Page |i

TABLE OF CONTENTS

ACKNOWLEDGEMENT………………………………………………………………..ii

INTRODUCTION…………………………………………………………………….…05

CHAPTERISATION

1. KINDS OF SOURCES ………………………………………………………..…06

2. LEGISLATION AND ITS KINDS………………………………………………11
3. ADVANTAGES AND DISADVANTAGES OF LEGISLATION……………...16
4. CODIFICATION………………………………………………………………....19
5. KINDS AND RULES OF INTERPRETATION…………………………………21
6. CONCLUSION…………………………………………………………………...25
BIBLIOGRAHY……………………………………………………………….....26
 INTRODUCTION

The term sources of law has many meanings and is a frequent cause of error unless we scrutinize
carefully the particular meaning given to it in any particular text. The philosophical school treat
under the heading of the source of law some of the deepest problems of legal philosophy. Thus
Gurvitch says that the question of the source of law is only one aspect of the general study of the
validity of law.1

A formal source of law is defined by Salmond as that from which a rule of law derives its force
and validity. The material source is that from which is derived the matter, not the validity, of the
law. The formal source of the law is the will of the State as manifested in statutes or decisions of
the courts. An example of a material source is custom; the rule which the judge fashions into law
may be drawn from the life of the community, but what gives it legal force is not the custom but
the solemn determination of a court. However, this approach depends upon the particular
definition of law which Salmond adopts. If law is regarded as being created by the will of the
State, then that is the formal source of law. If law is the commando f the sovereign, then the
sovereign is the formal source.

But, if we adopt a different definition, we may well reach the conclusion that the formal source is
elsewhere. If law is valid because it is the embodiment of natural law or of absolute justice, then
the source of law is the ideal we have laid down.2 If law is valid because it is the product of an
inner sense of right, then that sense of right is the source of law; this is the view of the historical
school. Del Vecchio regards the source of law as being in the nature of man.3 If law is valid
because it is the product of custom, then the habits of the people are the source of law. Writers
who adopt these views do not regard the State as the source of law.

The division of sources into formal and material is usually accepted, however difficult the actual
application may be. But .Dr. Allen has entered a protest:4 and so many different theories have
now been woven around the term ‘source’ that it is better to use other terminology and to ask:
What is the secret of the validity of law? Whence comes the material from which law is
fashioned ? What are the historical or causal inherences which explain why the law is now as it is
seen to be?5

In the modern state the law is normally created by the formal act of legislation or the decision of
a court, or else by the act (whether legislative or judicial) of a subordinate person or group of
persons acting within the limits of delegated authority. The material sources are very

1
L’ Expereience juridique, 229.
2
Paton, G.W. A Textbook On Jurisprudence Page 188, 4th ed., Oxford University Press, New Delhi, 2004.
3
Le Probléme des sources (Inst. int. de phil. du droit), 21.
4
Law in the Making (7th ed.), 1-5.
5
Hart, H.L.A. The Concept Of Law, 2nd ed., Oxford University Press, New Delhi, 2010
comprehensive, since they include anything that may be drawn into the process of creation. Thus
an English judge may adopt a principle from an ancient Roman text or a modern American case,
from a text-book of law or a custom of the community.

It is necessary to remember that the formal validity of law, as seen from within any particular
legal system, will be tested by rules of recognition provided by that legal system itself. ‘. . . when
it is said that “statute” is a source of law, the ‘word “source” refers not to mere historical or
causal incidences but to one of the criteria of legal validity accepted in the legal system in
question. Enactment as a statute by a competent legislature is the reason why a given statutory
rule is valid law and not merely the cause of its existence.’6 It is also necessary to distinguish
between a legal system as a whole, and the rules which are said to be law within a particular
legal system.7

6
Hart, H.L.A. The Concept Of Law Page 246, 2nd ed., Oxford University Press, New Delhi, 2010.
7
Paton, G.W. A Textbook On Jurisprudence Page 189, 4th ed., Oxford University Press, New Delhi, 2004.
 CHAPTER – 1

KINDS OF SOURCES

Legislation

In the modern State, legislation is considered and original as one of the most important sources
of Law. In fact, as compared to custom and Precedent. This source is of recent origin in English
legal system. Since the emergence of legislatures in 13th century, legislation has emerged as the
chief source of Law.8 Historically custom was prior to legislation, but as society advances,
legislation replaced the custom. In early days. Statute law was no more than formal promulgation
of well established customs.

