, floods, epidemics, economic depression
and the like, the Executive must be armed with the rule-making powers so
that the remedial action may be taken immediately. In a modern State
there are many occasions when sudden need of legislative action is felt. To
meet such needs delegated legislation is the only convenient or even possible
remedy.
Speaking of raison d’etre for delegated legislation, Chinnappa Reddy,
J., of the Supreme Court observed in Registrar o f Co-operative Societies v. K.
Kunjabam,1 "The Parliament and State legislatures are not bodies of experts
or specialists. They are skilled in the art of discovering the aspiration, the
expectations and the needs, the limits to the patience and the acquiescence
and articulation of the view of the people whom they represent. They
function best when they concern themselves with general principles, broad
objectives and fundamental issues instead of technical and situational
intricacies which are better left to better equipped full time expert executive
bodies and specialist public servants. Parliament and State legislatures
have n eith er th e tim e nor the exp ertise to be involved in detail
circumstances. Nor can Parliament and State Legislature visualize and
provide for new, strange, unforeseen and unpredictable situations arising
from the complexities of modern life and ingenuity of modern man. That is
the raison d ’etre for delegated legislation. That is what makes delegated
legislation inevitable and dispensable.
Permissible limits of delegation
It is an established fact that a great deal of legislation takes place
outside the legislature in the government departments. But the question
comes what is the limit of delegation. Can the legislature delegate its
law-making power ? The answer is that there is a limit beyond which
delegation may not go. The lim it is of essential legislative powers of
legislation. They cannot delegate their essential function which have been
entrusted to them by the Constitution.12 Determination of legislative policy,
determination of what the law should be, the power to modify an Act in its
essential particulars, the unguided power to make exemptions from the
operation of the Act, etc., are some of the things which will be covered by
the phrase ‘essential functions’ and which cannot, therefore, be delegated.3
Once the essential legislative function is performed by the legislature by
declaring the policy, the extent of delegation is a matter which depends not
on judicial determination but on legislative discretion.4 Then the legislature
cannot only delegate the function of making subordinate and ancillary
legislation but also empower sub-delegation i.e., may empower the delegate
to re-delegate the functions to sub-delegates which is specified in the statute

1. AIR 1980 SC 350.

2. Re Delhi Laws Act, AIR 1951 SC 332; Vasari Lai v. State o f Bombay, AIR 1961 SC 4.
3. Hari Shanker v. N.P., AIR 1954 SC 465; Jirtlundur Rubber Goods Manufacturing
Association v. Union of India, AIR 1970 SC 1589.
L “ ' ^ - * •* ...._*— *.•— a to t or a or> kcq. „ j
 LEGISLATION AS A SOURCE O F LAW 141

itself.1 The power to extend the operations of an Act can be delegated.12 The
power to meet, within the framework of the legislative policy laid down,
contingencies and deal with situations as they arise does not amount to
delegation of essential legislative functions.34The powers to make rules to
carry out the purposes of the legislation may be delegated.
The Supreme Court has reiterated in Registrar o f Co-operative Societies
v. K. Kunjabam,* that, "power to legislate carries with it the power to
delegate" but "excessive delegation may amount to abdication", and
"delegation unlimited may invite despotism uninhibited". Therefore, the
principle is—
"The legislature cannot delegate its essen tial legislative
function, Legislature must be laying down policy and principle and
may delegate it to till in detail and carry out policy. The legislature
guides the delegate by speaking through the express provision
empowering delegation or other provisions of the statute, the
preamble, the scheme, or even the very subject-matter of statute. If
guidance there is, whenever it may be found, that is valid. A good
deal of latitude has been held to be permissible in the case of taking
statutes and on the same principle a generous degree of latitude
must be permissible in the case of welfare legislation, particularly
those statutes which are designed to further the Directive principles
of State Policy".
The court would not interfere in the cases where the executive is
vested with the legislative power to be so exercised as to advance the policy
and objects of the Act according to the guidelines as may be gleaned from
the preamble and other provisions of the Act.
The Andhra Pradesh High Court5 has put the whole position very
correctly in the following words :
"The legislature cannot delegate its power to make a law but it
can make law to delegate power to determine some facts or state of
things upon which the law makes or intends to make its own action
depend. The law being flexible having laid down broad principles of
its policy, legislature then can leave the details to be supplied by the
administrator to adjust to the rapid changing circumstances. What is
left to administrative official is not the legislative determination of
what public policy demands but simply the ascertainments of what
the facts of case require to be done according to the terms of law by
which it is governed".
The Andhra Pradesh High Court upheld the constitutional validity of
the A.P. Cinemas (Regulation) Act, 1955, which delegated, rule-making
1. Santosh Kumar v. State, 1951 SCR 1303.
2. Jaylal v. Statet 1952 SCR 127.
3 Bombay v. Balsara, 1951 SCR 682; Hussain v„ State o f Bombay, AIR 1952 SC 97; also
see Mis. Devuias Gopal Krishna v. State o f Punjab, AIR 1967 SC 1895; Delhi Cloth and
General Mills Co, Ltd. v. Municipal Corporation of Delhi, AIR 1969 Delhi 159; P.
Dharmaiah and others v. The Chief Engineer Panchayat Raj Govt o f A P., AIR 1970 AP
236; Debi Mata v. State o f West Bengal, AIR 1972 Cal 497.
4. AIR 1980 SC 350.
142 JURISPRUDENCE

power to the Government for regelating the conditions, restrictions and

terms for the grant o f the licence and also for fixing the maximum rates of
admission to different classes. The basis of upholding their validity was the
preamble and broad policies specified in the Act.

Place of legislation as Source of Law

Today, the place of legislation as a source of law is very high. Among
the sources of law, the most important, today as so recognised, is that of
legislation. Custom which played a significant role in ancient times lost
much of its importance. At present customary laws have been incorporated
in statutes. Legislation is considered as superior even to precedents.
Sometimes, precedents produce sound law. but at times, bad or fallacious
judgments are responsible for bad law by production of unsound precedent.
If a precedent is unsound, it is very difficult to remedy the defect and the
procedure is a lengthy one. At first the trying judge in the same High Court
must decide the case at hand according to the precedent. The aggrieved
party may then go in appeal and the Appellate Court may give the right
judgment. The defects of legislation can more readily be got over by a proper
judicial interpretation of statute or by amendment of the Act. It is this
abrogative power and amending facility that gives legislation a superiority
over precedents- Besides this, legislation voices the views of the people; bills
are circulated for public opinion and it is the voice of public opinion echoed
in the voice of statute. Another great advantage of legislation is that it is
direct and unambiguous. Whereas precedent provides rule which only a
lawyer can unravel from the mass of decisions in support and even among
lawyers often there is considerable divergence of opinion as to the rule that
is laid down. Again, legislation is definite and precise as comparison to case
law which is mostly bulky and voluminous. Further, legislation is the
predeclaration of law to the citizens of the State before the law can be
applied to their disputes or actions. A precedent for the first time declares
what the law on a point is, till then the parties to the litigation were in
doubt about law. A precedent may come as an unpleasant and unexpected
surprise to a party and cause him serious damage. Enacted law, the product
of legislation, on the other hand declares beforehand what the rights and
liabilities of the parties will be and thus leads to greater justice to the
parties.

Advantages of Statute law

(1) Direct and unambiguous.
Statute law is direct and unambiguous. It is brief, clear, easily
accessible and knowabie. While no one but a lawyer can unravel a rule of
law from the mass of decisions cited in support and even among lawyers
often there is divergence of opinion as to the rule that is laid down.

(2) Concise and definite.

Statute law is concise and definite contrasted with case-law which is
bulky and voluminous, the principles of law be embedded in the voluminous
i *■ o rru n c rn in H
 LEGISLATION AS A SOURCE OF LAW 143

in the mine—a few grains of the precious metal to the ton of useless
matter'—while statute law is coin of the real, is ready for immediate use,"

(3) Constitutive and abrogative.

Statute alone can both create and destroy rules of law. Whereas
case-law can only be constitutive. When a judge formulates a new rule for
guidance in future cases, he cannot overrule it, as and when he happens to
change his mind. That must be done by a superior tribunal or by a full
bench of the same court. Whereas in the case of a statute there is no such
restriction at all, and the legislature can repeal today what it enacted
yesterday.

Interpretation of statutes
The process by which a judge (or indeed any person, lawyer or layman,
who has occasion to search for the meaning of a statute), constructs from
the words of a statute book a meaning which he either believes to be that
of the legislature of which he proposes to attribute to it called according to
Gray’s,1 'Interpretation’. Salmond* describes interpretation as the process by
which the Courts seek to ascertain the meaning of the legislature through
the medium of the authoritative forms in which it is expressed. According to
Keeton,123 "the interpretation of statutes is a science by itself..... The function
of the judges in interpreting statutes is two-fold. In the first place they must
decide upon the exact meaning of what the legislature has actually said, and
in the second place they must consider what the legislature intended to
have said, or ought to have said, but did not, either because never visualised
such a set of circumstances arising as that before the Court of or because of
some other reason".4 Construction of statute, must subserve the tests of
justice and reason. It is a well-settled principle of law that in a given case
with a view to give complete and effective meaning to a statutory provision,
some words can be read into; some words can be substraeted, Provisions of
a statute can be read down (although sparingly and rarely).5
To interpret broad and ambiguous statutory language, courts look to
the following for guidance—
1, The actual language of the statute, the words chosen by the
legislature.
2. The context within the statute. What is the subject or purpose of
other headings or sections in the same statute? What language
do com plem entary statu tes contain? Is there a statutory
statement of legislative purpose?

1. Gray, op. cit. pp. 176-178.

2. Salmond. op. cit., p. 169.
3. Keeton, op. cit., p. 89.
4. Interpretation is different from Construction. In the words of Cooley (Constitutional
Limitation, 1st Ed., p. 70), ‘interpretation is an art of finding out the true sense of any
form of words. Construction, on the other hand, is the drawing of conclusions respecting
subjects th at are beyond the direct expression of the text; conclusions which are in the
spirit, though not within the letter of the law.
144 JURISPRUDENCE.

