Reading material for Session 5

Article 13. Laws inconsistent with or in derogation of the fundamental rights.—

(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
(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previously repealed, notwithstanding that any such law or any part thereof may not be then in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.
(4) Nothing in this article shall apply to any amendment of this Constitution made under
article 368.

366. Definitions
In this Constitution, unless the context otherwise requires, the following expressions have,
the meanings hereby respectively assigned to them, that is to say—

(10)"existing law" means any law, Ordinance, order, bye-law, rule or regulation passed or
made before the commencement of this Constitution by any Legislature, authority or person
having power to make such a law, Ordinance, order, bye-law, rule or regulation;

State of Bombay v. Narasu Appa Mali (Bombay HC), AIR 1952 Bom 84
(overruled by Indian Young Lawyers Assn. (Sabarimala Temple-5 J.) v. State of Kerala,
(2019) 11 SCC 1)
Relevant paras: 15, 16, 17 (Chagla CJ); 23, 26

Facts:
Challenge to the constitutional validity of the Bombay Prevention of the Hindu Bigamous
Marriages Act, 1946 by a Hindu convict found guilty of violation of the same.

Rival Contentions:

By reason of the Constitution the Muslim personal law which permits polygamy has become
void and therefore the Act has discriminated in applying to Hindus. It is contended that the
institution of polygamy offends art. 15(1) inasmuch as a Muslim male is permitted to have
more than one wife whereas a Muslim woman is restricted to one husband. It is therefore
submitted that the very institution of polygamy discriminates against women only on the
ground of sex.
The State’s contention is that definition of “law” under Article 13(3) (a) only applies to Art.
13(2) and not to Art. 13(1). Hence, Article 13(1) is governed by the definition of “laws in
force” appearing article 13(3) (b).

Legal Issue –

[para 13] whether the expression “all laws in force” appearing in Art. 13(1) includes
“personal laws” as well.

Court’s Analysis:

Opinion of Chagla, CJ

Chagla CJ goes into the question of whether personal laws can be included within the rubric
“custom or usage” occurring in Article 13(3) (a).
The learned judge held, [Para 16]:
That the distinction between ‘Personal Law’ and ‘Custom and usage’ is recognised by the
Legislature is clear if one looks to the language of S. 112, Government of India Act, 1915.
That section deals with the law to be administered by the High Courts and it provides that the
High Courts shall, in matters of inheritance and succession to lands, rents and goods, and in
matters of contract and dealing between party and party, when both parties are subject to the
same personal law or custom having the force of law, decide according to that personal law or
custom, and when the parties are subject to different personal laws or customs having the
force of law, decide according to the law or custom to which the defendant is subject.
Therefore, a clear distinction is drawn between personal law and custom having the force of
law. This, in our opinion, is a very clear pointer to the intention of the Constitution-making
body to exclude personal law from the purview of Art. 13.

It is contended that the laws which are to continue in force under Art. 372(1) include personal
laws, and as these laws are to continue in force subject to the other provisions of the
Constitution, it is urged that by reason of Art. 13(1) any provision in any personal law which
is inconsistent with fundamental rights would be void. But it is clear from the language of
Arts. 372(1) and (2) that the expression “laws in force” used in this article does not include
personal law because Art. 372 (2) entitles the President to make adaptations and
modifications to the law in force by way of repeal or amendment, and surely it cannot be
contended that it was intended by this provision to authorise the President to make alterations
or adaptations in the personal law of any community. Although the point urged before us is
not by any means free from difficulty, on the whole after a careful consideration of the
various provisions of the Constitution, we have come to the conclusion that personal law is
not included in the expression “laws in force” used in Art. 13(1).

Concurring opinion of Gajendragadkar J. :

