Introduction
Legislation is one of the most important sources of law. It is the process by which a competent law-making authority creates, amends, or repeals laws. In modern states, legislation serves as a primary source of legal rules because it produces clear, written, and enforceable norms.
According to Salmond, “Legislation is that source of law which consists in the declaration of legal rules by a competent authority.” In simple terms, legislation is the formal declaration or making of legal rules by a legally authorised body.
When the Indian Parliament enacts an Act to regulate a particular activity, that Act becomes a source of law.
Meaning and Definition of Legislation
Legislation means laws made by a competent authority in accordance with the procedure prescribed by the Constitution or other governing law. The term is derived from the Latin words legis (law) and latum (to make or propose). In essence, legislation is the formal process of making law by an authorised law-making body.
Types of Legislation
A. Supreme Legislation (Primary Legislation)
Supreme legislation is enacted by the highest law-making authority within its constitutional powers. It is not subordinate to any ordinary legislative body, though it remains subject to the Constitution.
Example: Laws passed by the Indian Parliament within its legislative competence, subject to the Constitution of India.
B. Subordinate or Delegated Legislation (Secondary Legislation)
Subordinate (or delegated) legislation is made by an authority other than the legislature under powers conferred by a parent (enabling) Act. It must remain strictly within the limits of that Act.
Secondary legislation consists of statutory instruments such as rules, regulations, orders, bye-laws, notifications, and schemes. It is also known as delegated, executive, subordinate, or subsidiary legislation. Its validity depends entirely on the parent Act, and it is subject to legislative scrutiny, procedural requirements (including publication), and judicial review.
Principal Forms of Subordinate Legislation
Principal forms of subordinate legislation include:
Rules
The most common form. Framed by the executive (Central or State Government) under express authority in the parent Act, usually dealing with procedural and administrative details required for implementation.
Example: Income Tax Rules under the Income Tax Act; Central Civil Services (Conduct) Rules.
Regulations
Generally made by statutory bodies, regulatory authorities, or autonomous institutions. They tend to be more technical and govern specialised fields or the internal functioning of the body.
Example: SEBI Regulations; RBI regulations/directions; university regulations.
Bye-laws
Local laws made by municipal corporations, local authorities, panchayats, or other public bodies for matters of local concern such as sanitation, public health, building control, traffic, or markets. Their application is limited to the jurisdiction of the authority.
Example: Municipal corporation bye-laws on construction or waste management.
Orders
Specific directions or determinations issued by the government or designated authorities under statutory power. They may give effect to particular provisions of the parent Act or regulate specific situations.
Example: Orders under the Essential Commodities Act; certain orders under disaster management laws.
Notifications
Formal announcements published (usually in the Official Gazette) to bring statutory provisions into force, modify schedules, grant exemptions, declare areas, fix rates, or make other determinations authorised by the parent Act.
Example: GST rate notifications; notifications declaring eco-sensitive zones.
Schemes
Detailed operational frameworks framed under statutory authority, often for implementing welfare, developmental, or administrative measures. They contain binding rules for the persons or activities they cover.
Example: Schemes under social welfare or agricultural statutes.
Classification of Legislation
| Type | Meaning | Is It Subordinate Legislation? |
|---|---|---|
| Colonial legislation | Laws made by a colonial authority for a colony. | Not necessarily; it depends on the authority and legal framework. |
| Executive legislation | Rules, regulations, and orders made by the executive. | Generally, yes, when made under powers delegated by a legislature. |
| Judicial legislation | Legal rules developed by courts through judicial decisions. | No; it is associated with judicial precedent. |
| Municipal legislation | Rules or bye-laws made by local authorities such as municipalities. | Yes, when made under powers delegated by an Act. |
| Autonomous legislation | Rules made by autonomous bodies (universities, professional bodies) under their legal powers. | It may be, depending on the source and nature of the powers. |
| Quasi-legislation | Rules, guidelines, or other instruments made by authorities exercising quasi-legislative powers. | Often, but the term can also cover instruments that are not legally binding legislation. |
Difference Between Primary and Secondary Legislation
| Basis | Primary Legislation | Secondary Legislation |
|---|---|---|
| Meaning | Law made directly by the legislature. | Law made by an authority under powers delegated by the legislature. |
| Other names | Principal or parent legislation. | Delegated, subordinate, subsidiary, or executive legislation. |
| Law-making authority | Parliament or a State Legislature in India. | Government ministers, departments, local authorities, or other authorised bodies. |
| Source of power | Derived from the Constitution. | Derived from powers conferred by primary legislation. |
| Purpose | Establishes the main legal principles, rights, duties, and framework. | Provides detailed rules and procedures to implement primary legislation. |
| Scope | Lays down the main provisions of the law. | Deals with details within the limits set by the parent Act. |
| Procedure | Follows the prescribed legislative process, including passage by the legislature and assent where required. | Follows the procedure specified in the parent Act (consultation, publication, or laying before the legislature). |
| Legislative control | Subject to constitutional limitations and judicial review. | Subject to the parent Act, constitutional limitations, and judicial review. |
| Amendment or repeal | Amended or repealed by the competent legislature through the prescribed procedure. | Usually amended or revoked by the authority empowered to make it, subject to the parent Act. |
| Examples in India | Bharatiya Nyaya Sanhita, 2023; Consumer Protection Act, 2019. | Rules and regulations made under these Acts by authorised authorities. |
Primary legislation establishes the main legal framework, whereas secondary legislation supplies the detailed rules needed to implement it. Secondary legislation must remain within the powers granted by the parent Act and cannot override it.