3. The legislative history of the statute. A statute’s legislative

history provides information to the court about the legislatures'
intent in adopting the statute.
4. Adm inistrative interpretations by the agency charged with
administering the statute. They occasionally provide a more
specific indication of the statute’s meaning.
5. The interpretation of other courts consider how courts at a higher
level, the same level or even a lower level have applied the
statute.
6. The broader context of the statute, What kinds of events were
taking place that caused the legislation to be created? What
goals were to be furthered by enacting the statute? If a statute
overrules common law or tries to fill in a gap in the common
law, understanding the problems that led to the enactment can
help define the scope of the statute.
7. A comparison with similar statutes of other jurisdictions.

Why interpretation is important in India?

1. In India legislation is considered as one of the most important
sources of law.
2. It is very essen tia l to know the legislative intent of the
provisions of different statutes.
3. A statute is a declaration of the law as it exists or as it shall be
from the time at which such statute is to take effect.
4. Forms of statutes are immaterial. It can be an Act of Parliament,
an ordinance or any circular or any other rules framed by the
competent authority.
5. The function of the court is only to expound, and not to legislate,
in accordance with the settled rules of construction.
6. The courts cannot adorn the mantle of the legislature.
7. The judicial function is confined to applying what the legislature
has enacted after ascertaining what it is that the legislature has
enacted.
8. However, such ascertainment, that is, construing legislation, is
nothing like a Mechanical endeavour.
9. Because of the infirmities of language and the limited scope of
science in legislative drafting, inevitably there enters into the
construction of statutes the play of judicial judgment within the
limits of the relevant legislative materials.
Interpretation is different from construction
Truly and literally speaking, interpretation differs from construction.
According to Cooley and many other jurists, interpretation differs from
construction in that the former is the art of finding out the true sense of any
form of word; construction, on the other hand, is the drawing of conclusions
respecting subjects that are beyond the direct expression of the text;
. -1 4 ----— fKrvuori-i nnf within thp Ifitter of the law.
 LEGISLATION AS A SO URCE O F LAW 145

understood, ambiguous, or not obvious. It is the method by which the

meaning of the language is ascertain. The word ‘construction’, on the other
hand, means to determine from its known elements its true meaning or the
in terest of its framers and the people who have adopted it, in the
application of its provisions to cases or em ergencies arising and not
specifically provided for in the text of the instrum ent, ‘but drawing
conclusions beyond direct expressions used in the text’. ‘Construction’ of a
statute is an effort to draw conclusions which, are in the spirit though not
within the letter of the law. Thus, when the court goes beyond the language
of the statute and seeks the assistance o f extrinsic aids in order to
determine whether a given case falls within the statute, it resorts to
construction. Construction therefore, is the means of interpretation and
interpretation is the end. The distinction, however, between the two
processes is of no great consequence, as the dominant pin-pose in each case
is to ascertain the intent of the legislature.
Kinds of Interpretation
Interpretation is of two kinds—
1. Grammatical interpretation
2. Logical Interpretation
Grammatical interpretations arrived at by reference to the laws of
speech to the words used in the statute, in other words it regards only the
verbal expression of the legislature. Logical interpretation gives effect to the
intention of the legislature by taking into account other circumstances
permissible according to the rules made in this behalf.
The object of interpretation is to see what is the intention expressed by
the words ‘used’. The words of the statute are to be construed so as to
ascertain the mind of the legislature from the natural and grammatical
meaning of the words which it has used.
The Courts generally followed five rules for construing a statute and
also maxims.1 These important rules are—
1. Literal rule
2. Golden rule
3. Mischief rule
.4. Beneficial or equitable rule
5. Harmonious rule
Literal rule
It is a rule of construction of statutes that in the first instance the
grammatical sense of the words is to be adhered to.12 The words of a statute
1. For maxims of interpretation see N.S. Bindra, ‘Interpretation of Statutes’, Chap. IV.
2. Maxwell (Interpretation of Statutes, 1st Ed., p. 3) observed : “The first and most
elementary rule of construction is that it is to be assumed that the words and the
phrases of technical legislation are used in their technical meaning if they have
acquired one otherwise in their ordinary meaning; and second is, that the phrases arc
to be construed according to the rules of grammar. From these presumption it is not
allowable to depart where the language admits of no other meaninz. Nor should th„v„
h<a c o n A ----- P--
146 JURISPRUDENCE

must prim a facie be given their ordinary meaning where the grammatical
construction is clear and manifest and without doubt that construction
ought to prevail unless there be some strong and obvious reason to the
contrary.

Golden rule
The Golden rule permits the plain meaning to be departed from it
where a strict adherence to it would result in an absurdity. In other words,
golden rule provides that the words should be given their ordinary sense
unless that would lead to some absurdity or inconsistency with the rest of
the instrument.*1 In Jugulkishore v. Cotton Co. Ltd,.? S.R. Das, J., while
explaining golden rule observed—‘The cardinal rule of construction of
statutes is to read the statute literally, that is by giving to the words used
by the legislature their ordinary, natural and grammatical meaning. If,
however, such a reading leads to absurdity and the words are susceptible of
another meaning the Court may adopt the same. But if no such alternative
construction is possible, the Court must adopt the ordinary rule of literal
interpretation".
Mischief Rule
This rule was enunciated in Heydon’s case.3 It looks into the policy of
the statute. This rule directed that—
"For the sure and true interpretation of all statu tes in
general.....four things are to be discerned and considered : (i) What
was the Common law before the making of the Act; (ii) What was
the mischief and defect which the Common law did not provide; (iii)
What was the remedy the Parliament has resolved and appointed to
cure the disease of the Common law ; (iv) the true reason for the
remedy. And then the office of all judges is always to make such
the enactment or in the context or in the consequence which would result from the
literal interpretation, for concluding that the interpretation does not give the real
intention of the legislature. If there is nothing to modify, nothing to alter, nothing to
qualify the language which the statute contains, it must be construed in the ordinary
and natural meaning of the words and sentences”.
1. Maxwell (Ibid) quotes the following passage from Nokes v: Dencaster Amalgamated
Collieries, 1940 AC 1014, 1022—"The golden rule is that the words of a statute must
prima facie be given their ordinary meaning. We must not shrink from an
interpretation which will reverse the previous law; for the purpose of a large part of
our statute law is to make lawful th at which would not be lawful without the statute,
or, conversely, to prohibit results which would, otherwise follow. Judges are not called
upon to apply their opinions of sound policy so as to modify the plain meaning of
statutory words, but where, in construing general words the meaning of which is not
entirely plain, there are adequate reasons for doubting whether the legislature could
have been intending so wide an interpretation as would disregard fundamental
principles, then we may be justified in adopting a narrow construction. At the same
time if the choice is between two interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation, we should avoid a construction which
would reduce the legislation to utility and should rather accept the bolder construction
based on the view that Parliament would legislate only for the purpose of bringing
about an effective result".
 LEGISLATION AS A SOURCE OF LAW 147

construction as shall suppress the m ischief and advance the

remedy.... according to the true intent to the makers of the Act.... 1
It was further said in Heydon’s case that The office of all the judges is
always to make such construction as shall suppress the; m ischief and
advance the remedy and to suppress subtle inventions and evasions for
continuance of the mischief, and proprivato commodo, and to add force and
life to the cure and remedy according to the true intent of the makers of the
Act ‘p ro bono publico’. . . , ' ■
Beneficial and Equitable Rule
The beneficial and equitable rule is to be applied to all those statutes
which deserve liberal construction;' ‘ ~ :
Socio-economic legislation with the object of securing social welfare is
not meant to be interpreted narrowly so as to defeat its object. >
Liberal construction means to give the language o f a statutory
provision, freely and consciously, its commonly generally accepted meaning
to the end that the most comprehensive application thereof may be accorded
without damaging to any of its terms.
Harmonious construction
A statute must be read as a whole and one provision of the Act should
be construed with reference to other provisions in the same Act so as to make
a consistent enactment of the whole statute. It is the duty of the courts to
avoid "a head on clash" between two sections of the same Act and whenever
it is pssible to do so to construe provisions which appear to conflict so that
they harmonise. The provisions of one section of a statute cannot be used to
defeat those of another unless it is impossible to effect reconciliation between
them. The same rule applies with regard to sub-sections of a section. The
sub-sections must be read as parts of an integral whole.*2
The Supreme Court of India in Salem Advocate Bar Association, Tamil
Nadu v Union o f India;3 applied the harmonious construction rules while
interpreting Section 89 C.P.C. (as inserted by Amendment Act of 1999 read
with 0.10 Rule 1-A of C.P.C.). First part of Section 89 uses the word ‘shall’
when it stipulates that the ‘court shall formulate terms of settlement’. The
use of the word ‘may’ in the later part of the Section 89 only relates to the
aspect of reformulating the terms of a possible settlement. The intention of
the legislature behind enacting Section 89 is that where it appears to the
court that there exists element of a settlement which may be acceptable to
the parties, they at the instance of the court, shall be made to apply their
mind so as to opt for one or the other of the four ADR methods mentioned
in the section and if the parties do not agree, the court shall refer them to
one or other of the said modes. Section 89 uses both the word ‘shall’ and
‘may’ whereas 0.10 R, 1-A uses the word shall but on harmonious reading of
these provisions, it becomes clear that the use of the word ‘may” in Section
89 only governs the aspect of the reformulation of the terms of a possible
settlement and its relevance to one of ADR methods. There is no conflict.

I Ibid.
2. See S a le m Arhisuvtte Tirtr
148 JURISPRUDENCE

POINTS TO REMEMBER
1. Legislation m eans making a law.
2. The term ‘legislation’ is derived from two Latin words ‘Legis’
: which m eans a law and ‘Latum’ which means to make.
3. The term legislation' has been used in different senses.
4. In its broadest sense it includes all methods of law making.
5. In its technical sense it includes every expression of the w ill of
the Legislature, whether m eant for the making o f law or not.
6. In its strict sense it may be termed as enacted law or statute
law.
7. Delegated legislation is a legislation made by any authority other
than the Legislature.
8. It denotes the rules and regulations m ade by the executive
authorities under the provisions of laws passed by Legislatures.
9. Today the importance o f legislation as a source of law is much
more than any other sources of law.
10. In modem societies various new problems are emerging which
need urgent actions to satisfy human needs. This can be done
only through legislation.
 Lectures in jurisprudence

process of resolving disputes. The rules of Common Law appear in the

form of rules, which provide the solution to a trial, rather than general
rules of conduct for the future. The origins of the Common Law are linked
to royal power. Disputes between private individuals did not fall within
the purview of Common Law courts, except when they involved the interest
of the crown or kingdom. It, therefore, seems to be a public law. The
divisions of Common Law, its concepts, vocabulary and methods are entirely
different from those of the civil law.
Common Law also spread to vast territories either through colonisation,
or reception. In India, Common Law was introduced during the British
rule. However, in some areas of law, notably the personal laws of Hindus
and Muslims, the traditional law was allowed to continue. The legal systems
of USA and Canada, though belong to Common Law, enjoy a largely
autonomous place within the family mainly because of the existence of a
different civilisation.
Close contacts between countries which follow the civil law system, and
those of Common Law naturally resulted in each system influencing the
other. The establishment of the European Union, of which the United
Kingdom is a member, is the most significant development in recent years.
The European Court, which mostly consists of judges o f the civil law
tradition, applies the doctrines, principles and methods of that tradition
in adjudication. The impact of this on English law is not insignificant.

