Chapter 5: Law
In 1997 the Supreme Court of India decided a case on a subject about which the country had no law at all.
The case, Vishaka vs. State of Rajasthan, was brought by a group of women’s organisations. It followed an attack on a woman employed by a Rajasthan government social programme, who had tried to prevent a child marriage in her village. The petitioners asked a question far larger than that one incident. What rule protects a woman at her workplace?
The judges looked for a statute and found none. Parliament had enacted nothing on harassment at work. India had, however, ratified in 1993 an international convention on ending discrimination against women, and had thereby promised to act.
That left the Court with a choice, and it was a political choice as much as a legal one. It could hold that making new rules is Parliament’s work, and wait. Or it could fill the silence itself.
It filled the silence. It wrote out guidelines — every employer must set up a complaints committee, make the rules known, and act on complaints — and declared that these would bind every workplace in India until Parliament legislated.
Article 141 of the Constitution says that the law declared by the Supreme Court binds all courts in the country. Parliament passed its own statute on the subject only in 2013.
For those sixteen years, the rule governing millions of Indian workplaces was made not by the legislature elected to make laws, but by a court asked to interpret them.
Diagram
Fig. 5.0-1 Caption: When the statute book was silent, the rule that governed Indian workplaces came from a courtroom. Brief: Three labelled panels left to right, joined by a single arrow. Panel 1, ‘Parliament, 1997 — no statute on the question’, drawn as a blank page. Panel 2, ‘The Supreme Court, 1997 — guidelines issued, binding until Parliament acts’, drawn as a judgment being handed down. Panel 3, ‘Parliament, 2013 — a statute at last’, drawn as a printed Act. Shade and label the stretch between Panel 2 and Panel 3 ‘sixteen years’. No portraits of identifiable judges or litigants.
5.1 Meaning Of Law
Every group of people that lives together makes rules. A school fixes the hours of its day. A cricket match runs on rules that decide what counts as out. A neighbourhood has an unwritten rule about noise after ten at night.
Most of these rules are obeyed most of the time. Nobody is arrested for breaking them.
Law is different. The difference is not that law matters more — a promise to a friend may matter far more to you than a parking rule. The difference is in who makes the rule and what stands behind it.
This chapter asks three questions, in order. What is law? Where does law come from? And what kinds of law are there?
5.1.1 What Law Is
Law is a body of general rules of conduct, made or recognised by the state, applying to everyone within its territory, and enforced by the state’s own authority.
That single sentence has three separate claims packed into it, and each is worth pulling out.
The rules are general. A law is addressed to a class of persons or situations, not to one named individual. It says what any driver, any employer, any buyer must do.
The rules are made or recognised by the state. Some law is written afresh by a legislature. Other law existed in society first — as a custom or a religious practice — and became law when the state accepted and enforced it.
And the rules are enforced. Behind a law stands the machinery of the state: police, courts, revenue officials, jails. Behind a rule of politeness stands only disapproval.
The English word ‘law’ comes from an Old Norse word meaning something laid down or fixed. The Latin word lex (plural leges), from which words like ‘legal’ and ‘legislation’ descend, meant a statute or a formal rule.
Law works in two directions at once. It prescribes, telling people what they must do — pay a tax, wear a helmet, register a sale. It proscribes, telling them what they must not do — take what belongs to another, drive dangerously through a crowded market.
Two purposes are usually claimed for it. The first is order: law makes social life predictable, so that a stranger can be dealt with, a debt collected, a dispute settled without force. The second is justice: law is meant to give people what is due to them and to protect them from arbitrary power.
These two purposes usually run together, but not always. A legal system can be highly orderly and deeply unjust, as systems that once enforced slavery or racial segregation were. Order alone is therefore not enough to make a law worth having. That is a point to keep in mind through the whole chapter.
Law And Other Rules
Law is one member of a larger family of social rules, and its relatives are easy to confuse with it. Fig. 5.1-1 sets the family out.
Diagram
Fig. 5.1-1 Caption: Law is one kind of social rule, marked off from the others by who makes it and what enforces it. Brief: Four overlapping circles inside a large boundary labelled ‘Rules people live by’. The circles are ‘Custom’, ‘Morality’, ‘Convention (manners, etiquette)’ and ‘Law’. Shade the Law circle and label it ‘made or recognised by the state; enforced by the state’. Label the overlaps: Law and Morality overlap on ‘theft, homicide’; Law and Custom overlap on ‘customs the courts recognise’. Leave visible the parts of Morality and Custom that fall outside Law.
Morality is the first relative. Many laws grew out of moral beliefs widely held in a society: rules against killing, theft and cheating are examples. But the two do not coincide. Breaking a promise to a friend is a moral wrong that no court will hear. Driving on the left rather than the right carries no moral weight at all, yet it is law.
