Legislation as a Source of Law

Key Takeaways

• Legislation is a formal source of law through which a competent law-making authority creates, amends or repeals legal rules. It is generally expressed in written form through statutes, rules, regulations, bye-laws and other legislative instruments.
• In India, legislative authority ultimately operates under the Constitution. Parliament and State Legislatures exercise legislative powers within the constitutional framework and the distribution of subjects contained in the Seventh Schedule.
• Salmond broadly classified legislation into supreme legislation and subordinate legislation. In the Indian constitutional system, however, even legislation made by Parliament is subject to constitutional limitations and judicial review.
• Subordinate or delegated legislation is made by an authority exercising law-making power granted by a parent statute. Rules, regulations, notifications and bye-laws are common examples.
• Delegated legislation has become necessary because legislatures cannot themselves deal with every technical, administrative and local detail. However, delegated power must remain within the policy and limits fixed by the parent law.
• Delegated legislation is subject to procedural, legislative and judicial control. Courts can invalidate subordinate legislation that violates the Constitution, exceeds the parent statute or suffers from other recognised legal defects.
• Legislation differs from precedent and custom because it is deliberately created through an authorised law-making process. It is usually clearer, more accessible and capable of prospectively regulating future situations.

What Is Legislation?

Legislation is the process through which law is formally made by a competent authority. The term is derived from the Latin words legis, meaning law, and latum, meaning to make or set. In its simplest sense, legislation means the making or laying down of law.

Legislation may also refer to the final body of rules created through the legislative process. Thus, an Act enacted by Parliament is legislation, while the process through which that Act is enacted is also described as legislation.

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Salmond described legislation as the declaration of legal rules by a competent authority. Gray associated legislation with the formal expression of legislative organs, while Austin placed legislation at the centre of his command-based understanding of law.

Legislation is different from law that develops gradually through customs or judicial precedents. It represents deliberate law-making. A legislature identifies an area requiring regulation and formally creates legal rules governing that area.

The law created through legislation is commonly known as enacted law or statute law.

Why Is Legislation an Important Source of Law?

Legislation is one of the most important sources of law in modern legal systems because it allows the State to deliberately formulate legal rules for society.

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Modern governments regulate areas such as taxation, contracts, criminal justice, companies, labour relations, environmental protection, public administration, technology and consumer protection. Such regulation requires clear and systematic legal rules.

Legislation is particularly important because it can:

• create completely new legal rights and obligations;
• modify existing legal principles;
• repeal laws that are no longer required;
• codify principles that were earlier scattered across cases and customs;
• provide uniform rules for future situations; and
• authorise administrative authorities to frame detailed rules for implementation.

Unlike precedent, legislation does not ordinarily have to wait for a dispute to reach a court before a legal rule can be developed. A legislature can anticipate a social, economic or administrative problem and enact a law addressing it.

Legislation as a Source of Law

Different schools of jurisprudence have taken different views regarding legislation.

Analytical School

The analytical or positivist school gives legislation a central position in the legal system. From this perspective, law derives its validity primarily from an authority recognised by the legal system.

Austin’s theory strongly emphasised the command of the sovereign. Therefore, legislation was regarded as the normal and deliberate method through which legal rules are created.

The analytical approach has sometimes been criticised for placing insufficient emphasis on other sources such as precedent and custom.

Historical School

The historical school gives greater importance to the organic development of law through customs, traditions and social practices.

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Jurists associated with this approach considered law to be something that develops gradually with society rather than something that can always be artificially created by a legislature.

However, modern legal systems demonstrate that legislation can clearly create new legal rights, duties and institutions. Therefore, neither legislation nor custom alone can adequately explain the entire development of law.

What Are the Main Types of Legislation?

Salmond broadly classified legislation into supreme legislation and subordinate legislation.

Supreme Legislation

In classical jurisprudence, supreme legislation refers to law made by the supreme legislative authority of a State. Such legislation is not dependent for its validity upon any subordinate law-making authority.