Family o f Socialist Laws

The legal system of the erstwhile Union of Soviet Socialist Republics (USSR)
and other socialist countries'are included in this family. The distinguishing
feature of this family is its revolutionary nature and proclaimed ambition
to create the conditions of a new social order in which the very concept of
state and law will disappear. Law as such is not important, but subordinate
to the task of creating a new economic structure. Since all means of
production are under state ownership, private law relationships between
citizens are very limited. In the socialist legal system, private law loses its
pre-eminence, and practically all law becomes public law. With the fall of
USSR, and the return of many other socialist states to a liberal democratic
order, there now remain only a few members in the family of socialist laws.
 Lecture 3

Sources o f Law I: Legislation

I ntroduction

One question that frequently comes to our mind is as to what is the source
of law. Most people may chink of Acts passed by the legislature as the
source of law. However, if we think further on this question, it must
necessarily occur to us that there are many other sources of law as well. The
very expression ‘source of law’ is not free from ambiguity. Some jurists even
make a distinction between ‘law’, and ‘sources of law’. John Chipman
Gray considers law as the rules authoritatively laid down by the courts in
their decisions. According to him, sources of law are certain legal and non-
legal materials upon which judges customarily fall back in fashioning che
rules which structure the law. Such sources include Acts of legislative organs,
judicial precedents, customs, opinions of experts, and principles of morality.
The approach of Gray and those who support him consider only the rules
laid down by the courts as law, and everything else as the sources of law.
Other writers, following a different approach, equate sources of law with
che official authoritative texts from which formulated legal rules usually
derive their force. These include the Constitution, statutes, treaties, executive
orders, judicial opinions etc. Yet another sense in which the expression
‘sources of law’ is used is to denote certain bodies of law which have served
as traditional reservoir of legal rules and principles, such as the Common
Law, equity, and the Canon Law.
Let us, for the moment, leave aside the controversy over the meaning of
che expression ‘sources of law’, and try to find out what are the different
sources of law. A clear understanding of the sources of law is very important
for a proper understanding of the nature of law. A study of the sources of
law is also important because it helps us to answer questions about the
validity of law.
Sources of law are often divided into formal and material sources. Salmond
 Lectures in Jurisprudence

defines a formal source of law as chat from which a rule of law derives its
force and validity. In other words, it is the will of the state as manifested in
statutes or decisions of courts. A material source of law is that from which
is derived the matter, not the validity of law. A familiar example of the
material source is custom. The rule applied by a judge in deciding a case
may be drawn from a custom, bur what gives it legal force is not the custom,
but the solemn determination of a court.
It is common knowledge that in the modern state, the law is normally
created by the formal act of legislation, or by the decision of a court. Law
may also be created by the act of a subordinate person, or a group of
persons acting within the limits of delegated authority. These are the formal
sources of law. Material sources include anything that may be drawn into
the process of law making. They range from a custom of the community to
a principle of ancient Roman Law, Islamic Law, or Hindu Law, from juristic
writings to decisions of foreign courts. While all these may influence the
process of law-making, it is important to remember that they have to be
filtered through a formal source in order to attain the quality of law. When
a question arises as to whether a particular proposition is a valid proposition
of law, we need a criterion of validity to answer that question. Every legal
system lays down the criteria of validity, which a proposition has to satisfy
before it is considered as a valid proposition of law.
Another way of classifying sources of law is into legal, and historical
sources. Legal sources are those sources which are recognised as such by the
law itself. Historical sources are the sources lacking formal recognition by
the law. Legal sources of law are authoritative because courts readily accept
them as such. Historical sources, though not authoritative, are important
because they influence the course of legal development. Legal sources are
said to be the only gates through which new principles can find entrance
into law. When we say this, we are stressing the authoritative nature of the
legal sources. However, this does not deny the importance of historical
sources. Infact, all rules of law have historical sources.
It is also important to remember that in every legal system there are
certain ultimate principles from which all rules are derived. This idea may
be explained better with an illustration. The rule that a person must not
allow waste water to flow from his kitchen or toilet to a public road may
have its source in the byelaws of a municipal council. The rule that these
byelaws have the force of law has its source in a legislative enactment namely,
the Panchayati Raj Act. We can also trace the source of authority of this Act
to the Constitution of India. When a further question is asked as to what is
the source of the rule that the Constitution has the force of law, we may
have to say that it is only historical, not legal. Thus, we may have to conclude
 ________ Sources o f Law I: Legislation__________________________

that the ultimate source is always historical, and not legal. The validity of
the Constitution is assumed or accepted as self-existent.
In jurisprudence, we are mainly concerned with the legal sources of law
from which law may be found to proceed. These sources are, inter alia,
written Constitution, legislation, judicial precedent, and custom. Some
people include writings of experts also as a legal source, but it is debatable
whether such writings constitute a legal source, or remain only as a historical
source. It is common knowledge that today law proceeds mainly from two
legal sources, namely legislation, and precedent. Legislation is the making
of a law by the formal and express declaration of a recognised authority,
very often the legislature of the state. It is accepted as the most powerful
instrument of legal reform. Precedent denotes the making of law by a
declaration and application thereof by the court in a decision in the course
of administration of justice. To these two major sources of law we may also
add Customary and Conventional Laws. Customary Law is constituted by
those customs, which fulfill the requirements laid down by laws as the
condition of their recognition as obligatory rules of conduct. Conventional
Law is constituted by agreements having the force of special law inter partes,
in derogation, o f or in addition to, the general law of the land. The legal
sources of law may be categorised as follows:
(i) enacted law having its source in legislation;
(ii) case law having its source in precedent;
(iii) customary law having its source in custom; and
(iv) conventional law having its source in agreements.
We will now discuss in detail the various aspects of legislation as a source of
law, postponing the discussion of other legal sources to subsequent lectures.

Legislation: N ature and M eaning

Legislation means law making. It also refers to the laws made by the
legislature. In a wider sense, it includes all the sources of law, any act done
with the effect of adding to, or altering the law. When a judge establishes
a new principle in a judicial decision, it is possible to say that he has
exercised legislative power, and it is also legislation in the wider sense of
the term.
Legislation is generally used in a more limited sense. It denotes the
laying down of legal rules by a sovereign or subordinate legislature. An
important distinction between law-making by a legislature and law making
by a court must be clearly understood. When the legislature makes a law,
it does not have any actual disputes before it, and it lays down general

35
 1

____________________________ Lectures in Jurisprudence______________________ _

rules for the future, without reference to any actual dispute. Courts, on the
other hand, are engaged in the settlement of disputes, and any law-making
that they may do is only with reference to actual disputes before them and
only insofar as is necessary for their solution. Thus, we may say that judicial
law-making is incidental to the solving of legal disputes; while law-making
is the main function of the legislature.
The legislature of a state performs many functions other than law-making.
In a wider sense, all its functions are included within the term ‘legislation’.
Howeven_in_a jurisprudential sense, legislation includes only an expression
o f the will of the legislature directed to the making of the- rules of law.
Thus; legislation may be defined as the enunciation or promulgatioiriof
laws by the legislature of the state. I f fs the formaTdeclaration of theTegal
rules by the legislative organ of the body politic. "
Legislation is most accurately termed enacted law, all other forms being
distinguished as un-enacted. In Roman Law there was a division between
Customary Law (jus non scriptum), and other law (jus scriptum). The terms
familiar to an English lawyer are Common Law, and statutory law. Jurists
like Blackstone prefer to use the expressions written and unwritten law to
indicate the distinction. In modern democracies, the law-making power is
vested in a body of elected representatives of the people. If the state is
federal, there will be a law-making body at the Centre, and each unit will
also have its own law-making body.
The significant question that arises in relation to legislation is regarding
the legal limits of the power to enact law. This is further complicated by
the presence of entrenched Fundamental Rights in the Constitution, which
limit the law-making power of the legislature. It is obvious that different
legal systems have different approaches to the problem of legislative power.
Historically, England has been following the principle of parliamentary
sovereignty, which practically makes the legislature omnipotent in the field
of legislation.
However, recent developments have placed several restraints on the
law-making power of the British Parliament casting a shadow of doubt
on its omnipotence, and diluting the concept of parliamentary sovereignty.
The first step in restricting parliamentary sovereignty was taken when
! ]1 Britain became a member of the European Community in the year 1973.
Section 2 o f the European Community Act 1972, passed by British
Parliament in 1972, stated that parliamentary statutes, both past and future,
'll shall take effect subject to community law. We find a change in the traditional
approach of the British courts to the question of parliamentary sovereignty
in R v Secretary o f State for Transport, ex p Factortame.1 It was affirmed that

: 1 [1991] l AC 603-
36
 Sources o f Law I: Legislatun

the doctrine of parliamentary sovereignty had been superseded by a new

hierarchy of legal rules, and that the community treaty obligations had
indeed made it possible for the Parliament to bind its successors.
The enactment of the Human Rights Act by British Parliament in the
year 1998 is another significant step. This Act incorporated the European
Convention on Human Rights 1950 (‘European Convention’) into domestic
law. The Act provides that if any British legislation is found to be
incompatible with the provisions of the European Convention, a court can
issue a declaration of incompatibility. This is fairly similar to judicial review
of legislation being practised by the courts in India or USA. However,
technically the doctrine of parliamentary sovereignty is protected by
providing that even after a court has made a declaration of incompatibility,
the statute continues to be enforceable. It is generally agreed that this
protection is only technical, and the declaration constitutes a serious moral
limitation on parliamentary sovereignty. The effect of the declaration of
incompatibility is illustrated by a recent decision of the Court of Appeal in
R v Mental Health Review Tribunal North and East London Region.2In this
case, the Court of Appeal declared s 73 of the Mental Health Act 1983
incompatible with art 5 of the European Convention. The relevant provision
was promptly amended in order to make it compatible with the European
Convention.
In India, the F undam ental Rights guaranteed in Pt III of the
Constitution, and the distribution of legislative powers between Union
Parliament and state legislatures in Sch VII of the Constitution limit the
law-making powers of the Parliament and state legislatures. Any law enacted
by the legislature does not automatically attain the quality of law; it has to
satisfy a further criterion of validity, namely the test of constitutionality.
The test o f constitutionality is applied by the judiciary. This gives the
judiciary the power to decide whether a law enacted by the legislature is
valid. Legislation thus loses its dominating position as a source of law to
some extent. The power of the judiciary to sit in judgment over laws enacted
by the legislature raises not only questions concerning the relative importance
of legislation and precedent, but also very important jurisprudential questions
concerning the inter-relationship between the legislature and the judiciary.