The term ‘Legislation’ is derived from the Latin words ‘Legis’ means a law and hence legislation
means to “making or setting the law’. Broadly, the term legislation is used in three senses:
Firstly, in its broadest sense it includes all methods of law making. In this sense legislation
includes judge-made miss of law, and even the particular rules of law or the rights created at law
between parties to contract. in the second sense, legislation includes every expression of the will
of the legislature, whether directed to the making of law or not. Every act of legislature, in this
sense, is an instance of legislation, irrespective of its purpose and effect. The legislature does not
confine its action to the making of law, yet all its functions are included within the term
legislation, for example, the legislature may enter into a treaty with a foreign state. But in this
function, there is no creation of new rule of law. Thirdly, legislation is used in a strict sense. In
this sense it may mean the making of rules and laws to be followed and enforced in the Courts.
These rules or laws can only be made by a competent law making body, Le, a body which, under
the Constitution, is empowered to make laws. This third sense is more popular and while
considering legislation as a source of law, we take third' meaning of the term ‘legislation'.9

According to Salmond, legislation is that ‘source of law which consists in the declaration of rules
by a competent authority. For Gray, legislation is the formal utterances of the legislative organs

8
K.K. Ghai, Law: Meaning, Features, Sources and Types of Law. Available at
http://www.yourarticlelibrary.com/essay/law-essay/law-meaning-features-sources-and-types-of-law/40363/, last
accessed on 20 Apr., 2017 at 4:45 pm.
9
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 237, 8th ed., Hind Law Publications, Pune,
2008.
of the society. Today the term 'Legislation' is applied to the deliberate creation of legal rules by
an organ of government which is set up exclusively for articulation and promulgation of Public
policy in a format document called ‘statues’ or ‘legislation’. In most of the democratic countries
legislative authority is vested in a body of persons elected by the adult citizens of the country.
The legislature may consist of a tingle chamber, or two, and if there are two chambers, powers
are possessed by each according to the provision of constitutional law.10 In United Kingdom,
parliament has unlimited legislative power but this is not so in case of India and America where
the authority of all the main organs of government it circumscribed by the Constitution. Thus,
the word ‘legislation’, when used wider sense, the term includes all methods of law-making but
when used in strict sense, legislation is the method of the laying down of legal rules by a
sovereign or subordinate authority.

The characteristic of legislative law distinguishes from customary law, which manifests its
existence through actual observance by the members of a community unaccompanied by
authoritative approval by a governmental organ. Law-making by legislators is different from the
law-making by judges. The verbal expression of a legal rule or principle by a judge does not
have the same degree of finality as the authoritative formulation of a legal proposition by a
legislative body. Judges create law only for the case in dispute while legislators lay down rules
purely for the future and without reference to any actual dispute.11

Legislation in India

Legislation in India seeks its history from British rule period. Since the time when India Became
a colony of Britain, legislation, as a source of law, started growing at a slow rate at beginning but
now in the present scenario, we see that legislature is the most important source of law.
Few pre-independent legislation which are still valid and followed in India are:

 Indian Penal Code, 1860

 Indian Evidence Act, 1872
 Indian Contract Act, 1872
 Civil Procedure Code, 1908

10
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 237, 8th ed., Hind Law Publications, Pune,
2008.
11
Id. at 238.
  Government of India Act, 1919
 Government of India Act, 193512

Precedent

The judicial precedent is an independent source of law and it is historically more important in
England.

There is no doubt that the legislation is the most important source of law in modern times, but at
the same time precedent is equally important source of law from the standpoint of authority. in
the common law countries US, Australia, Canada and India it is equally accepted as a source of
law next to legislation.13

A precedent is a statement of law found' In a judicial decision of a Superior Court, which is to be

followed by the same Court in future and also by subordinate Courts in a similar case. The
reason for acceptance of precedent is obvious. if the judges are giving decisions according totheir
opinion in disregard to the earlier practice, then it would create a chaos. No one can anticipate
that what would be the decision of the Court, and there will be total uncertainty and confusion in
the mind of the parties. in such a situation the litigants has to rely on the temperament and whim
of the judges. It is the rule of precedent that brings the certainty, consistency and Uniformity in
the legal system.

The judge has to resolve the dispute before him and he must reach to the decision by reference to
rule of law. The judicial decision is to be followed in later cases; this is the theory of precedent,
means the decision is contained with principle on which judgment is based, which is binding and
not the decision as such. The concept of ‘Law’ and formal justice demands certainty and
uniformity which can be achieved by the judges by following the principles of law as laid down
by Court In earlier cases. It Is generally a tendency of any human institution (clubs, societies,
companies; states etc.) to repeat earlier practices in similar cases. Therefore in most of the legal
system theory of precedent is followed.

