1. Definition of Law
Clause (3) defines the terms ‘law” and laws in force’. The definition is enumerative rather than substantive, i.e. it mentions some of the normal forms in which the law finds its expression. So understood, the definition mention the following as included in the expression ‘laws’.
(1) Statutory law—
This may be made either directly by the legislature or by the other subordinate authorities under the delegated law-making powers. Delegated legislation appears under various names-rules, orders, regulations, notifications and by-laws mentioned in Clause (3). The list is not exhaustive because delegated legislation may appear under other names also. Sub-delegated legislation is also included within the purview of the definition.
Delegated or subordinated legislation will stand nullified when the Act under which it is made is held unconstitutional under Clause (1) or Clause (2) of Article 13 or when the rule or order itself, but not the enabling Act, vitiates a prohibition enacted in Part III of the Constitution.
Likewise, ordinance issued by the President or the Governor under the authority conferred by the Constitution or the rule-making by other authorities or bodies set up directly by the constitutional will, no doubt, be laws in force within the meaning of Clause (3) of Article 13 and must conform to the provisions of Part III.
Administrative orders of the executive, if they are made in pursuance of statutory authority and affect the legal rights of the citizen, would fall within the definition of law. But administrative directions or instructions issued by the government for the guidance of its officers and not meant to be enforceable legal obligations would not be laws clause (3).
It is not only acts of the legislature or subordinate legislation but also customs and usages having the force of law that are invalidated. This is made clear by the definition of the expression ‘law’ in Clause (3)(a) of Article 13. The term ‘law’ includes ‘customs’ and ‘usages’ having the force of law. In Dasratha Rama Rao vs. A.P Das, said: “Even if there was a custom which has been recognized by law….that custom must yield to a fundamental right.” But personal laws, such as Hindu laws, Mohammadan Law etc. it has been held, are not included within the expression.
In early times, customs was the main source of the conduct prevailing in the community. It has, now, to a large extent, been superseded by statutory law. But the custom has not wholly lost its law-creating efficacy. A reasonable and certain ancient custom is binding on courts like an Act of the legislature. Even binding customs, if they are in derogation of the fundamental rights, shall become inoperative after commencement of the Constitution.
The longstanding custom of preemption on ground of vicinage prevailing in certain urban areas has been struck down, since it imposes unreasonable restriction on the fundamental right to freedom of property (now repealed).
2. Constitutional Amendments
Does the word ‘law’ in Clause (2) include a law amending the Constitution? In Sankari Prasad vs. Union of India, the rights guaranteed under the Constitution, was challenged on the ground that since the amendment had the effect of abridging the fundamental rights, it was not a valid law within the meaning of Clause (2) of Article (13).
The Supreme Court rejected the contention and held that the word ‘law’ in Clause (2) did not include a ‘law’ made by Parliament under Article 368 amending the Constitution. The word ‘law’ in Clause (2) must be taken to mean ‘rules or regulations made in exercise of ordinary legislative power, and not ‘amendments to the Constitution made in exercise of constituent power’ with the result that.
Article 13(2) does not affect amendments to the Constitution. This interpretation was followed by the majority judgement in Sajjan Singh vs. State of Rajasthan. But in Golakhnath vs. State of Punjab, the Supreme Court, by 6:5 held that the word ‘law’ in Clause (2) of Article 13 (2) does not affect amendments to the Constitution and consequently, if an amendment abridged or took away a fundamental right guaranteed by Part III of the Constitution, the amending act itself was void and ultra vires.
Subsequently, in Kesavananda Bharati vs. State of Kerala, the Supreme Court overruled the Golaknat’h case, and it was unanimously held that the Twenty fourth Amendment, which inserted Clause (4) in Article 13 and Clause (3) in Article 368, was valid. All the judges agreed that under the amended Article 368 all provisions of the Constitutions including those enshrining fundamental rights could be amended.
However, the majority of 7, 6 including Khanna, J., was of the view that the provisions, affecting the basic structure or framework of the Constitution could not be amended. Therefore, even if an amendment of the Constitution is not ‘law’ within the meaning of Article 13 that does not absolve it from being invalidated on the ground that by violating a fundamental right it violates the basic structure of the Constitution.
3. Sources of Law
The main sources of law in India are the Constitution, statutes (legislation), customary law and case law. Statutes are enacted by Parliament, State legislatures and Union Territory legislatures. Besides, there is a vast body of laws known as subordinate legislation in the form of rules, regulations as well as bye-laws made by Central/State governments and local authorities like municipal corporations, municipalities, gram panchayats and other local bodies.
This subordinate legislation is made under the authority conferred or delegated either by Parliament or State or Union Territory legislatures concerned. Judicial decisions of superior courts like Supreme Court and High Courts are important sources of law. Decisions of Supreme Court are binding on all courts within the Territory of India. Local customs and conventions are not against statute, morality etc. are also recognized and taken into account by courts while administering justice in certain spheres.
4. Personal Law
The people of India are of different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs i.e. marriage, divorce, succession etc.
Law relating to marriage and or divorce has been codified in different enactments applicable to people of different religions. These are:
1. The Converts’ Marriage Dissolution Act, 1866.
2. The Indian Divorce Act, 1869.
3. The Indian Christian Marriage Act, 1872.
4. The Kazis Act, 1880.
5. The Anand Marriage Act, 1909.
6. The Child Marriage Restraint Act, 1929.
7. The Parsi Marriage and Divorce Act, 1936.
8. The Dissolution of Muslim Marriage Act, 1939.
9. The Special Marriage Act, 1954.
10. The Hindu Marriage Act, 1955.
11. The Foreign Marriage Act, 1969.
The Muslim Women (Protection of Rights on Divorce) Act, 1986