D ifferent F orms of L egislation

Legislation may be broadly classified as supreme, and subordinate. Supreme

legislation proceeds from the supreme or sovereign power in the state and

2 [2002] QB1.
37 i
 Lectures in Jurisprudence

is, therefore, incapable of being repealed, annulled, or controlled by any

other legislative authority. Subordinate legislation proceeds from any other
authority, and is dependent for its validity on some superior or supreme
authority. In a modern state, the tasks of a legislative body are so manifold
and complex that they cannot be performed effectively by that body alone.
Matters of detail, matters requiring specialised knowledge or expertise may
put an exorbitant burden and strain on the shoulders of a legislative body.
It has, therefore, become a common practice to delegate a part of the law­
making power to the government or autonomous bodies. It is important to
remember that the authority of a subordinate body to legislate is derived
from the sovereign legislature. Subordinate legislation can be repealed by
and must give way to sovereign legislation. Subordinate legislation is subject
to parliamentary control.
Five different forms of subordinate legislation can be identified. These
are:

Colonial Legislation

This denotes the limited law-making power enjoyed by the colonies, subject
to the control of the imperial legislature. The imperial legislature may
repeal, alter, and supersede any colonial enactment. This is the first and
the most important species of subordinate legislation, though its importance
has diminished along with the decline of colonialism. An important principle
of delegation is delegatus non potest delegare, ie, a delegatee cannot further
delegate. The question whether a colonial legislature can delegate its
legislative powers was raised in Re Powell Apollo Candle Co.3 It was held
that a colonial legislature is not a mere delegate of the imperial Parliament,
and hence can delegate its legislative powers to other bodies, which are
dependent upon it.

Executive Legislation

When legislative powers are delegated to the executive, it is called executive

legislation. Though the essential function of the executive is to implement
the laws and carry on the administration, it is always entrusted with some
subordinate legislative powers also. Today, practically every law enacted by
the legislature contains delegation clauses conferring law-making powers
on the executive to supplement the statutory provisions. Common Law
also recognises the prerogatives of the Crown to make laws for the territories,
acquired by conquest or cession, which do not possess their own legislatures.
3 [1885] AC 282.

38
 Sources o f Law I: Legislation

Judicial Legislation

The power of the superior courts to make rules for the regulation of their
own procedure is considered as a delegated legislative power. This is judicial
legislation in the true sense of the term. Law-making by courts by way of
precedents is not considered as an instance of delegated legislation.

Municipal Legislation

Municipal authorities, which are units of local self-government, are given

limited and subordinate law-making powers by the enactments establishing
them. The byelaws or regulations made by municipal authorities by virtue
of the delegated powers are applicable only within the territorial limits of
such authorities.

Autonomous Legislation

All the above kinds of subordinate legislation proceed either from the state,
or from one or other of its many subordinate departments. However,
legislation is not necessarily limited to the state. In exceptional cases, the
state delegates legislative power to certain groups of private individuals. In
such cases, the limited legislative power given to such groups are confined
to matters which concern them. A registered company may, for example,
alter its articles of association, thereby changing its constitution and
m anagement. T his kind o f delegated legislation is categorised as
autonomous. Autonomous legislation resembles conventional law in some
respects. Yet an important difference between the two must not be forgotten.
Conventional law is always a product of agreement. Autonomous law, on
the other hand, is the product of a true form of legislation, and is imposed
by superior authority. It does not depend on agreement of parties for its
validity. For instance, when the articles of association of a company are
altered by a majority of shareholders, it would also be binding on the
minority who did not agree to the alteration.

D elegated L egislation and A u t o n o m ic L egislation

Some jurists make a distinction between delegated and autonom ic

legislation. They consider law-making powers exercised by virtue of
delegation by the supreme law-making authority as delegated legislation.
Autonomic legislation, on the other hand, originates from the power of
persons or organisations other than the government to make laws or adopt
rules essentially similar in character to laws. Such power was exercised in
39
 Lectures in Jurisprudence

early societies by the heads of families, and later by the Church and other
religious groups. The state’s authority and power was rather weak during
that period. Gradually, the public power of the state began to supplant or
restrict the private power of the head of the family for the purpose of
protecting his wife and children from arbitrary and autocratic exercise of
power by him. However, the power of religious groups to regulate their
own affairs is to a large extent retained even in a modern secular state. The
powers enjoyed by such groups cannot be said to owe their existence to a
mere delegation by the state.
The powers of (i) corporations and other associations to enact articles of
associations and byelaws; (ii) trade unions to regulate the rights and duties
of their members; and (Hi) professional associations of lawyers and doctors
to make rules of discipline and professional ethics, are also included in the
category of autonomic legislation. The fact that such powers exist by
permission of the state and within the limits of the constitutional system
does not deprive them of their autonomic character because a substantial
amount of private power to regulate within certain boundaries is still left
intact. The noted jurist Lon L Fuller, rightly calls such enclaves of autonomic
legislation ‘miniature legal systems’. Autonomic legislation is very much
similar to autonomous legislation, which we have already explained as one
of the categories of delegated legislation. Jurists like Edgar Bodenheimer
consider it as a distinct category of legislation, and not as a category of
delegated legislation.

A dvantages of L egislation

A comparative analysis of legislation and precedent, which are the two

main sources of law, reveals many advantages of legislation over precedent.
These are as follows:
(i) The process of legal evolution necessarily involves three steps, viz,
(a) making new laws; (b) repealing old laws; and (c) modifying
current laws. The advantage of legislation is that it can make, repeal,
and modify laws with simplicity and efficacy. Precedent may make
new laws and modify current laws; but in a rigid system of
precedents, it cannot overrule a settled principle of law. This
disadvantage of precedent is gradually disappearing as the modern
trend is to abandon the strict doctrine of precedent. The Supreme
Courts of most countries, including India and USA, and the Privy
Council and the House of Lords in England, have the power to
overrule their own previous decisions. Still, the power of the court
to overrule when compared with the power of the legislature to
 Sources o f Law I: Legislation

repeal is ac a disadvantage, because a court has to wait until an

appropriate case comes before it for consideration, whereas the
legislature can, on its own initiative, repeal a law any time it chooses
to do so. Legislation, therefore, possesses greater abrogative power,
and becomes a more effective instrument of legal growth and law
reform.
(ii) When the legislature makes the law and the judiciary interprets
and applies it, there is division of labour leading to increase in the
efficiency of the work. This kind of division secures time and
opportunity for mature consideration of effects and defects by two
independent bodies. The functional differentiation is ideal for a
healthy system of government. The difference is blurred when the
business of making the law, and that of enforcing it is vested in
the judiciary. Precedent is a form of law-making which compels
the judge to make the law, and to enforce it.
(iii) The formulation of law by the judge in a precedent is always
conditioned by the facts of the case. There may not be sufficient
time for reflection on its merits and demerits in relation to the
generality of cases with large diversity of circumstances. Legislation
can always comprehend the generality of a problem in all its
dimensions. Moreover, legislation also satisfies natural justice
because laws are known before they are enforced. A precedent
operates retrospectively, because it is applied to facts which occurred
prior to the formulation of the law.
(iv) The ex post facto nature of precedent is a violation of moral justice.
In the case of legislation, citizens get an opportunity to know the
law before they would be charged with a violation of it. In the case
of a precedent, a person is punished for violating a law before that
law is made known. This defect of precedent results in greater
injustice when one precedent is overruled by another, making all
transactions on the basis of the earlier precedent unlawful.
(v) A judge can declare law only in the course of deciding a case actually
before him. Precedents, therefore, depend on the accidental course
of litigation. Any systematic development of law cannot take place
through such accidental course of litigation. Legislation, in
comparison, is a much better planned activity, which can anticipate
social problems, and provide for legal rules to solve those problems.
It is possible to present a systematic code of rules to meet future
contingencies. The legislature, in the process of law-making, can
also draw inferences from the varied experience of a cross section
of the community.

41
 Lectures in Jurisprudence

(vi) Whenever it becomes necessary to fill up a gap, settle a doubt or

correct a mistake in the existing law, it can be easily done only by
legislation. The court can play its role only when a case on the
point comes before it for adjudication. This is another comparative
advantage of legislation.
(vii) Another advantage of legislation is its superiority in form. It is
concise, clear, and easily accessible. A statute enacted by the
legislature follows a definite form, and the provisions are stated
with brevity and clarity. Judgments, on the other hand, may run
to several pages, and the task of extracting the ratio decidendi is a
difficult one even for persons well versed in law. Salmond aptly
observes: ‘Case law is gold in the mine—a few grains of the precious
metal to the ton of useless matter—while statute law is coin of the
realm ready for immediate use.’

D isadvantages of L egislation

When we compare legislation and precedent as sources of law, we find that

legislation suffers from certain disadvantages too. The first among the
disadvantages of legislation is its rigid nature. Legislation applies irrespective
of circumstances, whereas precedent can be distinguished or modified
according to the circumstances. Precedent is, therefore, more elastic and
flexible.
Legislation is hypothetical in nature, because it proceeds on the basis of
assumed facts. The application of legislation to complex fact situations
often becomes difficult. In the case of precedents, the judge shapes the law
with reference to real facts, and it is always possible to shape the law to suit
the needs of individual cases. In this sense precedent is more practical than
legislation.
An advantage of legislation, which we have stated above, is its superiority
in form which may, in some cases, become a disadvantage. If the drafting
of the law is defective, its meaning becomes ambiguous resulting in difficulty
in application. In case of precedents, on the other hand, the principles
assume more importance than words. This naturally gives the judges more
freedom to interpret precedents.

