Legislation

Sources of law refer to the origins of legal rules, principles, and doctrines. Understanding the sources of law is fundamental to understanding the legal system of any country. Sources can be classified into primary sources (from which law originates directly) and secondary sources (that influence or aid in the understanding of law but are not law themselves).

Legislation:

Legislation is the most important and increasingly dominant source of law in modern legal systems. It refers to the process of law-making by a competent authority, primarily the legislature (Parliament at the Union level and State Legislatures at the state level in India).

The law created by legislation is known as statute law or enacted law. In India, the power to legislate is derived from the Constitution (Articles 245-255), which distributes legislative powers between the Union and the States (Seventh Schedule).

Definition and Types (Subordinate, Autonomous)

Legislation is the formal declaration of legal rules by the authority competent to exercise legislative power. It involves the deliberate creation of new law or the alteration/repeal of existing law.

Types of Legislation:

• Supreme Legislation: Legislation enacted by the sovereign or the supreme legislative body of the State (Parliament in India). It is the highest form of law and cannot be questioned by any other authority (subject to constitutional limitations like Fundamental Rights and the basic structure doctrine). The Constitution itself is often considered the supreme law, and amendments to it are made through a specific legislative procedure.

• Subordinate Legislation (Delegated Legislation): Legislation made by authorities other than the supreme legislative body, under the powers delegated to them by the supreme legislature (e.g., rules, regulations, bye-laws made by the executive or administrative agencies). Its validity depends on the authority conferred by the parent Act and its conformity with the Constitution.

• Autonomous Legislation: Legislation made by autonomous bodies, like universities or corporations, for their internal governance. Their power to legislate is derived from the law establishing them.

Hierarchy of Legislation

In India, there is a clear hierarchy of legislation:

1. The Constitution of India: The supreme law of the land. All other laws must be consistent with the Constitution.

2. Laws made by Parliament (Union Legislation): These are supreme within the sphere of subjects allocated to the Union (Union List) and have primacy on Concurrent List subjects in case of conflict with state laws.

3. Laws made by State Legislatures (State Legislation): These are supreme within the sphere of subjects allocated to the State (State List) and are valid on Concurrent List subjects unless they conflict with Union law (or the state law received President's assent despite repugnancy).

4. Subordinate Legislation: Rules, regulations, etc., made under the authority of parent Acts. They must be within the scope of the parent Act and consistent with the Constitution.

5. Local Laws/Bye-laws: Made by local bodies like municipalities and panchayats, within their defined powers.

This hierarchy is maintained through the power of judicial review, where courts can strike down laws that are inconsistent with higher laws in the hierarchy, ultimately the Constitution.

Codification

Codification is the process of systematically compiling and enacting laws on a particular subject into a comprehensive code. It involves arranging legal rules in a logical and systematic manner.

Examples in India: Indian Penal Code, 1860; Code of Criminal Procedure, 1973; Code of Civil Procedure, 1908; Indian Contract Act, 1872; etc.

Codification aims to provide clarity, accessibility, and certainty in the law, replacing fragmented laws from various sources (statutes, customs, judicial decisions) with a structured code.

Custom

Custom is one of the oldest sources of law. It refers to practices that have been followed for a long time in a particular community and have acquired the force of law due to their general acceptance and observance.

Role of Custom in Law Development

In early societies, before the development of formal legislative bodies, custom was the primary source of law. Rules governing social relations, property, contracts, and family matters were largely based on customary practices.

Even in modern legal systems, custom continues to play a role, although its importance has diminished compared to legislation and judicial precedent. Customs can be incorporated into statute law, recognised by courts, or continue to govern certain aspects of social life, particularly in areas like personal law or trade practices.

Conditions for a Custom to be a Source of Law

For a custom to be recognised and enforced as law by the courts, it must satisfy certain conditions:

• Antiquity: The custom must have existed for a long time ('immemorial'). Though not precisely defined, it means the custom must be so old that no one remembers its origin.

