Legislation as a Source of Law

1. Austin defined as:

   Legislation is law-making by the sovereign or its subordinate authorities.

2. Salmond explains legislation in three senses.
   • In the widest sense, it includes every way of making law, whether by courts or by legislatures.
   • In the second sense, it is law made by the will of the State.
   • In the strict sense, it is law made exclusively by the legislature. Salmond prefers this meaning, under which legislation does not include law made by judges.

1. Legislation is a deliberate and conscious process of making law.
2. It is authoritative, because it gets its validity from the sovereign power of the State.
3. It is prospective, which means that it generally applies to future conduct. Article 20(1) of the Constitution adds a limit for criminal law. It says that no person can be convicted of an offence under a law that was not in force when the act was done.
4. It is uniform and general in its application.
5. It gives certainty and clarity to the law.
6. Legislation therefore expresses the will of the State in legal form.

Legislation is of two kinds, supreme legislation and subordinate (delegated) legislation.

1. Supreme legislation is made by the sovereign authority of the State. It is supreme because its validity does not depend on any other authority, and no other legislative power can annul or control it.
2. In Britain, Acts of Parliament are supreme legislation. Parliament is sovereign, and courts cannot question the validity of an Act. In Pickin v. British Railways Board (House of Lords, 1974), the court refused to look into how an Act had been passed.
3. In India, Parliament and the State Legislatures make supreme legislation, but only within the limits of the Constitution. Articles 245 and 246 and the Seventh Schedule divide the subjects between them, and Article 254 deals with conflicts on the Concurrent List. Even so, within their own spheres, they exercise supreme legislative authority.

1. Subordinate legislation is made by an authority other than the sovereign, under powers that the legislature delegates to it. Its validity depends on the parent statute under which it is made.
2. Modern legislatures often delegate law-making power to the executive or other bodies, because of their heavy workload.
3. Salmond lists five kinds.

1. Executive legislation also includes ordinances. Under Article 123, the President can issue an ordinance when Parliament is not in session. In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court held that the repeated re-issue of ordinances, without placing them before the legislature, is a fraud on the Constitution.

1. Delegated legislation is the delegation of legislative power by the legislature to the executive or other subordinate authorities. The laws made under such power are called delegated or subordinate legislation.
2. Article 13(3)(a) treats it as "law". The definition of "law" in Article 13 includes ordinances, orders, bye-laws, rules, regulations and notifications. These can therefore be struck down for violating fundamental rights.

1. Increase in legislative work: modern legislatures cannot handle all the details.
2. Technical nature of modern laws: experts are needed.
3. Flexibility: delegated legislation can be amended quickly.
4. Emergencies: quick action is necessary.
5. Administrative efficiency: the law can be carried out better.

1. The legislature cannot delegate its essential legislative functions. In In re Delhi Laws Act (1951), the Supreme Court held that the legislature may delegate the power to fill in details, but it cannot give away its essential law-making function.
2. The delegate must stay within the power that the Act gives. Rules that go beyond the Act are ultra vires, which means beyond the power given.

1. Judicial control: Courts can declare delegated legislation ultra vires. They can do so if it exceeds the delegated authority, violates the Constitution or violates natural justice.
   • In Chintaman Rao v. State of M.P. (1951), a law that let an officer prohibit beedi manufacture in a season was held to violate Article 19(1)(g), the right to carry on a trade.
   • In Indian Express Newspapers v. Union of India (1985), the Supreme Court held that delegated legislation can also be challenged on the ground that it is arbitrary or unreasonable.
   • In State of Tamil Nadu v. P. Krishnamurthy (2006), the Supreme Court set out the grounds on which subordinate legislation can be challenged.
2. Parliamentary control: The legislature supervises delegated legislation. It does so by requiring the rules to be laid before the House, through committees on delegated legislation, and through debates and motions to annul the rules.
3. Procedural control: The parent statute may prescribe a procedure. It may require prior publication, consultation with experts or mandatory notification. In Harla v. State of Rajasthan (1951), the Supreme Court held that a law must be published before it can bind the people.

Legislation has become the main source of law in modern legal systems. Its authority, clarity and adaptability put it above other sources such as custom and precedent. Delegated legislation has raised concerns about the misuse of power, but judicial and parliamentary controls have kept it within constitutional limits. Legislation therefore remains the backbone of modern jurisprudence, and it shapes law according to social, economic and political needs.