Legislation

Theoretical overview

The term ‘legislation’ is derived from the Latin word legis meaning law and latum which means “to make” or “set”. Thus legislation means ‘making of law’, it is the source of law that consists of the declaration of legal rules by a competent authority. 

There are two reasons why legislation is regarded as one of the most effective sources of law. 

Firstly, it involves laying down legal rules by the legislature which the state recognizes as law. 

Secondly, it has the force and authority of the state.  

In a strict sense, the term legislation means enacted law or statute law passed by the supreme or subordinate legislature. 

Gray pointed out that legislation includes “formal utterances of the legislative organs of the society.” 

Salmon observed that legislation is the source of law that consists of the declaration of legal rules by a competent authority.

It is considered to be one of the primary sources of law. Legislation has a very wide ambit and is used in providing various types of requirements such as to regulate, authorize, enable, prescribe, provide funds, sanction, grant, declare, or restrict. 

A parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. Most of the power of the legislature is restricted by the nation’s constitution. Although the legislation has the power to legislate the court has the power to interpret statutes, treaties, and regulations.

Types of legislation :

1. Supreme legislation :Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by another body. Indian Parliament cannot be said to be a sovereign law-making body as the laws passed by the parliament can be challenged in the courts. The British Parliament, on the other hand, can be said to be a sovereign law-making body since the validity of laws passed by it cannot be challenged in any court. 
2. Subordinate legislation : Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The subordinate body must have derived its law-making authority from a sovereign law-making body. It is subject to the control of the supreme legislative body. 

The following are the different kinds of subordinate legislation:

1. Executive Legislation: The legislature, i.e., the Parliament quite often delegates its rulemaking power to certain departments of the executive organ of Government. The rules made in pursuance of this delegated power have the force of law.  In the case of Union of India v. Cynide India Ltd Supreme Court held that Executive legislation in India includes the power to make rules, regulations, and bye-laws for administrative matters such as fixing prices or deciding a suitable place for markets, taxation, setting up incorporated bodies, etc.
2. Judicial Legislation :In certain cases, legislative power of rule- making is delegated to the judiciary and the superior courts are authorized to make rules for regulation of their own procedure in exercise of this power. This is known as Judicial Legislation. The Constitution of India has conferred the power of rule-making to the Supreme Court under Article 145. Similar power is conferred to the High Court under Article 227 of the Constitution.
3. Delegated Legislation: Delegated Legislation is legislation made by any authority other than the legislature. It denotes the rules, orders, notifications, bye-laws, or directions made by the executive authorities under the law passed by the Parliament. It also means the output of the exercise of power. Delegated legislation is further deemed necessary to meet the cases of emergency arising of war, insurrection, floods, economic depression, epidemics, etc. The executive must, therefore, be armed with rulemaking power so that it may initiate appropriate remedial action immediately without waiting for the law to be passed by the legislature which is a lengthy process.
4. Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc. 

Advantages of legislation as a source of law:

1. Abrogative Power: – It has the authority to amend or repeal existing laws that are not under the control of several sources. Also, Legislation has both a constitutive and an abrogative function;
2. Effectiveness: – Legislation allows for a more efficient division of labor by separating the two functions of making and enforcing the law. As a result, efficiency improves;
3. Declaration: – It establishes that legal concepts will be known before they are enacted. Justice requires that laws be known before they are implemented and enforced by the courts, yet the ease legislation operates retrospectively, applying to facts that occurred before the law was enacted. In its application, statute law is rarely retrospective. Then legislation passes the test of a court of justice’s interpretation of the statute. If any changes to the adopted law are suggested, they are disclosed and public input is sought.
4. Incomparable in Form: – Legislation is superior in form because it is brief, clear, easily accessible, and understandable, whereas valuable case law must be extracted from a mountain of dross. Before the ratio is decided or case law can be discovered, one must read the entire judgment. As Salmond puts it, ease law is “gold in the mine,” a few grams of precious metal for every tonne of useless material, whereas statute law is “coin of the realm,” ready for immediate use; and
5.  Provision for Future Cases: – Legislation can make rules for cases that have not yet occurred. As soon as a defect is brought to the legislature’s attention, it can fill a vacancy or settle a dispute in the legal system.

Points to remember:

• The term ‘legislation’ is derived from the Latin word legis meaning law and latum which means “to make” or “set”.
• legislation means ‘making of law’, it is the source of law that consists of the declaration of legal rules by a competent authority. 
• Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by another body.
• Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The subordinate body must have derived its law-making authority from a sovereign law-making body. It is subject to the control of the supreme legislative body.
• the Parliament quite often delegates its rulemaking power to certain departments of the executive organ of Government.
• Delegated Legislation is legislation made by any authority other than the legislature. It denotes the rules, orders, notifications, bye-laws, or directions made by the executive authorities under the law passed by the Parliament. It also means the output of the exercise of power