Legislation

Introduction
The term “legislation” refers to the act of making laws. “Legis”
means law, and “Latum” means making, hence it implies
lawmaking. Legislation is the way of making laws in which the
competent authority is responsible for drafting and enacting laws
in a specific state. It is also stated to be a rigorous concept of
lawmaking because there is only one body charged with the task
of lawmaking, and there is little space for any changes because
the laws are codified and airtight, leaving a very small range of
adjustment.

In a broader sense, it refers to all sources of law, as well as every

act that has the impact of adding to or changing the law. It is
possible to say that a judge has exercised legislative power and
that the judicial decision is also legislation when he establishes a
new principle in a judicial decision. In all countries, it creates new
laws, adjusts existing laws, and repeals existing laws.

The main reason behind the legislation is regarded as an

important source of law i.e., the legal rule enshrined by the
legislature was recognized by the State as law and legislation
have the authority and force over the State. That’s the reason,
Dias said that deliberate law-making by an authoritative power,
i.e., the State is called the Legislation provided that authority is
duly recognized as the Supreme power by the Courts.

Definition of Legislation
According to Bentham and John Stuart Mill, “Legislation
comprises both the legislative process and the law that emerges
from it.” However, the term “legislation” refers to a specific form
of lawmaking, namely the declaration of legal regulations in
statutory form by a competent authority. It refers to the state
legislature’s act of enacting legislation.

Gray said, “Legislation includes formal utterance of the legislative

organs of the society.”
E. Holland observed that “Legislation is the making of general
orders by our Judges is as true legislation as carried on by the
Crown.”

Blackstone pointed out that “the law has its source in legislation

which may be most accurately termed as enacted laws and all
other forms of law may be distinguished as unenacted laws.”

According to Austin, “Legislation includes activities which result

into law making or amending, transforming or inserting new
provisions in the existing law. Thus, there can be no law without
a legislative Act.”

Salmond observed that “Legislation is the source of law which

consists in the declaration of legal rules by a competent
authority.”

According to him legislation as a source of law can be used in

three different senses, such as:

1st Sense or Strict sense: Legislation is the source from where

the rules of law declared by competent authority are framed;

2nd Sense or Widest sense: Legislation includes all methods of

law-making either be direct or indirect.

3rd Sense: legislation includes every expression of the will of the

legislature whether making law or not.

Kinds of Legislation
Legislation can serve a variety of purposes, including directing,
approving, endorsing, granting, authorizing, allowing,
proclaiming, confining, and annulling. As a result, the welfare of
citizens must be considered when establishing any legislation or
the rule of law, and it must be implemented in the citizens’ best
interests.
The following are a few types of legislation:

1. Supreme Legislation

The supreme legislation is enacted by the state’s sovereign

power. As a result, no other authority within the state can control
or check it in any way. It is regarded not just as superior, but
also as having legal omnipotence. Dicey’s work, “The Law of the
Constitution,” is a famous explication of this notion. Its power is
unrestricted by the law. In India, the legislature is also supreme.
Though its power is limited by the constitution, it is not subject to
any other legislative authority inside the state. No other
legislative authority has the power to repeal, invalidate, or control
it.

2. Subordinate Legislation

Subordinate legislation is legislation enacted by a body other than

the state’s Supreme Authority. It is enacted within the authority
of the Supreme Authority. The Supreme Expert is responsible for
the authenticity, legitimacy, and continuation of such law. It can
be revoked and canceled at any time by the sovereign authority,
hence it must provide a framework for sovereign legislation. The
control of subordinate legislation is subject to parliamentary
oversight. There are five distinct types of subordinate legislation.
The following types are:

i. Colonial Legislation

Countries that are not autonomous and are under the control of
another state do not have a Supreme Court. These countries are
classified as colonies, dominions, protected or trust areas, and so
on. Their laws are subject to the Supreme Legislation of the state
over which they have control. As a result, it is secondary
legislation. The United Kingdom has a large number of colonies
and dominions. The laws they pass for self-government are
subject to change, repeal, or supersession by British Parliament
legislation.
We may not have this type of subordinate legislation soon, as the
colonies are rapidly gaining independence and practically all
British dominions have unfettered legislative power.

ii. Executive Legislation

Executive legislation is created when legislative powers are given

to an executive by an authorized official. Even though the
official’s primary responsibility is to carry out the laws and
maintain the organization, he or she is constantly reliant on
subordinate enactment powers. Today’s laws contain assignment
statements that delegate law-making authority from the office to
the executive to improve statutory arrangements.

iii. Judicial Legislation

The judicial system has been given the authority to establish and

apply its laws to protect the country’s judicial system’s
transparency. This will also ensure that no other government
organ is involved in the administration of the state’s judicial
system.

iv. Municipal Legislation

Municipalities are given the authority to enact bylaws governing

their immediate surroundings. A neighborhood body’s legislation
governs its territory. Municipal corporations, Municipal Boards,
Zila Parishads, and other Indian municipal bodies are examples.
There is a push to give Panchayats more power. Along these
lines, there is a chance that this type of subordinate enactment
will be expanded in our country. The 73rd Amendment later
included the proposals in the Constitution. The Municipal
Legislation was made for the purpose such as water tax, land
urban cess, property tax, town planning, public health, and
sanitation, etc.

v. Autonomous Legislation
The law created by the last is known as the autonomous law, and
the body is known as a self-ruling body when the Supreme
authority grants powers to a group of individuals to administrate
on problems that are important to them as a group. A railway is a
separate entity from the rest of the transportation system. It
establishes bye-laws to govern its operations, among other
things. A college is a self-governing organization as well. Some
Indian universities have even been given autonomy.

