LEGISLATION

Umang Dixit
B.A.LLB. (HONS.) ,2ND YEAR
FACUTY OF LAW, JMI
 Contents
ACKNOWLEDGEMENT ............................................................................................................................. 2
INTRODUCTION ....................................................................................................................................... 3
KINDS OF LEGISLATION ........................................................................................................................... 6
Supreme Legislation ............................................................................................................................ 6
Subordinate Legislation ...................................................................................................................... 6
Colonial Legislation ......................................................................................................................... 7
Executive Legislation ....................................................................................................................... 7
Judicial Legislation........................................................................................................................... 7
Municipal Legislation ...................................................................................................................... 7
Autonomous Legislation ................................................................................................................. 7
Delegated Legislation ...................................................................................................................... 8
LEGISLATURE ........................................................................................................................................... 9
FUNCTIONS OF LEGISLATURE............................................................................................................ 10
1. Legislative or Law-making Functions: ....................................................................................... 10
2. Deliberative Functions: ............................................................................................................. 10
3. Custodian of National Finances: ............................................................................................... 10
4. Control over the Executive:....................................................................................................... 10
5. Constituent Functions: .............................................................................................................. 11
6. Electoral Functions: ................................................................................................................... 11
7. Judicial Functions: ..................................................................................................................... 11
8. Ventilation of Grievances: ......................................................................................................... 11
9. Miscellaneous Functions: .......................................................................................................... 11
Legislative Relations Between Centre and State .................................................................................. 13
1. Union List or List I .......................................................................................................................... 13
2. State List of List II .......................................................................................................................... 14
3. Concurrent List of List III ............................................................................................................... 15
 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Mr. SUKESH MISHRA who gave
me the golden opportunity to do this wonderful project on the topic LEGISLATION AND ITS KINDS,
which also helped me in doing a lot of Research and I came to know about so many new thing I am
really thankful to him.

Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this
assignment within the limited time frame.

UMANG DIXIT
 INTRODUCTION

Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a
legislature or other governing body or the process of making it.[1] Before an item of
legislation becomes law it may be known as a bill, and may be broadly referred to as
"legislation", while it remains under consideration to distinguish it from other business.
Legislation can have many purposes: to regulate, to authorize, to outlaw, to provide (funds),
to sanction, to grant, to declare or to restrict. It may be contrasted with a non-legislative act
which is adopted by an executive or administrative body under the authority of a legislative
act or for implementing a legislative act.

Under the Westminster system, an item of primary legislation is known as an Act of

Parliament after enactment.

Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or

Parliament), or by the executive, whereupon it is debated by members of the legislature and is
often amended before passage. Most large legislatures enact only a small fraction of the bills
proposed in a given session. Whether a given bill will be proposed and is generally a matter
of the legislative priorities of government.

Legislation is regarded as one of the three main functions of government, which are often
distinguished under the doctrine of the separation of powers. Those who have the formal
power to create legislation are known as legislators; a judicial branch of government will
have the formal power to interpret legislation (see statutory interpretation); the executive
branch of government can act only within the powers and limits set by the law.

Legis means law and latum means making. Legislation means law making. It also refers
to the law made by the legislature. It may also be defined as the promulgation of legal rules
by an authority which has the power to do so. It is the formal declaration of the legal rules by
the legislative organ of the body politic.

In a wider sense, it includes all the sources of law, any act done with the effect of adding to,
or altering the law. When a judge establishes a new principle in a judicial decision, it is
possible to say that he has exercised legislative power and it is also legislation. It frames new
laws, amends the old laws and cancels existing laws in all countries.
According to Salmond: Legislation is that source of law which consists in the declaration of
legal rules by a competent authority.

According to Austin: There can be no law without a legislative act.

According to Gray: Legislation means the forma utterance of the legislative organs of the
society.

Analytical Positivist A typical law is a statute and legislation is the normal source of law
making. The majority of exponents of this school do not approve that the courts also can
formulate law. They do not admit the claim of custom as a source of law. Thus, they regard
only legislation as source of law.

