Types and sources of law in planning legilation

Types of laws related to planning legislation

1. LAW – SOURCES & TYPES PLANNING LEGISLATION Chhabi Yadav| MURP 2 nd yr | Assignment 1

2. Contents What is Law? Sources of law custom legislation precedent Meaning of various terms of law

3. WHAT IS LAW?

4. Definitions Law, according to Justinian’s Digest, is “the norm of what is just and unjust.” The ancient Hindu belief held that ‘law’ is a command from God, not from any political ruler. It binds everyone, even the monarch, to obey it. As a result, ‘law‘ is a part of ‘Dharma.’ In Hindu law, the concept of ‘justice‘ is always present. Salmond defined law as “the corpus of ideas recognized and applied by the State in the administration of justice,” according to the major modern natural law scholar.

5. India & Law India has one of the oldest legal systems in the world. Its law and jurisprudence stretches back into the centuries, forming a living tradition which has grown and evolved with the lives of its diverse people. India's commitment to law is created in the Constitution which constituted India into a Sovereign Democratic Republic, containing a federal system with a Parliamentary form of Government in the Union and the States, an independent judiciary, guaranteed Fundamental Rights and Directive Principles of State Policy containing objectives which though not enforceable in law are fundamental to the governance of the nation.

6. Significance of Law Law is not static. At any given point of time the prevailing law of a society must be in conformity with the general statements, customs and aspirations of its people . Modern science and technology have unfolded vast prospects and have aroused new and big ambitions in men . Materialism and individualism are prevailing at all spheres of life. Therefore , law has undergone a vast transformation – conceptual and structural. The idea of abstract justice has been replaced by social justice. The object of law is order which in turn provides hope of security for the future. Law is expected to provide socio-economic justice and remove the existing imbalances in the socio-economic structure and to play special role in the task of achieving various socio-economic goals enshrined in our Constitution. It has to serve as a vehicle of social change and as a harbinger of social justice

7. SOURCES OF LAW

8. Principle Sources Of Indian Law Customs or Customary Law Judicial Decisions or Precedents Statutes or Legislation Personal Law e.g., Hindu and Mohammedan Laws etc.

9. Customs or Customary Law Custom is the oldest and most important source of law, even though its influence is declining due to the emergence of legislation and precedent. When the same activity is done in the same way over and over again, it becomes customary. Customs played a significant influence in the development of ancient Hindu law. The Hindu Marriage Act of 1955 (HMA) has provided numerous examples of customary rules being recognized.

10. The customs may be divided into two classes: Customs without sanction - Customs without sanction are those customs which are non-obligatory and are observed due to the pressure of public opinion. These are called as “positive morality ”. Customs having sanction - Customs having sanction are those customs which are enforced by the State. These may be divided into two classes : Legal Customs Conventional Customs

11. Legal Customs : These customs operate as a binding rule of law. They have been recognised and enforced by the courts and therefore, they have become a part of the law of land. Legal customs are again of two kinds: Local Customs : Local custom is the custom which prevails in some definite locality and constitutes a source of law for that place only. But there are certain sects or communities which take their customs with them wherever they go. They are also local customs. Thus, local customs may be divided into two classes: Geographical Local Customs Personal Local Customs These customs are law only for a particular locality , section or community. General Customs : A general custom is that which prevails throughout the country and constitutes one of the sources of law of the land.

12. Requisites of a Valid Custom A custom will be valid at law and will have a binding force only if it fulfils the following essential conditions, Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient . Certainty : The custom must be certain and definite, and must not be vague and ambiguous Reasonableness : A custom must be reasonable. It must be useful and convenient to the society. Compulsory Observance: A custom to be valid must have been continuously observed without any interruption from times immemorial Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. Unanimity of Opinion: The custom must be general or universal. Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise. Consistency : There must be consistency among the customs. Custom must not come into conflict with the other established customs.

13. Judicial Decisions or Precedents In general use, the term “precedent” means some set pattern guiding the future conduct. In the judicial field, it means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries. The principles of law expressed for the first time in court decisions become precedents to be followed as law in deciding problems and cases identical with them in future. The rule that a court decision becomes a precedent to be followed in similar cases is known as DOCTRINE OF STARE DECISIS .

14. Kind of Precedents Declaratory and Original Precedents : According to Salmond , a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule of law Persuasive Precedents : A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. Absolutely Authoritative Precedents : An authoritative precedent is one which judges must follow whether they approve of it or not

15. Absolutely authoritative precedents in India: Every court in India is absolutely bound by the decisions of courts superior to itself. All courts are absolutely bound by decisions of the Supreme Court . Conditionally Authoritative Precedents : A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances . The doctrine of Stare Decisis : The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are 10 EPJI& GL established ”. In simple words, the principle means that like cases should be decided alike. Obiter Dicta : The literal meaning of this Latin expression is “said by the way”. The expression is used especially to denote those judicial utterances in the course of delivering a judgement which taken by themselves, were not strictly necessary for the decision of the particular issue raised.

