This article is written by Sambit Rath, a B.A LL.B student of Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, the author aims to discuss the various types and subtypes of legislation. Also, a comparison of legislation with customs and precedents has been done for better understanding.
It has been published by Rachit Garg.
Humans are social creatures who depend on each other for survival. This dependence creates relationships. In modern society, it has become essential to regulate these relationships. As time has passed, the relationships between individuals and groups have also evolved to include the relationship between man and the state. In order to exercise control over its citizens and to maintain authority, the state or the sovereign creates laws. This creation of laws is termed legislation. It is one of the most important functions of the sovereign.
The people of India are the sovereign because the ultimate power rests with them. The government is elected by the people of India and, hence, it becomes a medium through which power is exercised. From a basic transaction between two individuals to massive contracts between multinational companies, from the manufacturing of toothbrushes to the manufacturing of rockets, everything is regulated by these laws. It is through these laws that the government ensures the ideal behaviour of the citizens towards each other and towards the country. But it is not only Parliament that makes laws. There are others entrusted with this duty. Also, there is more than one type of legislation. Let’s take a look at these.
What is a legislation
The common meaning of “legislation” is the making of a law. It is made up of two words, “legis” and “latum.” Legis means law and latum means making. Thus, legislation may be defined as the promulgation of laws by an authority that is empowered to do so. It is made by the legislature in anticipation of the needs of society. The legislation includes laws made by sources such as precedents, customs, conventional laws, etc. The lawmaking body is known as the legislature. Under the doctrine of separation of powers, legislation is one of the three important functions of the government. These include:
- Legislature – It is the body that makes laws.
- Judiciary – It is the body that interprets laws.
- Executive – It is the body that applies laws.
Legislation can have a wide and narrow meaning. In its wide sense, it includes all the methods of lawmaking. In its narrow sense, it includes laws made by the sovereign or subordinate legislator. Let’s look at both in detail.
Wide Sense of Legislation
As we discussed above, it includes every method of lawmaking.
- Addition or alteration: Acts made by the Parliament that add to the existing laws or alter them.
- Precedent set by Court: While judges pronounce judgement, they apply certain principles to arrive at their decision. This decision then becomes a precedent to guide the courts in future cases. This is also a method of lawmaking. For example, the landmark judgement of the Supreme Court in Kesavananda Bharati v. State of Kerala laid down the Doctrine of Basic Structure. This meant that no law made by Parliament could alter the basic structure of the Constitution.
- Every other expression of the will of the Legislature: Every expression of the legislature, whether directed to making rules or not, like Acts that ratify a treaty, declare war, etc falls within the wide sense of legislation.
- Customs, rituals, and past practices can also be included in this broad sense. These are mostly unwritten laws.
Narrow Sense of Legislation
In its strict sense, we look at legislation as a source of law. These include:
- Legal Rules: Laying down legal rules by the sovereign or subordinate legislator through enactments or subordinate legislation.
- Enacted law: Statute law made by the Parliament or the State Legislature. It would not include delegated legislation. Blackstone uses the terms “written and unwritten law” to draw the distinction.
Types of legislation
As we have seen in the above section, ‘legislation’ can be divided into different types based on its interpretation and function. Salmond said that legislation is either supreme or subordinate. The first kind of division is on the basis of authority; i.e., into Supreme and Subordinate legislation.
It is the legislation that is made by the sovereign authority of the State. It cannot be repealed, annulled, or controlled by any other legislative authority. For example, in India, the Parliament is the supreme legislator.
It is also known as delegated legislation. This kind of legislation includes legislation made by some other authority than the Supreme Legislator. The power of delegated legislation is given by the Supreme Legislator to the Subordinate Legislator, and the latter has to work within the limits set by the former. It can be altered or abrogated by the sovereign authority. It is important to note that there is no provision in the Constitution that enables Parliament to delegate its powers, but there is no provision that prevents it either. There are mostly five types of subordinate legislation. These are:
The countries which are colonised make laws to regulate their populace. These countries are under the control of a different state and do not have supreme authority to make laws. Laws made by these countries are subject to guidelines prepared by the state under whose control they are. For example, the British Parliament was the supreme legislator when it ruled over colonies and had given them powers to exercise self-governance. But the laws made by them could be annulled or modified as per the wishes of the British Parliament.
The function of the executive is to implement the laws made by Parliament. Along with this, the executive is also given subordinate legislative powers to make rules that supplement the supreme legislation. Such powers are given to the executive in order to find the best possible way to implement the supreme law. Some degree of autonomy is required when powers are delegated. For example, the Defence of India Act.
The judiciary also possesses certain delegated powers to make rules for their purposes. The superior courts have the power to make rules for the regulation of their own procedure. This is different from the legislative action of creating laws by precedent. For example, the Delhi High Court Rules govern the Delhi High Court.
Municipal bodies are entrusted with subordinate powers to establish laws specific to the districts under their control. These bodies make bye-laws and such legislation may be termed municipal. The range of subjects they deal with is immense. For example, town planning schemes, traffic, cleanliness, buildings, etc.
The State can allow private institutions to make laws for their functioning. These institutions include universities, the Railway Company, the Bar Council of India, the University Grants Commission, etc. They can make bye-laws that are recognized and enforced by the courts. For example, UGC Regulations by the University Grants Commission.
