Legislation

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 19^th 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.