Past Year Paper Questions Related to Kinds of Legislation.

1) Mention different kinds of Legislation. Write a note on the Executive Legislation.

2) Draw the tree of kinds of Legislation. Describe with illustration, the Judicial and
Executive Legislations and mention in brief the merits and demerits of the Executive
Legislation.
3) Explain the concept of subordinate legislation.
4) Classification of law according to Salmond.
5) A delegated legislation cannot go beyond the mandate given for it by the parent
legislation. At the same time, the parent legislation cannot give such a wide mandate
for the delegated legislation, which may amount to the virtual abdication of the
legislature’s role of enacting legislations in favour of the executive. Test the veracity of
the given statement with the help of cogent reasons.
6) Define legislation with its various kinds.

Meaning of Legislation

The common meaning of ‘legislation’ is the making of law. It may be defined as the
promulgation of legal rules by an authority which has the power to do so. In its ordinary use, it
may include the law made by any source, such as precedents, customs, conventional laws etc.
Sometimes, the term is used to include every expression of the will of the legislature whether
it lays down a legal rule or something else, such as declaration of war or peace or ratifying a
treaty with a foreign state, etc. but when we use the term ‘legislation’ as a source of law, we
mean law making by a defined person or body and not customary or conventional law or
judicial decisions.

Legislation may be used in two senses-in its wide sense in its strict sense. In its wide sense, it
includes all methods of law making in its strict sense it means laying down legal rules by the
sovereign or subordinate legislator. While studying Legislation as a source of law we are
concerned with Legislation in its strict sense of the term i.e., as laying down legal principles
by the sovereign.

Legislation is source of law also. If we take its loose meaning, customs, rituals, past established
practices will also be within the ambit of legislation which will destroy the real meaning of
legislation while taking it as source of law.
Salmond has divided legislation in two categories supreme legislation and subordinate
legislation.

Supreme Legislation

Regarding all the matters relating to the legislature, executive, and judiciary, the Constitution
of India is considered the supreme authority. Also, supreme legislation is that legislation that
draws its power right from the constitution. Thus, it cannot be challenged under any legislative
power.

In the Indian legal system, ordinances, acts of parliament, laws made by the governors and
president are in the limits of their authority. This authority is given by the constitution as a part
of supreme legislation. So, in India, the authority is possessed by the parliament.

Supreme Legislation is that which proceeds from sovereign power in the State.

There is no legitimate restriction on its capacity. Indian parliament is likewise preeminent.

Even though there are different constitutional amendments upon its capacity, it is not subject
to any other administrative authorities inside the state. Therefore, the sovereign jurisdiction of
the state cannot be revoked, cancelled, or constrained by some other authoritative organ of the
state.

Sub-ordinate Legislation (Delegated legislation)

Subordinate legislation is that which proceeds from any authority other than sovereign power
and is, therefore, dependent for its continued existence and validity on some superior or
supreme authority.

Delegated Legislation is process by which the legislature can transfer its powers to the
executive authority to make laws to implement and administer the requirements of that primary
legislation.

When the Parliament or State Legislature transfers its law-making powers to the executive then
it is known as delegated or sub-ordinate legislation.

Justice P.B Mukherjee also observed about delegated legislation that it was an expression
which covered a multitude of confusion. He viewed it as an excuse for the Legislature, a shield
for Executors and a provocation to the Constitutional Jurist.
According to M.P Jain, this term can be used in two senses:

➢ Exercise by subordinate agency or agency that is lower in rank to legislature delegated

to it by the Legislature.
➢ The Subsidiary rules made by the Subordinate Authority in the execution of the power
bestowed on it by the Legislature.

Example

❖ Article 123, 357 and 213 empowers the President and Governors to promulgate order
and ordinances. (These are the examples of Executive Legislation)
❖ The Essential Commodities Act 1955 enumerates certain commodities as ‘essential
commodities’ under the Act and it authorized the central government to declare any
other commodity as ‘essential commodity’.