12
Abhijeet Aaryan, Legislation & Common Law : Indian Legal System (March 13, 2011). Available at
http://www.legalservicesindia.com/article/article/legislation-&-common-law-indian-legal-system-587-1.html. Last
accessed on 22Apr., 2017 at 8:40 pm.
13
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 268, 8th ed., Hind Law Publications, Pune,
2008.
The practice of precedent in civil law systems is different from English common law. in
Common law the precedents of an appropriate authority not only guide decisions in later cases,
but bind the judges within the given hierarchical structure. This is the Doctrine of Stare Decisis.
it is prerequisite for using precedents that there should be a method of maintaining law reports
which are acceptable and accessible to the public.14 In order to operate the stare decisis principle
there is also a need of defined hierarchy, and an established way of working out what part of an
earlier case is binding. in common law countries ratio decidendi (reason of the case) of the
judgment is binding and not the obiter dicta (not directly the reason, but supporting to it). it is to
be noted in case of a English legal system, that most of the common law principles are originated
in judicial decisions and followed as binding law (precedents) in later cases. According to
Salmond, a judicial precedent speaks in England with authority; it is not merely the evidence of
law but a source of it; and the courts are bound to follow the law that is so established.15

Custom

In every society the custom has enjoyed a very high place in the regulation of human conduct. in
earlier society there was no law other than custom. it was rules created by the people themselves
making binding on themselves. in Modern times, the place of custom has been taken by the
legislation. The legislation is the most important source of law. However, importance of custom
has not been diminished altogether. in non-western countries including lndia. Customs still
occupy a very important place and their importance has been recognised bylaw as valuable in the
administration at law and justice. The personal laws all over the world Hindu law, Muslim law,
Parsi law, Canon Law etc., are based on custom concerning marriage, succession, adoption, etc.

A custom is a habitual course of conduct observed uniformly and voluntarily by the people
concerned. When people find any act to be good and beneficial. which is agreeable to their
disposition, they practice it and in course of time by frequent observance and on account of its
approval and acceptance by the community for generations. a custom evolves. One particular
behaviour establishes a pattern and then its continuation for a period of time. other follow the

14
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 268, 8th ed., Hind Law Publications, Pune,
2008.
15
Id. at 269.
same path for similar reasons, eventually what emerges is a clear habit. A certain rule or practice
is followed by someone for reasons of convenience etc. Others without being obliged to do so
follow the same rule. Eventually that rule or practice becomes a habitual course of conduct in the
society giving rise to a custom.16

A custom is one of the oldest forms of law making. In primitive societies human conduct was
regulated by practices which grew up spontaneously and were later adopted by the people. The
generally observed course of conduct, which is the main characteristic of custom, thus
originated. Holland, observes that the conscious choice of the more convenient of two acts,
though sometimes doubtless, it is the result of accidental adoption of one of the two indifferent
alternatives. in either case the choice is either deliberately or accidentally repeated till it ripens
into habit. Thus imitation of behaviour by the people plays an important role in the growth of a
custom. Such imitation they very often be guided purely by religious or superstitious adherence
to a course of conduct. in early societies the King in the administered justice used to consider a
conduct pursued by people in general. What was accepted by the generality of the people and
embodied in their customs was deemed: be right and which was disapproved by them or not
embodied in their customs was deemed to be wrong. Custom was so important in early society.17

16
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 295, 8th ed., Hind Law Publications, Pune,
2008.
17
Id. at 296.
 CHAPTER – 2

LEGISLATION AND ITS KINDS

The term ‘Legislation’ is derived from the Latin words ‘Legis’ a law and ‘Laterm’ meaning to
‘make’, ‘put’, ‘set’. Thus etymologically, legislation means making or setting the law. Broadly,
this term is used in three senses: Firstly, in its broadest sense it includes all methods of law
making in this sense legislation includes judge-made rules of law, and even the particular rules of
law or the rights created at law between parties to contract. In the second sense, legislation
includes every expression of the will of the legislature, whether directed to the making of law or
not. Every act of legislature, in this sense, is an instance of a legislation, irrespective of its
purpose and effect. The legislature does not confine its action to the making of law, yet all its
functions are included within the term ‘legislation’, for example, the legislature may enter into a
treaty with a foreign state. In this example, there is no creation of new rule of law. Thirdly,
legislation is used in a strict sense. In this sense it means the making of rules and laws to be
followed and enforced in the Courts of the state. These rules or laws can only be made by a
competent law making body, i.e., a body which, under the Constitution of the State, is
empowered to make laws. This third sense is more popular and while considering legislation as a
source of law, we take the third meaning of the term ‘legislation’.18

