The Expansive Ambit of "Law" under Article 13(3)(a) of the Indian Constitution: A Definitional Scrutiny

Introduction

Article 13 of the Constitution of India stands as a bulwark for the protection of Fundamental Rights enshrined in Part III. It declares laws inconsistent with or in derogation of Fundamental Rights to be void. Central to the operation of Article 13 is the definition of "law," which is provided in Article 13(3)(a). This provision offers an inclusive, rather than exhaustive, definition, encompassing a wide array of state actions and even certain non-state norms that have the force of law. This article seeks to critically analyze the scope and interpretation of "law" under Article 13(3)(a), drawing upon judicial pronouncements and constitutional principles. Understanding this definition is paramount, as it determines the range of instruments and actions that can be subjected to judicial review for conformity with Fundamental Rights.

The Constitutional Mandate: Article 13 and the Definition of "Law"

Article 13 is pivotal for the enforcement of Fundamental Rights. Article 13(1) declares that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void (K.K Poonacha v. State Of Karnataka And Others, 2010). Article 13(2) injuncts the State from making any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall, to the extent of the contravention, be void (Union Of India v. Colonel L.S.N Murthy And Another, 2011; K.K Poonacha v. State Of Karnataka And Others, 2010).

To clarify what constitutes "law" for these purposes, Article 13(3)(a) stipulates:

"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;" (as quoted in Union Of India v. Colonel L.S.N Murthy And Another, 2011; Smt. Ujjam Bai v. State Of Uttar Pradesh, 1961; Gulf Goans Hotels Company Limited And Another v. Union Of India And Others, 2014).

The use of the word "includes" signifies that the definition is extensive and not exhaustive, allowing for judicial interpretation to cover other forms of state action that possess legal authority. The qualifying phrase, "having in the territory of India the force of law," is crucial, as it sets the standard for what can be considered "law" under this article.

Judicial Interpretation of Enumerated Terms in Article 13(3)(a)

The Supreme Court and various High Courts have had numerous occasions to interpret the specific terms enumerated in Article 13(3)(a).

Ordinance, Order, Bye-law, Rule, Regulation, Notification

These terms primarily refer to various forms of legislation, including primary and delegated legislation, as well as executive actions that have legal binding force.

Orders: The term "order" has been interpreted to include statutory orders and certain executive orders. In Dwarka Prasad Laxmi Narain v. State Of Uttar Pradesh And Two Others (1954), the Uttar Pradesh Coal Control Order, 1953, issued under the Essential Supplies (Temporary Powers) Act, 1946, was challenged, and a clause thereof was struck down as violative of Article 19(1)(g) for conferring arbitrary power. This implicitly treated the "Order" as law. Similarly, Government Orders (G.O.s) and Board Resolutions, if they serve a larger public interest and have the force of law, can fall within this definition (M/S Shakuntla Educational And Welfare Society v. Yamuna Expressway Industrial Development Authority, 2024). The Supreme Court in Gulf Goans Hotels Company Limited And Another v. Union Of India And Others (2014) observed that a government policy can acquire the "force of law" and be included under Article 13(3)(a) if it conforms to a certain form, contains a clear mandate, and discloses a specific purpose.

Rules: Rules made under a statute are explicitly included. In Indian Young Lawyers Association And Others v. The State Of Kerala And Others (2018), Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restricted the entry of women of a certain age group into the Sabarimala temple, was challenged and ultimately struck down as violative of fundamental rights, thereby affirming that such rules are "law."

Notifications: Notifications issued under statutory authority are also considered "law." The Delhi High Court in Brig. Gurdip Singh Uban & Ors. v. Union Of India & Ors. (1996) explicitly stated that "notifications are specifically treated as 'law', as contemplated by Article 13(3)(a) of the Constitution of India," citing Indian Express Newspapers (Bombay) Private Ltd. v. Union of India. However, the character of the notification matters. In Hospitals' Association, Through The President, Dr. Ashok Arbat And Another v. Government Of Maharashtra (2020), a challenge was made to notifications by the State Government regulating rates of private hospitals, with the petitioners arguing that such notifications could not be described as "law" under Article 13(3)(a) if they exceeded the empowering legislation or constitutional limits.