Historical School of Thought Legislation is the least creative of the sources of law.
Legislative purpose of the legislation is to give better form and more effective the custom
which is spontaneously developed by the people. They do not regard legislation as source of
law.

Legislation is generally used in more limited sense. It denotes the laying down of legal rules
by a sovereign and subordinate legislature. An important distinction between law making by
legislature and law making by a court must be clearly understood. When the legislature
makes a law, it does not have any actual disputes before it and it lays down general rules for
the future, without reference to any actual dispute. Courts on the other hand are engaged in
the settlement of disputes and any law making that they may do is only with reference to
actual disputes before them and only in so far as is necessary for their solution. Thus we may
say that judicial law making is incidental to the solving of legal disputes; while law making is
the main function of the legislature. Legislation is most accurately termed enacted law, all
other forms being distinguished as un-enacted. However in a jurisprudential sense,
Legislation includes only an expression of the will of the legislature directed to the making of
the rules of law.

Case law is gold in the mine-a few grains of the precious metal to the tons of useless
matter-while statute law is coin of the realm ready for immediate use.-Sir Salmond.

Legislation or Statutory law is a law or the process of making a law which is enacted by
a legislature while legislature is the body or chamber of people who make, amend or repeal
laws. An item or piece of legislation is known as a bill before it becomes a law. The
paramount consideration in enacting laws in a Welfare State should be the best interests
of the people, particularly women and children, in which a standard is echoed throughout the
legal instruments on women and childrens rights, Scheduled castes, Scheduled tribes and
other backward classes.

Legislation can have many purposes, for example, to regulate, to authorize, to proscribe, to
provide, to sanction, to grant, to declare or to restrict and repeal. The Constitution of India not
only guarantees equality to women but also empowers the State to adopt measures of positive
discrimination in favour of women. The principle of gender equality is enshrined in the
Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive
Principles.

It would be proper to refer to some of the most important legislations and provisions
contained therein pertaining to women. Section 354 of the Indian Penal Code, 1860 provides
punishment for outraging the modesty of any women, S. 366 deals with kidnapping for
marriage against her will. Section 494 protects women from bigamy. Similarly, Section 498-
A deals with subjecting women to cruelty by her husband or relatives of husband of a woman
and S. 509 provides punishment for uttering words, gestures or acts intended to insult the
modesty of a woman.

Man is by nature a social being. Under S. 125, of the Code of Criminal Procedure, 1973 a
woman has got a right to maintenance. Under various provisions of the Hindu law, codified
in different enactments viz., Section 18 (1) of the Hindu Adoptions and Maintenance Act,
1956, provides for obligations of husband to maintain his wife. According to Section 18 (2)
wife is entitled to live separately on several grounds and Section 19 provides for maintenance
of widow by her father-in-law. Similarly, Section 14 of the Hindu Succession Act, 1956,
provides that any property possessed by a female Hindu is to be her absolute property as full
owner. In the same vein, Section 6 of the Hindu Minority and Guardianship Act, 1956,
provides for mother as a natural guardian for minors below 5 years. Section 13 (2) of the
Hindu Marriage Act, 1955, provides for wife to present a petition for the dissolution of her
marriage by a decree of divorce on several grounds. Section 13-B provides equal right for
wife for getting divorce by mutual consent. Section 24, provides for relief for interim
maintenance and expenses. Section 25, provides for right to a wife to seek permanent
alimony and maintenance and S. 26, provides right to claim custody of children.

The national policy for the empowerment of women, 2001, aims at implementation of various
international obligations and commitments in all sectors of empowerment of women such as
the Convention on All Forms of Discrimination Against Women (CEDAW),Convention on
the Rights of the Child (CRC), International Conference on Population and Development
(ICPD+5)and many other such international commitments.

The Parliament and State Legislatures, because of limitation imposed upon them by the time
constraints hardly goes into the matters of detail. Therefore, provision is made for delegated
legislation to meet and obtain flexibility, elasticity, expedition, emergency and opportunity
for experimentation. Legislation is either supreme or subordinate.

