LEGISLATION LEGISLATION It is derived from Latin word

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SUBORDINATE LEGISLATION • Legislation is supreme when it proceeds from the sovereign power in the state and is being repealed or controlled by any other legislative authority.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. 2. 3. 4. 5. Colonial Executive Judicial Municipal 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 • This kind of law could be repealed or altered by British Government.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 • This kind of law could be repealed or altered by Government.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 139 A; • (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 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