The relationship can also run the other way. A society’s law may lag behind its moral convictions, or offend them. India’s Constitution abolished untouchability by Article 17 and made its practice punishable, ending in law a practice that custom had long protected.
Custom is the second relative. A custom is a practice a community has followed for a long time and treats as binding on itself. It becomes law only when the state recognises it and its courts will enforce it — a process examined closely in the next section.
The sharpest attempt to define law by force alone came from the English jurist John Austin, whose account of sovereignty you met in the previous chapter. Austin held that law is the command of a sovereign, backed by the threat of punishment. It is a clear theory, and it captures a great deal — but not everything, as the next box shows.
5.1.2 Features Of Law
If law is a distinct kind of rule, it should have distinct marks. Eight features are usually listed, and together they explain why law can do work that no other social rule can do.
Law is a general rule of conduct. It applies to categories of people and situations, not to named individuals. The Indian Contract Act, 1872 lays down rules for anyone in the country who makes an agreement, whether a shopkeeper or a corporation.
Law is definite, and in modern states it is largely written down. Setting rules out in an organised written code reduces argument about what the rule actually is. The Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024 and replaced the Indian Penal Code, 1860, defines criminal offences and fixes the punishment for each.
Law is an expression of the will of the state. It is made, or accepted, by an authority competent to do so — a legislature, or a court, or a body to which the legislature has given power. A rule announced by anyone else, however sensible, is not law.
Law is backed by the coercive power of the state. Every law carries a sanction, which is the penalty the state attaches to breaking it — a fine, imprisonment, an order to pay damages, the cancellation of a licence. Obedience to law is not left to goodwill.
Law is uniform within the jurisdiction of the state, which is the territory and the persons over which an authority’s law runs. Within one jurisdiction there is a single legal system, not several competing ones. This is what allows a citizen to know, in advance, which rules apply.
Law must be public and knowable. Statutes and judgments in India are published in official gazettes and law reports, and are open to any citizen. The old maxim ignorantia juris non excusat — ignorance of the law is no excuse — is only fair because the law is available to be known. A secret law would be a contradiction.
Law binds the government as well as the governed. This is the principle of the rule of law: everyone, including every official, is subject to the law, and public power may be exercised only in the manner the law allows. Article 14 of the Constitution states this for India, guaranteeing to every person equality before the law and the equal protection of the laws.
Law changes. A legal system that could not change would soon be governing a society that no longer exists. When computers and the internet created offences the older criminal law had never imagined, Parliament responded with the Information Technology Act, 2000.
Two cautions are worth adding. These features describe law inside a modern state; they do not all hold for international law, which has no single enforcer standing above the states it governs. You will see in section 5.3 how much difference that absence makes.
And the fourth feature — force — describes how law is backed, not why it is obeyed. Most people, most of the time, obey the law without ever thinking about the sanction. A legal system that had to punish everybody would collapse under its own weight.
5.2 Sources Of Law
Where does a law come from before it appears in a book of statutes?
The question has two halves. One is historical: which practices, beliefs and decisions did a rule grow out of? The other is formal: which authority gives the rule its binding force today? A source of law can answer either question, and often answers both.
The syllabus fixes seven sources, and this section takes them in order: customs, usages, religion, judicial decisions, scientific commentaries, equity and legislation.
Before starting, it is worth seeing how wide the Constitution’s own idea of ‘law’ is. Article 13 tests laws against the fundamental rights, and it begins by explaining what it means by the word.
Notice how much is packed in. An Act of Parliament is not even mentioned, because nobody doubts that an Act is law. What the clause takes trouble to include is everything else — an ordinance made by the executive, a rule framed by a department, a bye-law of a municipality, and a custom or usage that has come to carry the force of law.
The clause therefore tells us something real: in India, law is not made in one place only.
It also has a limit. This is a definition written for Article 13, so that anything in the list can be tested against the fundamental rights and struck down if it violates them. It is not a general definition of law, and it says nothing about how any of these rules came into being. For that we need the seven sources themselves.
5.2.1 Customs
A custom is a practice that a community has followed for a long time and has come to regard as binding on itself. Customs are the oldest source of law. They existed long before any legislature sat, and much early law was simply custom that rulers agreed to enforce.
A custom does not become law merely because it is old. Courts in India apply a set of tests before they will enforce one. The custom must be long established and continuously observed. It must be certain, so that the rule can be stated clearly. It must be reasonable. It must not conflict with a statute, and it must not be opposed to public policy or morality.
Customs matter most in personal matters — marriage, inheritance, adoption, the running of a family — where statutes are often silent or expressly leave room for them. The Hindu Marriage Act, 1955 converted a great deal of customary practice into statute, while saving certain customs that communities had long followed.
