LEGISLATION AS A SOURCE OF

LAW
• The passage discusses the concept of legislation as
a key source of law in jurisprudence (the study and
theory of law) and explains its importance in legal
systems today. Here’s a simplified breakdown of its
meaning:
• Legislation as a Source of Law: Legislation refers to
laws made by a formal body, like a parliament or
congress, rather than laws that emerge from
custom, judicial decisions, or religious principles. In
most modern legal systems, legislation is a primary
way in which laws are created, regulating society by
setting rules that everyone must follow.
• The passage discusses the concept of legislation as
a key source of law in jurisprudence (the study and
theory of law) and explains its importance in legal
systems today. Here’s a simplified breakdown of its
meaning:
• Legislation as a Source of Law: Legislation refers to
laws made by a formal body, like a parliament or
congress, rather than laws that emerge from
custom, judicial decisions, or religious principles. In
most modern legal systems, legislation is a primary
way in which laws are created, regulating society by
setting rules that everyone must follow.
• Implications for Rule of Law and Society: The passage
suggests that legislation has significant implications for
the rule of law (the idea that everyone, including the
government, is subject to the law) and society. When
laws are made through a clear, organized legislative
process, they promote fairness, consistency, and
accountability. Legislation can protect rights, define
responsibilities, and provide a foundation for resolving
disputes in a structured manner.
• In essence, the passage is an introduction to a
discussion on how legislation has become a dominant
and influential source of law within the broader study
of jurisprudence, emphasizing its historical importance,
current role, and impact on society and governance.
• Ancient Legal Codes
• The earliest known legal codes, such as the Code of Hammurabi in
ancient Mesopotamia and the Twelve Tables in ancient Rome, were
early manifestations of legislation. These codes were formal written
laws that established rules and standards governing various aspects
of society, from property rights to criminal offenses. They laid the
groundwork for codified legal systems and set a precedent for
future legislative efforts.
• Roman Law and the Corpus Juris Civilis
• The Corpus Juris Civilis, or "Body of Civil Law," was a huge collection of Roman
laws compiled in the 6th century by order of Emperor Justinian I. This work was
crucial for the development of legal systems in Europe and laid the foundation
for modern civil law.
• Here’s an easy breakdown:
• Why It Was Created: Before the Corpus Juris Civilis, Roman laws were scattered
across many old documents and records, making them hard to follow. To fix this,
Emperor Justinian decided to gather and organize all existing laws into one
comprehensive set.
• What It Included: The Corpus Juris Civilis combined existing Roman legal texts
and clarified legal principles, covering topics like property rights, contracts,
family law, and criminal behavior. It was meant to be a clear and orderly
reference so people and judges could understand and apply the law consistently.
• Why It’s Important: This collection of laws influenced legal systems across
Europe for centuries. It introduced the idea that laws should be systematically
organized, so they’re easy to access and predict. People could then rely on a
clear legal framework, knowing how laws applied to different situations.
• In summary, the Corpus Juris Civilis was a major step forward in making laws
structured, accessible, and reliable, and it became a model for later legal
• Legislation in Modern Legal Systems
• In contemporary legal systems, legislation has evolved into a fundamental
source of law, often occupying a central role. Its characteristics and
significance can be examined through the lens of modern jurisprudence.
• Characteristics of Legislation
• Legislation is characterized by several key attributes that distinguish it as a
source of law:
• Formality: Legislation is typically enacted through a formal and structured
process involving legislative bodies, such as parliaments or congresses. This
process often includes drafting, debating, amending, and voting on
proposed laws.
• Codification: Laws enacted through legislation are usually codified,
meaning they are organized into written statutes or codes. This codification
enhances clarity and accessibility, allowing individuals to understand and
comply with the law more easily.
• Supremacy: In many legal systems, legislation holds a position of
supremacy over other sources of law. It can override inconsistent judicial
decisions and customary practices, ensuring uniformity and predictability in
the application of the law.
• In simple terms, legislation is the process of making laws, and it’s
one of the main ways we create legal rules that govern society.
The term "legislation" comes from Latin words meaning "to make
laws." In almost every country, this process is handled by a body
called the Legislature – such as a parliament or congress – which
is the official authority for creating laws.
• The role of legislation is to:
• Create New Laws – If there is a need for new rules, the
Legislature can make them.
• Update Old Laws – Laws sometimes need to be updated to keep
up with changes in society, technology, or values.
• Remove or Repeal Unhelpful Laws – Some old laws may no
longer serve a useful purpose or might be problematic, so they
can be removed.
• In essence, legislation is about ensuring the legal system stays
relevant and effective. It’s the most formal and recognized
• Legislation, or law-making, can be divided into two
main types:
• 1. Supreme Legislation
• Definition: This type of legislation is created by the
highest authority in a country, like the national
parliament, or through powers held by the
president or state governors.