Para 15: Chief Justice Chagla opined that ‘custom or usage’ would be included in the
definition of ‘laws in force’ in Article 13(1).
Para 23: But the expression “laws in force” is, in my opinion, used in Art. 13(1) not in that
general sense. This expression refers to what may compendiously be described as statutory
laws. There is no doubt that laws which are included in this expression must have been
passed or made by a Legislature or other competent authority, and unless this test is satisfied
it would not be legitimate to include in this expression the personal laws merely on the
ground that they are administered by Courts in India. Article 372 which provides for the
continuance in force of existing laws and their adaptation uses the expression “all the law in
force” and defines it in terms substantially similar to those of Art. 13(3)(b).
Para 26: But the argument is that the personal laws must be deemed to be included in the
expression “laws in force” on the ground that whatever is included in the word “laws” in Art.
13(3)(a) must automatically be held to be included in the expression “laws in force” in Art.
13(3)(b). I feel considerable difficulty in accepting this argument. If custom or usage having
the force of law was really included in the expression “laws in force,” I am unable to see why
it was necessary to provide for the abolition of untouchability.
Para 29: Thus it is competent either to the State or the Union Legislature to legislate on topics
falling within the purview of the personal law and yet the expression “personal law” is not
used in Art. 13, because, in my opinion, the framers of the Constitution wanted to leave the
personal laws outside the ambit of Part III of the Constitution. They must have been aware
that these personal laws needed to be reformed in many material particulars and in fact they
wanted to abolish these different personal laws and to evolve one common code. Yet they did
not wish that the provisions of the personal laws should be challenged by reason of the
fundamental rights guaranteed in Part III of the Constitution and so they did not intend to
include these personal law within the definition of the expression “laws in force.” Therefore,
I agree with the learned Chief Justice in holding that the personal laws do not fall within Art.
13(1) at all.

Comment –
It is possible to argue that Gajendragadkar J. is not at cross purposes with the reasoning of
Chagla CJ , if the following passage is born in mind.
“…even if it is held that personal laws fall within Art. 13 (1), I am not satisfied that the
provisions of these personal laws permitting polygamy, amount to a discrimination against
women only on the ground of sex. It has often been emphasised in interpreting Art. 15 (1) that
the importance of the word "only" should not be minimised; this word in fact can be
described as the keyword in the article. It is not all discriminations which may, incidentally
and in a subsidiary way, be referable to religion, race, caste, sex or place of birth that are
prohibited. It is only when discrimination against a citizen can be referred to no other
reasonable ground that it falls within the mischief of Art. 15 (1).”

Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 (See Section K –
‘The Ghost of Narasu’ in Chandrachud J.’ judgment)

Paras: 375 onwards, specifically: 386, 389, 396, 397

Para 386: The rights guaranteed under Part III of the Constitution have the common thread of
individual dignity running through them. There is a degree of overlap in the Articles of the
Constitution which recognize fundamental human freedoms and they must be construed in
the widest sense possible. To say then that the inclusion of an Article in the Constitution
restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was
introduced by the framers to incorporate a specific provision in regard to untouchability. The
introduction of Article 17 reflects the transformative role and vision of the Constitution. It
brings focus upon centuries of discrimination in the social structure and posits the role of the
Constitution to bring justice to the oppressed and marginalized. The rationale adopted by
Justice Gajendragadkar in Narasu for excluding custom and usage from ‘laws in force’ under
Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally and from the
perspective of the precedent of this Court.

Para 389: In Sant Ram v Labh Singh, a Constitution Bench of this Court dealt with whether
‘after coming into operation of the Constitution, the right of pre- emption is contrary to the
provisions of Art. 19(1)(f) read with Art. 13 of the Constitution’. It was contended that the
terms ‘law’ and ‘laws in force’ were defined separately and ‘custom or usage’ in the
definition of ‘law’ cannot be included in the definition of ‘laws in force’. Rejecting this
contention, the Court relied on the expansive meaning imported by the use of ‘includes’ in the
definition clauses: The question is whether by defining the composite phrase “laws in force”
the intention is to exclude the first definition. The definition of the phrase “laws in force” is
an inclusive definition and is intended to include laws passed or made by a Legislature or
other competent authority before the commencement of the Constitution irrespective of the
fact that the law or any part thereof was not in operation in particular areas or at all.

Para 396: Did the Constitution intend to exclude any practice from its scrutiny? Did it intend
that practices that speak against its vision of dignity, equality and liberty of the individual be
granted immunity from scrutiny? Was it intended that practices that detract from the
transformative vision of the Constitution be granted supremacy over it? To my mind, the
answer to all these, is in the negative.

