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LEGISLATION[1]
QUESTION BANK
- 1 Explain the Legislation as a source of law. Enumerate the kinds of Legislation.
Q.2 Explain the Legislation as a source of law and state differences between Legislation and precedent and custom.
Q.3 Explain Legislation as a source of law and explain the merits of Legislation over precedent.
SHORT NOTES
I. INTRODUCTION-
In Modern times and in democratic societies, legislation is one of the important sources of law. Legislation as a source of law is of recent origin. As societies advanced, custom as a source was replaced by legislation.
Legislation is that source of law which consists of the declaration of legal rules by the competent authority. The term legislation is used in different senses. In its widest or most generic sense, it includes all forms of law-making. In this sense, legislation includes law-making in any form, such as judge-made laws, laws between parties created by contracts, rules made by legislatures etc. However, in its narrower sense, legislation is the laying down of legal rules by a sovereign[2] or subordinate[3] legislation. In this sense, in modern times and in this topic, the term legislation is considered. Therefore, legislation in this sense is called an ‘enacted law’[4]; all other forms of laws are called ‘un-enacted’ laws. In other words, legislation consists of ‘the declaration of legal rules by a competent authority, conferring upon such rules the force of law[5]”.
In modern democratic states, legislation is vested in a separate legislative body, which usually consists of elected members from citizens of the country. In England, Parliament legislates, and it has unlimited power of legislation. In India also, the Indian Parliament legislates; however, it has some constitutional restrictions. The same is the case with the American senate (legislation).
II. Kinds of Legislation-
There are the following kinds of legislation, viz-
1) Supreme Legislation[6]–
Supreme legislation is enacted by the highest law-making authority in the State. Supreme legislation comes from or is enacted by the supreme or sovereign power in the state. In other words, no supremacy of such legislation and no legality of such laws enacted can be challenged. Thus, legislation by the King of Saudi Arabia, the Sultan of Brunei, the Parliament of India, England and America etc., are examples of supreme legislation.
Supreme legislation is legislation in the Austinion sense. Such laws cannot be repealed, annulled, challenged or controlled by any other legislative authority. Legislation by the British Parliament is unchallengeable; British Parliament being a sovereign law-making body, its legislation cannot be challenged in a court of law. However, a law enacted by the Indian Parliament or Senate of the USA can be challenged in the courts. They may be declared unconstitutional, ultra-vires etc.
In Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Limited
(AIR 2015 SC 2978)
Supreme Court held- that “Delegatee cannot frame regulations that would not be in according with statutory provisions”. It means delegated legislation must be within the framework imposed upon it.
In conclusion, we may say that supreme legislation comes from the supreme law-making body of the state.
2) Subordinate Legislation-
Legislation by any authority other than the supreme authority is called ‘subordinate legislation’ or ‘delegated legislation’[7]. In other words, it is law-making by an other authority than the supreme legislation.
However, such legislation is made under the powers delegated to it by the supreme authority. Such subordinate legislation depends upon the supreme legislative body for its existence, validity and continuance. Therefore, subordinate legislation may be called ‘delegated legislation’.
Subordinate legislation can be classified as follows-
(i) Colonial Legislation[8]–
The countries which were not independent and were under the control of some other states were called colonies, dominions, protectorates or trusts. Other states which used to dominate colonies were known as ‘Imperial Statess’. Between imperial rule and independence, there was a transition period. In that transaction period, powers of self-governance were given to colonies. However, such colonial legislation or rules made by colonies for their governance were subject to or dependent on imperial legislation. Such colonial laws were subject to alteration, repeal or supersession by Imperial power or legislation. Britain had a number of colonies. India was one of them. During the period of 1935 to 1947 Indian government used to make colonial legislation.
(ii) Municipal Legislation[9]–
Municipal authorities are allowed to make laws for limited purposes within their areas for good governance. Such laws are called ‘bye –laws’. Thus, Municipal Corporations, Municipal Boards, Zilla Parishads, etc., make bye-laws for proper administration.
(iii) Judicial Legislation-
The superior courts have the power to make rules for the regulation of their own procedure and procedure before subordinate courts. In India, Supreme Court and High Courts have such powers. Civil Manuals and Criminal Manuals are made by such courts for regulation of procedure before courts.
(iv) Autonomous Legislation[10]–
Autonomous bodies like Universities, Corporations, Companies, Trusts etc., have the power to make rules for the conduct of their business. The legislation made by them is called “autonomous legislation’.
(v) Executive Legislation[11]–
In fact, the main function of the executive is to execute state laws and decisions. However, sometimes legislature delegates some legislative powers to the executive. Rules, regulations etc., made by executives under delegated powers are also known as ‘delegated legislation’.
Rules by Company Law Boards, Rules in Jail Manuals, Civil and Criminal Manuals of courts, etc., are some examples of subordinate legislation or legislation by executives. Delegated legislation has assumed a very important place in recent years. (For a detailed study, refer topic ‘delegated legislation’ from Administrative law notes).
III. Codification[12] –
Codification is the promulgation, compilation, collection and systematization of the body of law in a coherent form by an authority in a state competent to do so. In other words, codification implies collection, compilation, systematization and deduction to coherent form, the whole body of laws on any particular branch. In short, reducing the whole body of laws into a written form in a systematic way is called ‘codification’.
a) Kinds of Codification-
(i) A creative Code[13]–
A creative Code is that which makes a law for the first time without any reference to any other law. It is law-making by legislators. Indian Penal Code, Cyber Crime Act, Anti Corruption Act, etc., are some examples of creative Codes.