• Characteristics: It’s called "supreme" because no
other authority can change or override it. It
represents the final authority on legal matters.
• Example: Acts passed by the parliament or laws
made by the president or governors fall into this
category.
• 2. Subordinate Legislation
• Definition: This type of legislation is created by authorities
that are not at the top of the legal hierarchy, such as local
government bodies, agencies, or departments.
• Characteristics: Subordinate legislation depends on the
approval of a higher authority to be valid. It can be modified or
repealed by that higher authority.
• Example: Rules, regulations, and orders made by
municipalities, universities, government departments, or even
the courts are forms of subordinate legislation.
• In short:
• Supreme Legislation = Created by the highest authority (e.g.,
parliament) and cannot be changed by lower authorities.
• Subordinate Legislation = Created by lower authorities (e.g.,
local governments) but must align with the rules set by the
• 1. Colonial Legislation
• What It Is: Colonial legislation refers to laws made by a
foreign country (colonizer) for its colonies. These laws were
created by colonial governments to control the countries
they ruled. For example, during British rule, India had to
follow laws passed by the British Parliament, even though
these laws were often not in the best interests of Indians.
• Modern Relevance: After gaining independence, many
countries (including India) repealed or replaced many
colonial laws, as these were often outdated or
inappropriate for the independent nation.
• Example: The Indian Penal Code (IPC), created in 1860,
was originally a colonial law made by the British to govern
criminal offenses in India. Many parts of the IPC still exist
today, although Parliament has amended and updated it.
• 2. Executive Legislation
• What It Is: Generally, the executive branch (government
departments and ministries) is responsible for enforcing
laws, not making them. However, sometimes Parliament
gives the executive certain powers to make specific rules
or regulations to implement broader laws effectively.
This is called delegated legislation or subordinate
legislation because it is granted under a higher law
made by Parliament.
• Example: Under the Motor Vehicles Act, the Ministry of
Transport has the authority to create detailed rules for
vehicle registration, driving licenses, and road safety.
These detailed rules are an example of executive or
delegated legislation.
• EXAMPLE: OF CASE LAW:
• Delhi Laws Act Case (1951)
• Full Name: In Re: The Delhi Laws Act, 1912, etc. (1951) SCR 747
• Overview: This case examined the constitutional validity of delegated legislation
and set key limits on it.
• Facts: The Delhi Laws Act, 1912, allowed the central government to extend laws
applicable in other provinces to Delhi. The petitioner argued that this delegated
excessive power to the executive, undermining the legislative power of Parliament.
• Judgment: The Supreme Court upheld the idea of delegated legislation but
emphasized that it must remain within reasonable limits. The Court ruled that while
Parliament can delegate certain powers, it cannot delegate "essential legislative
functions." In other words, only Parliament should make the most critical decisions,
like creating new laws or repealing old ones. Delegation should only cover minor,
detailed adjustments.
• Significance: This case established the "essential functions" doctrine, meaning only
Parliament can perform essential legislative actions, while the executive can only
make rules necessary to implement the law.
• The Delhi Laws Act Case is a landmark in defining the limits of delegated legislation
in India. It laid down the principle that the core power to make or change laws must
stay with the legislature, while the executive may only handle more detailed,
technical rules.
• The concepts of Judicial, Municipal, and Autonomous legislation in India each
refer to different kinds of law-making powers exercised by various bodies to
address specific governance needs, each having unique roles and examples. Here’s
a breakdown of each with some illustrative examples and relevant Indian case
laws:
• 1. Judicial Legislation
• Judicial legislation occurs when the judiciary interprets laws or establishes
guidelines to address legislative gaps or ambiguity. Though the judiciary's primary
role is interpretation rather than making laws, it sometimes issues judgments that
serve as de facto laws, especially in cases that impact public policy or
constitutional rights. Judicial legislation aims to uphold transparency and prevent
government interference in judicial independence.
• Example: In the landmark Vishaka v. State of Rajasthan (1997), the Supreme
Court laid down guidelines to prevent sexual harassment at workplaces in the
absence of specific legislation. This became a form of judicial legislation, as these
guidelines were treated as law until Parliament enacted the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013.
• Case Law: Keshavananda Bharati v. State of Kerala (1973) – The Supreme Court
outlined the basic structure doctrine, restricting Parliament's power to amend the
Constitution. This decision gave the judiciary a powerful role in maintaining
constitutional integrity, demonstrating judicial legislation to uphold fundamental
• 2. Municipal Legislation
• Municipal legislation refers to the powers given to municipal
bodies—such as Municipal Corporations, Municipal Boards, and
Zila Parishads—to create by-laws governing local matters within
their jurisdictions. These by-laws address everyday concerns like
waste management, water supply, and road maintenance,
empowering local governments to cater to the specific needs of
their neighborhoods. The Constitution’s 74th Amendment Act
(1992) strengthened municipal governance in India.
