Legislation
# Meaning:
The term ‘Legislation’ is
derived from two Latin words, ‘Legis’
which means a ‘law’ and ‘Latum’ which means, ‘to make, put or
set’. Thus legislation means making a law.
The term ‘legislation’ has
been used in different senses. In its broadest sense it includes all methods of
law making including judge-made rules of law, and even the particular rules of
law, or the rights created at law between parties to contracts. In its technical
sense it includes every expression of the will of the legislature, whether
meant for making law or not. In its strict sense it may be termed as enacted
law or statue law or written law to be followed and enforced in the courts of
the state. These rules or laws can be only be made by a competent law-making
body, i.e., a body which, under the constitution of the state, is empowered to
make law. But when we use the term ‘legislation’ as a source of law, we mean
law making by a defined person or body and not customary or conventional law or
judicial decisions.
Gray defines legislation
as “the formal utterance of the legislative organs of the society”. As Salmon
puts it, “legislation is that source of law which consists in the declaration
of legal rules by a competent authority”. Bentham and Austin signify the term
‘legislation’ as any form of law-making.
#Kinds of Legislation:
Legislation
may be divided into two forms –
1.
Supreme Legislation
Legislation
is said to be supreme legislation when the authority under which the law is
enacted as a supreme authority or a sovereign law-making body like a
legislature of an independent and sovereign state. It is supreme because no
other authority can annul, modify or control it. The characteristic of such
legislation is that it cannot be abrogated or invalidated by any other
legislative authority. The laws enacted by the parliament in England are the
examples of supreme legislation. Neither the parliament of India nor the senate
of USA can really be called sovereign law-making body, because the validity of
its law can be challenged in a court of law, and the Act, or a portion of it,
passed by the legislature, may be declared ultra
vires.
2.
Subordinate Legislation
Legislation
is said to be subordinate when the legislature is a subordinate law-making body
deriving its power from the sovereign authority, i.e., a higher and paramount
legislature. Legislation by subordinate law-making body is capable of being
controlled by the Supreme authority. Subordinate forms of legislation derive
their authority to legislate only by delegation, express or implied, of the
supreme power. In England, rules, bye-laws, regulations made by the bodies in
pursuance to the Act of parliament are the examples of subordinate legislation.
In India, Municipal Corporations, University bodies, Railway Companies and
clubs have got powers to make rules and orders governing themselves and their
members. According to Salmond, the Chief forms of subordinate legislation are
the following:
i) Colonial Legislation – Formerly, Britain has had many colonies and
dominions. Legislation by the legislature of the colonies for the
self-government is subject to the control, alteration, repeal or supersession
by the legislation of the British Parliament. As the colonies achieved
independence this class of subordinate legislation is obsolete today.
ii) Executive Legislation – The legislative body enacts the fundamentals
only conferring upon the executive a rule-making power for carrying out the
intentions of the legislature. The rules made in pursuance of this power of
delegated legislation have the force of law.
Thus, this kind of legislative power possessed by the executive is a species of
subordinate legislation.
iii) Judicial Legislation – Law-making power is also exercised by the law
courts for the regulation of their internal business proceedings of the courts
concerning their day to day functioning. This is known as Judicial Legislation
and is different from judicial precedent.
iv) Municipal Legislation – The bye-law making power of municipal
authorities is another form of subordinate legislation. The municipal
authorities have the power to make rules for the areas under their jurisdiction
concerning water, land, urban cess, house tax, etc.
v) Autonomous Legislation – Autonomous bodies like universities,
corporations, railway companies, clubs, etc. have the power to make rules for
the conduct of their business. These rules too are made by them in conformity
with the Act of Parliament.
#Legislation
& Precedent
v
Advantages of Legislation
Over Precedent:
1)
Abrogative Power – It is its abrogative power and amending
facility that gives legislation superiority over precedents. Legislation in
both constitutive and abrogative whereas precedent merely possesses constitutive
efficacy. Legislative is not only a source of law. Precedent, on the other
hand, cannot abrogate the existing rule of law although it may produce very
good law and in some respect better than legislation. What it does, it does
once and for all. It cannot retrace its steps.
2)
Efficiency – Legislation allows an advantageous division of labour by
dividing the two functions of making law and administering it. This results in
increased efficiency. Precedent, on the contrary, unites in the same hands the
business of making the law and that of enforcing it.
3)
Declaration – Justice demands that law should be known before
they are applied and enforced by the law courts, but the case law operated
retrospectively, being applied to facts which are prior in date to the law
itself. Statue law is seldom retrospective in its operation. Then legislation
withstands the test of an interpretation of the statue by the courts of
justice. If any alterations are proposed in the enacted law, they are published
and opinions invited. Case law, on the contrary, is created and declared at one
and the same time.
4)
Provision for future cases – Legislation can make rules in
anticipation for cases that have not as yet arisen, whereas precedent must wait
for the occurrence of some dispute before the court can create any definite
rule of law. Precedent is dependent on, and legislation is independent of the
accidental source of legislation. Legislation can fill up vacancy or settle a
doubt in legal system as soon as the defect is brought to the notice of the
legislation. This is not possible in the case of precedent. Case-law,
therefore, is incomplete, uncertain and unsystematic.
