Types of legislation
By Rachit Garg - July 14, 2022
This article is written by Sambit Rath, a B.A LL.B student of Dr. Ram Manohar Lohiya
National Law University, Lucknow. In this article, the author aims to discuss the various
types and subtypes of legislation. Also, a comparison of legislation with customs and
precedents has been done for better understanding.
It has been published by Rachit Garg.
Table of Contents
1. Introduction
2. What is a legislation
2.1. Wide Sense of Legislation
2.2. Narrow Sense of Legislation
3. Types of legislation
3.1. Supreme Legislation
3.2. Subordinate Legislation
3.2.1. Colonial Legislation
3.2.2. Executive Legislation
3.2.3. Judicial Legislation
3.2.4. Municipal Legislation
3.2.5. Autonomous Legislation
3.3. Conditional Legislation
3.4. Sub-delegated Legislation
4. Legislation as a custom
5. Difference between legislation and precedent
6. Conclusion
7. Frequently Asked Questions (FAQs)
7.1. What happens if delegated power is further delegated by the administration authority?
7.2. What is the difference between custom and legislation?
7.3. Why is delegated legislation necessary?
8. References
Introduction
Humans are social creatures who depend on each other for survival. This dependence
creates relationships. In modern society, it has become essential to regulate these
relationships. As time has passed, the relationships between individuals and groups have
also evolved to include the relationship between man and the state. In order to exercise
control over its citizens and to maintain authority, the state or the sovereign creates
laws. This creation of laws is termed legislation. It is one of the most important functions
of the sovereign.
The people of India are the sovereign because the ultimate power rests with them. The
government is elected by the people of India and, hence, it becomes a medium through
which power is exercised. From a basic transaction between two individuals to massive
contracts between multinational companies, from the manufacturing of toothbrushes to
the manufacturing of rockets, everything is regulated by these laws. It is through these
laws that the government ensures the ideal behaviour of the citizens towards each other
and towards the country. But it is not only Parliament that makes laws. There are others
entrusted with this duty. Also, there is more than one type of legislation. Let’s take a
look at these.
What is a legislation
The common meaning of “legislation” is the making of a law. It is made up of two words,
“legis” and “latum.” Legis means law and latum means making. Thus, legislation may be
defined as the promulgation of laws by an authority that is empowered to do so. It is
made by the legislature in anticipation of the needs of society. The legislation includes
laws made by sources such as precedents, customs, conventional laws, etc. The
lawmaking body is known as the legislature. Under the doctrine of separation of powers,
legislation is one of the three important functions of the government. These include:
Legislature – It is the body that makes laws.
Judiciary – It is the body that interprets laws.
Executive – It is the body that applies laws.
Legislation can have a wide and narrow meaning. In its wide sense, it includes all the
methods of lawmaking. In its narrow sense, it includes laws made by the sovereign or
subordinate legislator. Let’s look at both in detail.
Wide Sense of Legislation
As we discussed above, it includes every method of lawmaking.
Addition or alteration: Acts made by the Parliament that add to the existing laws or
alter them.
Precedent set by Court: While judges pronounce judgement, they apply certain
principles to arrive at their decision. This decision then becomes a precedent to guide
the courts in future cases. This is also a method of lawmaking. For example, the
landmark judgement of the Supreme Court in Kesavananda Bharati v. State of Kerala
laid down the Doctrine of Basic Structure. This meant that no law made by Parliament
could alter the basic structure of the Constitution.
Every other expression of the will of the Legislature: Every expression of the
legislature, whether directed to making rules or not, like Acts that ratify a treaty,
declare war, etc falls within the wide sense of legislation.
Customs, rituals, and past practices can also be included in this broad sense. These
are mostly unwritten laws.
Narrow Sense of Legislation
In its strict sense, we look at legislation as a source of law. These include:
Legal Rules: Laying down legal rules by the sovereign or subordinate legislator
through enactments or subordinate legislation.
Enacted law: Statute law made by the Parliament or the State Legislature. It would
not include delegated legislation. Blackstone uses the terms “written and unwritten
law” to draw the distinction.