This idea requires qualification in the Indian context.

India follows constitutional supremacy rather than unlimited parliamentary sovereignty. The Constitution is the fundamental source of legislative authority. Parliament and State Legislatures derive their legislative competence from the Constitution and must exercise that power within constitutional limitations.

The Seventh Schedule distributes legislative subjects through the Union List, State List and Concurrent List. Parliament principally legislates on Union List subjects, while State Legislatures legislate on State List matters. Both can legislate on Concurrent List subjects subject to constitutional rules concerning repugnancy.

Therefore, parliamentary legislation in India cannot accurately be described as completely unrestricted or beyond judicial review.

Subordinate Legislation

Subordinate legislation is law made by an authority whose legislative power is derived from a superior legislative authority.

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Parliament or a State Legislature may enact the principal law and authorise another authority to make detailed rules for carrying out its purposes.

Subordinate legislation commonly includes:

• rules;
• regulations;
• bye-laws;
• orders;
• schemes; and
• notifications having statutory force.

A detailed understanding of this area is closely connected with the concept of delegated legislation in India.

What Are the Types of Subordinate Legislation?

Traditional jurisprudence recognises several forms of subordinate legislation.

Executive Legislation

Executive legislation consists of rules or regulations made by executive authorities under powers granted by legislation.

A statute may establish the broad legal framework while authorising the Central Government, State Government, ministry or another administrative body to frame detailed rules.

For example, legislation may establish a licensing system but leave matters such as forms, procedural requirements, technical standards and administrative processes to rules subsequently framed by the executive.

Judicial Legislation

Courts may possess statutory or constitutional powers to frame rules governing their practice and procedure.

Article 145 of the Constitution empowers the Supreme Court to make rules regulating the practice and procedure of the Court, subject to the constitutional requirements governing that power.

High Courts also possess rule-making powers in relation to courts under their supervision. Article 227 expressly permits High Courts to make and issue general rules and prescribe forms regulating the practice and proceedings of subordinate courts, subject to the applicable constitutional conditions.

This type of rule-making must be distinguished from judicial precedent. Judicial precedent develops from principles laid down in decisions, whereas judicial rule-making involves the formal exercise of a rule-making power.

Municipal Legislation

Municipal corporations, municipalities, panchayats and other local bodies may be authorised to make bye-laws governing matters within their local jurisdiction.

Such bye-laws may regulate matters such as sanitation, public markets, streets, building requirements, local services and waste management.

Their validity depends upon the legal authority under which they are framed.

Autonomous Legislation

Certain institutions or bodies may be empowered by law to make rules for their own administration or for persons falling within their jurisdiction.

Universities, statutory corporations and professional bodies may, for example, be authorised to frame regulations governing specified internal or regulatory matters.

Historically, colonial legislation was also treated by Salmond and other jurists as subordinate legislation because colonial legislatures exercised powers subject to superior imperial legislative authority. This classification is primarily of historical significance today.

What Is Delegated Legislation?

Delegated legislation is law made by an authority exercising legislative power delegated to it by the legislature.

Parliament or a State Legislature normally enacts the parent Act or enabling Act. The parent Act establishes the legislative policy and grants power to another authority to make rules, regulations or other instruments necessary for implementing the Act.

Delegated legislation cannot ordinarily exist independently of the authority granted by the parent statute.

For example, an Act may provide the substantive legal framework for regulating an industry while authorising the government to prescribe technical standards, application procedures, fees or reporting requirements through rules.

Why Is Delegated Legislation Necessary?

The extensive use of delegated legislation is largely a consequence of modern administrative governance.

Lack of Legislative Time

Legislatures deal with a large number of policy issues. It is practically impossible for Parliament or State Legislatures to discuss every procedural and technical detail required for implementing every statute.

Delegation allows the legislature to concentrate on major principles while administrative authorities deal with details.