Kinds of Legislation Legislation are of two kinds-

1. Supreme Legislation

2. Subordinate Legislation

This classification of legislation has been given by Salmond which is based upon British
legislative system and practice. According to him. legislation is either supreme or subordinate.
The supreme legislation is that which proceeds from the supreme or sovereign power in the state
and which is, therefore, incapable of being replaced, annulled or controlled by any other
legislative authority. For example, the laws enacted by the Parliament in England are supreme
legislation. The British Parliament, in every sense, is a sovereignrlaw makinr; bod 2 because

18
Aggarwal, Prof. Nomita. Jurisprudence (Legal Theory) Page 136, 10th ed., Central Law Publications, Allahabad,
2016.
there is no restraint on its absolute authority to make laws. Its laws cannot be questioned in the
British Courts.

Subordinate legislation is that which proceeds from any authority other than the sovereign
power, and 13, therefore, dependent for its continued existence and validly on some superior or
supreme authority. Enactment of legislative bodies. Inferior to the-sovereign constitute
subordinate legislation. Such legislation 1s subordinate in that It can be replaced by, and must
give way to, sovereign legislation. Salmond, enumerated five kinds of subordinate legislation-

1. Colonial legislation

2. Executive legislation

3. Judicial legislation

4. Municipal legislation

5. Autonomous legislation

Colonial Legislation

Formerly England had a vast empire with numerous colonies. The powers of self-government
entrusted to the colonies and other dependencies of the Crown were subject to the control of the
Imperial legislature.19

Executive Legislation

The essential function of the executive is to conduct the administrative departments of the state,
but it combines with this certain subordinate legislative powers which have been expressly
delegated to it by Parliament or pertain to it by the common law. Statutes, for example,
frequently entrust to some department of the executive government the duty of supplementing
the statutory provisions by the issue of more detailed regulations bearing on the same matter.

19
Aggarwal, Prof. Nomita. Jurisprudence (Legal Theory) Page 137, 10th ed., Central Law Publications, Allahabad,
2016.
This is now known as delegated legislation a principle which has been recognised by most of the
countries of the world.

Municipal Legislation

The Parliament entrusts the municipal authorities with the task of making special laws in limited
authority and scope. The laws as made by the municipal authorities are called bye-laws and is
also a form of legislation.

Judicial Legislation

Certain delegated legislative powers are also possessed by the Judicature. The superior courts
have the power of making rules for the regulation of their own procedure. This is known as
judicial legislation and is different from judicial precedent.

Autonomous Legislation

Autonomous bodies like universities churches. Corporations, etc. have the power to make rules
for the conduct of their business. These rules too are made by them in accordance with an Act of
Parliament hence these constitute examples of subordinate legislation.20

This classification of legislation into supreme and subordinate is not recognized in India.
Because in India Parliament is not sovereign in the sense as it is in England. We have our
Constitution which specifies th powers of Indian Parliament and State Legislatures and also
imposes limits restrictions and restraints upon the power of these bodies. Articles 245, 246, 247,
248, 250, 257 and 368 of the Constitution are some of the very important instances of the fact
that restriction is there so far as the sovereign character of the Indian legislature is concerned.21

In India, we have, however, recognized one form of subordinate legislation (as mentioned by
Salmond) which is more popularly known as delegated legislation.

Meaning

20
Aggarwal, Prof. Nomita. Jurisprudence (Legal Theory) Page 137, 10th ed., Central Law Publications, Allahabad,
2016.
21
Id. at 138.
Delegated legislation means legislation made by bodies other than the legislature. in other words,
it means legislation made. By bodies to which power of making law has been delegated by the
supreme legislative authority. When law-making powers are exercised by such body, it is
known22 as delegated legislation and the legislative power is said to be delegated. The main
purpose of such a legislation is to supplant and not to supplement the law.23 The Committee on
Minister's Power said that the term ‘delegated legislation' has two meanings:

