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LEGISLATION

LEGISLATION
• It is derived from Latin word legis which
means – law and
• Latum – “ to make” or “set”.
• Legislation means “ making of law”.
• It declares legal rules given by a
competent authority.
SUPREME AND SUBORDINATE
LEGISLATION
• Legislation is supreme when it proceeds
from the sovereign power in the state and
is being repealed or controlled by any
other legislative authority.
SUBORDINATE LEGISLATION
• It proceeds from any authority other than
the sovereign power.
• It is Legislation that depends on the
delegation of authority from other,
superior, legislation.
KINDS
1. Colonial
2. Executive
3. Judicial
4. Municipal
5. Autonomous
Colonial
• The British colonies and other dependencies
were conferred limited power of self-government
in varying degrees by the Imperial legislature.
• This kind of law could be repealed or altered by
British Government.
Executive
• The legislature (Parliament ), often its rule
making power to certain departments of the
executive organ of Government.
• The rule made in pursuance of this delegated
power have force of law.
• This kind of law could be repealed or altered by
Government.
• In India it includes power to make rules,
regulations and bye-laws for administrative
matters.
Judicial
• In certain cases legislative power of rule
making is delegated to the judiciary and
the superior courts are authorized to make
rules for their own procedure in exercise to
this power.
• Also known as judicial legislation.
• Not precedents
Article 145 of Constitution of India
• 145. Rules of Court, etc
• (1) Subject to the provisions of any law made by Parliament the
Supreme Court may from time to time, with the approval of the
President, make rules for regulating generally the practice and
procedure of the Court including
• (a) rules as to the persons practising before the Court,
• (b) rules as to the procedure for hearing appeals, and other matters
pertaining to appeals including the time within which appeals to the
Court are to be entered;
• (c) rules as to the proceedings in the Court for the enforcement of
any of the rights conferred by Part III;
• (cc) rules as to the proceedings in the Court under Article 139A;
• (d) rules as to the entertainment of appeals under sub clause (c) of
clause ( 1 ) of Article 134;
• (e) any judgment pronounced or order made by the Court
may be received and rules as to the conditions the
procedure for such review including the time within which
applications to the Court for such review are to be
entered;
• (f) rules as to the costs of and incidental to any
proceedings in the Court and as to the fees to be
charged in respect of proceeding therein;
• (g) rules as to the granting of bail;
• (h) rules as to stay of proceedings;
• (i) rules providing for the summary determination of any
appeal which appears to the Court to be frivolous or
vexatious or brought for the purpose of delay;
• (j) rules as to the procedure for inquiries referred to in
clause ( 1 ) of Article 317
Municipal
• In this kind of legislation Municipal
authorities are allowed within their
limitations and areas to make bye-laws for
limited purposes.
• e.g. : tax, land acquisition etc.
Autonomous
• The State may sometimes allow private
bodies to make bye-laws for regulating
the conduct of their business.
• This power is conferred by the State.
• E.g. : Universities, Companies.
Delegated legislation
• Delegated legislation, also referred to as secondary
legislation, is legislation made by a person or body other
than Parliament.
• Parliament, through an Act of Parliament, can permit
another person or body to make legislation.
• By Parliament giving authority for legislation to be
delegated it enables other persons or bodies to provide
more detail to an Act of Parliament. Parliament thereby,
through primary legislation (i.e. an Act of Parliament),
permit others to make law and rules through delegated
legislation.
• The legislation created by delegated legislation must be
made in accordance with the purposes laid down in the
Act.
Importance of Delegated Legislation
• Firstly, it avoids overloading the limited Parliamentary timetable as
delegated legislation can be amended and/or made without having
to pass an Act through Parliament, which can be time consuming.
Changes can therefore be made to the law without the need to have
a new Act of Parliament and it further avoids Parliament having to
spend a lot of their time on technical matters, such as the
clarification of a specific part of the legislation.

• Secondly, delegated legislation allows law to be made by those who


have the relevant expert knowledge. By way of illustration, a local
authority can make law in accordance with what their locality needs
as opposed to having one law across the board which may not suit
their particular area. A particular Local Authority can make a law to
suit local needs and that Local Authority will have the knowledge of
what is best for the locality rather than Parliament.
• Thirdly, delegated legislation can deal with an
emergency situation as it arises without having
to wait for an Act to be passed through
Parliament to resolve the particular situation.