Types of legislation
As we have seen in the above section, ‘legislation’ can be divided into different types
based on its interpretation and function. Salmond said that legislation is either supreme
or subordinate. The first kind of division is on the basis of authority; i.e., into Supreme
and Subordinate legislation.
Supreme Legislation
It is the legislation that is made by the sovereign authority of the State. It cannot be
repealed, annulled, or controlled by any other legislative authority. For example, in India,
the Parliament is the supreme legislator.
Subordinate Legislation
It is also known as delegated legislation. This kind of legislation includes legislation
made by some other authority than the Supreme Legislator. The power of delegated
legislation is given by the Supreme Legislator to the Subordinate Legislator, and the
latter has to work within the limits set by the former. It can be altered or abrogated by
the sovereign authority. It is important to note that there is no provision in the
Constitution that enables Parliament to delegate its powers, but there is no provision
that prevents it either. There are mostly five types of subordinate legislation. These are:
Colonial Legislation
The countries which are colonised make laws to regulate their populace. These countries
are under the control of a different state and do not have supreme authority to make
laws. Laws made by these countries are subject to guidelines prepared by the state
under whose control they are. For example, the British Parliament was the supreme
legislator when it ruled over colonies and had given them powers to exercise self-
governance. But the laws made by them could be annulled or modified as per the wishes
of the British Parliament.
Executive Legislation
The function of the executive is to implement the laws made by Parliament. Along with
this, the executive is also given subordinate legislative powers to make rules that
supplement the supreme legislation. Such powers are given to the executive in order to
find the best possible way to implement the supreme law. Some degree of autonomy is
required when powers are delegated. For example, the Defence of India Act.
Judicial Legislation
The judiciary also possesses certain delegated powers to make rules for their purposes.
The superior courts have the power to make rules for the regulation of their own
procedure. This is different from the legislative action of creating laws by precedent. For
example, the Delhi High Court Rules govern the Delhi High Court.
Municipal Legislation
Municipal bodies are entrusted with subordinate powers to establish laws specific to the
districts under their control. These bodies make bye-laws and such legislation may be
termed municipal. The range of subjects they deal with is immense. For example, town
planning schemes, traffic, cleanliness, buildings, etc.
Autonomous Legislation
The State can allow private institutions to make laws for their functioning. These
institutions include universities, the Railway Company, the Bar Council of India, the
University Grants Commission, etc. They can make bye-laws that are recognized and
enforced by the courts. For example, UGC Regulations by the University Grants
Commission.
Conditional Legislation
Conditional legislation may also be called contingent legislation. In this type of
legislation, a statute provides powers to the administrative authority to determine when
a law should be applied or when it comes into force. but adds some specifications along
with them. These specifiers are conditions, and when these conditions are fulfilled, the
powers of the delegated authority become activated. Hence, the authority is empowered
to determine, based on its own judgement, whether these conditions are fulfilled or not.
Sub-delegated Legislation
This kind of delegation happens when an administrative authority on whom legislative
powers are conferred upon by Parliament further delegates these powers to another
subordinate authority. This is permitted only if the Parent Act contains provisions that
enable such a kind of delegation. The maxim, “delegatus non potestdelegare,” indicates
that sub-delegation of powers is not permissible, although the legislature can always
provide for it.
Legislation as a custom
A custom is a habitual course of conduct observed uniformly and voluntarily by the
people. In all societies, custom plays a huge role in regulating human conduct. The word
‘custom’ is derived from the French word “costume,” meaning tradition, practice, or
usage. In Hindi, custom means “reeti” or “riwaaj.” It was created by the people, and its
authority lies in its long-continued use by the people.
Legislation and custom have some things in common. They are:
Both legislation and custom are considered sources of law.
Legislation and custom have the same function of regulating human conduct in a
society.
Both are followed by a majority of the population.
To understand the nature of custom and legislation, an insight into their differences is
necessary. The differences between the two are as follows:
Legislation is actively made by the sovereign using its definite power, whereas custom
is something that has evolved as a practice over the years.