Conditional legislation may also be called contingent legislation. In this type of legislation, a statute provides powers to the administrative authority to determine when a law should be applied or when it comes into force. but adds some specifications along with them. These specifiers are conditions, and when these conditions are fulfilled, the powers of the delegated authority become activated. Hence, the authority is empowered to determine, based on its own judgement, whether these conditions are fulfilled or not.
This kind of delegation happens when an administrative authority on whom legislative powers are conferred upon by Parliament further delegates these powers to another subordinate authority. This is permitted only if the Parent Act contains provisions that enable such a kind of delegation. The maxim, “delegatus non potestdelegare,” indicates that sub-delegation of powers is not permissible, although the legislature can always provide for it.
Legislation as a custom
A custom is a habitual course of conduct observed uniformly and voluntarily by the people. In all societies, custom plays a huge role in regulating human conduct. The word ‘custom’ is derived from the French word “costume,” meaning tradition, practice, or usage. In Hindi, custom means “reeti” or “riwaaj.” It was created by the people, and its authority lies in its long-continued use by the people.
Legislation and custom have some things in common. They are:
- Both legislation and custom are considered sources of law.
- Legislation and custom have the same function of regulating human conduct in a society.
- Both are followed by a majority of the population.
To understand the nature of custom and legislation, an insight into their differences is necessary. The differences between the two are as follows:
- Legislation is actively made by the sovereign using its definite power, whereas custom is something that has evolved as a practice over the years.
- Legislation requires the existence of an authority to make it. Without the existence of a competent authority, there could be no law as such, because nobody would abide by it. A custom doesn’t have such requirements as it is followed and promoted by the people voluntarily.
- Legislation is specific when it comes to things like who are the parties involved, what is their relationship, what are the consequences of action and inaction, etc. Customs, on the other hand, are not clear or specific. This is because customs are not codified and are thus prone to modification by different societies.
- Legislation derives its authority from the will of the State. Customs derive their authority from the will of the people.
- Legislation is considered superior and more authoritative compared to customs.
- Legislation is more flexible compared to customs because it can be changed according to the demands of society and the current scenario. Customs, on the other hand, cannot change as quickly because their evolution is gradual.
- Legislation ceases to exist when it is abolished by the sovereign. Customs cease to exist when they are gradually unfollowed by their followers.
Difference between legislation and precedent
As we have discussed earlier, precedents are decisions that serve as a guide for the courts to deal with similar matters in the future. When compared to legislation, certain differences arise between the two:
|1||Aim||The primary aim of legislation is to make law.||The aim of precedent is to interpret and apply the law.|
|2||Authority||Legislation is enacted by the state.||Precedents are set by the courts.|
|3||Power||Legislation has the power to abrogate any law, be it statute or precedent.||Precedents can only stop the operation of a rule if it violates the provisions of the Constitution.|
|4||Ease of Understanding||Legislation is clear, concise, and codified. This makes it easier to understand and follow.||Precedents, on the other hand, are not easily understood by everyone as one has to go through the entire case law in order to identify the precedent.|
|5||Lawmaking||Legislation makes rules by anticipating the requirements of society.||Precedents make rules only when a case arises before the courts. Precedents are dependent on litigation.|
|6||Applicability||Legislation is mostly prospective and can be retrospective at times if it so chooses.||Precedents are retrospective in nature.|
|7||Method used||In precedents, rules are laid down using the inductive method. This is because courts pick laws from the statutes and apply them.||In legislation, a deductive method is used.|
As a source of law, legislation is considered the most important. By looking at the various differences between legislation, custom, and precedent, we can safely conclude that legislation is the most powerful and thus carries the most authority. The codification of laws makes them easier for both citizens and foreigners to understand. When information is presented in a structured manner, it instantly becomes more favourable as a source of knowledge.
Many countries in the world use legislation as a source of law and a tool to regulate everything that is happening in the country. Some countries have also imbibed a few customs of their society into their laws. India is one of those countries. There are a lot of factors to be considered while making the decision to include a custom into the country’s law. Precedents, on the other hand, also play a big role in the country’s overall legal ecosystem. Hence, it is safe to say that all three play their part in the functioning of a country.
Frequently Asked Questions (FAQs)
What happens if delegated power is further delegated by the administration authority?
According to established precedents, the authority that is sub-delegated will be struck down by the courts. It was held in A.K. Roy and Anr. vs. State Of Punjab and Ors, that delegated powers cannot be further delegated.
What is the difference between custom and legislation?
Both custom and legislation can be differentiated based on different factors. One key difference between the two is that legislation is actively created by the sovereign using its powers. Whereas, custom evolves as a practice over the years.
Why is delegated legislation necessary?
Delegated legislation is necessary because Parliament being the supreme legislator cannot possibly make laws relating to every matter. Even if it tries to, it will take ages to do so. Laws are made to address certain concerns that are in the present. By the time the Parliament enacts a necessary law through its already long procedure, the need for that law may not exist anymore. So, in order to expedite this process, legislative powers are delegated to subordinate legislators.
- Uni-5.pdf (uok.edu.in)
- Custom As A Source of Law – Law Corner
- Legislation Definition & Meaning – Merriam-Webster
- Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973 (indiankanoon.org)
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