• Ms. Vanshika Jaiswal

Analysis of Legislation and its kinds.

Legislation has all the powers of enacting laws and repealing old laws an article contains a brief about legislation. This article deals with a brief of legislation and its kinds. The article also contains the pros and cons of legislation and rules of interpretation. Judiciary is given powers to make certain rules to regulate the procedure. Such act of court during the judicial proceeding is called judicial legislation. The court aims to interpret the law in such a manner that every citizen is ensured justice to all. The rules mentioned in the article are important for providing justice

Introduction:

The legislation means the process of making or enacting laws. Legislative and sovereignty are like two sides of the coin. Legislative sovereignty is often discussed with one eye on the past and one eye on the procedural functions of lawmaking in the present. To understand things we need to be clear with words so first, we should be clear with the word legislation and legislative:


The legislature is a law-making body. Among all the sources of law, legislation is one of the most patent and sovereign source lawmaking. It has all the powers of enacting laws and repealing old laws. The term "legislation" is derived from two Latin words, legis meaning law and latum meaning to make, put or set. The legislation means the making or the setting of law. There are two kinds of legislation-Supreme legislation and subordinate legislation.


Kinds of Legislation:

According to Sir John Salmond, legislation is either Supreme or Subordinate.

  • Supreme legislation:

Supreme legislation is that which proceeds from the sovereign power in the state. It cannot be repealed, annulled or controlled by any other legislative authority. It is enacted by the highest law-making authority in the state. For example parliament in India, USA and England.

In England, Supreme legislation cannot be questioned in a court of law. The British Parliament is in every sense of sovereign law-making body. In Britain, the doctrine of parliamentary sovereignty implies supremacy and omnipotence of the British Parliament. Therefore, it possesses the power of Supreme legislation. In India and the United States of America however, the parliament is sovereign but not supreme because legislation can be declared ultra vires or unconstitutional by a court of law. It may, therefore, be amended or altered.

  • Subordinate legislation:

Subordinate legislation is legislation made by the authority or other than the supreme authority in the state in the exercise of the power delegated to it by the Supreme authority. This is controlled by the supreme authority. Thus legislative authority is dependent for its continued existence and validity on the supreme authority. It can be repealed. Subordinate or delegated legislation increased in the 19th and 20th century because of a number of a reaction.

Kinds of subordinate legislation: According to Salmond, delegated legislation is that which proceed from any authority other than sovereign power. Salmond refers to five Kinds of Subordinate Legislation which are as follows -

  • Municipal legislation

  • Executive legislation

  • Colonial legislation

  • Autonomous legislation

  • Judicial legislation

  1. Municipal legislation: The municipal authorities are given limited powers to enact laws for their governance. it is called Municipal legislation. It also called the bye-laws. The power is conferred by Supreme legislation. For example Bombay Municipal Corporation, Pune Municipal Corporation etc.

  2. Executive legislation - These powers are expressly delegated to the executive by the Parliament. The executive consists of President, Prime Minister, Governor, and govt. officers, who are interested, with the working administrative department of the State. Parliament simply delegates its functions to the executive to make their own laws. E.g. Dfence of India Act. President can make a rule for himself to regulate his office.

  3. Colonial legislation: It is the outcome of the colony or colonies. by way of settlement. The colonies of the British Empire were delegated with certain legislative authority for their own government. Such legislation is called colonial legislation. For example, laws passed by the Indian legislature before independence.

  4. Autonomous legislation: Sometimes the state allows private persons like universities, Railway companies, etc to make bye-laws which are recognized and enforced by law courts. Such legislation is usually called autonomic. Railway Company may make bye-laws for the regulation of its undertaking. Likewise, a University may take students for the Government of its members.

  5. Judicial legislation: Judiciary is given powers to make certain rules to regulate the procedure. Such act of court during the judicial proceeding is called judicial legislation. Bombay High Court Rules, which are rules governing Bombay High Court and matter coming before this Court.


Advantages of Legislation:

  • The legislation is the best and most reliable source of law

  • Statutory law is rigid and applicable irrespective of the crime

  • The modern States give more importance to the legislation.

  • Legislation makes new law to society.

  • By legislation, social control is possible


Disadvantages of Legislation:

  • Certain legislation abridges the rights of individuals and is referred for Judicial Review.