Legislation requires the existence of an authority to make it. Without the existence of
a competent authority, there could be no law as such, because nobody would abide by
it. A custom doesn’t have such requirements as it is followed and promoted by the
people voluntarily.
Legislation is specific when it comes to things like who are the parties involved, what
is their relationship, what are the consequences of action and inaction, etc. Customs,
on the other hand, are not clear or specific. This is because customs are not codified
and are thus prone to modification by different societies.
Legislation derives its authority from the will of the State. Customs derive their
authority from the will of the people.
Legislation is considered superior and more authoritative compared to customs.
Legislation is more flexible compared to customs because it can be changed according
to the demands of society and the current scenario. Customs, on the other hand,
cannot change as quickly because their evolution is gradual.
Legislation ceases to exist when it is abolished by the sovereign. Customs cease to
exist when they are gradually unfollowed by their followers.
Difference between legislation and precedent
As we have discussed earlier, precedents are decisions that serve as a guide for the
courts to deal with similar matters in the future. When compared to legislation, certain
differences arise between the two:
S.no Basis Legislation Precedent
The primary aim of The aim of precedent is to
1 Aim
legislation is to make law. interpret and apply the law.
Legislation is enacted by Precedents are set by the
2 Authority
the state. courts.
Precedents can only stop the
Legislation has the power
operation of a rule if it violates
3 Power to abrogate any law, be it
the provisions of the
statute or precedent.
Constitution.
Precedents, on the other hand,
Legislation is clear, concise,
are not easily understood by
Ease of and codified. This makes it
4 everyone as one has to go
Understanding easier to understand and
through the entire case law in
follow.
order to identify the precedent.
Precedents make rules only
Legislation makes rules by
when a case arises before the
5 Lawmaking anticipating the
courts. Precedents are
requirements of society.
dependent on litigation.
6 Applicability Legislation is mostly Precedents are retrospective in
prospective and can be nature.
retrospective at times if it
so chooses.
In precedents, rules are
laid down using the
inductive method. This is In legislation, a deductive
7 Method used
because courts pick laws method is used.
from the statutes and apply
them.
Conclusion
As a source of law, legislation is considered the most important. By looking at the
various differences between legislation, custom, and precedent, we can safely conclude
that legislation is the most powerful and thus carries the most authority. The codification
of laws makes them easier for both citizens and foreigners to understand. When
information is presented in a structured manner, it instantly becomes more favourable as
a source of knowledge.
Many countries in the world use legislation as a source of law and a tool to regulate
everything that is happening in the country. Some countries have also imbibed a few
customs of their society into their laws. India is one of those countries. There are a lot of
factors to be considered while making the decision to include a custom into the country’s
law. Precedents, on the other hand, also play a big role in the country’s overall legal
ecosystem. Hence, it is safe to say that all three play their part in the functioning of a
country.
Frequently Asked Questions (FAQs)
What happens if delegated power is further delegated by
the administration authority?
According to established precedents, the authority that is sub-delegated will be struck
down by the courts. It was held in A.K. Roy and Anr. vs. State Of Punjab and Ors, that
delegated powers cannot be further delegated.
What is the difference between custom and legislation?
Both custom and legislation can be differentiated based on different factors. One key
difference between the two is that legislation is actively created by the sovereign using
its powers. Whereas, custom evolves as a practice over the years.
Why is delegated legislation necessary?
Delegated legislation is necessary because Parliament being the supreme legislator
cannot possibly make laws relating to every matter. Even if it tries to, it will take ages to
do so. Laws are made to address certain concerns that are in the present. By the time
the Parliament enacts a necessary law through its already long procedure, the need for
that law may not exist anymore. So, in order to expedite this process, legislative powers
are delegated to subordinate legislators.
References
Uni-5.pdf (uok.edu.in)
Custom As A Source of Law – Law Corner
Legislation Definition & Meaning – Merriam-Webster
Kesavananda Bharati … vs State Of Kerala And Anr on 24 April, 1973
(indiankanoon.org)
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