Types of Subordinate Legislation

Salmond refers to five kinds of subordinate legislation:

1. Colonial Legislation

2. Executive Legislation

3. Judicial Legislation

4. Municipal Legislation

5. Autonomous Legislation

1) Colonial Legislation: It is the outcome of colony or colonies by way of settlement.

The nations which are not autonomous and are under the control of some other state
have no Supreme capacity to make law. Such countries can be in different classes such
as colonies, domains, secured or trust regions and so forth. The colonies of British
Empire were delegated with certain legislative authority for their own government. The
laws made by them are subject to the Supreme legislation of the state under whose
control they are. Therefore, it is subordinate legislation. Such legislation is called
colonial legislation. The parliament can repeal, alter, or supersede any colonial
enactment.
For example: Laws passed by the Indian legislature before independence.
2) Executive Legislation: These powers are expressly delegated to the executive by the
Parliament. Executive consists of President, Prime Minister, Governor, and govt.
officers, who are interested, with the working administrative department of the State.
Parliament simply delegates its functions to the executive to make their own laws.
The essential function of the executive is to conduct the administering departments of
the state, but it combines with these certain subordinate legislative powers which have
been expressly delegated to it by Parliament or pertain to it by the common law.
Statutes. President can make a rule for himself to regulate his office. So, it is part of
prerogative of the Crown at common law to make laws for the government of territories
acquired by conquest or cession, and not yet possessed of representative local
legislatures.

For example: Defence of India Act. Frequently entrust to some department of the
executive government the duty of supplementing the statutory provisions by the issue
of more detailed regulations bearing on the same matter.

3) Judicial Legislation: Certain delegated legislative powers are possessed by the

judicature. The superior courts have the power of making rules for the regulation of
their own procedure. This is judicial legislation in the true sense of the term. Differing
in this respect from the so-called legislative action of the courts in creating new law by
way of precedent.
For example: In India, the Supreme Court, and the high court both have the power to
make rules for their respective procedure and administration.

4) Municipal Legislation: Municipal authorities are entrusted by the law with limited and
subordinate powers of establishing special law for the districts under their control. The
enactments so authorized are termed by-laws, and this form of legislation may be
distinguished as municipal. In India, such municipal bodies are Municipal corporations,
Municipal Boards, Zila Parishads, and so on. There is a move for allowing extensive
powers to Panchayats. Along these lines, there is a plausibility of extension of this sort
of subordinate enactment in our nation. Balwant Rai committee appointed by the
Parliament gave some parliamentary reforms needed in the Panchayat system of the
 country. The recommendations were later on incorporated in the Constitution by 73rd
Amendment.
For example: town planning scheme, advertisements, traffic, buildings,
cleanliness, burials etc.

5) Autonomous Legislation: All the kinds of legislation which we have hitherto

considered proceed from the state itself, either in its supreme in or one or other of its
many subordinate departments. But this is not necessarily the case, for legislation is not
a function that is essentially limited to the state. The declaration of new principles
amounts to legislation not because it is the voice of the state, but because it is accepted
by the state as sufficient legal ground for giving effect to those new principles in its
courts of justice. In the allowance of new law, the state may hearken to other voice than
its own. In general, indeed, the power of legislation is far too important to be committed
to any person or body of persons save the incorporate community itself. The great bulk
of enacted law is promulgated by the state in its own person. But in exceptional cases
it has been found possible and expedient to entrust this power to private hands.
For example:
❖ The Railway Company may make by-laws for regulation of its undertaking.
❖ University may make statutes for the government of its members.
❖ Bar Council of India
❖ University Grants Commission

List of Advantages of Delegated Legislation

1. Saves Time for the Parliament

There are lots of overwhelming activities that the government should be concerned about. In
order to resolve the complexity and volume that the legislature needs to deal with, the power
needs to be delegated to the executive branch. This is because of the lack of time or the capacity
thereof in making laws for regulation. Hence, the creation of delegated legislation should be
essential to avoid bogging down into the burden of details.