  • It results in the amendment to the constitution and leads to conflict between legislature and judiciary.

  • No scope for judicial discretion: The judge has to apply the law as it is, and has to follow it. The law is taken as it is. Sometimes it results in injustice because of other factors such as social, economic and other circumstances are also to be considered while deciding the case by the judge. On the other hand, Precedents allows a judge to give the decision on the merit of the case, without being rigidity tied down to watertight rules of the enactment.

  • Rigidity: Statutes are extremely rigid and have little scope for selective application; this causes injustice in extreme cases.

  • Lack of clarity: It is often said that statute laws are often worded in confusing language, certain loopholes are rarely seen. Numbers of errors and omissions are committed while connecting the law, which makes a little sense to a common man. Whereas the Precedent is always found it clear and in simple word.


Classification of Statutes

Codified statutory law can be categorized as follows-

  • Codifying statutes

The purpose of this kind of statute is to give an authoritative statement of the rules of the law on a particular subject, which is customary laws. For example- The Hindu Marriage Act, 1955 and The Hindu Succession Act, 1956.

  • Consolidating statutes

This kind of statute covers and combines all law on a particular subject at one place which was scattered and lying at different places. Here, the entire law is constituted in one place. For example- Indian Penal Code or Code of Criminal Procedure.

  • Declaratory statutes

This kind of statute does an act of removing doubts, clarifying and improving the law based on the interpretation given by the court, which might not be suitable from the point of view of the parliament. For example- the definition of house property has been amended under the Income Tax (Amendment) Act, 1985 through the judgement of the supreme court.

  • Remedial statutes

Granting of new remedies for enforcing one’s rights can be done through the remedial statutes. The purpose of these kinds of statutes is to promote the general welfare for bringing social reforms through the system. These statutes have liberal interpretation and thus, are not interpreted through strict means. For example- The Maternity Benefits Act, 1961, The Workmen’s Compensation Act, 1923 etc.

  • Enabling statutes

The purpose of this statute is to enlarge a particular common law. For example- Land Acquisition Act enables the government to acquire the public property for the purpose of the public, which is otherwise not permissible.

  • Disabling statutes

It is the opposite of what is provided under the enabling statute. Here the rights conferred by common law are being cut down and are being restrained.

  • Penal statutes

The offences for various types of offences are provided through these statutes, and these provisions have to be imposed strictly. For example- Indian Penal Code, 1860.

  • Taxing statutes

Tax is a form of revenue which is to be paid to the government. It can either be on income that an individual earns or on any other transaction. A taxing statute thus, levies taxes on all such transactions. There can be income tax, wealth tax, sales tax, gift tax, etc. Therefore, a tax can be levied only when it has been specifically expressed and provided by any statute.

  • Explanatory statutes

The term explanatory itself indicates that this type of statute explains the law and rectifies any omission left earlier in the enactment of the statutes. Further, ambiguities in the text are also clarified and checked upon the previous statutes.

  • Amending statutes

The statutes which operate to make changes in the provisions of the enactment to change the original law for making an improvement therein and for carrying out the provisions effectively for which the original law was passed are referred to as amending statutes. For example- Code of Criminal Procedure 1973 amended the code of 1898.

  • Repealing statutes

A repealing statute is one which terminates an earlier statute and may be done in the express or explicit language of the statute. For example- Competition Act, 2002 repealed the MRTP Act.


Rules of Interpretation:

  • Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be given or interpreted in their natural or ordinary meaning. After the interpretation, if the meaning is completely clear and unambiguous then the effect shall be given to a provision of a statute regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision it has been expressed through words and thus, are to be interpreted according to the rules of grammar. It is the safest rule of interpretation of statutes because the intention of the legislature is deduced from the words and the language used. According to this rule, the only duty of the court is to give effect if the language of the statute is plain and has no business to look into the consequences which might arise. The only obligation of the court is to expound the law as it is and if any harsh consequences arise then the remedy for it shall be sought and looked out by the legislature.


Case Laws: Maqbool Hussain v. State of Bombay, In this case, the appellant, a citizen of India after arriving at the airport did not declare that he was carrying gold with him. During his search was carried on, gold was found in his possession as it was against the notification of the government and was confiscated under section 167(8) of Sea Customs Act. Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act, 1947. The appellant challenged this trial to be violative under Article20 of the Indian Constitution. According to this article, no person shall be punished or prosecuted more than once for the same offence. This is considered as double jeopardy. It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus, accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.