R elation of L egislation t o O t h e r S ources

It is evident that the various sources of law are interlinked, and often
interdependent. In modern states, legislation assumes more importance
than other sources. However, we cannot overlook the fact that legislation,
42
 Sources o f Law I: Legislation

as a source of law, is comparatively new in origin. Early law was conceived

a$jus, ie, the principle of justice rather than as lex, ie, the will of the state.
The state was not expected to make the law, it was only expected to enforce
it. It was believed that the rules to be enforced by the state are those rules
of justice and right, which have been divinely revealed to men. They are
found in the ancient customs, or in religious faiths and practices. The
earliest courts were believed to be not the work of mortal men, but the
work of Gods. It was only later that the power of the political rulers to
change the law for achieving political and legal development was recognised.
The weakening influence of custom and religion on law strengthened the
role of legislation. The emergence of independent and impartial courts to
interpret and apply the written law and to adjudicate disputes, made
precedent one of the important sources of law. As the judicial function
goes beyond mere dispute settlement and extends to filling the gaps in
law, which Cardozo calls ‘legislating incerstitially’, precedent becomes as
important or perhaps more important than legislation as a source of law. It
is also important to note that the relative importance of different sources of
law is dependent on the stage of development and features of each legal
system.

C odification

Codification means the reduction of corpus juris, ie, the whole body of Jaw,
so far as practicable, to the form of enacted law. This follows the recognition
of legislation as the only, or at least the most important, source of law,
other sources being subsidiary or supplementary. The movement towards
codification became strong in Europe in the nineteenth century. The French
Civil Code, known as the Code of Napoleon, was enacted in the year 1804.
Soon codes were enacted in Austria (1811), Germany (1896), and
Switzerland (1907). The main motive behind codification was the desire
to render the law accessible, certain, definite, harmonious, logically arranged
and simple. GW Paton4 identifies two types of countries, which tend to
adopt codes: (i) those with well-developed systems where the possibility of
further development is remote for the moment; and (ii) those with
undeveloped systems, which cannot grapple with new economic problems.
Once the process of codification is completed, the presumption is that
every case could be decided by deduction from the provisions of the code.
However, experience shows chat no code has ever been perfect. The flaws in
drafting, such as ambiguity and conflict with other provisions, have been

4 Textbook o f Jurisprudence, fourth edn, 1972.

 Lectures in Jurisprudence

found to be the major drawbacks of codes. These flaws make it impossible

to decide every case by deduction. Therefore, even under a code,
interpretation becomes an important task.
The development of law in England has been characterised by the virtual
absence of enacted law. The Common Law developed from case to case.
The prevalent opinion was also against codification. The first influential
jurist to support codification was Jeremy Bentham. The movement for
codification gathered some momentum in England also, but it did not
share the enthusiasm of the continental countries, and still lags behind in
codification.
It will be a mistake to think that codification involves the total abolition
of precedent as a source of law. Prior to codification, unenacted law is the
principal source, and legislation is considered as a special instrument for
occassional modification or development of law. This relation is altered as
codification progresses. Legislation becomes the principal source, and case
law is considered incidental and supplemental. The process of interpretation
of the law grows into a body of judicial commentary, which gives meaning
to the words and phrases used in enacted law. A full understanding of the
law is possible only when an understanding of the provisions of enacted
law is supplemented by knowledge o f case law. Commentaries incorporating
provisions of statutes and decisions of courts are published in response to
this need. Prominent examples of such commentaries are the American
Law Institutes Restatement o f American Law, Halsburys Laws o f England;
and Halsburys Laws o f India. These commentaries, though not authoritative
and official, have been accepted as dependable expositions of the law by
the professional community.

Codification in India

Codes have been in existence in India since ancient rimes. The codes of
Manu, Yajnavalkya, Brihaspathi, Narada, and Parashar are the most well
known among the ancient Indian codes.
In the modern period, attempts to codify the law in India were initiated
by the British rulers with the appointm ent of the First Indian Law
Commission under the provisions of the Charter Act of 1833. This Law
Commission with Lord Macaulay as its chairman, made significant
contributions through the drafting of a number of codes, including Indian
Penal Code, Code of Civil Procedure, and Limitation Act.
The Second Law Commission, which was appointed in 1853, did not
favour the codification of Hindu Law and Muslim Law. The Third Law
Commission appointed in the year 1861 was mainly concerned with the
 Sources o f Law I: Legislation

law of succession and inheritance, generally applicable to all persons other

than Hindus and Muslims. The Commission’s recommendations resulted
into the enactment of the Indian Succession Act 1865. The Act was to
apply generally for all testamentary and intestate succession, except those
who were exempted. Hindus, Buddhists and Muslims were exempted from
the purview of the Act. The Third Law Commission’s recommendations
were responsible for the subsequent enactm ent of the Negotiable
Instruments Act in 1871, Specific Relief Act in 1871, and the Indian
Contract Act and the Indian Evidence Act in 1872. The Commission had
also proposed the draft of the Transfer of Property Act, which was again
considered and revised by the Fourth Law Commission appointed in the
year 1879.
After independence, the Government of India took a major initiative
towards codification of Hindu law. Inspite of opposition from orthodox
sections of the Hindu society, a number o f Acts, which are collectively
called the Hindu Code, were enacted. They include the Hindu Marriage
Act 1955, Hindu Succession Act 1956, Hindu Minority and Guardianship
Act 1956, and Hindu Adoptions and Maintenance Act 1956. These Acts
apply to any denominations of Hindus and also to Jains, Sikhs, and
Buddhists. The enactment of the Special Marriage Act in the year 1956 is
also considered to be a significant step. It is a secular law of a general
nature under which any two Indians, irrespective of their religion, may
marry. It is only a permissive and optional law.
The Constitution of India places emphasis on codification of personal
laws by inclusion of art 44 in the Directive Principles of States Policy,
which reads: ‘The state shall endeavor to secure for the citizens a uniform
civil code throughout the territory of India.’ However, this constitutional
goal still remains a pious wish even after 55 years of the enactment of
Constitution of India.
The Law Commission of India is entrusted with the task of making
proposals for reform, and codification of Indian law. There has been hectic
legislative activity in India after independence, both at the Central and
state level. With thousands of Central and state laws in force, legislation
has practically superseded the other sources of law.
 Lecture 4

Sources of Law II: Precedent

M eaning of P recedent

Precedent means judgment or decision of a court of law cited as an authority

for the legal principle embodied in it. The doctrine of precedent, which is
also known as the doctrine of stare decisi$> ie, stand by the decision, is based
on the principle that like cases should be decided alike. Once a case is
decided by a judge by applying a principle, a case on similar facts which
may arise in future must also be decided by applying the same principle.
This not only saves the time and labour of judges, but also secures certainty,
predictability, and uniformity in the application of law.
The English legal system has always attached great importance to judicial
precedent. The vast body of Common Law is almost entirely the product
of decided cases. Continental system, on the other hand, considers
precedent only as evidence of law, and not a source of law. Precedents are
instruments for the persuasion of judges. English law considers precedents
not merely as evidence of the law, but as source of law, and accepts the
authority o f precedents. It is an assumption of English law that every
decision shall be accepted as precedent and followed not only by all
subordinate courts, but also by courts of co-ordinate jurisdictions. This
approach has influenced all legal systems, including India, which follow
the Common Law tradition. It must be added that even in continental
legal systems such as France, Italy and Germany, the importance of the
reported decisions has been increasing, and the courts of these countries
now tend to attach greater weight to their own previous decisions. However,
the respect shown to judicial precedents depends on their excellence or
merit.
112 Sources of Law [PartlV

complications would have set in. So the Supreme Court restricted the effect of
its decision to future cases. That is, it laid down that fundamental rights cannot
be taken away or abridged by constitutional amendment hereafter. Amendments
made prior to that decision would continue to be valid in spite of their
repugnancy to fundamental rights. It would be observed that the effect of the
doctrine of prospective overruling is to assimilate the effect of judicial
overruling of a precedent to that of repeal of a statute by the legislature.
 Chapter XVII
L e g isla tio n

1. LEGISLATION AS A SOURCE OF LAW

Definition: To some writers, notably Bentham and Austin, legislation
signifies a form of law-making. The term should, however, be restricted to that
process of legal evolution which consists in the formulation of rules of law by
the authority appointed by the Constitution for the purpose. By legislation,
therefore, we mean the promulgation of legal rules by an authority duly
empowered in that behalf.
Law originating in legislation was included by the Roman lawyers under
the description of jus scriptum which they contrasted with the customary law or
jus non scriptum. Blackstone followed this usage, but Sir John Salmond
suggested that the term ‘enacted law’ is preferable since there may be written
law or jus scriptum which is not at the same time the product of legislation.
Place of Legislation among the sources of law: To the analytical school
the typical law was a statute and legislation was the normal process of law­
making. Analytical jurists frowned upon judiciary law as an unauthorised
usurpation of the legislative function and rejected the claim of custom to be
regarded per se as a source of law.
The historical school, on the other hand, regards legislation as the least
creative of the sources of law. James Carter says: “It is not possible to make law
by legislative action. Its utmost power is to offer a reward or threaten a
punishment as a consequence of particular conduct and thus furnish an
additional motive to influence conduct. When such power is exerted to reinforce
custom and prevent violations of it, it may be effectual, and rules or commands
thus enacted are properly called law; but if aimed against established custom
they will be ineffectual. Law not only cannot be directly made by human action,
but cannot be abrogated or changed by such action” '.
In this view legislation has no independent creative role at all, for its only
legitimate purpose is to give better form and make more effective the customs
spontaneously developed by the people.
The extreme views of the analytical and historical schools require
modification. The error of the analytical school lies in regarding legislation as
the sole source of law. Custom and precedent have equally valid claims to
recognition as material sources of the law. The error of the historical school lies
in the supposition that legislation can never be a source of new law. As Dean
Pound points out, there are two types of legislation-—an organising type such as1

1, Carter: Law, its Origin, Growth and Function, p. 130.