• Certainty: The custom must be clear and unambiguous in its terms and application.

• Reasonableness: The custom must be reasonable and not contrary to justice, equity, or good conscience.

• Compulsory Observance: The custom must have been observed as a matter of right, not merely as a matter of courtesy or goodwill.

• Continuity: The custom must have been practiced continuously and without interruption.

• Not Contrary to Statute Law: A custom cannot override or be inconsistent with existing statute law.

• Public Policy: The custom must not be against public policy.

Courts examine these criteria to determine whether a custom has the force of law.

Types of Custom (General, Local)

Customs can be classified based on their territorial application:

• General Customs: Customs that prevail throughout the realm or country. Historically, in English common law, general customs formed the basis of the common law.

• Local Customs: Customs that are limited to a particular locality or region within the country. These customs may apply to specific groups or in specific areas.

In India, customary law plays a significant role in some areas of personal law (e.g., Hindu law, tribal laws) and local practices, provided they meet the requirements for validity and are not against public policy or statutory law.

Judicial Precedents

Judicial precedents refer to decisions of higher courts that are binding on lower courts in similar cases. This is a key source of law in common law systems, including India.

Doctrine of Precedent (Stare Decisis)

The doctrine of precedent, or 'stare decisis' (Latin for 'to stand by things decided'), means that courts are bound by the principles and rules established in prior decisions of higher courts when deciding cases with similar facts and legal issues. It promotes consistency, predictability, and fairness in the application of law.

In India, the doctrine of precedent is constitutionally recognized. Article 141 of the Constitution states: "The law declared by the Supreme Court shall be binding on all courts within the territory of India." This establishes the binding force of Supreme Court judgments on all other courts.

High Court judgments are binding on subordinate courts within their territorial jurisdiction. The judgment of one High Court is not binding on another High Court, but it has persuasive value.

Binding and Persuasive Precedents

• Binding Precedent: A decision of a higher court that a lower court is legally obligated to follow in cases with similar material facts and legal issues. The ratio decidendi (the reasoning) of the higher court's decision is binding.

• Persuasive Precedent: A decision that a court is not strictly bound to follow but may choose to consider and be influenced by. This includes decisions of courts of equal rank (e.g., one High Court's decision on another), decisions of foreign courts, dissenting opinions of judges, and obiter dicta (passing remarks in a judgment).

Ratio Decidendi and Obiter Dicta

• Ratio Decidendi: (Latin for 'the reason for the decision') This is the binding part of a judicial decision. It is the essential legal principle or rule upon which the court's decision is based, arrived at by applying the law to the material facts of the case. Identifying the ratio decidendi is crucial but can sometimes be challenging.

• Obiter Dicta: (Latin for 'things said by the way') These are remarks made by the judge in a judgment that are not essential to the decision of the case. They may include observations, hypothetical scenarios, or opinions on legal issues not directly before the court. Obiter dicta are not binding but may have persuasive value, depending on the eminence of the judge and the court.

Judicial precedent is a dynamic source of law, allowing the law to develop and adapt through judicial interpretation and application. Higher courts can overrule their own previous decisions (e.g., Supreme Court can overrule its own prior judgment), changing the law.

Equity

Equity is a historical source of law that emerged in England to supplement and correct the rigidities and harshness of the common law. While its historical role as a separate body of law has diminished, the principles of equity continue to influence legal systems.

Development:

In medieval England, the common law courts became rigid and sometimes failed to provide adequate remedies, especially in cases of unfairness or where no existing common law writ applied. Litigants petitioned the King, who delegated the task of hearing these petitions to the Lord Chancellor. The Chancellor, guided by conscience, fairness, and natural justice, developed a parallel system of law known as Equity, administered in the Court of Chancery.

Equity provided new remedies (like injunctions, specific performance) and recognised new rights (like trusts) not available in common law. It operated on principles of fairness and good conscience, supplementing the strict rules of common law.

Principles of Equity:

Equity is guided by a set of maxims, such as:

• 'Equity acts in personam' (Equity acts against the person).

