Article 13 of the Indian Constitution plays a pivotal role in protecting Fundamental Rights. It acts as a guardian, ensuring that no law is inconsistent with or in derogation of these rights. For this purpose, it is crucial to understand what constitutes ’law’ and ’laws in force’ under this article.
Article 13(3) provides a comprehensive definition, clarifying the scope of instruments and practices that are subject to judicial scrutiny under Article 13(1) and 13(2). This broad definition is essential to prevent the State from infringing upon Fundamental Rights through means other than formal legislation enacted by Parliament or State Legislatures.
Original Text
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
Detailed Explanation
Article 13(3) provides the essential definitions for the terms “law” and “laws in force” as used in Article 13. This definition is crucial for determining the types of rules, regulations, and practices that can be challenged if they violate fundamental rights.
Sub-clause (a) defines “law” in a very inclusive manner. It explicitly lists several forms of legal instruments and practices:
- Ordinance: A temporary law promulgated by the President or a Governor when the Parliament or State Legislature is not in session.
- Order: A formal direction issued by an executive or administrative authority.
- Bye-law: Rules made by a local authority or a corporation under the powers conferred by a statute.
- Rule: General principles or regulations governing procedure or conduct, often made by executive authorities under statutory powers.
- Regulation: A rule or directive made and maintained by an authority. Often used interchangeably with ‘rule’, but can imply more detailed provisions.
- Notification: A formal announcement or declaration published in the official gazette, often giving effect to provisions of a statute or exercising powers conferred by law.
- Custom or usage having in the territory of India the force of law: Practices that have been followed for a long time, have acquired obligatory force in a particular area or community, and are recognised as legally binding. This includes personal laws based on custom.
This expansive definition ensures that Article 13 is not limited merely to statutes enacted by legislatures but extends to all forms of state action that have the force of law, including executive orders, rules, regulations, and even age-old customs recognised as legally binding. This prevents the state from bypassing fundamental rights through alternative legal mechanisms.
Sub-clause (b) defines “laws in force”. This refers to the laws that existed in India before the commencement of the Constitution (January 26, 1950). It clarifies that such pre-constitutional laws remain “laws in force” for the purpose of Article 13, even if they were not operational in all areas or at all times before the Constitution began. This subjects pre-constitutional laws to the test of consistency with fundamental rights under Article 13(1) (doctrine of eclipse).
Together, these definitions ensure that both laws enacted after the Constitution (laws under 13(3)(a)) and laws existing before the Constitution (laws in force under 13(3)(b)) are subject to judicial review on the grounds of violating Fundamental Rights.
Detailed Notes
- Article 13(3) defines key terms used in Article 13: “law” and “laws in force”.
- These definitions are crucial for determining the scope of judicial review under Article 13(1) and 13(2).
- Definition of “law” [Article 13(3)(a)] is inclusive:
- Includes not just legislative enactments but various other instruments and practices.
- Specifically lists: Ordinance, order, bye-law, rule, regulation, notification.
- Also includes: Custom or usage having the force of law.
- This broad definition ensures that the State cannot circumvent Fundamental Rights protection through different legal forms.
- Applies to laws made after the commencement of the Constitution, primarily relevant for Article 13(2).
- Definition of “laws in force” [Article 13(3)(b)]:
- Refers to laws passed or made by competent authorities in India before the commencement of the Constitution.
- Includes such pre-constitutional laws even if they were not in complete operation before Jan 26, 1950.
- These pre-constitutional laws are subject to Article 13(1).
- The combined effect is that both pre-constitutional and post-constitutional legal instruments and practices are subject to the test of consistency with Fundamental Rights.
- This expansive definition is a cornerstone of judicial review in India regarding fundamental rights.
- Case law has further interpreted specific terms, for instance, defining what constitutes a ‘custom having the force of law’.
- Administrative directions or executive instructions that do not have the force of law are generally not considered ’law’ under Article 13(3)(a).
Additional Comments
- The definition of ’law’ in Article 13(3)(a) is deliberately wide to cover all forms of state action that create legally binding rules or obligations, ensuring comprehensive protection of fundamental rights.
- The inclusion of ‘custom or usage having the force of law’ means that even traditional practices can be challenged if they violate fundamental rights. Significant cases have arisen regarding personal laws based on custom.
- The definition of ’laws in force’ in Article 13(3)(b) is relevant for understanding the Doctrine of Eclipse (under Article 13(1)), which applies to pre-constitutional laws inconsistent with Fundamental Rights.
- While administrative instructions without the force of law are not ’law’ under 13(3)(a), executive actions taken under the authority of a ’law’ can still be challenged if the underlying law itself violates fundamental rights or if the action is arbitrary.
- The question of whether a ‘constitutional amendment’ is a ’law’ under Article 13(2) has been a subject of major judicial debate (leading to landmark judgments like Golak Nath, Kesavananda Bharati), although the definition in 13(3) itself primarily lists forms of ordinary or statutory law.
Summary
Article 13(3) defines “law” to include various instruments like ordinances, orders, rules, regulations, notifications, and customs or usages having the force of law, ensuring comprehensive coverage beyond just legislative acts. It defines “laws in force” as pre-constitutional laws that were in effect before the Constitution commenced. These definitions are fundamental to Article 13’s role in subjecting all forms of state-made laws, rules, and legally binding practices (both past and present) to the test of Fundamental Rights, thereby enabling judicial review against violations.