2. Enables Flexibility

Rigidity in administration has been created by statutes, but the administrative legislation can
be more adaptable to varying circumstances. Thus, it will be useful in the branches of
administration liable for occasional changes and where the technical developments are
happening on a day-to-day basis.

3. Dealing with Emergencies

Clothing the administrative agencies with needed discretion should be better in dealing with
possible contingencies. Such contingencies might result from the application of laws as the
legislature has been unable to foresee or allocate for everyone.

4. Done in Consultation with Affected Interests

In order to make legislation effective, it is important to have prior consultation regarding

interests that should be affected. This is because drafting of rules might and oftentimes does
not allow a conference between vested interests and the government. This can be affected and
would result in the agreement bound to voluntary compliance.

5. The Average Legislator

Since an average legislator is not so acquainted with the difficulties of the modern legislation,
it is important to note that this legislator passes the bill in basic form and leaves details to be
accomplished by the executive branch.

6. Influence of Science and Technology

The impact of science and technology has resulted to the multiplication of functions of the
modern state. Thus, the power of the legislature has been enhanced considerably. As it is not
capable of coping with powers on the rise, the delegation of power in law-making has been
passed to the executive.

7. Sets Up New Standards

The increase in the delegated legislation can likewise be attributed to the requirement of setting
up new standards in social interest. Thus, expert minds are needed to make sure that the national
minimum regarding health education, housing, and sanitation has been due to everybody.

8. The Administrative Legislation Provides for Expert Legislation

The rules are being drafted by the experts familiar with actual conditions in appropriate
departments. With this practice, they are able to work better compared to the lay members
comprising the legislature.
List of Disadvantages of Delegated Legislation

1. Undemocratic Procedures

Legislation comes as a result to undemocratic processes and procedures. In terms of by-laws,

it is arguable that those are democratic considering they are created by elected bodies. Thus,
they can only make by-laws in so far as they have been given authority to do so based on an
enabling Act of the local government.

2. Apparent Lack of Debate

The apparent lack of debate and publicity that should be associated with a form of secondary
legislation has also been noticeable. The enabling Act should have been subject for some public
debate as well as consultation delegated by the legislation with its very nature to be a lot wordy
and more complex meaning which will not be that easy to be understood or be accessible by
the people.

3. Problem of Sub-Delegation

The arousal of sub-delegation may come when the responsible body for the creation of
legislation has not been able to deal with it directly. Thus, the creation of sub-delegation will
give the job to other parties. As a result, this will cause problems as the other parties should
not be accountable at the same way as those who created the legislation.

4. The Wording of Delegated Legislation

Another problem when it comes to delegated legislation is the wording that can be obscure and
technical in nature that should make it hard to understand. This was the trait shared with the
Acts of Parliament.

5. Dependence on Individuals Making Claims to Review Legislation

One more limitation about delegated legislation is that it renders the courts unable to review
such legislation. Thus, it will become dependent to those who made the claim and brought the
matter to the courts’ attention. Since the courts do not have any general authority to keep such
legislation to be reviewed, it poses a problem. This is because the process should be time-
consuming and costly. More so, reviewing the matter can only be conducted if the individual
claims do have the necessary funding. As a result, the effectiveness of the judicial review to
remedy this condition should be severely limited.
6. Influence of the High Courts

In comparison to the primary legislation, the term delegated legislation can be influenced by
the High Court. Hence, they can quash the said legislation as it has been made by people who
are not directly elected. Thus, it could limit the control of their power. Nevertheless, it can be
dependent on the people making those claims as they bring matters in consideration of the
courts.

Executive Legislation and the Separation of Powers in India

The time of the Parliament has been limited and the government will have a legislative program
that should keep the Parliament busy. Thus, the Parliament will have no time to scrutinize the
debate complex and regulations and technical rules. Perhaps the advantages and disadvantages
presented here can provide a clear understanding regarding the significance or insignificance
of delegated legislation. It may or may not be a significant factor for some, but it should be a
concern for everyone.

