Legislation as a Source of law
Legislation means law-making. The term ‘Legis’ means law and ‘Latum’ means making. Legislation in simple words called the law declared by competent authority. There are 2 main reasons to consider legislation as source of law, firstly, the legislation are laws which recognised by the state and secondly state has power and authority.
Definition
“Legislation is that source of law which consists in the declaration of legal rules by a competent authority” – Salmond
“Legislation includes formal utterances of the legislation organs of the society” – Polin Gray
“Legislation includes both, process of law-making and the law evolved as a result of this process” -Bentham and John Stuart Mill
“The making of general orders by our judges is as true legislation as carried on by the crown” – Holland
Classification of Legislation
Legislation classified into supreme and subordinate legislation.
supreme legislation
supreme legislation means the power which proceeds from sovereign power in the state and can’t be repealed. In india, parliament is considered as supreme legislation, the amendments and orders passed by the parliament must be bind and work in-accordance with such authorities in the state.
subordinate legislation
subordinate legislation means which proceeds other than sovereign power in the state. The subordinate legislation always depends on supreme authority for its existence. In simple words, the bodies which are inferior to sovereign power in the state concerned as subordinate legislation. To constitue a valid subordinate legislation, there must satisfy certain conditions –
(i) the parent act passed by the supreme authority must exercise the subordinate legislation and such acts must be valid
(ii) the delegation clause in the parent act must be valid
(iii) the statutory instrument made must be bind with delegation clause and act inaccordance with substance, procedure and form
(iv) the statutory instrument must not violate the judicial decisions
(v) the statutory instrument must not violate the fundamental rights and other provisions laid down by the constitution
Kinds of Subordinate Legislation
1. Colonial Legislation
Nations lacking with law making system were depended on the imperial legislature, imperial legislature means states or colonies with no supreme authority for law making depends on imperial legislature. example – british parliament
under colonial legislation, laws enacted by colonial powers to govern their colonies, often with the primary aim of exploiting resources and maintaining control.
2. Executive Legislation
parliament delegates its law making authority to executive is known as executive legislation, In india executive legislation makes rules, regulations and bye-laws for administrative matters.
3. Judicial Legislation
law making power often delegated to judiciary and are authorised to make rules and regulations for their procedure is known as judicial legislation.
The constitution of India grants power of rule making to supreme court under sec.145 and whereas sec.227 for high courts, these rules framed by supreme and high courts are subjected to 2 conditions – The laws enacted must be under the parliament and approval of the president is necessary.
4. Municipal Legislation
The municipal authorities are authorised to make laws within their areas such as water tax, property tax, public health, sanitation etc..,
5. Autonomous Legislation
sometimes the state allows the private bodies for law making within their respect subjects such as universities, companies, corporation etc. For Instance Railway Boards have their own rules.