• Finally, delegated legislation can be used to


cover a situation that Parliament had not
anticipated at the time it enacted the piece of
legislation, which makes it flexible and very
useful to law-making. Delegated legislation is
therefore able to meet the changing needs of
society and also situations which Parliament
had not anticipated when they enacted the Act
of Parliament.
Control on delegated legislation
1. Procedural Control
2. Parliamentary Control
3. Judicial Control
Parliamentary Control
• Parliament exercises control over delegated
legislation in that when the Act of Parliament is
created, Parliament stipulate in the Act of
Parliament the parameters with regard to
delegated legislation.
• Further, there are scrutiny committees which
consider delegated legislation within a Bill as it
passes through the Houses of Parliament.
Procedural Control
• It is not always possible for Parliament to exercise effective
control over delegated legislation. So, procedural safeguards are
necessary:

• Methods of Procedural Control:

• Prior Consultation of Interests which are likely to be affected by


the proposed delegated legislation.

• Prior publicity of rules and regulations.

• Publication of delegated legislation being made mandatory.


Judicial Control

• Delegated legislation is also subject to control through


the Court. A piece of delegated legislation can be
deemed by the Court to be ultra vires. This means that
the body that created the delegated legislation acted
beyond the powers conferred to them by statute. An
example where a body would have acted ultra vires
would be if the delegated legislation goes beyond what
Parliament intended or where the procedural rules to be
followed in relation to the delegated legislation have not
been followed. Any Court action which is brought
challenging delegated legislation is done through the
means of Judicial Review. If the Court finds that a piece
of delegated legislation is ultra vires then that legislation
can be declared void.
Criticisms of Delegated Legislation
• Delegated legislation is not without its criticisms.
• Firstly, it has been suggested that by having delegated legislation to
make and/or amend laws etc it lacks democracy as too much
delegated legislation is made by unelected people.
• Secondly, delegated legislation is subject to less Parliamentary
scrutiny than primary legislation. Parliament therefore has a lack of
control over delegated legislation and this can lead to
inconsistencies in laws.
• In addition, delegated legislation therefore has the potential to be
used in ways which Parliament had not anticipated when it
conferred the power through the Act of Parliament.
• One further criticism of delegated legislation is
the lack of publicity surrounding it. When law is
made by statutory instrument the public are not
normally notified of it whereas with Acts of
Parliament, on the other hand, they are widely
publicised.
• One reason for the lack of publicity surrounding
delegated legislation is because of the volume
of delegated legislation made and this results
in the public not being informed of the changes
to law. There has also been concern
expressed that too much law is made through
delegated legislation.
Sub - delegation
• Sub - delegation = When a body or person
receive delegated powers indirectly under
a statute.
• This appears in conflict with the general
rule that a delegate is not able to delegate
further, “delegatus non potest delegare.”
• In India sub delegation without express
authority is invalid.
Conditional legislation
• When the legislature itself enacts the law
and gives to some other body only the
power of determining when it should come
into force or when it should be applied to a
particular area, there is no delegation of
power instead it would be a case of
Conditional legislation.
Codification of Laws
• Codification (law), the process of forming a legal code
(i.e. formalising the laws of a jurisdiction by setting them
out in a book of law, a codex).
• Codification means “ the reduction of the whole Corpus
juris so far as the particiable, in the form enacted law.
Kinds
• A creative code is that which makes a law for the first
time without the reference of the other law. E.g.: IPC

• A consolidating code is that code which consolidates


the whole law – statutory, customary and precedent – on
a particular subject and declares it. E.g.: TPA.

• A code may be both creative and consolidating . It may


make a new law and consolidate existing law on a
particular subject. E.g.: Recent legislations.
Merits
• Law can be known with certainty.
• Evils of judicial legislation can be avoided.
• Codification is necessary to preserve
customs which favour public policy.
• It is necessary to bring about a sense of
unity in country.
Demerits
• It brings rigidity in system.
• It cramps the free and natural growth of law.
• A code is a work of many persons and no wonder the
provisions of a code are found to be incoherent.
• Codification makes the law simple and thereby enables
the knaves to flourish.
• A code is likely to disturb the existing rights and duties of
the people by creating new ones.
• No code is complete and self sufficient.
END OF SECOND MODULE

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