“The people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of Government hold their power, is derived.” said The Father of Constitution, James Madison Jr. who is an American Statesman and Founding Father. He served as the fourth president of United States and is known for his pivotal role in drafting and advancing of the United States Constitution and The Bill of Rights.
Legislation is the preparing and enacting of laws by local, state, or national legislatures. In other contexts it is sometimes used to apply to municipal ordinances and to the rules and regulations of administrative agencies passed in the exercise of delegated legislative functions.
Legislation involves not only deeds by a legislative body, but also contribution by the executive. As the principal officer of state and as a political leader, the executive participates broadly in the formulation of governmental policy and often in the actual preparation of legislation.
“Subordinate Legislation” also called “Delegate Legislation” explains the exercise by a subordinate authority, such as a Minister of the legislative power delegated to him by the Parliament. It may also mean the subsidiary laws themselves which are made like statutory instruments.
There is no conjecture that every person knows the law. The ignorance of law shall not excuse a man or relieve him from the consequences of crime that has been committed, or from the liability upon a contract. Hence, the statement, “all the king’s subjects must be taken to the statute law.” is based on the principle that the Acts of the Parliament ordinarily takes effect without previous warning or promulgation.
The process by which statutes are enacted is an important aspect of the study of legislation. Aside from restrictions on the subject matter of legislation, such as those forbidding the enactment of laws depriving any person of life, liberty, or property without due process of law, there are constitutional limitations on the form and effect of legislation. Typical provisions are those bounding the authority of the legislature to pass local or special laws, requiring a single bill to be confined to one subject expressed in its title and supplying that, excluding an emergency, no law shall be effective until a specified number of days after its enactment.
ORIGIN OF LEGISLATION
The common law system is a system of law based on judicial precedents. It came to India with the invasion of British East India Company. A charter was granted to the company by King George I in 1726 for establishment of “Mayor Courts” in Madras, Bombay and Calcutta. After company’s victory on Battle of Plassey its judicial functions expanded and by 1772 company’s courts expanded out from the three major cities. In this procedure, the existing Mughal legal system in these parts was slowly replaced. After the First War of independence in 1857, the control of company territories in the India passed to the British crown. Being part of the empire saw the next big drift in the Indian Legal System.
Legislation in India seeks its history from British regulated period. Since the time when India converted into a colony of Britain, legislation, as a source of law, started growing at a slow rate at beginning but now in the present scenario, we see that legislature is the most significant source of law Few pre-independent legislation which are still valid and are followed in India are:
• Indian Penal Code, 1860
• Indian Evidence Act, 1872
• Indian Contract Act, 1872
• Civil Procedure Code, 1908
Coding of law also began in intensity with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into power by 1862. The Code of Criminal procedure was also drafted by the same commission and host of other statutes and codes like Evidence Act (1872) and Contracts Acts (1872).
The exercise of the power and function of making laws such as rulings that have the force of authority by virtue of their promulgation by an official organ of a state or other organization is known as legislation.
Legislation is one of the most impeccable instruments of government in organizing society and protecting citizens. It examines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies. On the contrary, a law has little or no value if there is neither discipline nor enforcement.
Legislation, also known as statutory law, is the basic structure of current legal system of India. Statutory laws are based on the statutes enacted and imposed by the legislature. A statute is a formal operation of the Legislature in written form. It declares the will of the Legislature. It might be declaratory of the law, or a command which should be obeyed, or a prohibition forbidding a course of conduct or a particular operation. Legislation, at its best, is not a combat between ideological rivals but instead a sincere search for the best governing rules for our society.
A willful legislature might easily conclude that it cannot foresee all future developments affected by its statute and might furthermore wish to grant a trusted judicial agent the discretion to adapt its commands to the circumstances of adjudication. If so, pragmatism fits neatly within the delegation context. A statute is the crystallization of an objective which might be political, social, economic or even personal but there will be a motive that prowls behind it.
Legislation then becomes the means to achieve an end. These groups could be:
• Political parties
• Pressure groups
• Department officials
• Commissions of Inquiry
• Parliamentary committees
• Public and Private organizations
Although some groups have a greater or more concentrated influence on the legislature than others, they are all united in the same conviction that a situation exists which calls for legislation.
As the Supreme Court of India has observed, it is now well settled that the power of delegation is a constituent element of the legislative power as a whole, and in current times when the legislatures provides laws to meet the difficulties of the complex socio-economic policies, they often find it necessary and convenient to delegate subsidiary or ancillary powers to subordinates of their choice for carrying out the schemes of the legislation. The nature of delegation can be broadly classified as: (i) the rule making power; and (ii) grant of exemption from the operation of a statute.
Subordinate or delegated legislation is the law that is created by the executive and not by the elected legislature. Laws today are highly complex and therefore it won’t be possible for the legislature (parliament etc) to go into every aspect, so they just pass the broad guidelines of the law and the executive has the authority to fill in the details.