5)
Form
– Statue law is greatly superior to case law in point of form. Statue law is
definite, brief, clear and easily understandable. In precedent, to know
principles and rules one will have to look into the details of the case. As
Salmond observes, case-law is gold in mine – a few grams of precious metal to
the ton of useless material – while statue law is coin of the realm, ready for
immediate use.
6)
Coherency – Judiciary law is bound to be lacking in coherency and
completeness because, it is restricted to the particular case only at every
time. Through legislation, on the other hand, the law lends itself to a
systematic treatment. This is no mean advantage to legislation over case-law.
7)
Certainty – A legal system secures greater certainty when the law is
codified by legislation than when it stands on the basis of case-law.
8)
Clarity & Accessibility – A statue 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 and abstract form. In precedents, rules and
principles are laid down by inductive method. In legislation the deductive
method is resorted to. The courts take the ruled from the statue and apply it
to particular case.
v
Advantages of Precedent
over Legislation
1)
Better Ethical content: “The morality of the courts”, says Dicey “is
higher than the morality of politicians”. Legislation is the product of the
will of politicians who are affected by the popular feelings and passions. That
is why the judiciary often denounces statues as wrong, tyrannical, unjust or
contrary to fundamental principles laid down in the written Constitution.
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.
2)
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 statue law. In the
case of statue 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 statue may
fail adequately to express its true
intendment, but the courts are bound by the literal expression. Thus statue law
is not always superior to case law in point of clarity, nor yet always inferior
to it in point of flexibility.
v
Delegated Legislation
Delegated Legislation is a kind of subordinate
legislation. It means law made by the executive under the powers delegated to
it by the supreme legislative authority. The term ‘Delegated Legislation’ has
two meanings:-
1.
First,
it means the exercise of power that is delegated to the executive to make
rules;
2.
Secondly,
it means the rules or regulations made under the power so given.
Individualisation which dominated the 19th
century political thought laid emphasis on the fact that an individual was the
best judge of his own interests and that the greatest service which the state
could do to him was to let him alone. The only legitimate function for the
state was the maintenance of the law and order within the country. The position
is different today. Now State is assuming more and more responsibility for
promoting the welfare of its citizens, e.g. health, education, employment,
trade, industry, commerce and other services. The concept of negative state has
turned into a welfare state. It involves the necessity of entrusting the
executive with numerous powers, including that of delegated legislation.
Ø
Reasons for Delegated Legislation
The circumstances particularly favouring delegated
legislation are as follows:
i)
Want of Time – Parliament is too busy a body. If it devotes
its time on entering into minor and subsidiary details and attempts to law down
all rules itself, all of its time will be consumed in preparing only a few
Acts. The pressure of time prevents Parliament to provide all the details in an
Act and, therefore, it has to confer on the executive the rule-making power to
supplement the Act.
ii)
Technicality of the Matters – Many rules which have to be made
effective the policy of the Act are of technical nature and require consultants
with the experts. It is, therefore, more convenient to delegate such
rule-making power to the experts who are none else than the executive itself.
iii)
Flexibility – The need for amplifying the main provisions of
social legislation to meet unforeseen contingencies or to facilitate
adjustments to new circumstances arises too frequently. The Parliamentary
process involves delays. The delegated legislation offers quick machinery for
amendments.
iv)
Emergency – An emergency may arise on account of war, insurrection,
floods, epidemics, economic depression and the like, for which the executive
must be armed with the rule-making power, that may be used instantly to meet
them.
v)
Local Matters – There are matters which concern only a
particular locality or particular group or profession. Any legislation on these
matters needs consultation with the people of that particular locality, group
or profession. Thus, regarding such legislation the departments are given
powers to make changes and rules in consultation with that person acquired with
and interested in it.
vi)
Changes – In some cases, such as, changes in rationing schemes or
imposition of import duty or exchange control, public interest requires that
the provisions of that law should not be known until the time fixed for that to
come into operation. Delegated legislation is the only means to achieve this
objective.
2) Dangers of Delegated
Legislation
The following are the
dangers of the delegated legislation as per Keith and Keeton:-
i)
Legislation
fails to make full laws by passing in too skeleton a form leaving wide powers
of action to executive.
ii)
Parliament
may fail to scrutinise the regulation of the executive due to inadequate time.
iii)
It
may create difficulties to the subjects (citizens) to obtain redress for
illegal actions done under the authority of delegated legislation.
iv)
Excessive
power maybe delegated to executive.
v)
The
Government Departments may assume a wider legislative competence than what the
Parliament has granted.
vi)
Some
of the regulations attempt to deprive the subjects of recourse to the law
courts for protection.
3. Safeguards Against The
Delegated Legislation
The following safeguards
have been generally suggested by jurists against delegated legislation:
i)
Parliamentary Control – There are many methods through which the
Parliament can exercise control. There are Selection Committees to examine
every instrument laid down before the Parliament with a view to determine
whether the special attention of the House should be drawn to it on certain
specified grounds. The rules made by the executive shall be laid before the
Parliament before it comes into operation.
ii)
Judicial Control – The main ground on which the interference of
the judiciary is made is that the authority to which the power is delegated has
exceeded it. The grounds on which courts declare a bye-law ultra vires are that it is unreasonable, or repugnant to the
fundamental laws of the country, or is vague, or it has not been made and
published in accordance with the rule prescribed for the same.
Publicity – It is necessary that due
publicity should be given to the delegated legislation, because without such
publicity it may be declared ultra vires.