Bye-laws and Regulations: These are typically framed by subordinate authorities or statutory bodies under powers delegated by the legislature. They are considered "law" if they satisfy the "force of law" criterion and are made within the scope of the delegated power.

Custom or Usage Having the Force of Law

The inclusion of "custom or usage having in the territory of India the force of law" is significant as it brings within the ambit of Article 13 norms that are not formally enacted by a legislative body or state agency. For a custom or usage to be "law," it must be ancient, certain, reasonable, consistently followed, and have obtained the force of law, meaning it is recognized and enforced by courts.

The challenge in the Indian Young Lawyers Association case (2018), while directly against a statutory rule, was deeply intertwined with a long-standing custom restricting women's entry into the Sabarimala temple. The judgment, by striking down the rule, indirectly impacted the legal sanctity of the custom that underpinned it, to the extent the custom was inconsistent with fundamental rights.

However, a significant carve-out exists in relation to personal laws, many of which are rooted in custom and religious usage. This is discussed further below.

The Crucial Qualifier: "Having in the Territory of India the Force of Law"

This phrase is the linchpin of Article 13(3)(a). Not every administrative instruction, circular, or policy document issued by the government qualifies as "law." It must have legal force, creating rights or imposing obligations that are enforceable in a court of law.

The Supreme Court in Union Of India v. Naveen Jindal And Another (2004), as cited in Amgonda Vithoba Pandhare v. Union Of India And Others (2012) and Forum For Promotion Of Quality Education For All v. Lt. Governor Of Delhi & Ors. (2014), held that the Flag Code of India, which contains executive instructions of the Central Government, is not "law" within the meaning of Article 13(3)(a). Therefore, its violation, per se, might not be actionable as a violation of "law" unless it is also a violation of an enacted statute like the Prevention of Insults to National Honour Act, 1971.

The distinction was further elaborated in Gulf Goans Hotels Company Limited And Another v. Union Of India And Others (2014), where the Court stated: "So long as policy remains in the realm of even rules framed for the guidance of executive and administrative authorities it may bind those authorities as declarations of what they are expected to do under it. But, it cannot bind citizens unless the impugned policy is shown to have acquired the force of ‘law’."

The status of government resolutions can also be contentious. In Hem Chandra Saikia And Ors. v. State Of Assam And Ors. (1992), the Gauhati High Court, distinguishing the Supreme Court's observation in State of M.P. v. Mandawar (where a resolution fixing a scale of allowance under F.R. 44 was deemed law), held that a particular government resolution was not an Act of Parliament or State Legislature and thus its nature as "law" under Article 13(3)(a) was questionable in that specific context.

Exclusions and Contentious Areas in the Definition of "Law"

Despite its broad scope, judicial interpretation has carved out certain exclusions from the definition of "law" under Article 13, or has highlighted areas of continuing debate.

Constitutional Amendments

A significant early question was whether a constitutional amendment passed under Article 368 constitutes "law" for the purposes of Article 13(2). In Sri Sankari Prasad Singh Deo v. Union Of India And State Of Bihar (1951), the Supreme Court held that the power to amend the Constitution was a constituent power, distinct from ordinary legislative power, and therefore, a constitutional amendment was not "law" within the meaning of Article 13(2). This interpretation meant that fundamental rights could be abridged or taken away by a constitutional amendment. While this position has undergone significant evolution through cases like Sajjan Singh, I.C. Golaknath, and culminating in the "basic structure" doctrine in Kesavananda Bharati, the Sankari Prasad ruling was foundational in its time. Subsequently, Article 13(4) was inserted by the Constitution (24th Amendment) Act, 1971, explicitly stating that "Nothing in this article shall apply to any amendment of this Constitution made under Article 368" (as quoted in Union Of India v. Colonel L.S.N Murthy And Another, 2011). The interplay between this clause and the basic structure doctrine, particularly concerning amendments to the Ninth Schedule (I.R Coelho (Dead) By Lrs. v. State Of T.N, 2007), continues to be a complex area of constitutional law.