  • The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction because the purpose of this statute is most important while applying this rule. It is known as Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as mischief rule because the focus is on curing the mischief. In the Heydon’s case, it was held that there are four things which have to be followed for true and sure interpretation of all the statutes in general, which are as follows-

  1. What was the common law before the making of an act?

  2. What was the mischief for which the present statute was enacted?

  3. What remedy did the Parliament sought or had resolved and appointed to cure the disease of the commonwealth?

  4. The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.


Case laws: Pyare lal vs Ram Chandra, the accused in this case, was prosecuted for selling the sweeten supari which was sweetened with the help of an artificial sweetener. He was prosecuted under the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held that the dictionary meaning is not always the correct meaning, thereby, the mischief rule must be applicable, and the interpretation which advances the remedy shall be taken into consideration. Therefore, the court held that the word ‘food’ is consumable by mouth and orally. Thus, his prosecution was held to be valid


  • The Golden Rule

It is known as the golden rule because it solves all the problems of interpretation. The rule says that to start with we shall go by the literal rule, however, if the interpretation given through the literal rule leads to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity, then in all such events the literal meaning shall be discarded and interpretation shall be done in such a manner that the purpose of the legislation is fulfilled. The literal rule follows the concept of interpreting the natural meaning of the words used in the statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity or hardship, then the court must modify the meaning to the extent of injustice or absurdity caused and no further to prevent the consequence.

This rule suggests that the consequences and effects of interpretation deserve a lot more important because they are the clues of the true meaning of the words used by the legislature and its intention. At times, while applying this rule, the interpretation done may entirely be opposite of the literal rule, but it shall be justified because of the golden rule. The presumption here is that the legislature does not intend certain objects. Thus, any such interpretation which leads to unintended objects shall be rejected.


Case Law: State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of the case are as follows: A transporting company was carrying a parcel of apples was challenged and charge-sheeted. The truck of the transporting company was impounded as the parcel contained opium along with the apples. At the same time, the invoice shown for the transport consisted of apples only. Section 11 of the opium act 1878, all the vehicles which transport the contraband articles shall be impounded and articles shall be confiscated. It was confiscated by the transport company that they were unaware of the fact that opium was loaded along with the apples in the truck. The court held that although the words contained in section 11 of the said act provided that the vehicle shall be confiscated but by applying the literal rule of interpretation for this provision it is leading to injustice and inequity and therefore, this interpretation shall be avoided. The words ‘shall be confiscated’ should be interpreted as ‘may be confiscated’.


  • Harmonious Construction

According to this rule of interpretation, when two or more provisions of the same statute are repugnant to each other, then in such a situation the court, if possible, will try to construe the provisions in such a manner as to give effect to both the provisions by maintaining harmony between the two. The question that the two provisions of the same statute are overlapping or mutually exclusive may be difficult to determine. The legislature clarifies its intention through the words used in the provision of the statute. So, here the basic principle of harmonious construction is that the legislature could not have tried to contradict itself. In the cases of interpretation of the Constitution, the rule of harmonious construction is applied many times.


It can be assumed that if the legislature has intended to give something by one, it would not intend to take it away with the other hand as both the provisions have been framed by the legislature and absorbed the equal force of law. One provision of the same act cannot make the other provision useless. Thus, in no circumstances, the legislature can be expected to contradict itself.


Case law: Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State Government proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act, 1971. This was challenged on the ground that these sugar industries were declared to be a controlled one by the union under Industries (Development and Regulation) Act, 1951. And accordingly, the state did not have the power of acquisition or requisition of property which was under the control of the union. The Supreme Court held that the power of acquisition was not occupied by Industries (Development and Regulation) Act, 1951.


Conclusion :

Every nation has its own judicial system, the purpose of which to grant justice to all. The court aims to interpret the law in such a manner that every citizen is ensured justice to all. To ensure justice to all the concept of canons of interpretation was expounded. These are the rules which are evolved for determining the real intention of the legislature. It is not necessary that the words used in a statute are always clear, explicit and unambiguous and thus, in such cases it is very essential for courts to determine a clear and explicit meaning of the words or phrases used by the legislature and at the same time remove all the doubts if any. Hence, all the rules mentioned in the article are important for providing justice.

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