Legislation as a source of law: supreme and subordinate legislation, other sources, and social welfare

1. Meaning

In the strict sense, legislation is the declaration of legal rules by an authority that the legal system recognises as competent to make them. Salmond called it the source of law that consists in such a declaration, and contrasted it with custom (law that grows from usage) and precedent (law made in the course of deciding cases). In a wider sense the word covers every way of making law, including by judges; in a looser sense it covers any expression of the legislature’s will, including resolutions that do not create law. The strict sense is the one used in this paper.

Legislation is now the dominant source of law in every modern state. The analytical school (Bentham, Austin) treated it as the model of law: the command of the sovereign. The historical school (Savigny) distrusted it as an artificial imposition on law that grows from the life of the people. Both views are visible in India, where a codified statute book coexists with personal laws and customs that legislation has only partly displaced.

2. Supreme and subordinate legislation

Salmond’s classification:

• Supreme legislation proceeds from the sovereign power in the state and cannot be repealed, annulled or controlled by any other legislative authority.
• Subordinate legislation proceeds from an authority other than the sovereign and depends for its existence and validity on a superior authority. Salmond listed colonial, executive, judicial (rules of court), municipal and autonomous (bye-laws of corporations and universities) legislation.

Is the Indian Parliament supreme? Only relatively. The British Parliament is supreme in Dicey’s sense: no court can set aside an Act. The Indian Parliament is supreme over executive and municipal rule-makers, but it is itself subordinate to the Constitution. Its laws must be within the Union and Concurrent Lists (Articles 245 and 246), must respect Part III (Article 13), and are subject to judicial review; even its constituent power under Article 368 cannot destroy the basic structure (Kesavananda Bharati v. State of Kerala, 1973 INSC 91). In Indian terms, then, “supreme legislation” means Acts of Parliament and the State Legislatures, and Ordinances under Articles 123 and 213, which have the same force while they last. Rules, regulations, bye-laws and notifications made under those Acts are subordinate legislation (see the separate note on its kinds and control).

3. Relation with other sources of law

Custom. A valid custom has the force of law, but legislation prevails over it and may abolish, codify or preserve it. The Hindu Code legislation of 1955–56 codified Hindu personal law and swept away many customs while expressly saving some (for example, customary forms of marriage and customary rights to divorce). Courts require a custom to be ancient, certain, reasonable and not opposed to public policy or statute.

Precedent. Legislation can override a judicial decision for the future, and can remove the basis of a decision retrospectively by changing the law on which it rested; it cannot simply declare a judgment void. Precedent, in turn, gives legislation its working meaning, because the courts’ interpretation of a statute binds under Article 141. The two sources are in constant exchange: the Shah Bano sequence (see the interpretation note), and the Criminal Law (Amendment) Act, 1983, passed after the public reaction to the Mathura judgment (Tuka Ram v. State of Maharashtra, 1978 INSC 178), are examples.

Juristic writing and other sources. Textbook writers, Law Commission reports and committee reports have no binding force but often supply the content of legislation and the reasons for it. International treaties are not part of domestic law without legislation under Article 253, though courts read domestic law consistently with them where possible.

Legislation compared with precedent

Bentham pressed the case for legislation and codification; the historical school and later the realists pointed out that a statute is only as good as its application, which brings the courts back in. The two are complementary: legislation sets policy, adjudication fits it to cases.

4. The role of legislation in social welfare and transformation

The Constitution makes legislation the main instrument of social change. The Directive Principles are not enforceable by courts but are “fundamental in the governance of the country”, and the State is under a duty to apply them in making laws (Article 37). Examples:

• Social equality — after State of Madras v. Champakam Dorairajan, 1951 INSC 26, struck down communal reservation in college admissions, the First Amendment added Article 15(4); the Protection of Civil Rights Act, 1955 and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 enforce Article 17.
• Land and property — zamindari abolition and land ceiling laws, protected by the Ninth Schedule.
• Family and gender — the Hindu Code legislation, the Dowry Prohibition Act, 1961, the Protection of Women from Domestic Violence Act, 2005, and the Sexual Harassment of Women at Workplace Act, 2013, which replaced the Vishaka guidelines.
• Welfare rights — the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, the Right of Children to Free and Compulsory Education Act, 2009 (implementing Article 21A), the National Food Security Act, 2013.
• Labour — the four Labour Codes, in force from 21 November 2025, which consolidate the earlier labour statutes.

The limits. Legislation changes the law faster than it changes behaviour. Studies of Indian social legislation (Marc Galanter on the law against untouchability; the long life of dowry and child marriage after their prohibition) show an implementation gap that depends on enforcement, awareness and social support. Yehezkel Dror argued that law can lead social change indirectly, by shaping institutions, more reliably than directly by commanding conduct. The Court has held that the Constitution rests on a balance between fundamental rights and Directive Principles, so that welfare legislation cannot destroy the rights in Part III (Minerva Mills v. Union of India, 1980 INSC 142).

How this is examined

Expect “Legislation as a source of law”, “Compare legislation and precedent as sources of law”, “Supreme and subordinate legislation”, or “Role of legislation in social transformation”. Use Salmond’s definition and classification, the point that the Indian Parliament is supreme only relatively, the relation with custom and precedent, the comparison table, and a social welfare section with three or four statutes and an honest paragraph on the implementation gap.