1. Firstly: it means the exercise of power that is delegated to in. executive to make rules.

2. Secondly: it means the output or the rules or regulations etc. made under the power so given.24

Reason for the Growth of delegated legislation

Delegation of the legislative power under various types of statutes is a normal feature of present
day statutory legislation. Now it is simply inevitable and indispensable. Its necessity must be
realized in view of the hunger for socioeconomic legislations, industrial laws, labour laws,
commodity control legislation. public welfare legislation and unavoidability of the standing
public security and emergency laws. Professor Griffith has pointed out that the growth of
delegated legislation in the 19th and 20th centuries was inevitably due to fundamental changes in
the theory and practice of the Government. is a modern and highly developed State, the tasks
confronting a legislative body are so manifold and complex that they cannot be performed in all
of their details and technical expertise without the help of other bodies in the State, Some types
of legislative activity in the area of specialized government regulation demand such a thorough
going acquaintance with the organizational and technical problems existing in the particular field
that they can be discharged more adequately by a group of experts than by a legislative
assembly. For those and other reasons modern legislatures frequently delegate some legislative
functions to an administrative agency of the government. The main features which contributed to
the growth of delegated legislation are as follows:

22
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 243, 8th ed., Hind Law Publications, Pune,
2008.
23
Jurisprudence Notes- The Sources of Law. Available at http://www.desikanoon.co.in/2012/08/jurisprudence-
notes-sources-of-law.html last accessed on 22Apr., 2017 at 9:20 pm.
24
Id. at 244.
1. The concept of Welfare State had caused tremendous increase in the work of the Government
which necessitated a huge bulk of legislation. The Parliament hardly has time to deal with this
wide range at legislation efficiently, and, therefore, it concentrates only on defining the essential
legislative principles and leaves the details to be drawn by the executive.

2. The legislatures faces difficulties in laying down details especially in certain fields of
technical nature and. therefore. Entrusted this task to the Departments and Ministers concerned.25

3. Delegated legislation is also necessary to meet unforeseen contingencies, it provides for a

power of constant adaptation to unknown future conditions without the necessity of amending
the legislation.

4. The flexibility and expediency is the essential element of governance. Sometimes public
interest may demand that provisions of law should not be made public until the time fixed for its
enforcement is ripe. This objective is very efficiently attained by delegated legislation.

5. Delegated legislation is also necessary to meet cases of emergency arising out of war,
insurrection, floods, economic depression etc. Therefore, the administration must be fully
equipped with rule-making powers so that it may take proper remedial action immediately
without waiting for the law to be passed.26

25
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 244, 8th ed., Hind Law Publications, Pune,
2008.
26
Id. at 245.
 CHAPTER – 3

ADVANTAGES AND DISADVANTAGES OF LEGISLATION

Advantages of Legislation over Customs

Legislation is most recent and powerful source of law. In earlier times custom occupied
important place among the sources of law but now. According to Professor Keeton, position has
become reversed and customary w is now treated supplementary to the enacted law. In
comparison with custom, following are the point of distinction and also comparative advantages
over' the custom:

1. Legislation is an advanced method of legal development and is a characteristic mark of mature

legal system. Customs had their sway mainly in a primitive society. Customs are either abrogated
or embodied in legislation with the advancement of civilization.

2. The existence & authority of legislation is de jure, whereas the t existence of custom is de
facto.

3. Customs are generally based on the will of the people and they have only an implied authority
of the State. Whereas, the authority of legislation lies in the express will of the State.

4. Legislation is considered to be a superior and more authoritative source of law than customs.

5. Generally, customs describe the relationship between person and person. State as a agency
have no role in formation of custom. Legislation comes into existence at the instance of State.
The State or similar entity is a pre-requisite of legislation.

Advantages of Legislation over Precedent

The precedent is an important source of law. However, as compared to legislation, legislation

possesses more merits than precedents. According to Salmond, “So great is the superiority of
legislation over all other methods of legal evolution, that the tendency of advancing civilization
is to acknowledge “is exclusive claim, and to discard other instruments as relics of the infancy of
law.” Following are the merits and points of distinction between Precedent and legislation.27

(a) Abrogative and Constitutive power

27
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 239, 8th ed., Hind Law Publications, Pune,
2008.
Legislation is not merely a source of new law. But it is equally effective ill abolishing that which
already exists. Statute alone can both create and destroy rules of law. The case-law is generally
constitutive. When a judge formulates a new rule for guidance in future cases, he cannot overrule
it, as and when he happens to change his mind. That must be done by a higher court or by a fuller
bench of the same court. Whereas in the case of a statute there Mo such restriction at all, and the
legislature can repeal today what it enacted yesterday. On the other hand, precedent is capable of
producing very good law but its Operation is irreversible.

(b) Efficiency

Legislation allows advantageous division of labour which results in increased efficiency. 28 The
legislature is a organ, which makes law, that distinguishes it, from the judicature, which
interprets and apply that law.