Delegated Legislation
Delegated legislation refers to laws, rules, regulations, orders, or bye-laws made by an authority under powers delegated to it by the legislature through a parent Act. It enables the legislature to lay down the main principles of a law while authorising the executive, local authorities, or statutory bodies to frame detailed rules for its implementation. It is also known as subordinate or subsidiary legislation.
It must remain within the limits prescribed by the parent Act and the Constitution.
Example: Parliament enacts an Act empowering the Central Government to frame rules for its implementation. The rules subsequently made by the Government under that Act constitute delegated legislation. Similarly, bye-laws made by a municipality under statutory authority are a form of delegated legislation.
Essential Features of Legislation
- Competent authority: It must be made by a body legally empowered to legislate.
- Written form: Legislation is generally expressed in writing.
- Established procedure: It must follow the prescribed constitutional or statutory process.
- Binding force: Valid legislation is legally enforceable.
- Public application: It applies to the persons, activities, or situations it covers.
- Amendability and repeal: It can be changed or repealed through the prescribed legal process.
- Constitutional validity: It must conform to the Constitution and remain within the authority’s legal powers.
Process of Making Legislation in India
The ordinary process of enacting a parliamentary law includes:
- Introduction of a Bill
- Discussion and examination (including possible reference to a parliamentary committee)
- Voting and passage in the House
- Approval by the other House (where required)
- Assent of the President
- Publication and commencement
Special procedures apply to Money Bills, state legislation, and certain other categories of Bills.
Advantages of Legislation
- Certainty: Written laws make legal rules easy to identify and understand.
- Clarity: Rights, duties, offences, and punishments can be defined with precision.
- Social reform: Legislation can address social problems and promote equality.
- Uniformity: It establishes common rules within its territorial and legal scope.
- Flexibility for change: Laws can be amended to meet evolving social and economic needs.
- Democratic legitimacy: Laws made by elected representatives can reflect public policy and needs.
Example: Laws prohibiting child marriage seek to protect children and advance social welfare.
Disadvantages of Legislation
- Possibility of rigidity: Written rules may not cover every individual situation.
- Political influence: Law-making may occasionally be affected by political considerations.
- Delay: Legislative procedures can be time-consuming.
- Dependence on interpretation: Unclear drafting may require judicial clarification.
- Risk of misuse: Poorly framed laws may restrict rights or cause injustice.
- Frequent amendments: Excessive changes can create uncertainty.
Constitutional safeguards and judicial review help control these risks.
Legislation and Other Sources of Law
Legislation coexists with other important sources of law:
- Custom: Long-established practices recognised by law.
- Precedent: Judicial decisions that bind or guide courts.
- Legislation: Formal written rules created by a competent authority.
Legislation can modify or abolish customs and alter rules established by judicial decisions, subject to constitutional limits. Courts interpret legislation and examine its constitutional validity when properly challenged.
Important Case Law on Legislation
Kesavananda Bharati v. State of Kerala (1973)
The Supreme Court held that Parliament’s power to amend the Constitution is not unlimited and cannot destroy its basic structure. The case demonstrates that legislative power remains subject to constitutional limitations.
In re Delhi Laws Act (1951)
The Supreme Court examined the limits of delegated legislation and held that while the legislature may delegate details of implementation, it cannot abandon its essential legislative function.
Minerva Mills Ltd. v. Union of India (1980)
The Court reaffirmed that limited amending power and judicial review form part of the basic structure. Parliament cannot use ordinary legislation or constitutional amendments to destroy the Constitution’s foundational features.
Importance of Legislation in Modern Society
Legislation regulates social, economic, political, and commercial life. It protects individual rights, maintains public order, creates governmental institutions, provides remedies for legal wrongs, and advances social justice.
Examples: Consumer protection laws safeguard buyers; labour laws protect workers; environmental laws seek to prevent pollution.
Conclusion
Legislation is a major and organised source of law in modern society. It supplies written rules, promotes legal certainty, and enables the State to respond to changing social needs. Yet legislative power is not absolute. Every law must conform to the Constitution, and the judiciary retains the power of constitutional review. Legislation is most effective when it is clear, fair, practical, and consistent with constitutional principles.