Para 397: 397. The decision in Narasu [State of Bombay v. Narasu Appa Mali, 1951 SCC
OnLine Bom 72 : AIR 1952 Bom 84. In the proceedings before the Sessions Judge of South
Satara, the accused was acquitted and the Bombay Prevention of Hindu Bigamous Marriages
Act, 1946 was held invalid. The cases arise from these proceedings.] , in restricting the
definition of the term “laws in force” detracts from the transformative vision of the
Constitution. Carving out “custom or usage” from constitutional scrutiny, denies the
constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu ,
is based on flawed premises. Custom or usage cannot be excluded from “laws in force”. The
decision in Narasu also opined that personal law is immune from constitutional scrutiny. This
detracts from the notion that no body of practices can claim supremacy over the Constitution
and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the
wide ambit that was to be attributed to the term “laws in force” having regard to its inclusive
definition and constitutional history. As H.M. Seervai notes [ H.M. Seervai, Constitutional
Law of India, Vol. I, p. 677.] :

“there is no difference between the expression “existing law” and “law in force” and
consequently, personal law would be “existing law” and “law in force” … custom, usage and
statutory law are so inextricably mixed up in personal law that it would be difficult to
ascertain the residue of personal law outside them.”

The decision in Narasu, in immunising uncodified personal law and construing the same as
distinct from custom, deserves detailed reconsideration in an appropriate case in the future.

Whether Article 13 is A Surplusage

Several scholars like Ivor Jennings (Some Characteristics of the Indian Constitution, (OUP
1953). and judges of the Supreme Court have argued that Article 13 is incorporated in the
Constitution merely be way of abandon caution and does not have any substantive content
nor it is a source of power. For e.g. Kania CJ in AK Gopalan observed as under:
The inclusion of article 13 (1) and (2) in the Constitution appears to be a matter of
abundant caution. Even in their absence, if any of the fundamental rights was infringed by
any legislative enactment, the Court has always the power to declare the enactment, to the
extent it transgresses the limits, invalid..
Ivor Jennings, similarly, has observed that Article 13 merely replicates the doctrine of ultra
vires. He notes that:
Article 13 is consistent with the traditional theory, that a Bill of Rights is a restriction on
legislative power.
In our opinion, this understanding of Article 13 is erroneous. Apart from having expressive
value, Article 13 itself has substantive content and it is a source of power.
However, to first deal with Jennings it is erroneous to confuse Article 13 with general
doctrine of ultra vires or repugnancy. In India both these doctrines have different play.
Doctrine of ultra vires is usually associated with delegated legislation and the test of
repugnancy comes into play in the context of the distribution of powers between centre and
the states (Article 254). Moreover, Article 13 allows the court to lay down the different levels
of scrutiny of legislation enacted by the Parliament relative to its competence. For instance,
the court would hesitate to deal with the validity of a law involving thick political or
economic policy even against the challenge to fundamental rights by invoking policy
considerations. For example, should the government give loan waivers to some or all farmers
is a thickly economic question and the court would generally not intervene in the same on the
ground of violation of Article 14. Similarly, whether or not two child norms be applicable to
elections at local or self-government level or should it also cover the Parliament and State
Legislatures is a thick political policy issue dissuading the courts from intervening. Such
delicacy and nuances in judicial review is only possible because of Article 13.
Mathew J in Kesavananda Bharti has expounded on the significance of Article 13 by
observing,:
“However, I think that Article 13(2) was necessary for a different purpose,
namely, to indicate the extent of the invasion of the fundamental right which
would make the impugned law void. The word 'abridge' has a special
connotation in the American Constitutional jurisprudence; and, it is only fair to
assume that when the Constitution-makers who were fully aware of the
language of the First Amendment to the United States Constitution, used that
expression, they intended to adopt the meaning which that word had acquired
there. Every limitation upon a fundamental right would not be an abridgement
of it. Whether a specific law operates to abridge a specifically given
fundamental right cannot be answered by any dogma, whether of a priori
assumption or of mechanical jurisprudence. The Court must arrive at a value
judgment as to what it is that is to be protected from abridgement, and then, it
must make a further value judgment as to whether the law impugned really
amounts to an abridgement of that right”

This observation provides fine prints of doctrines of proportionality and reasonableness.

Moreover, careful reading of Article 13 also demonstrates that the framers have
empowered the courts to apply the doctrine of severability so as to separate the valid part of
legislation from invalid part provided that the former may remain stand intact.
Also, by dealing with post and pre constitutional laws separately, the framers have created
two types of presumptions. In case of pre-constitutional laws, there cannot be a presumption
of constitutionality whereas in case of post-constitutional laws there has to be.