(ii) A consolidating Code[14]–
Consolidating Code is that code which consolidates whole law scattered, i.e. statutory, customary, and judge-made, on a particular subject. Code of Justinian, the Transfer of Property Act of 1882, Hindu Succession Act are some examples of this Code.
(iii) Creative and consolidating code-
The code which makes law as well as consolidates existing laws on a particular subject is called a ‘creative and consolidating code’. Hindu Succession Act, Hindu Adoption Act etc., are some examples of this kind of codification.
b) Merits of Codification-
(i) Creativity-
Unlike customary law and precedent, codified law becomes certain. By codification, law no longer remains vague and uncertain.
(ii) Simplicity-
Consolidation makes law simple and accessible to everybody.
(iii) Logical arrangement-
In codification, the law is arranged in a coherent[15] form. Conflicts and inconsistencies in scattered provisions are eliminated by codification.
(iv) Stability-
Codification makes law simple, specific and stable. Stability is the essence of the law.
(v) Planned development-
Codification is one of the important means of planned judicial development in a country.
(vi) Unity-
Codification brings uniformity to the legal system. Ultimately, it helps in uniting all people governed by the same law.
c) Demerits of Codification-
(i) Codification brings rigidity to the legal system-
As soon as the law of custom or precedent is codified, it loses its flexibility and becomes rigid.
(ii) Regimentation of life-
Codification results in the regimentation of life of the people. Irrespective of differences, codification enforces the same law upon all; it sets a particular pattern of living for all.
(iii) In coherent-
Codification is the work of a number of persons; therefore, sometimes, it becomes incoherent.
(iv) Loopholes of laws become visible-
Codification makes law simple; therefore, loopholes of it can be understood easily. Many persons, by taking loopholes into consideration, take disadvantage of it.
(v) No Codification can be complete-
No codification can be complete and self-sufficient. It frequently needs changes and amendments.
Whatsoever may be the demerits of codification nevertheless merits overweight demerits. In a modern and democratic form of government, codification is very important.
IV. Legislation and other sources of law-
a) Legislation and precedent-
Legislation and precedent are both sources of law. Legislation is comparatively of recent origin. Precedents played a very important role before legislation in England and other countries. Common law courts and the Courts of Equity[16] were applying the law of precedent even before the era of enactment (legislation). Still, we will discuss some of the differences between these two viz-
(i) Source of law-making-
Legislation has a source in the will of the state, whereas precedent has its source in judicial decisions.
(ii) Nature of law-
The legislation creates statute law, whereas precedent creates judge-made law.
(iii) Before case-
The legislation comes before an actual case; however, precedent comes after the case arises before a court.
(iv) General / Particular-
Legislation is expressed in a general and comprehensive form, whereas precedent is expressed in a particular and limited form.
(v) Abstract/definite-
Legislation is abstract, but the precedent is definite.
(vi) Prospective / Retrospective-
Legislation is always prospective, whereas precedent is always retrospective in effect.
b) Legislation and custom-
(i) Point of time-
Custom is a very old source of law, whereas legislation is an advanced method of law-making adopted by matured legal systems.
(ii) Base of source-
Legislation is based on the will of the state, whereas custom is based on the will of the people.
(iii) De-Jure[17] / De-Facto[18]–
The existence and authority of Legislation are de-jure, whereas the existence of custom is de-facto (in fact).
(iv) Superior source-
Legislation is considered to be a superior source of law to custom nowadays.
(v) Govern relations between-
The legislation deals with the relationship between man and the state, whereas custom deals with relations between man and man.
In the modern era, legislation is considered to be a very important source of law-making. It is adopted in all civilized countries. Legislation as a source of law outweighs other sources of law.
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[1] कायदे बनविणे [कानून बनाना]
[2] सार्वभौम [सार्वभौम ]
[3] दुय्यम [माध्यमिक ]
[4] अधिनीयीमत कायदा [ सांविधिक कानून ]
[5] पात्र आधिकारी मंडळाने (कायदेमंडळ यांनी) जाहीर केलेले कायदेषीर नियम की ज्यास कायदयची ताकद दिलेली असते [एक सक्षम प्राधिकारी (विधायिका) द्वारा प्रख्यापित एक वैधानिक विनियमन जिसमें कानून का बल होता है ]
[6] सार्वभौम कायदे मंडळ [संप्रभु कानून एम ]
[7] हस्तांतरीत किंवा दुय्यम कायदे [हस्तांतरित या माध्यमिक कानून ]
[8] वसाहती संबंधि कायदे [औपनिवेशिक कानून ]
[9] स्थनिक स्वराज्य संस्थे संबंधी कायदे [ स्थानीय स्वशासन से संबंधित कानून ]
[10] स्वायत्त संस्था / मंडळे या संबंधीचे कायदे [स्वायत्त संस्थानों / बोर्डों से संबंधित कानून ]
[11] प्रशासकीय कायदे [ प्रशासनिक कानून ]
[12] एकाच विषयावरील विखुरललया तरतुदींचे व नविन तरतुदिंची एकसंध बांधणी करून कायदा बनविने [एक ही विषय पर बिखरे हुए प्रावधानों और नए प्रावधानों को समेकित करके कानून बनाना। ]
[13] नविनतम कायदा [नवीनतम अधिनियम]
[14] एकत्र केलेला कायदा [समेकित अधिनियम ]
[15] एकत्रीत / सुसंगत केलेला कायदा [समेकित / सामंजस्यपूर्ण अधिनियम ]
[16] इंग्लंड येथिल समानतेच्या तत्वावर अधारीत न्यायलय [इंग्लैंड में इक्विटी के सिद्धांत पर आधारित न्यायालय ]
[17] कायदयाने [कायदे से ]
[18] परीस्थितीने [परिस्थिति से ]