Technical Nature of Modern Laws

Many fields involve specialised knowledge. Environmental regulation, telecommunications, financial markets, medicines and industrial safety may require highly technical standards.

Administrative departments and expert bodies are often better placed to formulate such details.

Need for Flexibility

Administrative requirements may change much faster than primary legislation.

Delegated legislation allows technical procedures or standards to be modified without requiring the legislature to enact an entirely new statute every time a minor adjustment becomes necessary.

Local Requirements

Different areas may require different administrative arrangements. Delegation to local authorities permits rules to be adapted to local conditions.

Emergencies and Changing Circumstances

Certain situations require quick administrative action. Delegated legislative powers can provide limited flexibility where frequent regulatory intervention is necessary.

What Are the Limits on Delegated Legislation?

The legislature cannot simply transfer its entire legislative responsibility to the executive.

Indian constitutional law recognises that the legislature must retain its essential legislative function, particularly the determination of legislative policy and fundamental principles. The constitutional limits of such delegation were examined in detail in In Re: Delhi Laws Act, 1912.

Administrative authorities may ordinarily be authorised to work out details within that framework.

A valid exercise of delegated legislative power generally requires that:

• the parent statute itself is constitutionally valid;
• the delegation is authorised by the parent statute;
• the delegated authority acts within the scope of the power granted;
• the rules or regulations remain consistent with the parent Act;
• constitutional provisions are not violated; and
• mandatory procedural requirements for making the delegated legislation are followed.

How Is Delegated Legislation Controlled?

Delegated legislation is generally controlled through procedural, legislative and judicial mechanisms.

Procedural Control

The parent statute may prescribe procedures that must be followed before rules or regulations are validly made.

Depending upon the statute, these may include:

• previous publication of draft rules;
• consultation with affected bodies;
• publication in the Official Gazette; and
• compliance with prescribed approval or notification procedures.

Such requirements promote transparency and reduce arbitrary rule-making.

Legislative Control

Parliament and State Legislatures can supervise subordinate legislation.

Many statutes require rules made under them to be placed before the concerned House or Houses of the legislature. Parliamentary committees on subordinate legislation also examine whether delegated powers have been exercised within permitted limits.

Legislative control helps ensure that the authority receiving delegated power does not effectively replace the legislature.

Judicial Control

Courts can examine whether delegated legislation is legally valid.

Subordinate legislation may be struck down where it:

• exceeds the authority granted by the parent Act;
• conflicts with the parent statute;
• violates constitutional provisions;
• involves impermissible or excessive exercise of delegated power; or
• fails to satisfy mandatory statutory requirements.

In Air India v Nargesh Meerza, the Supreme Court considered service regulations affecting Air Hostesses and struck down portions that violated Article 14 of the Constitution.

What Is Sub-Delegation?

Sub-delegation occurs when an authority that has itself received delegated power attempts to transfer that power to another authority.

The traditional principle is expressed through the maxim delegatus non potest delegare, meaning that a delegate cannot further delegate.

The principle does not create an absolute prohibition in every situation. Sub-delegation may be valid where the parent legislation expressly or by necessary implication permits it.

Where a statute entrusts a particular authority with a legislative function, that authority ordinarily cannot transfer the function to someone else without legal authority to do so.

What Is Conditional Legislation?

Conditional legislation is different from delegated legislation.

In conditional legislation, the legislature itself makes a complete law but authorises another authority to determine when, where or under what factual conditions the law will become operative.

In delegated legislation, by contrast, the administrative authority receives power to supplement the legislation by making rules within the framework established by the legislature.

The Supreme Court explained this distinction in Hamdard Dawakhana v Union of India. Conditional legislation concerns determining when an already declared legislative rule should become effective, while delegated legislation involves the conferment of rule-making authority.

What Is Codification of Law?

Codification means systematically collecting and arranging legal rules into an organised legislative form.

A code generally brings together principles dealing with a particular field of law so that the law becomes clearer, more accessible and internally organised.