KINDS OF LEGISLATION
Legislation may be broadly classified as Supreme, subordinate legislation. It is Supreme
when the sovereign authority itself make the law, as the law made by Indian Parliament. It is
subordinate when the sovereign power delegates to any other authority to make law, as the
power delegate to a corporation to make law.

Supreme Legislation
The Supreme legislation is by the sovereign power of the state. Therefore, any other authority
within the state can, in no way, control or check it. It is considered not only supreme but
legally omnipotent. A classical exposition of this principle can be found in Diceys book,
The Law of the Constitution. There is no legal limitation upon its power. Indian parliament
is also supreme. Though there are certain constitutional restrictions upon its power, it is not
subject to any other legislation authority within the state. . It cannot be repealed, annulled or
controlled by any other legislative authority.

Subordinate Legislation
Subordinate legislation is legislation by any other authority then the Supreme authority in the
state. It is made under the powers delegated by the Supreme authority. Such legislation owes
it existence, validity and continuance to the Supreme authority. It can be repealed by and
must give way to sovereign legislation. Subordinate legislation is subject to parliamentary
control. Five different forms of subordinate legislation can be identified. These are:
Colonial Legislation
The countries which are not independent, and are under the control of some other state have
no Supreme power to make law. Such countries are of various classes: as colonies,
dominions, protected or trust territories etc. The laws made by them are subject to the
Supreme legislation of the state under whose control they are. Thus it is subordinate
legislation. Britain has had many colonies and dominions. The laws made by them for the
self-government are subject to alternation, repeal or supersession by the legislation of the
British Parliament. As the colonies are fast achieving independence, and almost all the British
dominions have uncontrolled power for legislation, therefore in the near future, we may not
have this class of subordinate legislation.

Executive Legislation
When legislative powers are delegated to the executive, it is called executive legislation.
Though the important function of executive is to implement the laws and carry on the
administration, it is always entrusted with some subordinate legislation powers also. Today,
practically every law enacted by the legislature contains delegation clauses conferring law-
making powers on the executive to supplement the statutory provisions.

Judicial Legislation
Powers are given to the judicature to make rules for the regulation of its procedure. In India,
the Supreme Court and the high court both have the power to make rules for their respective
procedure and administration.

Municipal Legislation
Municipal bodies are given powers to make bye-laws concerning their local matters. Bye-law
made by a local body operates within its respective locality. In India such municipal bodies
are Municipal corporations, Municipal Boards, Zila Parishads, etc. There is move for granting
very wide powers to Panchayats. Thus, there is a possibility of expansion of this kind of
subordinate legislation in our country.

Autonomous Legislation
When the Supreme authority confers powers upon a group of individuals to legislate on the
matters entrusted to them as a group, the law made by the latter is called autonomic law and
the body is known as autonomous body. A railway is an autonomous body. It makes bye-laws
for the regulation of its administration, etc. A university is also an autonomous body.
Delegated Legislation
Delegated legislation is a kind of subordinate legislation. Generally the delegation
legislation means the law made by the executive under the powers delegated to it by the
Supreme legislative authority. It comes in the form of orders, by laws etc. The Committee on
Ministers power said that the term delegated legislation has two meanings-

1. Firstly, it means the exercise of power that is delegated to the executive to make rules.

2. Secondly, it means the output the output or the rules or regulations etc. made under
the power so given.

Sub-Delegation is also a case in Indian Legal system. The power to make subordinate
legislation is derived from existing enabling act. It is fundamental that the delegate on whom
such power is conferred has to act within the limits of the enabling act. Its purpose is to
supplant and not to supplement the law. Its main justification is that sometimes legislature
does not foresee the difficulties that will come while enacting the law. Therefore, Delegated
Legislation fills in those gaps which are not seen while formulation of the enabling act.
Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the
light of experiences gained during the working of legislation.
 LEGISLATURE

Of the three organs of the government, the place of primacy belongs to the Legislature. The
function of government begins by law-making and is followed up by law-enforcement and
adjudication functions. As such, the legislature is the first organ of the government.

The term legislature is a generic term meaning a body which legislates. The term Legg
means law and lature the place and etymologically Legislature means a place for law-
making. Another term, which is used as a synonym of Legislature, is Parliament. This word
stands derived from the French word Parley which means to talk or to discuss and
deliberate.