The Constitution also protects customary arrangements in particular regions. The Fifth Schedule provides for the administration of Scheduled Areas, and the Sixth Schedule for the tribal areas of Assam, Meghalaya, Tripura and Mizoram, where local customary practice, including practice about land, has a recognised place.
But antiquity is not a defence. Where a custom was found to be cruel or unjust, the state has abolished it rather than enforced it. Sati was prohibited by regulation in 1829 and again by statute in 1987. Child marriage was restrained by an Act of 1929 and prohibited by the Prohibition of Child Marriage Act, 2006.
That is the double face of custom as a source. It brings into law the settled practice of a society, which gives law roots. It also brings in whatever that society happened to settle on, which is why a modern legal system tests custom instead of simply obeying it.
5.2.2 Usages
A usage is a practice followed consistently within a particular trade, business or locality, which those who deal in it treat as understood between them. Bankers, insurers, shipping agents and commodity traders all work with such practices.
A usage becomes legally significant when a court reads it into an agreement. If two grain merchants use a term that has a settled meaning in their trade, the court will give it that meaning, even though the contract does not spell it out.
The conditions resemble those for custom. A usage must be certain, reasonable, well known to those in the trade, consistently followed, and not contrary to statute.
Custom and usage are close relatives and are easily confused, so it is worth setting the difference out plainly. A usage is the repeated practice itself; a custom is the general rule that grows out of such repetition and binds a whole community, not merely those in one trade.
5.2.3 Religion
Religion shaped law long before states began legislating, and it still supplies rules in one large area: personal law, meaning the body of law that governs marriage, divorce, maintenance, adoption, guardianship and inheritance within a community.
Early legal systems drew directly on religious sources — the dharmashastra texts in India, fiqh in the Islamic tradition, canon law in medieval Europe. Rules of family and property life were worked out inside these traditions and later carried into the law that states enforced.
India today applies different personal laws to different communities, and much of that law is now statutory. The Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956 codified Hindu personal law; the Hindu Succession (Amendment) Act, 2005 gave daughters the same rights in ancestral property as sons. The Muslim Personal Law (Shariat) Application Act, 1937 directs that Muslim personal law govern the matters it lists. The Indian Succession Act, 1925 governs inheritance for several other communities.
Three points about this arrangement matter for understanding law as a system.
First, these laws are enforced by the ordinary civil courts of a secular state, not by religious authorities. A judge applies them as law.
Second, they must operate within the Constitution. Where a personal-law rule has been challenged as violating fundamental rights, it is the courts that decide, and constitutional guarantees prevail.
Third, the Constitution itself contemplates change here. Article 44, a Directive Principle of State Policy, states that the state shall endeavour to secure a uniform civil code for citizens throughout India. Directive Principles are not enforceable in court, and this remains one of the most debated provisions in the Constitution.
5.2.4 Judicial Decisions
Courts exist to apply law to disputes. In doing so they also make law, and this is the source that the opening story of this chapter turned on.
The mechanism is precedent: a decided case that later courts must follow when the same question arises again. The doctrine behind it is stare decisis — a Latin phrase meaning ‘to stand by things decided’. Its purpose is consistency. Two people with the same problem should get the same answer from the legal system.
Not every sentence in a judgment binds. The binding part is the ratio decidendi, the reason on which the decision rests. Passing remarks made along the way, called obiter dicta, carry weight but do not bind.
The hierarchy of courts fixes who must follow whom. A decision of the Supreme Court binds every court in India, which Article 141 of the Constitution states in terms. A High Court’s decisions bind the courts below it within that state.
Judicial decisions do their most striking work in two situations. The first is where a statute is unclear, and the court settles what it means. The second is where there is no statute at all — where the court must decide anyway, because it cannot refuse to hear a case merely because the legislature has been silent.
Two Indian judgments show the scale of what can follow. In Kesavananda Bharati vs. State of Kerala (1973), the Supreme Court held that Parliament’s power to amend the Constitution does not extend to destroying its basic structure — a doctrine found nowhere in the text of the Constitution itself. In 2017, in a case about the collection of personal data, the Court held that privacy is a fundamental right protected by the guarantee of life and personal liberty.
5.2.5 Scientific Commentaries
Not everything that shapes law is made by a state organ. Scholars write commentaries, treatises and articles that explain a field of law, expose its contradictions and suggest how it should develop. These writings are the source known as scientific commentaries, or legal writings.
Their authority is persuasive, never binding. No court is obliged to follow a scholar. But courts read them, cite them and are influenced by them, and the people who argue cases learned the subject from them.
The English writer A. V. Dicey set out an influential account of the rule of law in his study of the English constitution, published in 1885, and his framing has shaped constitutional argument in India as well. In India, the commentaries of writers such as H. M. Seervai and D. D. Basu on constitutional law are used constantly by judges, lawyers and students.
