Legislation as a source of law

1. Meaning

Legislation is the making of law by a competent authority in the form of deliberately framed rules. Salmond: “Legislation is that source of law which consists in the declaration of legal rules by a competent authority.” Austin treated all law as legislation, direct or indirect. Gray: legislation means the formal utterances of the legislative organs of society.

Salmond notes three senses of the word: (1) in the widest sense, every method of making law, including judicial decisions; (2) in the proper sense, the making of law by an authority set up for the purpose; (3) loosely, any expression of the will of the legislature, even one that does not make law, such as a resolution. Jurisprudence uses the second sense.

2. Kinds of legislation

Supreme legislation proceeds from the sovereign power in the State and cannot be repealed or controlled by any other legislative authority. In England, Parliament. In India, Parliament and the State Legislatures within their fields under Articles 245 and 246, subject to the Constitution, are supreme in this sense; their laws can be struck down only for want of competence or for violating the Constitution.

Subordinate legislation proceeds from an authority other than the sovereign, and depends for its validity on that superior authority. Salmond lists five kinds:

• Colonial: laws made by colonies, subject to the control of the imperial legislature (now of historical interest);
• Executive: rules, regulations, orders and notifications made by the Government under powers given by statute; the largest class today;
• Judicial: rules of procedure made by the superior courts (Article 145 for the Supreme Court, Article 227 for High Courts over subordinate courts);
• Municipal: bye-laws made by municipal corporations and panchayats for their areas;
• Autonomous: rules made by bodies such as universities, companies (articles of association) and statutory corporations for their members.

3. Delegated legislation and its control

Delegated legislation is necessary because Parliament lacks time and technical knowledge, because emergencies require quick action, and because detail is better left to those who administer the law. But it carries dangers: laws made without debate, by officials, and with little publicity.

Limits. In In re Delhi Laws Act, 1912, 1951 INSC 36, AIR 1951 SC 332, the Supreme Court held that the legislature may delegate subsidiary and ancillary powers but cannot delegate its essential legislative function, which is to lay down the policy of the law and to enact it as a binding rule of conduct.

Controls.

• Parliamentary control: laying of rules before the House, and scrutiny by the Committee on Subordinate Legislation.
• Judicial control: a court may strike down subordinate legislation if the parent Act is itself invalid, if the delegation is excessive, if the rule goes beyond the power conferred (ultra vires), if it conflicts with the parent Act or the Constitution, or if it is manifestly arbitrary. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, 1984 INSC 231, (1985) 1 SCC 641, the Court held that subordinate legislation may be questioned on any ground on which plenary legislation may be questioned, and in addition on the ground that it does not conform to the statute under which it is made, or is unreasonable in the sense of being manifestly arbitrary.
• Procedural control: prior publication of draft rules and consultation where the Act requires it.

4. Why legislation is the superior source

In a modern State legislation is the principal and the most authoritative source. Its superiority lies in the following.

• Abrogative power. Legislation can repeal or alter any rule, including a precedent or a custom. Neither precedent nor custom can repeal a statute.
• It is made in advance. A statute declares the rule before the case arises; precedent makes the rule only when a dispute reaches court, and applies it to past conduct.
• Division of function. The legislature makes law, the courts apply it. This is fairer than courts making and applying law in the same case.
• Form and accessibility. A statute is in a definite, authoritative text, easily found. Precedent is scattered over thousands of reports, and the ratio must be extracted; custom must be proved.
• Deliberation. A Bill is debated, examined by committees and open to public comment. A judge decides on the arguments of two parties.
• Reform. Legislation is the only practical instrument of large-scale social change: the Hindu Code, land reform, the new criminal laws of 2023.
• Democratic legitimacy. It is made by elected representatives.

5. Advantages of legislation over precedent (and the other side)

The points in section 4 are the advantages Salmond lists. For balance, precedent has its own merits: it grows from real cases and so is practical; it is flexible and develops gradually; it can do justice in a situation the legislature did not foresee. Statutes, by contrast, may be rigid and badly drafted, and need interpretation, so that precedent continues to operate on them. The two are complementary.

6. Legislation and custom

Custom is the oldest source, but in a modern State it is subordinate. A custom is valid only if it is not opposed to statute, and legislation can abolish it, as the Hindu Marriage Act, 1955 did with customs inconsistent with its provisions, saving only those it expressly preserved. Custom grows slowly and unconsciously; legislation is made deliberately and immediately.

How this is examined

As an essay: “Define legislation. What are the advantages of legislation over precedent?” (January 2026, Q.4); “Define how legislation is superior to other sources of law” (June 2025, Q.3(a)); “Explain legislation as a source of law” (February 2025, Q.3(a)). As a short note: “Subordinate legislation” (February 2025, Q.3(b)). Define, classify into supreme and subordinate (with Salmond’s five kinds), deal with control of delegated legislation (Delhi Laws Act, Indian Express), then list the advantages, and end with a line on how legislation and precedent work together.