The Indian constitutional scheme makes it clear that Ordinances – or “executive legislation” –
are meant to be used only in circumstances of grave emergency, and where the legislature is
unable to pass a law to deal with that emergency. However, over the last three decades, a
gradual devaluation of the Indian legislature (at both the central and the state levels) at the
expense of the Executive has been accompanied by an increase in the frequency and volume
of Ordinances to such an extent, that Ordinances now resemble an alternative form of law-
making – but without the public scrutiny and the deliberative process that gives legislation its
legitimacy. Another technique that the Executive has increasingly begun to resort to is that of
“re-promulgation”: An Ordinance is promulgated when the legislature is not in session; it is
then allows to lapse when the legislature reconvenes; and when the legislative session ends, it
is “re-promulgated” in more or less the same terms. In 1987, the Supreme Court of India was
called upon to adjudicate a situation in which an Indian state had been more or less governed
entirely by repromulgated ordinances, for more than a decade. The Supreme Court handed
down an ambiguous judgment that strongly criticized re-promulgation, and asserted the right
of the judicial branch to review re-promulgated ordinances to test their bona fides, but stopped
short of holding re-promulgation to be unconstitutional per se.
However, the associated questions of the scope of the Ordinance-making power, the extent to
which Ordinances could be reviewed by constitutional courts, and perhaps most importantly –
the consequences of Ordinances “ceasing to be in force” on the reconvening of the legislature
– were finally answered by a seven-judge bench of the Supreme Court in January. In a landmark
judgment called Krishna Kumar vs State of Bihar, the Supreme Court emphatically reasserted
the principle of Parliamentary supremacy, and the principle that Ordinances were only meant
to be used in exceptional situations. It did so by laying down two important propositions of
law:

First, it held that the validity of an Ordinance was subject to judicial review; in particular, the
question of whether circumstances existed that required emergency action, as stipulated in the
Constitution, could be tested in the constitutional courts. The judicial standard to be applied
broadly resembled the standards governing judicial review of administrative action: while the
Court could not substitute its judgment for that of the Executive, it could nonetheless examine
the material based on which the Executive had reached its judgment, and set it aside if the
material were non-existent, or entirely irrelevant. At the minimum, this would require the
Executive to justify the existence of an Ordinance by showing, plausibly, that an emergency
existed.

Secondly, the Supreme Court held that if an Ordinance “ceased to operate”, because it was not
laid before the legislature on its reconvening, then acts done during the lifetime of the
Ordinance would also come to an end. In other words, actions taken during the existence of an
Ordinance did not possess an “enduring effect”. In reaching this conclusion, the Court
overruled two of its own prior judgments, delivered by benches of five judges, which had
equated an Ordinance to a “temporary statute”, and had held that, in accordance with the
principles governing temporary statutes, acts done during their lifetime would continue to have
effect unless expressly revealed. The key conceptual advance that the Court made was to delink
Ordinances from temporary statutes. According to Justice Chandrachud, the author of the
majority opinion, a temporary statute was a law, made under normal circumstances, which had
a defined shelf life; an Ordinance, on the other hand, came into existence in very different
circumstances, and was meant to be an emergency measure. Consequently, even though the
Constitution stated that Ordinances had “the force and effect of law”, this could not mean that
Ordinances were equivalent to law. The Court did recognize that in certain circumstances, it
would be impossible – or unrealistic – to reverse the effects of acts done during the lifetime of
an Ordinance. Consequently, it carved out a narrow exception to the general rule, holding that
in circumstances of “constitutional necessity”, Ordinances would continue to have an enduring
effect. The exact scope of “constitutional necessity” will be worked out by later courts.

These two holdings – that Ordinances are subject to judicial review, and that Ordinances do
not create enduring effects beyond their lifetime – together represent an important corrective
to the creeping imbalance of power between the legislature and the Executive. They reaffirm –
once again – the basic principle of separation of powers in a parliamentary democracy.