(c) Declaration

Legislation is superior to precedent because before a statute is applied by courts of law, it is

formally declared. Justice requires that laws should be known before they are applied and
enforced by the courts. On the other hand, case-law is created and declared in the very act of
applying and enforcing it Case law operates retrospectively but legislation fulfills the
requirement of natural justice because it makes the law known before it is enforced.

(d) Future cases

Legislation by way of anticipation makes rules for future cases while precedent has to wait till
the case appears before the court for decision. Therefore, case-law is essentially incomplete,
uncertain, and unsystematic while if statute law shows some defects it is only due to the lethargy
of the legislature.

(e) Direct and unambiguous

In terms of form, statute law is also superior to case-law. Statute law is direct and unambiguous.
it is brief, clear, easily accessible, systematic. standardized and knowable, while case-law is
buried in the huge and growing mass of the records of litigation While no one but a lawyer can
unravel a rule at law from the mass of decisions cited in support and even among lawyers often
there is difference of opinion as to the rule that is laid down in a case.

(f) Greater Access and Reliability

Enacted law is codified, easily available and general in its application whereas precedents are
scattered.

28
Siddharth Karlekar, 5 Chief Advantages Of Legislation Over Precedent as Sources Of Law. Available at
http://www.shareyouressays.com/114710/5-chief-advantages-of-legislation-over-precedent-as-sources-of-law,
last accessed on 24 Apr., 2017 at 5:49 pm.
(g) Reliability

The codified law is more reliable than individual judgment of the Court.29

(h) Concise and definite.

Statute law is concise and definite contrasted with case-law which it bulky and voluminous, the
principles at law be embedded in the voluminous literature of the law reports and to collect them
and arrange them in a systematic manner is no easy task. As Salmond observes, “case-law is gold
in the mine--a few grains of the precious metal to the tons of useless matter- while statute law is
coin of the real is ready for immediate use."

Disadvantages of Legislation

There are some defects with legislation as compared to custom or precedent, which may be
enumerated as follows:

(1) The legislation always thinks about the totality, but there is no scope for individuality.
Precedent allows a judge to give the decision on the merits of any particular case. By express
provision of law, the judge is sometimes tied and has to follow it, even if it results in injustice.

(2) Legislature cannot visualize every eventuality of legal situation in future; therefore,
unforeseen situation always remains outside the legislation.

(3) Statutes are very rigid.

(4) Statute law is often worded in archaic language and uses many double negatives hence it
becomes complicated and cumbersome to understand whereas precedents in some situation are
very clear and simple.

(5) Poorly drafted or badly written codes are misused by the bad element of the society.30

29
Ghormade, DR. Vijay. Textbook On Jurisprudence & Legal Theory Page 240, 8th ed., Hind Law Publications, Pune,
2008.
30
Id.at 241.
 CHAPTER – 4

CODIFICATION

According to the Oxford Dictionary: “Code is a systematic collection of statutes, body of laws,
so arranged as to avoid inconsistency and overlapping” This definition of codification is not
exhaustive because it does not include common law and case law. In fact, codification is the
systematic process and reduction of the whole body of law into a code in the form of enacted
law. Codification implies collection, compilation, methodical arrangement, systematization and
reduction to coherent form the whole body of law on any particular branch of it so as to present it
in the form of a systematic, clear and precise statement of general principles and rules.

There have been codes since very ancient times. In India, we had not only the Code of Manu but
also the Codes of Yajnavalkya, Brihaspati, Narada and Parashar. The Code Justinian is a very
important ancient code of Roman law. In many respects, it is like a modern code. Justinian
compiled the mass of laws which existed in various forms such as the Praetor’s edicts, the
writings of classical jurists etc. The other important ancient codes were the Jewish Code, the
Chinese Code, and the Code of Hammurabi etc. In the beginning of the 19th century, Napoleon
gave what is called the Code Napoleon. Bentham pleaded for codification in England. He was
supported by Thibaut but opposed by Savigny. Sir Henry Maine also advocated codification in
England. More work has been done in this direction in the present century. The law of property,
in most parts, has been codified. Many archaic, out dated and artificial rules have been
eliminated and law has been put in a very clear, simple and systematic form.31

As regards India, the first Indian Law Commission was appointed with Lord Macaulay as its
Chairman under the provisions of the Charter Act of 1833. The result was the drafting of a
number of codes such as the Indian Penal Code, the Civil Procedure Code and the Indian
Limitation Act. A Second Law Commission was set up under the Charter Act of 1853. The
Indian Penal Code was passed in 1860. Later on, the Criminal Procedure Code and some other
Acts were drafted and passed. Law Commissions were set up again in 1861 and 1879 which
drafted and revised many Acts. The result was that the criminal law, civil law in most parts, and