16. Statutes or Legislation Legislation is that source of law which consists in the declaration or promulgation of legal rules by an authority duly empowered by the Constitution in that behalf. It is sometimes called written law as contrasted with the customary law or unwritten law. Salmond prefers to call it as “enacted law”. Statute law or statutory law is what is created by legislation, for example, Acts of Parliament or of State Legislature. Legislation is either supreme or subordinate.

17. Types of Legislation Supreme Legislation is that which proceeds from the sovereign power in the State or which derives its power directly from the Constitution. It cannot be repealed, annulled or controlled by any other legislative authority . Subordinate Legislation is that which proceeds from any authority other than the sovereign power . It is dependent for its continued existence and validity on some superior authority. The Parliament of India possesses the power of supreme legislation. Legislative powers have been given to the judiciary, as the superior courts are allowed to make rules for the regulation of their own procedure. The executive, whose main function is to enforce the law, is given in some cases the power to make rules. Such subordinate legislation is known as executive or delegated legislation. Municipal bodies enjoy by delegation from the legislature, a limited power of making regulations or bye-laws for the area under their jurisdiction.

18. WHAT ARE ACTS, BILLS, ORDINANCES, RULES AND REGULATIONS?

19. Bill A 'bill ' can be contemplated as the initial stage of an act. It is a proposal to draft a new law. Generally , a bill is in the form of a document that summarizes what is the policy behind the suggested law and what the said law is going to be. A Bill can be introduced by Parliament or State Governments itself or proposed by a member of the Parliament. Once passed in the Lower House after discussions, the Bill moves to the Upper house for approval. Once the bill is passed by the Upper House, then it is sent to the Indian President for his assent. Ultimately , a bill becomes a law (Act) or a statute of the land after it is passed by the Parliament and assented by the President. However, not all bills become acts, some bills do lapse and need to be reintroduced.

20. Act Once the Bill has been passed by the legislature, it is sent to the President or the Governor in case of Central law or State law respectively for the approval. After receiving the Presidential assent, it becomes an Act. An Act is a law that is made by the legislature such as Parliament or State Legislative Assembly. It is a law passed by Parliament whereas a bill is proposed legislation under consideration by a legislature. Therefore , a bill is a draft and acts are a law by the government . In this sense, a bill becomes an act when it is passed through the government.

21. Law The word 'law' generally refers to the set of regulations or rules to be followed. It can be in any form such as an act, ordinance, order, by-laws, rule or regulation etc. An act is a subset of law. It has the power to confer legal rights, obligations, liabilities, etc. Law can be any provisions of every valid Acts passed by the legislature whether acts and codes from pre-independence India or Ordinances passed by a Governor of a State or the President of India or decisions of the High Courts or Supreme Court, authorised orders, notices, rules, etc made by government bodies.

22. Ordinance Article 123 of Indian Constitution gives the President “Ordinance making power” whereas Article 213 of Indian Constitution gives the Governor “Ordinance making power”. These are valid for a period of six months . Ordinance is a temporary law that is circulated by the President on the recommendation of the Union Cabinet . They can only be delivered when the Parliament is not in session. They authorize the government to take immediate legislative action. These are generally passed when the Central Legislature is not in session and there is a need to make an act in emergency. In these cases, the government refers a proposal to the President or Governor of a State, and if they approve of them, it becomes an Ordinance. The legality of an ordinance is that it is equal to the Act.

23. Rules When any Act is introduced and passed, it is not mandatory that it is a complete code in itself. So, there is a requirement for the enactment of rules for defining the procedures of performing and implementation of the Act. In short, rules provide procedural laws . Rules are necessary because it is very complex for the legislation to include each and every detail in a single Act making it lengthy. Hence, a separate set of rules are made, in compliance with the provisions of the Act . Rules are secondary in nature to their parent act. Therefore, the rules cannot go beyond the parent Act and in case if any conflict arises between the provisions of an Act and rules, then the provisions of the Act will prevail.

24. Regulations Basically, rules and regulations are quite similar, however, regulations are more rigid than rules. Regulations have a force of law as these are the orders passed by Executive authority on the conduct of any legislation. They are based upon the Act. Such regulations are passed for the application of the Act and thus, there can be more than one set of regulations. Regulations are not passed before the Houses of Parliament but are needed to be published in the official Gazette to become legal. The Act is the parent law and the regulations passed is the supplement and are subordinate in nature and acts as an in- charge for enforcing the laws. The main difference between rules and regulations is that regulations are legally binding, whereas rules are not.

25. A Comparison at a glance

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