3. Delegated Legislation:

Delegated legislation is legislation enacted by a body or person

other than the Sovereign in Parliament, based on the sovereign’s
powers provided under the statute.

The term “delegated legislation” has a basic definition: “When the

legislature entrusts the function of legislation to organs other
than the legislature, the law created by such organs is referred to
as delegated legislation.” Where Acts are enacted by Parliament,
a Primary Act may be responsible for the formation of Subsidiary
Legislation and will specify who is authorized to make laws under
that Act. Delegated legislation can only occur in the context of
empowering or parent legislation.

The numerous regulatory complexities required to ensure that the

Act’s arrangements work properly are contained in delegated
legislation. Government departments, local governments, and
courts may all be involved.

The most commonly recognized types of Delegated Legislation

are Guidelines and Statutory Rules. They are decisions made by
the Executive or a Minister that have a broad public impact. A
Local Government Authority makes By-laws and, on rare
occasions, Ordinances that affect the entire community. If there
is a problem in a delegated law, the Principle and Parent Act
frequently depicts the approach to be used in Court.

Sub- delegation– In the Indian legal system, there is also a

case of sub-delegation. The authority to enact subordinate
legislation is drawn from an enabling act that already exists. It is
critical that the delegate to whom such authority is delegated acts
within the bounds of the enabling statute. Its goal is to replace
rather than supplement the law. Its fundamental rationale is that
legislators do not always anticipate the issues that may arise
when enacting legislation.

As a result, Delegated Legislation fills in the gaps that aren’t

visible during the enabling act’s drafting. Delegated Legislation
affords legal flexibility, and there is plenty of room for
amendment based on lessons learned during its implementation.

Legislation as a Source of law- Historical and Analytical School

1. Thoughts of Analytical Positivist School

Jurists of this School lay stress on legislation as a source of law.

They believe that the only way to make law is through legislation.
They are vehemently opposed to judges having the power to
enact laws. They also claim that customs are just sources of law,
not the law itself.

2. Thoughts of Historical School

This school’s jurists were indifferent about legislation. They

believe that making laws through legislative action is impossible.
Legislators’ sole purpose is to collect customs and offer them a
better form.

Advantages and Disadvantages of Legislation as Source of Law

Some of the Advantages of Legislation as Source of Law
are:

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. Reliance on Unintentional Legislation – Because the

legislation is self-contained and emerges as the authoritative
source of law, it does not have to withstand scrutiny until the
initial case of legislation.

5. 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.

6. 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.

Some of the Disadvantages of Legislation as a Source of

Law:
There is no source of law that is perfect and completely complete
in its form and sense; every source of law has some flaws and
gaps, which are as follows in the case of legislation.

1. Rigid and inflexible – The law in the legislation is rigid and is

inflexible and un-adaptive. Therefore, in extreme cases, injustice
occurred with the victims.

2. In light of Hypothesis – Legislation, for the most part, is

based on speculative certainty, taking into account the current
environment and surroundings, in which established law is
frequently observed to be blemished in its application to the
perplexing issues that arise in real life through piecemeal
solutions arising from commonsense exigencies and convenience.

3. Lack of clarity – It is commonly stated that statute laws are

frequently drafted in ambiguous language, with numerous
loopholes. It opens the door to a plethora of possible
interpretations. There are numerous errors and omissions made
while connecting the law, which makes little sense to the average
person.

4. Lack of judicial discretion – The judge must implement the

law in its current form and adhere to it. The law is applied as
written. Other aspects such as social, economic, and other
circumstances must also be considered by the judge while
resolving the case, but this aspect was not found in written form
anywhere, due to which it may be found difficult for the judges to
pronounce the judgment as the law written and ignoring the
merit of the case and other aspects of the case.

5. Arises conflict – Individual rights are abridged by some

legislation, which is subjected to Judicial Review. For example,
Citizenship Amendment Act, 2020, Farms Act, 2020 was reviewed
by the Judiciary.

The abridged form of legislation leads to a constitutional

amendment and it may arisea disagreement between the
legislative and the judiciary.
Conclusion
In conclusion, we can say that legislation is a very important
source of law in the modern era. In comparison to other legal
sources, it appears to be more authoritative. To facilitate
understanding, legislation has been further classified into several
types. In terms of delegated legislation, it has become a
requirement for modern society.

In today’s globe, most countries see the legislation as an

important source of law and adhere to this legal system. Although
there are some flaws and loopholes in the current form, the
challenges faced are far less than those faced by other sources of
law, such as custom and precedent, because legislation as a
source of law strives to create uniformity by minimizing
ambiguity.