Personal Laws

The applicability of Article 13 to personal laws, which govern matters such as marriage, divorce, inheritance, and succession for various religious communities, has been a subject of considerable debate. In Ahmedabad Women Action Group (Awag) And Others v. Union Of India (1997), the Supreme Court, relying on precedents like The State Of Bombay v. Narasu Appa Mali (1952) and Krishna Singh v. Mathura Ahir (1981), held that personal laws are not "law" for the purposes of Article 13. The reasoning often advanced is that personal laws are not "laws in force" as contemplated by Article 13(1) (referring to state-made laws) nor are they "laws made by the State" under Article 13(2). This exclusion has been criticized for potentially shielding discriminatory aspects of personal laws from direct fundamental rights scrutiny under Article 13, though the Court has sometimes intervened on other grounds or encouraged legislative reform.

Judicial Decisions

Generally, judicial decisions, while having the force of law under Article 141 of the Constitution (which states that the law declared by the Supreme Court shall be binding on all courts within India), are not considered "law" in the sense that they can be challenged as violative of fundamental rights under Article 13. They are interpretations of law or the Constitution itself. The case of Smt. Ujjam Bai v. State Of Uttar Pradesh (1961), while primarily dealing with the scope of Article 32 and challenges to quasi-judicial orders, touched upon the definition of "State" under Article 12 and "law" under Article 13(3)(a). The general understanding is that the judiciary, while part of the "State" in a broader sense, is not the kind of law-making body whose pronouncements are tested against Part III in the same way as legislative or executive acts.

Article 13(3)(a) and its Interplay with Other Constitutional Provisions

The definition of "law" in Article 13(3)(a) is intrinsically linked to Article 12, which defines "The State" to include the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities. Since Article 13(2) prohibits "The State" from making laws that infringe fundamental rights, the expansive definition of "law" in 13(3)(a) ensures that various manifestations of state power, whether legislative or executive, are subject to constitutional discipline.

Furthermore, Article 13(3)(a) interacts with Article 372, which provides for the continuance in force of existing laws. Article 13(1) subjects these "existing laws" (which would include pre-constitutional statutes, orders, rules, customs etc. having the force of law) to the test of consistency with fundamental rights. The President's power of adaptation under Article 372(2) was also considered in Keshavan Madhava Menon v. State Of Bombay (1951) in the context of pre-constitutional laws and their status post-Constitution.

The prospective nature of Article 13(1), as established in Keshavan Madhava Menon v. State Of Bombay (1951), means that pre-Constitution laws inconsistent with fundamental rights are void only from the date of the Constitution's commencement, not retrospectively. This principle, along with the Doctrine of Eclipse discussed in cases like Bhikaji Narain Dhakras v. The State of Madhya Pradesh (cited in Deep Chand v. State Of U.P., 1959), operates on "laws" as understood through Article 13(3)(a).

Conclusion

Article 13(3)(a) of the Constitution of India provides an expansive and inclusive definition of "law," crucial for the robust protection of Fundamental Rights. By encompassing ordinances, orders, bye-laws, rules, regulations, notifications, and even customs or usages having the force of law, it ensures that a wide spectrum of state actions and legally recognized norms can be scrutinized for their constitutionality. The judiciary has played a vital role in interpreting this definition, clarifying the scope of each enumerated term and emphasizing the essential qualifier – "having in the territory of India the force of law."

While the definition is broad, judicial interpretation has also carved out significant exclusions, such as (historically) constitutional amendments and, more contentiously, personal laws. The ongoing dialogue surrounding these exclusions highlights the dynamic nature of constitutional interpretation. Ultimately, Article 13(3)(a) serves as a critical tool in maintaining the supremacy of the Constitution and ensuring that legislative and executive power, in its various manifestations, remains subservient to the fundamental liberties guaranteed to the people of India.