• Example: Delhi’s Municipal Corporation can set building
regulations and sanitation rules specific to the city, managing
issues like waste disposal and housing regulations.
• Case Law: Municipal Corporation of Delhi v. Gurnam Kaur (1989)
– The Supreme Court upheld the role of municipal corporations in
framing and enforcing by-laws within their jurisdiction,
emphasizing the importance of local legislation in managing
urban areas.
• 3. Autonomous Legislation
• Autonomous legislation is created by bodies with self-governing
authority, often for specific sectors or purposes. These bodies,
though overseen by government statutes, operate
independently to manage sectoral governance. Examples
include universities, professional bodies, and public sector
enterprises that establish rules for their functioning, typically
governed by statutes from the government but enjoying
autonomy in their internal governance.
• Example: Indian Railways has autonomous authority to set rules
regarding its operations, fares, and safety protocols. Universities,
similarly, enact statutes on academic regulations and conduct.
• Case Law: Ajay Hasia v. Khalid Mujib Sehravardi (1981) – The
Supreme Court evaluated the functioning of autonomous
institutions and set parameters to ensure they adhere to
principles of fairness and transparency, recognizing the
• ADVANTAGES OF LEGISLATION AS A SOURCE OF LAW
• Effectiveness – Legislation differentiates the
elements of law overlooking between Legislature
and legal executive.
• Declaration – A declaration is given that even
before authorization the principles of law will be
known.
• Abrogative power- Changes can be done in old law,
the control of which isn’t controlled by different
sources.
• Unrivalled in form- It is preponderant in structure,
brief, clear, effectively available and easily
understandable.
• Disadvantages:
• Unbending nature – Unlike precedent, the laws in
legislation are not flexible and adaptable.
• Excessive amount of importance to
wordings- Legislation as a source of law lays much
importance to wordings. Thus, if any wording is
faulty the law as a whole needs to get effectively
turned.
• The ambiguity of the term "vegetable" was notably addressed in the Indian case
of Commissioner of Sales Tax, Madhya Pradesh v. M/S Kores (India) Ltd.. The
case revolved around whether certain items could be classified as "vegetables"
under the law, impacting taxation and sales regulation.
• Case Background
• In this case, the main issue was how certain items, specifically green ginger and
betel leaves, should be categorized under the Madhya Pradesh Sales Tax Act. The
Act allowed exemptions for "vegetables," but the law did not provide a clear
definition of what constituted a "vegetable." Kores (India) Ltd., the company
involved in this case, argued that green ginger and betel leaves should be exempt
from sales tax because they were vegetables, thus qualifying for the exemption.
• The Madhya Pradesh Sales Tax authorities, however, contested this view, arguing
that these items did not fall under the common understanding of "vegetables."
• Legal Issue: Ambiguity in the Word "Vegetable"
• The main legal issue was the ambiguity of the word "vegetable" in the law. Since
there was no precise legal definition provided in the Madhya Pradesh Sales Tax
Act, the interpretation of "vegetable" was left to be understood in its ordinary,
everyday sense. This ambiguity led to a dispute over whether green ginger and
betel leaves could reasonably be included in the category of vegetables.
• Supreme Court’s Interpretation
• The Supreme Court of India examined the term "vegetable" in this case
and emphasized the need to interpret it according to its popular
meaning—that is, how an average person would understand it rather
than a technical or scientific definition. The Court concluded that in
common language, the term "vegetable" generally refers to edible plants
that are typically consumed as part of a meal and are not used solely as
condiments or flavoring.
• After considering the popular understanding, the Court ruled:
• Green Ginger: The Court held that green ginger is not commonly
thought of as a "vegetable" but rather as a spice or condiment used to
enhance flavor in cooking. It is typically not consumed as a standalone
item or a primary part of a meal, so it did not fall within the ordinary
definition of a vegetable for tax exemption purposes.
• Betel Leaves: Similarly, the Court found that betel leaves are not
considered a vegetable, as they are not eaten as part of a meal but are
instead used for chewing or as a refreshing additive in traditional Indian
contexts. This consumption pattern differs from how people generally
• Significance of the Ruling
• The Supreme Court’s decision emphasized the following principles:
• Ordinary Popular Meaning Over Technical Definition: When a term
in legislation is ambiguous, courts often rely on its common, everyday
meaning rather than scientific or technical definitions. The judgment
underscored the importance of interpreting legal terms in a way that
aligns with how the general population would understand them.
• Context Matters in Classification: The Court also highlighted that the
use and purpose of the item in question are essential when
determining whether it falls under a particular legal category. Since
green ginger and betel leaves were not primarily used as vegetables
in the typical sense, they did not qualify for the exemption.
• Ambiguity in Legal Language: This case is a classic example of how
ambiguity in statutory language can lead to disputes and the need for
judicial clarification. It underscores the importance of clear legislative
drafting to avoid varied interpretations of seemingly common terms.