[ 113 ]
1 14 Sources of Law [Part IV

the historical school conceived, and a creative type. The existence of the latter
can hardly be doubted in these days of abnormal legislative activity. Enactments
like the Workmen’s Compensation Acts are sufficient to dispel any lingering
doubts on this point.
2. SUPREME AND SUBORDINATE LEGISLATION
Distinctive test: Legislation is said to be supreme when it proceeds from
the sovereign body in the State. The characteristic of such legislation is that it
cannot be abrogated or invalidated by any other legislative authority.
Legislation that is lacking in this feature is said to be subordinate for it is subject
to the control of a superior legislative authority. Applying this criterion it is easy
to see that legislation emanating from the British Parliament is supreme. By the
same test in the United States the legislation of Congress as well as the
legislatures of the States is supreme.
Position of Colonial Legislatures: The position of the colonial legislatures
may be seen from the following provision of the Colonial Laws Validity Act,
1865.
“Every representative legislature shall have full powers to make laws
respecting the constitutions, powers and procedure of such legislature, provided
such laws have been passed in such manner and form as may from time to time
be required by any Act of Parliament, Order-in-Council, Letters Patent, or
Colonial Law for the time being in force.” It is clear that colonial legislatures
are subordinate for it is left to Parliament to prescribe the conditions of the
validity of their legislation.
Dominion Legislatures: Turning to the Dominion legislatures, we notice
that the Statute of Westminster by Section 2 makes the above-mentioned Act
inapplicable to the Dominions and further provides: “No law made after the
commencement of this Act shall be inoperative or void on the ground that it is
repugnant to the law of England or to any order, rule or regulation made under
any present or future Act of Parliament and the powers of the Dominion
Parliament shall include the power to repeal, or amend any such Act, order, rule
or regulation in so far as the same is part of the law of Dominion’’. We have to
conclude that the legislatures of the Dominions, after the enactment of the
Statute of Westminster, are sovereign legislatures.
Forms of subordinate legislation: There are five forms of subordinate
legislation:
(a) Colonial: British colonies enjoy varying degrees of self-government.
The British Parliament has conferred limited law-making power upon the
colonies. The legislation emanating from the colonial legislatures is an instance
of subordinate legislation.
(,b) Executive: The legislative not infrequently makes a skeleton enactment
conferring upon the Executive a rule-making power for carrying out the
Chap. XVII\ Legislation 115

intentions of the legislature. The rules made in pursuance of this power of

delegated legislation have the force of law. They are liable, however, to be
superseded by the legislature if it is so minded. Thus this kind of legislative
power possessed by the Executive is a species of subordinate legislation.
(c) Judicial'. The superior courts have powers of rule-making for the
regulation of their own procedure. This too is a kind of subordinate legislation.
(d) Municipal. Municipal bodies enjoy by delegation from the legislature a
limited power of making regulations for the area under their jurisdiction. These
regulations known as by-laws are also the product of a species of subordinate
legislation.
(e) Autonomous legislation: See Autonomous law.
3. DIRECT AND INDIRECT LEGISLATION
Distinctive Test: The framing of laws by the legislature is direct legislation.
The declaration of legal principles by other sources to whom law-making power
is confided by the legislature is an instance of indirect legislation. The various
forms of subordinate legislation, with the exception of colonial legislation, are
instances of indirect legislation. In colonial legislation, the law-making power is
exercised by a legislative body and is thus to be treated as direct legislation.
Delegated Legislation and Conditional Legislation: When a legislature
confers law-making power upon some other body, the legislative power is said
to be delegated. If the legislature itself enacts the law and gives to some other
body only the power of determining when, for instance, it should come into
force or when it should be applied to a particular area of the State, there is no
delegation of legislative power. Such legislation is called conditional legislation.
In delegated legislation powers of legislation as such are transferred.
4. JUDICIAL INTERPRETATION OF STATUTE LAW
Meaning of Interpretation: Legislation is inseparable from a process of
interpretation by the courts. Though statutes are carefully drawn up, it is not
possible to reduce the application of law to a mere mechanical process of
bringing a given case under a given section. However explicit the words of a
statute may be, a court must determine the precise meaning of the phraseology
before it can apply the law. The method by which the courts ascertain the
meaning of the language of a statute is called the interpretation of enacted law.
GRAMMATICAL INTERPRETATION
Golden Rule of Interpretation: The dominant purpose of interpretation is
to ascertain the intent of the legislature. To this end the cardinal mle applied by
the judges is that the meaning of the legislator is to be sought in the actual
words used by him, which are to be understood in their ordinary and natural
meaning. This is called ‘grammatical interpretation’ and where there is no
ambiguity in the language employed by the statute no other form of
116 Sources of Law [Part IV

interpretation is permissible. As observed in the Sussex Peerage case23'. “The

only rule for the construction of Acts of Parliament is that they should be
construed according to the intent of the Parliament which passed the Act. If the
words of the statute are in themselves precise and unambiguous, then no more
can be necessary than to explain the words in their natural and ordinary sense.
The words themselves alone do, in such cases, best declare the intention of the
law-giver” .
This rule is regarded by Lord Wensleydale as the ‘golden rule’ for the
interpretation of statutes. In Grey v. Pearson3 he observes: “In construing
statutes, as in construing all other written instruments, the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to some
absurdity, or some repugnance or inconsistency with the rest of the instrument,
in which case the grammatical and ordinary sense of the words may be modified
so as to avoid that absurdity and inconsistency, but no further” .
The respect of die judges for the words of the statute is usually such that
they consider themselves bound by the exact phraseology, even though the
effect of so doing may be to produce sinister consequences in the law. Lord
Brougham delivering the judgment of the Judicial Committee has observed as
follows in Crawford v. Spooner4: “The construction of an Act must be taken
from the bare words of the Act. We cannot fish out what possibly may have
been the intention of Legislature. We cannot aid the Legislature’s defective
phrasing of the statute. We cannot add and mend and by construction make up
deficiencies which are left here............ The true way in these cases is to take the
words as the Legislature has given them and to take the meaning which the
words given naturally imply unless where the construction of those words is
either by Preamble or by the context of the word in question controlled or
altered. And, therefore, if any other meaning was intended than that which the
words purport plainly to import then let another Act supply the meaning and
supply the defect in the previous Act.”
LOGICALINTERPRETATION
When permissible: Logical interpretation involves going behind the
language used in the statute for the ascertainment of its meaning and is resorted
to when grammatical interpretation fails to meet the case. As to when logical
interpretation is entitled to supersede grammatical is clearly pointed out by Lord
Macnaghten in Vacher and Sons Ltd. v. London Society o f Compositors5. He
observes that: “There can, I think, be only two cases in which it is permissible
to depart from the ordinary and natural sense of the words of an enactment. It
must be shown either that the words taken in their natural sense lead to some

2. 8 ER 1034.
3. 10 ER 1216.
4. 18 ER 667.
5. (1913) AC 107, 118.
Chap. XVII] Legislation 117

absurdity or that there is some other clause in the body of the Act inconsistent
with, or repugnant to the enactment in question construed in the ordinary sense
of the language in which it is expressed.”
Logical defects in expression may be removed by Interpretation:
Logical interpretation is thus permissible in two cases. In the first place, the text
of the statute when literally understood may lead to a result so manifestly absurd
and unreasonable that it may well be presumed that the legislature could not
have meant what it has said. In such a case the meaning of the legislature has to
be deduced by looking behind the litera legis, that is by the process of logical
interpretation.
The second case, in which, according to Lord Macnaghten, logical
interpretation is permissible when the literal interpretation leads to repugnancy.
Owing to the imperfections of language a particular word used in the statute
may in the context produce some inconsistency and render the provision of the
law meaningless. In such a case too, logical interpretation should be resorted to.
The rale of inconsistency mentioned by Lord Macnaghten is but one illustration
of logical defects in statutory expression. Other defects which, according to
Salmond, render the supersession of grammatical interpretation permissible are
incompleteness and ambiguity. Incompleteness is the vice of providing for only
one contingency when alternative contingencies that might possibly arise should
also be provided for. Ambiguity as a logical defect of the litera legis appears
when the expression used in the statute is susceptible of a variety of meanings.
Ambiguity and incompleteness, quite as much as inconsistency, necessitate a
resort to logical interpretation.
STRICT AND EQUITABLE INTERPRETATION
When the litera legis suffers from ambiguity, it usually happens that one of
the meanings is more obvious and consonant with the popular use of language.
If this meaning is adopted, the interpretation is called strict or literal. Courts
sometimes reject the natural or most known signification in favour of another
which conforms better to the intention of the legislature, the sententia legis,
though it may accord ill with the ordinary use of language. When this is done,
we have an example of equitable interpretation.
RESTRICTIVE AND EXTENSIVE INTERPRETATION
Equitable interpretation is either restrictive or extensive, according as it is
narrower or wider than the literal interpretation.
The rule of restrictive interpretation is applied to penal and fiscal statutes.
These statutes impose restraints on the liberty of a person or on the enjoyment
of property. For this reason in dubio courts lean against a construction which
imposes a greater burden on the subject than is warranted by the literal meaning
of the language employed in the statute.
118 Sources of Law [Part IV

Illustration of ‘extensive interpretation’: An interesting illustration of

extensive interpretation is furnished by the decision in Nisbet v. Rayne and
Burn6. Nisbet was a cashier of the defendants, a firm of coalmine-owners. It
was part of his duties to take every week from the office to the colliery the
cash out of which the wages of the employees at the colliery were paid. While
so engaged he was robbed and murdered. His widow claimed damages under
Section 1 of the Workmen’s Compensation Act, 1906. The section provides
that when a workman has met his death by an ‘accident’ arising out of the
course of his employment, his widow may claim damages from the
employers.
It was argued that murder could not be considered as an accident within the
meaning of the Act. Accident implies the absence of intention while murder is
clearly a deliberate and intentional act on the part of the criminal.
Lord Justice Kennedy agreed that “the description of death by murderous
violence as an accident cannot honestly be said to accord with the common
understanding of the word” . He, however, observed, “I conceive it to be my
duty rather to stretch the meaning of the word from the narrower to the wider
sense of which it is inherently and etymologically capable, that is, ‘any
unforeseen and untoward event producing personal harm’, than to exclude from
the operation of the section a class of injury, which it is quite unreasonable to
suppose that the legislature did not intend to include within it” .
Since the word was given a wider meaning not warranted by the familiar
usages of speech, the kind of interpretation adopted by Lord Justice Kennedy in
the above case may be described as extensive interpretation.
The following methods of interpretation—Historical and Sociological—
which have not been specifically mentioned by Salmond, may also be noted.
HISTORICAL INTERPRETATION
A form of logical interpretation: A third method of interpretation-—
Historical interpretation—is useful when the language of the statute affords no
clue to the intention of the legislature. We have seen that grammatical
interpretation breaks down when the letter of the law is defective and the
intention of the legislature is not manifested unmistakably. We pointed out that
in such a case the true intention of the legislature which has received imperfect
expression in the statute is ascertained by a process of logical interpretation.
Sometimes the intention of the legislature, the sententia legis, may itself be
defective. Not infrequently, the defects of the litera legis are only reflections of
corresponding defects in the sententia legis. In such cases courts should
consider the circumstances attending the original enactment and give effect to
the intention which the legislature would presumably have expressed if its
attention had been drawn to the particular question.