• 'He who seeks equity must do equity'.

• 'He who comes to equity must come with clean hands'.

• 'Delay defeats equity'.

• 'Equity regards substance rather than form'.

• 'Equity will not suffer a wrong to be without a remedy'.

While common law and equity courts were historically separate, they were merged in England in the 19th century. In India, common law and equity principles are administered by the same courts.

The principles of equity, emphasizing fairness and justice, continue to be applied by courts in interpreting and applying both statute law and common law, providing a basis for just and equitable outcomes in various areas of law (e.g., trusts, contract law, property law).

Legal Maxims

Secondary sources of law are those that do not create law but are consulted for understanding or interpreting the law. They have persuasive value but are not binding authorities.

Legal Maxims:

Legal maxims are established principles or propositions of law, often expressed in concise Latin phrases. They encapsulate fundamental legal concepts and rules of construction.

Meaning and Significance

Examples of legal maxims:

• Ubi jus ibi remedium: Where there is a right, there is a remedy.

• Ignorantia juris non excusat: Ignorance of the law does not excuse.

• Actus non facit reum nisi mens sit rea: An act does not make a person guilty unless the mind is also guilty (related to criminal intent).

• Audi alteram partem: Hear the other side (principle of natural justice).

• Nemo judex in causa sua: No one should be a judge in his own cause (principle of natural justice).

Significance:

• They provide concise summaries of legal principles.

• They aid in the interpretation of statutes and judicial decisions.

• They reflect fundamental notions of justice and fairness.

While not binding rules themselves, legal maxims carry persuasive weight and are frequently referred to by judges and lawyers to explain or justify legal arguments.

Legal Commentaries and Juristic Writings

The writings of eminent jurists, legal scholars, and commentators are considered secondary sources of law. They help in understanding, systematizing, and developing the law.

Influence of Jurists:

• Historical Influence: In some legal systems, the writings of esteemed ancient jurists were given significant authority (e.g., Roman law). In India, commentaries on ancient texts formed a basis for personal laws.

• Modern Influence: The writings of contemporary legal scholars and commentators provide valuable analysis, critique, and interpretation of statutes and judicial decisions. Their academic work can influence judges and legislators in developing and applying the law.

• Systematization: Jurists help in systematizing and classifying the body of law, making it more coherent and understandable.

• Identifying Trends and Gaps: Academic writings can identify emerging trends in law, highlight inconsistencies, and point out gaps that need legislative or judicial attention.

Examples: Commentaries on the Constitution, Indian Penal Code, etc., by renowned legal scholars. While not binding, these writings are often cited in court and contribute to legal development by shaping legal discourse and understanding.

Treaties and Conventions

International Treaties and Conventions are agreements between states. While they are a primary source of international law, their status as a source of domestic law depends on how a country incorporates them into its legal system.

Role in Domestic Law:

• Dualist Systems: In countries like India (which broadly follows a dualist approach), international treaties do not automatically become part of domestic law. They need to be incorporated through domestic legislation enacted by Parliament (or State Legislature on state subjects, though Parliament has power under Article 253). Once incorporated, they become part of the domestic statute law.

• Monist Systems: In countries that follow a monist approach, international treaties are automatically considered part of domestic law upon ratification.

However, even in dualist systems like India, unincorporated treaties can have persuasive value. Courts may refer to international treaties to interpret domestic laws, particularly when there is ambiguity, or to interpret Fundamental Rights in light of international human rights norms. Directive Principles (like Article 51) also reflect India's commitment to international law.

Thus, treaties and conventions act as secondary sources in influencing the interpretation and development of domestic law, even when not directly incorporated.

Other potential secondary sources might include foreign law (for comparative insights), public opinion (influencing legislation and judicial views), and principles of justice, equity, and good conscience (especially where specific legal rules are absent). However, legislation, custom, judicial precedent, and to a lesser extent equity, remain the most prominent primary sources of law in a system like India's.