In this way, we can say Parliament means the place where deliberations are held.
Combining the two views, we can say Legislature or Parliament is that branch of government
which performs the function of law making through deliberations.

The legislature is that organ of the government which passes the laws of the government. It is
the agency which has the responsibility to formulate the will of the state and vest it with legal
authority and force. In simple words, the legislature is that organ of the government which
formulates laws. Legislature enjoys a very special and important in every democratic state. It
is the assembly of the elected representatives of the people and represents national public
opinion and power of the people.
FUNCTIONS OF LEGISLATURE
1. Legislative or Law-making Functions:
The first and foremost function of a legislature is to legislate i.e. to make laws. In ancient
times, laws used to be either derived from customs, traditions and religious scriptures, or
were issued by the kings as their commands. However, in the contemporary era of
democracy, legislature is the chief source of law. It is the legislature which formulates the
will of the state into laws and gives it a legal character. Legislature transforms the demands
of the people into authoritative laws/statutes.

2. Deliberative Functions:
To deliberate upon matters of national importance, public issues, problems and needs is an
important function of a modern legislature. Through this function, the legislature reflects the
public opinion over various issues. The debates held in the legislature have a great educative
value for the people.

3. Custodian of National Finances:

A near universal rule is that the legislature of the state is the custodian of national purse. It
holds the purse of the nation and controls the finances. No money can be raised or spent by
the executive without the approval of the legislature. Each year the executive has to prepare
and get passed from the legislature the budget for the coming financial year. In the budget,
the executive has to place the account of the actual income and expenditure of the previous
year and estimated income and expenditure for the New Year.

Not only the legislature passes the budget but also it alone can approve the imposition, or
repeal or collection of any tax whatsoever. Further, the legislature maintains a control over all
financial transactions and expenditures incurred by the executive.

4. Control over the Executive:

A modern legislature has the power to exercise control over the executive. In a parliamentary
system of government, like the one which is at work in India, for all its actions, decisions,
and policies, the executive is collectively responsible before the legislature. It is accountable
before the legislature. The legislature has the power to remove the executive by passing a
vote of no-confidence or by rejecting a policy or budget or law of the executive.

The Prime Minister and all other ministers are essentially the members of the legislature.
They are bound by the rules and procedures of the Parliament.
(b) In a Presidential form of government, like the one which is at work in the USA, the
legislature exercises some checks over the executive. It can appoint investigation committees
to probe the functioning of government departments. By the use of its power to legislate and
pass the budget, the legislature exercises a fair amount of control over the executive. Thus,
whether a political system has a parliamentary system or a presidential system, the legislature
exercises a control over the executive.

5. Constituent Functions:
In almost every state, it is the legislature which has the power to amend the constitution. For
this purpose legislature has to pass special laws, called amendments, in accordance with the
procedure laid down in the Constitution. In some states the requirement is that the legislature
must pass the amendment with 2/3rd or 3/4th or an absolute majority of votes.

6. Electoral Functions:
A legislature usually performs some electoral functions. The two houses of the Indian
Parliament elect the Vice-President. All elected MPs and MLAs form the Electoral College
which elects the President of India. In Switzerland, the Federal Legislature elects the
members of the Federal Council (Executive) and the Federal Tribunal (Judiciary).

7. Judicial Functions:
It is customary to give some judicial power to the legislature. Usually, the legislature is
assigned to act as a court of impeachment i.e. as an investigating court for trying high public
officials on charges of treason, misdemeanor and high crimes and remove them from office.
In India, the Union Parliament can impeach the President. It has also the power to pass a
resolution for the removal of Judges of the Supreme Court and of the High Courts on the
ground of misbehavior or incapacity.

8. Ventilation of Grievances:
A legislature acts as the highest forum for ventilation of public grievances against the
executive. Besides representing every interest and shade of opinion, the legislature acts as the
national forum for expressing public opinion, public grievances and public aspirations.
Parliamentary debates and discussions throw a flood light over various issues of public
importance.