31
Mahajan’s, V.D. Jurisprudence & Legal Theory, Page 168, 5th ed., Eastern Book Company, Lucknow, 2014.
procedural laws were codified by the beginning of the present century. After the independence of
India in 1947, the Indian Law Commission was appointed to make recommendations about laws
and their administration. The Indian Law Commission has made comprehensive and voluminous
recommendations on various aspects of law in India. Certain conditions are necessary for the
codification of law. According to Roscoe Pound, the following important conditions lead to
codification:

(i) The exhaustion for the time being of the possibilities of juristic development of existing legal
materials, or where the legal institutions have become completely mature, or where the country
has no juristic past, the non-existence of such material.

(ii) The unwieldiness, uncertainty and archaic character of the existing law.

(iii) The development of an efficient organ of legislation. The need for one uniform law in a
political community whose several sub-divisions had developed or received divergent local laws.

Kinds of Codification

Codes may be of the following kinds:

(i) A creative code is that which makes a law for the first time without any reference to any other
law. It is law-making by legislation. The Indian Penal Code belongs to this category.

(ii) A consolidating code is that code which consolidates the whole law-statutory, customary and
precedent-on a particular subject and declares it. This is done for systematising and simplifying
the law. The Code of Justinian belongs to this category. The same is the case with the Indian
Transfer of Property Act, 1882.

(iii) A code may be both creative and consolidating. It may make new law as well as consolidate
the existing law on a particular subject. The recent legislation in India on Hindu law is an
example of this kind.32

32
Mahajan’s, V.D. Jurisprudence & Legal Theory, Page 169, 5th ed., Eastern Book Company, Lucknow (India), 2014.
 CHAPTER – 5

KINDS AND RULES OF INTERPRETATION

The process by which a judge (or indeed any person, lawyer or layman, who has occasion to
search for the meaning of a statute), constructs from the words of a statute book a meaning which
he either believes to be that of the legislature of which he proposes to attribute to it called
according to Gray’s,33 ‘Interpretation’. Salmond34 describes interpretation as the process by
which the Courts seek to ascertain the meaning of the legislature through the medium of the
authoritative forms in which it is expressed. According to Keeton,35 "the interpretation of statutes
is a science by itself.... The function of the judges in interpreting statutes is two-fold. In the first
place they must decide upon the exact meaning of what the legislature has actually said, and in
the second place they must consider what the legislature intended to have said, or ought to have
said, but did not, either because never visualised such a set of circumstances arising as that
before the Court of or because of some other reason". Construction of statute must sub serve the
tests of justice and reason. It is a well-settled principle of law that in a given case with a View to
give complete and effective meaning to a statutory provision, some words can be read into; some
words can be subtracted. Provisions of a statute can be read down (although sparingly and
rarely).

To interpret broad and ambiguous statutory language, courts look to the following for guidance

1. The actual language of the statute, the words chosen by the legislature.

2. The context within the statute. What is the subject or purpose of other headings or sections in
the same statute? What language do complementary statutes contain? Is there a statutory
statement of legislative purpose?36

3. The legislative history of the statute. A statute’s legislative history provides information to the
court about the legislatures’ intent in adopting the statute.

33
Gray, op. cit. pp. 176-178.
34
Salmond, op. cit. p. 169.
35
Keeton, op. cit. p. 89.
36
Aggarwal, Prof. Nomita. Jurisprudence (Legal Theory) Page 143, 10th ed., Central Law Publications, Allahabad,
2016.
4. Administrative interpretations by the agency charged with administering the statute. They
occasionally provide a more specific indication of the statute’s meaning.

5. The interpretation of other courts consider how courts at a higher level, the same level or even
a lower level have applied the statute. '

6. The broader context of the statute. What kinds of events were taking place that caused the
legislation to be created? What goals were to be furthered by enacting the statute? If a statute
overrules common law or tries to fill in a gap in the common law. Understanding the problems
that led to the enactment can help define the scope of the statute.

7. A comparison with similar statutes of other jurisdictions.37

Kinds of Interpretation is of two kinds:

1. Grammatical interpretation

2. Logical Interpretation

Grammatical interpretations arrived at by reference to the laws of speech to the words used in the
statute, in other words it regards only the verbal expression of the legislature. Logical
interpretation gives effect to the intention of the legislature by taking into account other
circumstances permissible according to the rules made in this behalf.