6. (1910) 2 KB 689.
 Chap. XVII1 Legislation 119

As early as 1584 it was laid down in Heydon case7 that “for the sure and
true interpretation of all statutes in general be they penal or beneficial,
restricting or enlarging the Common Law, four things are to be discussed and
considered: first, what was the Common Law before the making of the Act;
second, what was the mischief and defect for which the Common Law did not
provide; third, what remedy the Parliament hath resolved and appointed to cute
the disease of the Commonwealth; fourth, the true reason of the remedy; and the
office of all the judges is always to make such construction as shall suppress the
mischief and advance the remedy, and suppress subtle inventions and evasions
for continuance of the mischief’.
Limits of Historical Interpretation: Historical interpretation has definite
limits. Even in ascertaining the supposed intention of the legislature, courts
cannot travel out of the language used in the statute. Thus proceedings in the
legislature or the history of the introduction of a particular clause in the statute
in its progress through the legislature cannot be considered. Lord Birkenhead
said in Rhonda’s (Viscountess) claim8: “ The words of the statute are to be
construed so as to ascertain the mind of the legislature from the natural and
grammatical meaning of the words which it has used, and in so construing them
the existing state of the law, the mischiefs to be remedied and the defects to be
amended, may legitimately be looked at together with the general scheme of the
Act” . Lord Wrenbury pointed out in the same case that “ The debate upon the
bill, the fate of amendments proposed and dealt in Committee of either House
cannot be referred to, to assist in construing the language of the Act as
ultimately passed into law with the Royal assent” .
SOCIOLOGICAL INTERPRETATION
Not recognised by judges: Jurists of the sociological school are inclined to
give judges very wide latitude in the interpretation of enacted law. According to
Kohler, for the determination of the correct interpretation courts can properly
refer to the history of social movements and enquire into the social needs,
objects and purposes which were agitating the society at the time of the
legislation and which the statute had in view. He observes: “The opinion that
the will of the law-maker is controlling in construing legislation is only an
instance of the unhistorical treatment of the facts of the world’s history and
should disappear entirely from jurisprudence. Hence the principle: rules of law
are not to be interpreted according to the thought and will of the law-maker, but
they are to be interpreted sociologically, they are to be interpreted as products of
the white people, whose organ the law-maker has become”9. Benjamin Cardozo
has these pregnant observations on this subject: “Formerly men looked upon
law as the conscious will of the legislator. Today they see in it a natural force...
. .It is no longer in texts or in systems derived from reason that we must look for

7. 76 ER 637: (1584) 3 Co Rep 70.

j 8. (1922)2 AC 339.
| 9. Quoted by Dean Pound: M odem Legal Philosophy Series, Vol. 9, p. 225.

1
120 Sources of Law [Part IV

the source of law; it is in social utility, in the necessity by that certain

consequences shall be attached to given hypotheses. The legislator had a
fragmentary consciousness of (his law; he translates it by the rules which he
prescribes. When the question is one of fixing the meaning of those rules, where
ought we to search ? Manifestly at their source; that is to say, in the exigencies
of social life. There resides the strongest probability of discovering the sense of
the law. In the same way when the question is one of supplying the gaps in the
law, it is not of logical deductions, it is rather of social needs, that we are to ask
the solution.” 101
It should be noted that the method of sociological interpretation has not yet
received judicial recognition. It has now the support of eminent jurisprudential
writers and its importance is bound to increase with the deepening of the
sociological tendency in the approach to judicial problems.
5. SOME RULES OF CONSTRUCTION

EQUITY OF A STATUTE
The principle of “Equity of a statute” is defined by Coke as follows:
“Equity is a construction made by the Judges that cases out of the letter of a
statute yet being within the same mischief or cause of making the same, shall be
within the same remedy that the statute provideth; and the reason thereof is for
that the law-makers could not possibly set down all cases in express terms” .
This principle is well-illustrated by the American decision in Riggs v. Palmer11.
It was held in that case that a murderer could not be permitted to take under the
will of his victim and transmit rights to his own heirs, although the statutes
regulating the devolution of property by will, if literally construed, did not stand
in the way of the murderer benefiting by the testamentary disposition of his
victim. The Court observed: “If the law-makers could, as to this case, be
consulted, would they say that they intended by the general language that the
property of a testator or of an ancestor should pass to one who had taken his life
for the express purpose of getting his property?’’
The principle of equity of a statute is not looked upon with favour. Courts
are not generally disposed to fill in lacunae left by the legislature.
RULE OF CASUS OMISSUS
The casus omissus rule provides that omissions in a statute cannot, as a
general rule, be supplied by construction. This rule is well-illustrated by the
recent case of Parkinson v. Plumpton12, The Catering Wages Act, 1943,
prescribed minimum wages payable to workers in catering establishments. The
schedules to the Act provided for minimum wages: (i) when the employer

10. Cardozo: Nature o f the Judicial Process, p. 221.

11. (1889) 15 NY 506.
12. (1954) 1 A11ER 201.
 Chap. XVII] Legislation 121

supplies the worker with full board and lodging; (if) when the employer supplies
the worker with neither full board nor lodging.
The plaintiff was a worker in a catering establishment. She was provided
with full board but not with lodging. She claimed that she was paid less than
the minimum wages payable under the Act. Lord Goddard, C.J., dismissing the
■action observed: ‘‘I think there is a casus omissus, and that the draftsman has
forgotten to provide for the case where, as here, board is provided, but not
lodging within the meaning of the schedule. I suppose it was thought that full
board would only be supplied when lodgings were provided, and, as I have said,
lodging seems to be put out of account here. These people were there full time,
and so, therefore, you have got this unfortunate hiatus. One always tries to
construe words so as to give them a sensible construction and prevent their
failure, but I do not know of any canon of construction which enables me to
construe ‘where the employer supplies the worker with neither board nor
lodging’ to include a case where the employer supplies full board but no
lodging. I can’t rewrite the legislation. I must enter judgment for the
defendant.”
RULE OF EJUSDEM GENERIS
Rule of Ejusdem Generis: According to rule of ejusdem generis, the words
of a statute should be understood in their context and this rule requires that
when general words are used in a summarising or comprehensive manner, they
should be taken as referring only to those kinds of things with which the context
deals explicitly or implicitly. In Byren’s Law Dictionary the rule of ejusdem
generis had been explained as follows: ‘‘It is a rule of legal construction that
general words following enumeration of particulars are to have their generality
limited by reference to the preceding particular enumeration and to be construed
as including only all other articles of the like nature and quality.”
6. THE RELATIVE MERITS OF LEGISLATION AND PRECEDENT
Legislation is today the most important instrument of legal e volution and in
the opinion of some jurists bids fair to become the exclusive material source of
law. In countries where the rule of stare decisis obtains, precedent or case-law
takes rank as a material source of law, next only to legislation in point of
importance. We shall now discuss the relative merits of these two methods of
legal evolution.
ADVANTAGES OF LEGISLATION OVER PRECEDENT
(1) Abrogative power: The obvious superiority of legislation over
precedent arises from its abrogative power. Legislation is the easiest instrument
of excision and is resorted to for abolishing existing law and substituting
something better in its place. Precedent, on the other hand, can create new law
only so far as the new law is not in conflict with the old. Judicial decisions
cannot brush aside a settled rule of law however pernicious it may be in
122 Sources of Law [Part IV

practice. As C.J. Holmes said: “A Common Law Judge could not say ‘I think
the doctrine of consideration a bit of historical nonsense and shall not enforce it
in my court.’ ” It is only by legislation that settled law can be effectively
altered.
Comparison of legislation and precedent as instruments of legal
reform: Legislation is undoubtedly indispensable for legal reform. Though
precedent has only constitutive efficacy and cannot discharge the abrogative
function, it must not be forgotten that historically legal amelioration was
effected by judges before legislators came on the scene. An illustration given by
Dicey in Law and Opinion in England brings out the respective characteristics
of judicial and legislative reform. The law relating to the proprietary rights of
married women, he points out, worked great hardship on women at common
law. The wife lost and the husband acquired immediately upon marriage all
disposing power over her property. The Court of Equity set to work and
gradually developed the doctrine that property could be given for the separate
use of a woman, whether before or after marriage, to a trustee who would be
obliged by the court to hold it for her exclusive benefit and to enable her to
dispose of the property and its income as if she were unmarried. Where no
trustee was appointed, the husband was obliged to hold his legal ownership as
trustee for the wife. In order that married women might not be persuaded or
coerced against their will to exercise in favour of their husbands the power of
disposition thus assured to the wives, the Chancellors of Equity developed the
doctrine of restraint on anticipation so that a woman could not during her
coverture assign the income or sell or charge the corpus of the estate. The whole
of this reform achieved by judicial methods occupied upwards of two centuries
before it could be perfected and made effectual. The Married Women’s Property
Act, 1882, carried out this reform at one legislative stroke. Dicey remarks:
“Parliamentary legislation from the time when it began to operate produced its
effect with great rapidity. . . . The Court of Chancery, it may be said, took
centuries to work out incompletely a reform which Parliament at last carried out
with more or less completeness in less than quarter of a century.” 13 Dicey no
doubt points out that “in fairness we must remember that parliamentary
reformers borrowed the ideas on which they acted from the Courts of Equity,
and that during the centuries the Court of Chancery was gradually but
systematically removing for the benefit of married women the injustice of the
Common Law, Parliament did little or nothing to save any woman from rales
under which marriage might and sometimes did deprive her of the whole of her
property” 14.
It is clear that as an instrument of legal reform legislation is superior to
precedent. As Benjamin Cardozo observes: “Legislation can eradicate a cancer,
right some hoary wrong, correct some established evil, which defies the feebler

