‘LAW’ UNDER ARTICLE 13

The word ‘law’ has been defined in Art. 13(3)(a) of the Constitution. The term ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. In Dwarkanath v. the State (1959) Supreme Court held that ‘administrative order’ issued by the executive officers, if subject to the authority of the law, will come under the word ‘law’. In Dasharatha Rama Rao v. State of Andhra Pradesh (1961) Supreme Court held that the term ‘law’ not only includes Acts of legislature but also such customs and practices which have the force of law. Therefore, such customs and practices cannot violate Fundamental Rights. The Ordinance issued by the President and the Governor, a government notification, a sub-rule of the municipal body etc. are examples of law.

The term ‘laws in force’ includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of the Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Constitutional amendments are not included in the word ‘law’ under Article 13 – The question whether the term ‘law’ in Article 13(2) includes Constitutional Amendment was taken up for consideration by Supreme Court in Shankari Prasad v. Union of India (1951). The court ascertained that the law made by the Parliament under the Art. 368 does not come under the definition of the word ‘law’ used in the Article 13(2). The word ‘law’ in Article 13(2) means rules and regulations made in exercise of ordinary legislative power and not in exercise of constituent power. Therefore, Article 13(2) does not affect amendments made under Article 368. This interpretation was followed by Supreme Court in Sajjan Singh v. State of Rajasthan (1965). This view point was rejected by Supreme Court in Golaknath v. State of Punjab (1967). The Supreme Court overruled aforesaid cases and held that the word ‘law’ in Article 13(2) included statutory as well as constitutional law. Hence if amendment to the Constitution took away or abridged fundamental rights, the amendment would be declared to be void.

To offset the difficulties by Golaknath’s case the Parliament passed 24th Constitutional Amendment, 1971. By way of this amendment a new clause (4) was added to Article 13 which laid down that the constitutional amendments passed under Article 368 cannot be considered as ‘law’ within the meaning of Article 13. The validity of this amendment was challenged in Keshvanand Bharti v. State of Kerala (1973). The court overruled Golaknath’s case  to this extent and upheld the validity of 24th Constitutional Amendment. Therefore, the present position is that the word ‘law’ does not include a constitutional amendment. Article 13(2) does not put any kind of restriction on the Parliament’s power to amend the Fundamental Rights under Article 368. But Parliament cannot amend or alter the basic structure of the Constitution. 

Author & Former Judge

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