The object of interpretation is to see what is the intention expressed by the words ‘used’. The
words of the statute are to be construed so as to ascertain the mind of the legislature from the
natural and grammatical meaning of the words which it has used.

The Courts generally followed five rules for construing a statute and also maxims.1

These important rules are:

Literal rule

37
Aggarwal, Prof. Nomita. Jurisprudence (Legal Theory) Page 144, 10th ed., Central Law Publications, Allahabad,
2016.
It is a rule of construction of statutes that in the first instance the grammatical sense of the words
is to be adhered to. The words of a statute must prima facie be given their ordinary meaning
where the grammatical construction is clear and manifest and without doubt that construction
ought to prevail unless there be some strong and obvious reason to the contrary.

Golden rule

The Golden rule permits the plain meaning to be departed from it where a strict adherence to it
would result in an absurdity. In other words, golden rule provides that the words should be given
their ordinary sense unless that would lead to some absurdity or inconsistency with the rest of the
instrument.1 In Jugulkishore v. Cotton Co. Ltd.38 S.R. Das, J., while explaining golden rule
observed-‘The cardinal rule of construction of statutes is to read the statute literally, that is by
giving to the words used by the legislature their ordinary, natural and grammatical meaning. If,
however, such a reading leads to absurdity and the words are susceptible of another meaning the
Court may adopt the same. But if no such alternative construction is possible, the Court must
adopt the ordinary rule of literal interpretation".39

Mischief Rule

This rule was enunciated in Heydon’s case.40 It looks into the policy of the statute. This rule
directed that

"For the sure and true interpretation of all statutes in general ...... four things are to be discerned
and considered : (i) What was the Common law before the making of the Act; (ii) What was the
mischief and defect which the Common law did not provide; (iii) What was the remedy the
Parliament has resolved and appointed to cure the disease of the Common law ; (iv) the true
reason for the remedy. And then the office of all judges is always to make such construction as
shall suppress the mischief and advance the remedy ..... according to the true intent to the makers
of the Act .....

38
AIR 1955 SC 376, 387.
39
Aggarwal, Prof. Nomita. Jurisprudence (Legal Theory) Page 146, 10th ed., Central Law Publications, Allahabad,
2016.
40
(1584) 3 Rep 7b.
It was further said in Heydon’s case that ‘The office of all the judges is always to make such
construction as shall suppress the mischief and advance the remedy and to suppress subtle
inventions and evasions for continuance of the mischief, and proprivato commode, and to add
force and life to the cure and remedy according to the true intent of the makers of the Act ‘pro
bono publico’.

Beneficial and Equitable Rule

The beneficial and equitable rule is to be applied to all those statutes which deserve liberal
construction.

Socio-economic legislation with the object of securing social welfare is not meant to be
interpreted narrowly so as to defeat its object.

Liberal construction means to give the language of a statutory provision, freely and consciously,
its commonly generally accepted meaning to the end that the most comprehensive application
thereof may be accorded without damaging to any of its terms.

Harmonious construction

A statute must be read as a whole and one provision of the Act should be construed with
reference to other provisions in the same Act so as to make a consistent enactment of the whole
statute. It is the duty of the courts to avoid "a head on clash" between two sections of the same
Act and whenever it is possible to do so to construe provisions which appear to conflict so that
they harmonise. The provisions of one section of a statute cannot be used to defeat those of
another unless it is impossible to effect reconciliation between them. The same rule applies with
regard to sub-sections of a section. The sub-sections must be read as parts of an integral whole.
 CHAPTER –6

CONCLUSION

Legislation is the prime source of law and consists in the declaration of legal rules by a
competent authority. Legislation can have many purposes: to regulate, to authorize, to enable, to
proscribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary
legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. The
legislature may delegate law-making powers to lower bodies. In the UK, such delegated
legislation includes Statutory Instruments, Orders in Council, & Bye-laws. Delegated legislation
may be open to challenge for irregularity of process; and the legislature usually has the right to
withdraw delegated powers if it sees fit.

Most legislatures have their powers restricted by the nation's Constitution, and Montesquieu's
theory of the separation of powers typically restricts a legislature's powers to legislation.
Although the legislature has the power to legislate, it is the courts who have the power
to interpret statutes, treaties and regulations. Similarly, although parliaments have the power to
legislate, it is usually the executive who decides on the legislative programme. The procedure is
usually that a bill is introduced to parliament and after the required number of readings,
committee stages and amendments, the bill gains approval and becomes an Act.
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