13. Dicey: Law and Opinion in England, p, 396.

14. Dicey: Law and Opinion in England, p. 396.
Chap. X V //] Legislation 123

remedies, the distinctions, the fictions, familiar to the judicial process” .15 The
value of legislation as an instrument of reform cannot be under-estimated.
(2) Prospective Operation: A rule of judiciary law is always an ex post
facto law in relation to the decided case by which the rule is introduced. Its
operation is retrospective being applied to facts which are prior in date to the
law itself. This is opposed to the fundamental principle of natural justice that the
law shall be known before a person is to suffer for its infraction. On this ground
Bentham inveighed against judicial ‘law-making'. In his Comment on the
Commentaries, he observed: “Is it not to be wished that a man could know for
certain, the legal consequences of his doing an act before he does it ? Is it not to
be wished that a method could be adopted whereby a man meaning to conform
to the law might save himself from punishment in one case, from
disappointment in another, from litigation (which to be unsuccessful in subjects
to punishment) from litigation, I say, in both ?” 16178The remedy suggested by
Bentham is “transforming the rule of conduct from common law into statute
law, that is, as I might say, into law from no-law; to mark out the line of the
subject’s conduct by visible directions, instead of abandoning him in the wilds
of perpetual conjecture” 11.
Legislation is free from this defect for its formal declaration precedes its
enforcement by courts. Some statutes are no doubt given retrospective
operation. This, however, is done rarely and in exceptional cases when there is
justification for the course in high public policy.
Illustration of Retrospective Legislation: An instructive instance is
furnished by the history of the Mussalman Wakf Validating Act. The Privy
Council decided in Rasamaya v. Fiata Mahomed1S, that a wakf (trust) for the
benefit of the members of the wakif s family from generation to generation and
in their absence for the benefit of the poor, was invalid and could not be given
effect to. Such wakfs had the sanction of the Koranic law and had always been
regarded as valid by Mahomedan jurists of eminence. The decision of the Privy
Council caused a widespread feeling of alarm among the Mahomedan
inhabitants of India. The Mussalman Wakf Validating Act, VI of 1913, was
passed to validate such wakfs. This Act had no retrospective operation and so
could not save trusts of the kind permitted by that Act, but created before it
came into force. There was continuous public agitation for remedying this
defect with the result that Act XXXII of 1930 was passed giving retrospective
effect to the provisions of the previous Act.
Statutes usually Prospective: Retrospective statutes are uncommon and
the courts always presume a statute to have only prospective operation. Statutes

15. Cardozo: The Growth o f the Law, p. 134.

16. Bentham: Comment on the Commentaries, p. 102.
17. Ibid., p. 104.
18. 22 Cal 619(PC).
124 Sources of Law [Part IV

thus usually satisfy our notion of natural justice that laws shall be known before
they are enforced.
(3) Coherency: “Case-law” , says Cardozo, “is the output of a multitude of
minds and must be expected to contain its proportion of vagaries” 19. The law
made by judges has to develop from precedent to precedent. It is every time
restricted to the particular case which gives occasion for its formulation and
application. The rule which it can lay down is limited to a narrow species
although the genus, which includes the species, ought to be provided'for at the
same time by a comprehensive rule. Judiciary law is therefore bound to be
lacking in coherency and completeness. Through legislation, on the other hand,
the law lends itself to a systematic treatment. This is no mean advantage to
legislation over case-law.
Dicey’s view: That a case-law system is not as coherent or consistent as a
system of statute law is not admitted by Dicey who observes: “Judicial
legislation aims to a far greater extent than do enactments passed by Parliament,
at the maintenance of the logic or the symmetry of the law. The main
employment of a court is the application of well-known legal principles to the
solution of given cases, and the deduction from those principles of their fair
logical result. Men trained in and for this kind of employment acquire a logical
conscience; they come to care greatly—in some cases excessively—for
consistency”20.
(4) Certainty: A legal system secures greater certainty when the law is
codified by legislation than when it stands on the basis of case-law. Precedents
are dependent upon concrete cases coming before the courts for decision. They
cannot by way of anticipation make rules for cases that might arise in the future.
A great many gaps and vacancies are therefore bound to exist in a system of
case-law. The element of uncertainty is greater in such a system than under
enacted law. Sir John Salmond, while accepting this position, points out that a
legislator having only hypothetical cases in view cannot make provision
adequately for all the complications that may arise in actual practice. The judge,
on the other hand, being face to face with the problem as it arises in actual life,
can lay down rules better suited to attain the ends that have to be kept in view.
View of Amos: Some jurists deny that the law is more uncertain when it is
based on precedents than when it is founded on enacted law. Continental
countries like France have codified their laws but it appears that the law has not
gained in certainty thereby. Sheldon Amos observes: “The greatest possible
uncertainty and vacillation that have ever been charged upon English law are
little more than insignificant aberrations when compared with what a French
Advocate has to prepare himself for when called upon to advise a client It is
well-known, for instance, that the set of French codes, which in time became the

19. Cardozo: The Growth o f Law, p. 5.

20. Dicey: Law and Public Opinion in England, p. 364.
Chap. XVII] Legislation 125

most comprehensive and self-dependent of all, have been completely overridden

by the interpretations of successive and voluminous commentators, as well as by
the constantly accumulating decisions of the Court of Cessation” 21.
Fallacy of the view of Amos: Amos has only demonstrated that uncertainty
may persist in a legal system even if it is based on enacted law. The law,
whether statutory or judiciary, can never be adequate to existing needs and its
gaps are revealed when novel combinations of facts present themselves for
judicial decision. Only by legislation, however, can a conscious effort be made
to fill as many of these gaps as can reasonably be foreseen. In this sense we
have to admit that legislation is capable of ensuring greater certainty in the legal
system than precedent.
(5) Clarity and Accessibility: A statute is expressed in abstract terms as a
series of general rules. It is therefore, clear and concise and may be understood
by the layman. A law made by judicial decisions, on the other hand, exists
nowhere in a general or abstract form. The rule of law is contained in the
decision itself and has to be ascertained by a process of induction. The process
may be analysed thus: one should consider first the particular circumstances of
the case .and the general propositions which the judge lays down. Then one must
reject those general propositions that are not called for by the peculiar
circumstances of the case, for these are obiter dicta and irrelevant. Finally the
general propositions pertinent to the facts must be freed from such modifications
as are suggested by the peculiar circumstances of the case. Then there would be
left a general rule applicable to cases of a class which is called the ratio
decidendi. It is this that contains law laid down by the decisions. The process of
extracting the law from decided cases is thus a difficult one which can be
undertaken only by a professionally trained person. The bulk of the people are
therefore not in a position to comprehend the rules of judiciary law. A statute
law, on the other hand, being stated as succinct propositions, is easy of
comprehension. Moreover, judiciary law being imbedded in numerous law
reports is not as easily accessible as statutory law which is contained in specific
enactments.
ADVANTAGES OF PRECEDENT OVER LEGISLATION
Some of the merits of precedent or case-law have already been noticed in
the course of the above discussion. We have seen that the rules of judiciary law
are better adapted to serve the desired ends than the mles laid down a priori by
the legislature. They are also worked out with greater logical consistency and
symmetry than statute law since they are made by judges trained in law and the
administration of justice. Two other merits of judiciary law may be noticed here.
Better Ethical Content: “The morality of the courts” , says Dicey, “is
higher than the morality of politicians.” 22 Not infrequently, we feel at liberty to

21. Amos: An English Code, p. 125.

22. Dicey: Law and Opinion in England, p. 368.
126 Sources of Law [Part IV

denounce statutes as wrong, tyrannical and unjust. It is because legislation is

generally the product of the will of politicians who are liable to be affected by
popular passions of the hour. Judiciary law, on the other hand, is made in the
serene atmosphere of courts of justice by persons trained to hold the scales of
justice evenly. Judiciary law is thus more equitable than statutory law. This
conclusion is reinforced when we contrast drastic expropriatory legislation in
favour of debtors undertaken in some of our States with the relief against usury
and penal rates of interest that judicial practice has sanctioned.
Flexibility: Sir John Salmond points out that one of the advantages of a
system of case-law over enacted law consists in the greater flexibility of the
former. Rigidity is the capital defect of statute law. In the case of statute law the
letter of the law governs and so the true spirit of the law has sometimes to be
sacrificed. The phraseology employed by a statute may fail adequately to
express its true intendment. The courts, however, are bound by the literal
expression and it not infrequently happens that the reason of the law is defeated
by strict adherence to the letter. This cannot happen in the case of precedent for
the duty of the court is to reach the spirit of the decision, the underlying ratio
decidendi. .Since it is not the literal expression but the reason of the rale that
matters, analogical extension is permissible in the case of precedents. The
system thus assumes a flexible character and broadens from precedent to
precedent.
7. CODIFICATION
Meaning of Codification: Codification is the methodical arrangement of
the whole body of the law or of any particular branch of it so as to present it in
the form of a systematic statement of general principles and rules. It involves the
reduction of the corpus juris, so far as practicable, to statutory form. It need not
necessarily involve any change in the matter of the law though the occasion for
codification is naturally availed of to effect desirable reforms in the existing
law.
Effect of Codification: It is sometimes supposed that codification dispenses
with the need for exposition of the law by persons professionally trained in law.
When codification was first attempted in Germany, in a Cabinet Order of 1.780,
the King thus expressed himself: “If I attain my end, matters will become so
simplified that the members of the legal profession generally will lose the
mysterious respect that is paid them for the subtleties they trade in and the
whole body of modem advocates will be rendered useless” . This view as to the
effect of codification has been confuted by the experience of continental codes.
Judicial exposition of the law with the assistance of advocates professionally
trained will be necessary even after the most comprehensive codification of the
law has been effected. Precedent as a source of law cannot be altogether
eliminated by codification. With the advent of codification, however, case-law
ceases to be the groundwork of the legal system and becomes supplementary to
enacted law. Case-law retains its importance now as a judicial commentary
Chap. XVII] Legislation 127

upon the code removing by way of decisions any ambiguities and

inconsistencies in it. Amos suggests the preparation of a series of yearly reports
to the legislature on the operation of the code which, at the end of each ten
years, will form the basis for the amendment of the code.23 The code as
amended would, of course, be subjected to the process of judicial interpretation
as before.

23. Amos: An English Codey p. 77.