Codification can reduce inconsistencies, simplify scattered legal principles and provide a structured statutory framework.

However, codification does not eliminate the role of courts. Courts must continue to interpret statutory language and apply codified provisions to factual situations.

How Is Legislation Interpreted by Courts?

Legislation is expressed through words, but statutory language does not always provide an automatic answer to every dispute.

Courts therefore apply the rules of interpretation of statutes to determine the meaning and legal effect of legislative provisions.

The central objective of statutory interpretation is to determine the meaning of the legislation in accordance with its language, context, purpose and applicable principles of interpretation.

Literal Rule

The literal rule begins with the ordinary and grammatical meaning of statutory words.

Where the language is clear and produces a workable result, courts ordinarily give effect to the words used by the legislature.

Golden Rule

The golden rule of interpretation allows a departure from an entirely literal reading where that interpretation would produce an absurd or unreasonable result inconsistent with the statute.

It therefore operates as a limited modification of the literal approach.

Mischief Rule

The mischief rule originates from Heydon’s Case.

It focuses on the defect or “mischief” in the previous law that the legislation intended to remedy. Courts may consider the legal position before the enactment, the problem that existed and the remedy introduced by the legislature.

Harmonious Construction

The doctrine of harmonious construction is applied where provisions appear to conflict.

Courts attempt to interpret them in a manner that gives effect to both provisions instead of treating one as meaningless or ineffective.

Other recognised interpretative principles include ejusdem generis, noscitur a sociis and expressio unius est exclusio alterius, depending upon the language and context of the statute.

Advantages of Legislation as a Source of Law

Legislation has several advantages over less formal sources of law.

• It Can Create and Repeal Law: Legislation has both constitutive and abrogative capacity. A legislature can introduce a new rule, amend an existing rule or repeal an obsolete law.
• It Provides Greater Certainty: Statutes are formally enacted and published. This generally makes legislative rules easier to identify than unwritten customs.
• It Can Regulate Future Situations: Legislation may be enacted before a dispute occurs. This makes it suitable for preventive and prospective regulation.
• It Allows Systematic Legal Reform: Large areas of law can be reorganised, codified or modernised through legislation instead of waiting for gradual development through individual cases.

Limitations of Legislation

Legislation also has certain limitations.

A statute cannot anticipate every factual situation. Ambiguous expressions may require judicial interpretation. Detailed legislation may become complex, while rigid statutory language may sometimes struggle to respond quickly to changing circumstances.

Further, the effectiveness of legislation depends heavily upon implementation. A carefully drafted statute may have limited practical impact if administrative institutions, enforcement systems or procedures are ineffective.

Delegated legislation provides flexibility, but excessive delegation may also increase the risk of administrative overreach.

Difference Between Legislation and Precedent

Difference Between Legislation and Custom

Conclusion

Legislation is one of the principal sources of law in a modern legal system. It represents deliberate and organised law-making by an authority legally empowered to create binding rules.

Its importance lies in its ability to establish new laws, modify existing ones, repeal outdated rules, codify legal principles and regulate future situations. Modern administration has also resulted in the extensive growth of subordinate and delegated legislation, under which detailed rules are framed by authorities acting under powers granted by legislatures.

In India, legislation must be understood within the framework of constitutional supremacy. Parliament and State Legislatures exercise their legislative powers within the limits imposed by the Constitution, while subordinate legislation remains subject to the parent statute, constitutional requirements, legislative supervision and judicial review.

Although legislation offers greater clarity, accessibility and systematic regulation than many other sources of law, it does not operate in isolation. Judicial precedent continues to interpret and develop legal principles, while customs retain relevance in appropriate areas. Together, these sources contribute to the development and functioning of the Indian legal system.

Note: This article was originally written by Gitika Jain (3rd year BBA LLB, Amity University, Kolkata) and published on 09 March 2020. It was subsequently updated by the LawBhoomi team on 24 Aug 2026.