9. Miscellaneous Functions:
Some legislatures are assigned specific executive tasks. For example, the US Senate (Upper
House of US Legislature) has the power to confirm or reject the major appointments made by
the US President. Likewise, it enjoys the power to ratify or reject treaties made by the US
President. In India, the

Rajya Sabha has been given the power to establish or eliminate any All India Service.
Legislatures also perform the function of approving or rejecting or amending all the policies
and plans made by the executive. In the US Constitution, the Congress (Legislature) enjoys
the power to declare war.

Thus the legislative organs of the government play a very important and active role in the
exercise of the sovereign power of the state. In fact legislature is the legal sovereign in the
State. It has the power to transform any decision of the state into a law. Legislature is the
chief source of law. It is the mirror of national public opinion and the symbol of the power of
the people.
 Legislative Relations Between Centre and State
India has a federal form of government with one at the centre and the other in the States. A
federal government is characterized with decentralization and division of powers.

The Constitution of India divides powers between the Centre and States in the three spheres
of legislation, administration and financial.

The division of powers in the legislative sphere is done on the following two lines:

1. The territory over which the centre and the states will have jurisdiction

2. The subjects of legislation on which they have the power to make laws

Article 245 defines the extent of laws made by the Parliament and the State Legislatures in
terms of the territory where the laws would be enforced. The laws made by the State
Governments are confined to the territorial boundaries of the state where as the laws made by
the Parliament are applicable to the territory of India as well as the Indian citizens living
abroad and their property situated any wherein the world.

Therefore the legislative power of the Parliament is called Extra-territorial legislation where
as the legislative power of the State Legislatures is called territorial legislation. Article 246
deals with the distribution of the subjects of legislation between the Centre and the States.

The Constitution under this article provides for a threefold distribution in the form of the
following three lists

1. Union List or List I consists of 97 subjects on which the Parliament alone can
legislate. All subjects of national interest such as foreign affairs, defence and so on are
included in this list and the subjects are exclusive to the centre; under any given
circumstances states cannot legislate on the subjects in this list.

2. State List of List II consists of 66 subjects on which the states can legislate. All
subjects of local interest such as law and order are placed in this list. However, this list is not
exclusive to the states; the Parliament can legislate of the subjects in this list under the
following five situations:

i. Article 249 empowers the Rajya Sabha to declare any subject in the state list as a subject of
national importance by passing it with a special majority of two-thirds present and voting.
The effect of this declaration is that the parliament will have the power to legislate on this
subject for a period of 1 year. This declaration can be further extended fora period of one year
if Rajya Sabha again passes a resolution to this effect.

ii. Article 250 empowers the Parliament to make laws on any subject in the state list when
National emergency is in force.

iii. Article 252 empowers two or more states to pass a resolution in their respective state
assemblies with a simple majority empowering the Parliament to make a law on a state
subject. The law made the Parliament on such a subject can be enforced only in those states
that passed the resolution If any other state wants to adopts the same law, it has to pass a
resolution in its assembly to this effect.

However the laws made by the Parliament can be repealed or amended by the Parliament
only; the states will not have any power to amend or repeal these laws

iv. Article 253 empowers the Parliament to make a law on any subject in the state list in order
to give effect to an international agreement.

In making such a law, there is no condition that the Parliament must inform the concerned
state or states or take their consent. When state emergency or Presidents rule is declared in a
State the Government (executive and legislature) of that State is suspended and therefore the
Parliament can make a law on any subject in the State list applicable in that state only

According to Article 251, in case of inconsistency between the law made by Centre and the
state in a subject in the state list, then the Central law will prevail over the state law.
3. Concurrent List of List III consists of 47 subjects on which both the states and the
centre can legislate.

All subjects of common interest such as education are placed in this list. However, according
to Article254, in case of an inconsistency between the central law and the state law on a
subject in the concurrent list then the central law shall prevail. The only exception to this is if
the state law is assented by the President then the state law shall prevail for that state Apart
from the above mentioned three lists, Article 248 empowers the Parliament to legislate on
subjects which are not listed in any of the three lists. Such subjects are called residuary
powers and the Constitution vests these powers in the Parliament.