Political Philosophy
Enacted and Obeyed: Why Part III Defines Law More Widely Than the Rest of the Constitution
6 September 2026 · 10 min read
The natural way to read a bill of rights is as an instruction to the legislature. Rights are the limits on what may be enacted; a law that crosses a limit is void; and the word "law", in that sentence, means what a legislature passes. Article 13(2) reads exactly that way: "The State shall not make any law which takes away or abridges the rights conferred by this Part."
The definition clause immediately below it does not. Article 13(3) provides that in that article, unless the context otherwise requires, "law" includes "any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law."
The list ends somewhere the opening sentence does not lead. An Ordinance is made by the executive. An order, bye-law, rule, regulation or notification is ordinarily made by a delegate of the legislature rather than by the legislature itself. Custom and usage are made by nobody. They are not enacted, not promulgated, not published, and not traceable to any authority on whom the Constitution confers a power to make them. Yet the Constitution places them in the same definition, on the same footing, and subject to the same consequence.
What holds the list together is the qualifier at its end. Each item is "law" for the purposes of Article 13 if it has, in the territory of India, the force of law. The test is not authorship. It is effect.
The narrower definition standing next to it
The width of that provision is easy to overlook until it is set beside the Constitution's ordinary vocabulary, which is narrower and is built the other way round.
Article 13(3)(b), in the very next sub-clause, defines the phrase "laws in force" as including "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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas". That definition proceeds by author: something passed or made, by a body having power to pass or make it.
Article 366(10), the general definitions article, does the same for the Constitution as a whole. "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". Custom and usage are absent, and the operative words are again "passed or made" by someone "having power".
Article 372, which continues the pre-Constitution legal order in force, carries an Explanation in the same terms: the expression "law in force" in that article includes a law "passed or made by a Legislature or other competent authority" in the territory of India before the commencement and not previously repealed.
The Constitution therefore has a settled way of describing law, and it describes law by pedigree. Article 13(3)(a) departs from it, once, for one purpose.
The departure was noticed when it was made
The departure was not an oversight. The record of the drafting shows it being challenged and deliberately kept.
In the Constituent Assembly's consideration of draft Article 8 — the provision that became Article 13 — Naziruddin Ahmad objected to the inclusion of custom in the definition of "law". His argument was structural. Clause (2) forbids the State to make any law; if "law" includes custom, the clause implies that the State has a power to make custom, which is absurd, since custom is precisely the kind of rule that comes into existence without being made.
The objection was sound as a matter of construction, and the answer given did not dispute it. Dr Ambedkar's reply was that the word need not carry the same sense in every clause of the article, and he moved that clause (3) be introduced by the words "unless the context otherwise requires". The Assembly accepted that formulation, and the article as adopted on 29 November 1948 contains it. It is still there, and it is the reason the enacted clause opens as it does.
What that exchange declined to do is the significant part. The obvious way to meet the objection was to narrow the definition — to drop custom out of it, so that "law" in clause (2) and "law" in clause (1) would carry the same meaning. That course was available and was not taken. The width was preserved and the definition was made context-sensitive instead, which has a consequence: the same article restrains the State by reference to what the State makes, and invalidates rules by reference to what binds, and those are not the same set.
The wider reading, tested
Whether the width was real reached the Supreme Court in Sant Ram v. Labh Singh, decided on 15 April 1964 and reported at AIR 1965 SC 314. The rule under challenge was a customary right of pre-emption founded on vicinage — a right in the owner of neighbouring land to be substituted for the buyer in a completed sale, on the same terms — arising not from any statute but from local usage.
The argument for saving the custom was the textual one: Article 13(1) speaks of "all laws in force", and clause (3)(b) defines "laws in force" by reference to what a Legislature or other competent authority passed or made, which a custom is not. The Court rejected it, holding that both definitions in clause (3) control the meaning of clause (1), so that custom and usage having in the territory of India the force of law fall within "all laws in force". Having brought the custom inside Article 13, the Court applied to it the reasoning it had already applied to statutory pre-emption — the reasons for holding statute law void, it observed, apply equally to a custom — and held the custom void as an unreasonable restriction on the right then conferred by Article 19(1)(f) to acquire, hold and dispose of property.
Two features of that outcome should be separated.
The first is doctrinal and durable. A rule that no organ of the State enacted, that nobody voted for, and that the State had adopted by no positive act was struck down for inconsistency with a fundamental right. Nothing in the rule's origin sheltered it. What exposed it was that the courts would enforce it.
