LEGISLATION
1. The term “legislation” is derived from two latin word , ‘legis’ meaning law and ‘latum’
meaning to make,put or set. Etyomologically, legislation means the making or the setting of
law.
2. According to the SALMOND, “legislation is that source of law which consists in the
declaration of legal rules by a competent authority”.
3. According to GRAY, “Legislation means the formal utterances of the legislative organs of
the society.
4. According to AUSTIN,”There can be no law without a legislative act.”
5. The term legislation includes every expression of the legislature , whether the same is
directed to the making of law or not. An Act of parliament may amount to nothing more than
establishing a uniform time throughout the realm or altering the coinage.
LEGISLATION AS THE SOURCE OF LAW:
1 .the view of the analytical school is that typical law is a statute and legislation is the normal
process of making .
2. The view of the historical school is that legislation is least creative sources of law .
legislation has no independent creative rle at all.
3. Both the analytical school and historical school go to extremes . The mistake made by
analytical school is that it regards legislation as the sole source of law while the historical
school doesn’t regard legislation as the source of law.
4. DEAN POUND points out that there are 2 types of legsislation . Those are the organising
type and creative type.The existence of the later cannot be doubted in modern times when
there is abnormal legislative activity.
5. Legislation has become the most important source of law now. It can be distinguished from
other sources of law. When we use the term ” legislation” we mean law making by a defined
person or body and not customary or conventional law or judicial decisions.
SUPREME AND SUBORDINATE LEGISLATION:
1. According to SALMOND , legislation is either supreme or subordinate.
2. The power of legislation vests in the sovereign authority of a politics community .
legislation may be direct or indirect.
SUPREME LEGISLATION:
1. Supreme legislation is by the sovereign power of the state. Therefore any other authority
within the state can, in no way , control or check it. In Britain, the parliament is sovereign . it
is legally omnipotent.
2. Indian parliament is also supreme . Though there are certain constitutional restrictions
upon its power. It is not subject to any other legislative authority within the state.
SUBORINATE LEGISLATION:
1. Legislation by any other authority than supreme authority than supreme authority in the
state. It is made under the powers delegated by the supreme authority.
2. Subordinate legislation owes its existence, validity and continuance to the supreme
authority.
AUTONOMOUS LAW:
1. When the supreme authority confers upon a group of individuals to legislate on the matters
entrusted to them as a group , the law made by the latter is called automatic law and the body
known as autonomous body.
2. For ex: Railways, universities may make law for the regulation of its understanding.
JUDICIAL RULES:
1. The superior courts are often allowed to make rules for the regulation of their own
procedure.
2. It is a true from of legislation although it cannot create new laws by way of procedure.
3. In India, the Supreme Court and the high courts have the power to make rules for their
respective procedures and administration.
LOCAL LAWS
1. Local bodies are given powers to make bye-laws concerning their local matters.
2. Bye-law made by a local body operates within its respective locality.
3. In India, such local bodies are municipal corporations, municipal boards, zila parishads,
etc. There is also a move for granting very wide powers to panchayats.
COLONIAL LAWS
1. The powers of self-government entrusted to the colonies and other dependencies of the
crown are subject to the control of the imperial legislature which may repeal, alter or
supersede any colonial enactment.
2. But after the statute of Westminster of 1931, the dominion legislatures have been given the
power to pass any law they please. Every dominion legislature has the power to repeal or
amend any law passed after 1931.
EXECUTIVE MADE LAW
1. The executive organ in addition to its usual function does some law making also. This too
is a kind of subordinate legislation. This power to the executive is delegated by the
legislature.
2. The legislative body enacts the fundamental only and the government departments
supplement it with details. In some cases, the executive decides issues or disputes also. It is
also known as delegated legislation.
DELEGATED LEGISLATION
1. Delegated legislation means the law made by the executive under the powers delegated to
it by the supreme legislative authority.
2. The committee on minister’s power said that the term ‘delegated legislation’ has two
meanings,
·
It means the exercise of power that is delegated to the executive to make rules.
·
It means the output or the rules or regulation made under the power so given.
HISTORICAL DEVELOPMENT OF DELEGATED LEGISLATION
1. The beginning of the practice of delegating power to government departments to make
rules can be traced in the Reform Act, 1832. This brought the state into intimate contact with
the people.
2. The First World War made it necessary to lead very wide discretions and rule making
powers in the hands of the executive. The famous case of R v. Halliday, in which the
authority of the executive remained unbridled, but even after the world war, there was no
change of position.
3. A committee of 17 members, which was called ‘committee of minister’s powers’ was
appointed to consider whether there was any departmental encroachment of sovereignty of
the parliament. The committee suggested a number of safeguards but they could not be
adopted in practice.
4. With the outbreak of the second world war, there was a tremendous increase in delegated
legislation. The case of Liverside v. Anderson is an example of the power assumed by the
excecutive.
REASONS FOR DELEGATED LEGISLATION
1. The time available for drafting bills to be passed into law by the parliament is not
adequate. If an attempt is made to draft detailed bills within a short period, the drafting is
bound to be defective.
2. It is impossible for any statesman or civil servant to foresee all the contingencies that
might arise in the future and provide for them in the bill when it is being passed by the
parliament. It will be convenient if some power is given to the department concerned to meet
any contingency in the future.
3. Delegated legislation gives flexibility to law and there is ample scope for adjustment in the
light of experience gained during the working of any particular legislation.
by the parliament. It will be convenient if some power is given to the department concerned
to meet any contingency in the future.
3. Delegated legislation gives flexibility to law and there is ample scope for adjustment in the
light of experience gained during the working of any particular legislation.
4. Full knowledge of the local conditions may not be available to the government at the time
of passing the law and it is desirable to adjust the law by means of orders in council to meet
the requirements of the various localities.
5. Modern legislation is becoming highly technical and it is too much to expect that the
ordinary members of the parliament will appreciate or the implications of a modern
legislation. It is considered safe to approve of general principles of legislation and leave the
details to the ministries concerned.
DANGER OF DELEGATED LEGISLATION
1. Prof. Keith has, in great detail, described the dangers of delegated legislation. Some of
them are,
·
Legislation may be passed in too skeleton a form and wide powers of action to make
new laws and to impose tax may be given.
·
Parliament gets inadequate time to scrutinize the regulations.
·
Some of the regulations attempt to deprive the subjects of recourse to law courts for
protection.
·
The procedural advantages have improved the position to some extent but render it
difficult for him to obtain redress for illegal actions done under the authority of
delegated legislation.
Cuton has summarised the dangers as,
·
Excessive power may be delegated.
·
The government departments may assume a wider legislative competence than what
the parliament has granted.
SAFEGUARDS AGAINST DELEGATED LEGISLATION
PARLIAMENTARY CONTROL
·
Parliament has always general control.
·
In England, when a bill that provides for delegation of powers is provided before the
house. The house may modify, amend or altogether refuse the powers proposed to be
delegated in the bill.
·
An act was passed in 1946 i.e. ‘Statutory Instruments act’ which provides that a copy
of the instrument shall be laid before the house before it comes into operation.
JUDICIAL CONTROL
·
While parliamentary control is direct, the control of courts is indirect.
·
Judicial control operates through the doctrine of ultra vires- all delegated legislation is
subject to the test whether or not it falls within the periphery of the power thus
conferred.