For example : say that the parliament passes a law to ban certain types of pesticides, the specific pesticides which come under this law will be decided and notified by the executive that is the government.
The expression ‘subordinate legislation’ means the power of connecting statutory mechanisms by a body of subordinate to the Legislature and in exercise of the control, surrounded with specific limits that is concluded by the Legislature. The term also connotes and discovers the statutory instruments themselves. Legislation is either supreme or subordinate.
The former is that which proceeds from the superior or sovereign power within the State, and which is therefore incapable of being revoked, withdraw or controlled by any other legislative law. Subordinate legislation is that which proceeds from any authority other than the supreme authority that makes law, and is, therefore, dependent for its recurrent existence and validity on some superior or supreme authority. The idea is to supplement Acts of Supreme Legislative Body by enabling rules required for their operation.
So while on one hand, delegated legislation is a necessity, on the other, there is a concern that power is transferred to the unelected executive to create laws. Furthermore, to prevent its abuse, there are checks and balances. For example- In India there are parliamentary committees like Rajya Sabha Committee on Subordinate Legislation , which investigates into whether the powers are being exercised properly.
When legislators subcontract the rule making work further to people, this is known as Delegated Legislation. In other words, delegated legislation is when parliament confers the law making power to the executive. Delegated Legislation is universally known and is both desirable and legitimate. For example, legislature entails a law regarding the registration of Motor Vehicles. Then executive (Government and its bureaucracy) make provisions regarding to who will get the license and how.
Subordinate legislation is a procedure by which the executive authority is given controls by primary legislation to form or reform laws in order to render and administer the necessities of that primary legislation. Such rule is the law made by a person or body other than the legislature but with the legislature’s authority. Parliament henceforth, through primary legislation, enables others to make law and rules through a process of delegated legislation.
Subordinate Legislation is important because of several reasons. They are-
1. Delegated Legislation diminishes the burden of already overburdened Legislature by enabling the executive to form or alter the law under the authority of Legislature. Thus, this aids the Legislature to focus on more important matters and frame policies regarding it.
2. It allows the law to be made by those who have the required knowledge and experience. For example, a local authority can be licensed to enact laws with respect to their locality considering that the local needs instead of making law across the board which may not suit their particular area.
3. The procedure of delegated legislation also defines a significant role in an emergent situation since there is no need to wait for specific Act to be passed through Parliament to resolve the particular situation.
4. At last, delegated legislation often covers those circumstances which have not been foreseen by the Parliament while the time of enacting legislation, which makes it supple and constructive to law-making. Delegated legislation is, henceforth, able to meet the diversifying needs of society and also circumstances which Parliament had not anticipated when they formed the Act of Parliament.
Such subsidiary or subordinate legislation might take various forms, e.g., rules, regulations, notifications, bye-laws orders or schemes. Section 24 of the General Clauses Act, 1897, explains that some of these in the context that notifications, orders, bye-laws, forms and rules will continue in force where an enactment under which they are made is repealed and re-enacted with or without modifications. The device of delegating the power to frame the rules and regulations is employed for diverse purposes like:
(a) Commencement of Acts: Several Acts authorizes the Government to appoint the date with effect from what is the enactment shall come into force.
(b) Expansion and application of Acts: The subordinate legislation tool is mostly used for the expansion of the Acts in regard of territory and other objects and duration of times.
(c) Temporary Extension of Acts: Act of temporary nature consisting of a fixed tenure sometimes contains a provision enabling the Government to extend the life of the Act or part of it.
(d) Extension of Acts to objects which were not initially covered.
(e) Dispensing and suspending of Acts: Many Acts require an exemption clause empowering the executive to make exemptions from all or any of the provisions of an Act in a particular case or class of suits when, in the discretion of the executive, such a course is warranted.
(f) Delegation of Power to alter an Act: Alteration technically leads to an amendment of an Act. It may be by way of Modifications or amendment.
The attributes of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must demarcate the source of the rule and regulation making authority. For instance, rules are always framed in exercise of the specific power conferred by the statute to make rules. Likewise, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the rule-makers in exercise of specific authority. The vires of law is deemed of being challenged if the power is absent or has been exceeded by the authority making rules or regulations.
Subordinate legislation is one of the most inevitable parts of administration. Along with being most significant, it was one of the most debatable issues in India. According to the traditional theory, the function of the executive is administering the law enacted by legislature and in ideal state the legislature power must be exclusively dealt by the legislature. But due to increase in administrating function and shifting of the concept to welfare state, they have to perform certain legislative functions.
If we see around we can realize that due to shift to welfare state, there has been increase in the administrative function of the country. After independence there was a huge amount of confusion regarding delegation of legislative power to the executive. To clarify this, President under the provision of 143 of the constitution referred the situation to the apex court and it provided certain guidelines clarifying the position.
Author: Gayatri Sharma,
GGSIPU, Jims School of Law, 2nd Year/ Student