The second is a caution about the vehicle. The right that the custom in Sant Ram was held to infringe is no longer in Part III. Article 19(1)(f) was omitted by the Constitution (Forty-fourth Amendment) Act, 1978, and the protection of property now rests on Article 300A, which is not a fundamental right. The proposition about custom survives the omission; that particular application of it does not.
The wider reading, contested
Against that stands a decision on personal law that has never been squarely reconsidered.
In State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, a Division Bench of the Bombay High Court (Chagla CJ and Gajendragadkar J) held that uncodified personal law is not "laws in force" within Article 13(1), and so is not, as such, testable against Part III. Part of the reasoning turned on the definition clause itself: the framers had expressly included custom and usage and had said nothing of personal law, which was taken to indicate that personal law was a distinct category deliberately left outside.
That distinction has been criticised, most prominently in a concurring opinion of Chandrachud J in Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1, which reasoned that Article 13(3) is an inclusive definition and ought not to be read restrictively so as to place a body of rules governing civil status beyond the reach of the fundamental rights. It should be recorded plainly that this was a concurring opinion and not the holding of the Court, and that Narasu Appa Mali has not been overruled by a decision determining the point. Whether the widest words in Article 13 reach personal law is open.
One detail is worth noting without drawing more from it than it will bear. Gajendragadkar sat in both cases — as a puisne judge in Narasu Appa Mali and as Chief Justice on the Bench in Sant Ram. The two holdings are not a change of position. They are a line drawn between custom, which the definition names, and personal law, which it does not.
The other end of the definition
The width of Article 13 was pressed upwards as well, and there the pressure produced an amendment.
In I. C. Golaknath v. State of Punjab, AIR 1967 SC 1643, the Supreme Court held by six to five that an amendment of the Constitution made under Article 368 is "law" within the meaning of Article 13, with the consequence that an amendment abridging a fundamental right fell within clause (2) and was void. The holding was an application of the same logic that runs through the rest of the definition: the question is not what the instrument is called, or which power it was made under, but whether it operates as law.
Parliament's response was the Constitution (Twenty-fourth Amendment) Act, 1971, and the method of the response is the point. That Act inserted clause (4) in Article 13 — "Nothing in this article shall apply to any amendment of this Constitution made under article 368" — and, in the same enactment, clause (3) in Article 368 — "Nothing in article 13 shall apply to any amendment made under this article." The exclusion was stated twice, from each side, in express terms.
That is the shape of a legislature closing a door it does not believe can be assumed to be shut. Had the ordinary meaning of "law" in Article 13 plainly excluded an exercise of constituent power, neither clause would have been necessary. The 24th Amendment is, in effect, a concession about how wide the words were.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, upheld the 24th Amendment on this point and overruled Golaknath, so that an amendment is no longer tested as "law" under Article 13. It did not leave the amending power unlimited. The limit it recognised was located in the identity of the Constitution rather than in the definition of law. The definition was closed; the constraint moved elsewhere.
What the definition assumes
Read together, these provisions state an assumption about what a constitutional guarantee is for.
If the reach of Part III were fixed by authorship, the protection it offers would be defeasible by relocation. A restriction that could not be imposed by statute could be imposed by rule; what could not be done by rule could be done by notification; and what could not be done by notification could be left to a practice the courts would enforce in any event. At every step the rule would bind exactly as it had before, and at every step the person bound would have lost the argument that it must answer to Part III. The guarantee would attach to a form rather than to a subject.
Article 13(3)(a) forecloses that by putting a single question to every rule brought before it. Not who made this, and not under what power, but: does it have, in the territory of India, the force of law? If it does, it answers to Part III.
The same test marks the outer boundary of the definition, and that boundary is real. What Article 13 reaches is rules that carry legal force. It does not reach preference, opinion or social pressure that binds nobody in law, however strongly held or widely shared. That is a limit on what counts as law for the purposes of the article; it is a separate question, answered elsewhere in Part III, which of the guarantees bind private persons and which bind only the State.
Where a constitution draws the first of those lines says something about what it takes itself to be regulating. A constitution that defined law by its maker would be a set of instructions addressed to particular institutions, and its guarantees would be as good as the list of institutions was complete. Article 13 defines law by its operation. That makes Part III a statement about how people may be governed, and leaves the identity of whoever is doing the governing as a question that comes second.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.