The limit here is worth stating plainly. Scholars are not elected, and they disagree with each other. A commentary carries weight because of the quality of its reasoning, not because of any authority to command. When a court adopts a scholar’s view, it is the court’s decision, not the scholar’s opinion, that becomes law.
5.2.6 Equity
Equity means fairness applied to correct a legal rule that would work injustice in a particular case. It grew up as a distinct body of principles in England, where litigants who could get no adequate remedy from the ordinary common-law courts petitioned the Chancellor, and the Courts of Chancery developed rules of their own.
The problem equity answers is a permanent one. A rule must be general to be a rule, and a general rule will occasionally produce an outcome nobody intended. Equity supplies the correction.
Its typical remedies are practical. Instead of awarding money to a buyer whose seller has broken a contract for a unique piece of land, a court may order the seller to actually perform the contract. Instead of waiting for harm to be done, it may issue an injunction restraining a party from acting. In India these remedies are now statutory, chiefly under the Specific Relief Act, 1963.
Equity supplements law; it does not overrule it. An equitable principle cannot be used against a clear statute or against the Constitution.
The classic objection is that equity depends on a judge’s sense of fairness, and senses of fairness differ. Critics of the old English system complained that the outcome varied with the conscience of whichever Chancellor happened to be sitting. That is why modern systems prefer to convert equitable principles into written rules, as India has largely done.
5.2.7 Legislation
Legislation is law made deliberately and directly by a body authorised to make it. In a modern state it is by far the most important source, and it is the only one that can create a large new body of rules on a fixed date.
Its advantages follow from the way it is made. It is written, published and organised, so people can find out what the rule is. It is enacted after debate by a body accountable to the electorate. It can be amended or repealed when circumstances change, without waiting for a suitable dispute to reach a court.
Legislation comes in two forms. Supreme legislation is made by the legislature itself — Parliament, or a State Legislature. Subordinate or delegated legislation is made by another authority, usually a ministry or a specialised agency, under powers granted by a parent Act.
Delegated legislation exists because legislatures cannot foresee every technical detail. Parliament fixes the policy in an Act; the detailed rules follow. The Motor Vehicles Act is worked out through rules on licensing and vehicle standards, and the Food Safety and Standards Act, 2006 through regulations issued by the authority it created.
The delegated body may act only within the limits of the parent Act. A rule that goes beyond those limits is ultra vires — a Latin term meaning ‘beyond the powers’ — and a court can quash it.
This points to the ranking that holds the sources together. Legislation can override a custom or a usage. The Constitution overrides ordinary legislation, and courts may strike down a statute that violates it. Judicial decisions fill the gaps that legislation leaves, and legislation can in turn undo a judicial decision by enacting a different rule. Fig. 5.2-1 sets the whole picture out.
Diagram
Fig. 5.2-1 Caption: The seven sources feed into the law actually in force, but they do not all carry the same authority. Brief: Seven labelled boxes down the left, in syllabus order — Customs, Usages, Religion, Judicial Decisions, Scientific Commentaries, Equity, Legislation — with arrows converging on a single box on the right labelled ‘Law in force’. Draw the Scientific Commentaries arrow as a dotted line labelled ‘persuasive only’; draw all others as solid lines labelled ‘binding’. Above the ‘Law in force’ box place a small box labelled ‘The Constitution’, with a downward arrow labelled ‘all law must conform’.
5.3 Kinds Of Law
Law is not a single undifferentiated mass. A rule about which side of the road to drive on, a rule about how Parliament may amend the Constitution, and a rule about the treatment of prisoners in war are all law, but they are made differently, they bind different people, and different machinery stands behind each.
Classifying law is therefore not a filing exercise. It is a way of asking, about any rule you meet: who made this, whom does it bind, and what happens if it is broken?
The syllabus fixes six kinds, and this section takes them in order: municipal, national, constitutional, international, statute law and ordinances. They are not six separate boxes. Some of them sit inside others, as Fig. 5.3-1 shows.
Diagram
Fig. 5.3-1 Caption: The kinds of law overlap: some are branches of others, and only the top division is a true split. Brief: A tree diagram. Top node ‘Law’ splits into two branches: ‘Municipal (national) law — operates inside a state’ and ‘International law — operates between states’. Under Municipal law, two branches side by side: ‘Constitutional law’ and ‘Ordinary law’. Under Ordinary law, two branches side by side, at the same level as each other: ‘Public law — criminal, administrative’ and ‘Private law — contract, tort, family, property’. Under International law, two branches side by side: ‘Public international law’ and ‘Private international law’. Keep Public law and Private law clearly parallel, not one inside the other.
5.3.1 Municipal Law
Municipal law is the law that operates inside a state and governs its internal affairs. The word is used here in an old technical sense and has nothing to do with municipalities or city corporations. It means the whole internal legal order of a country, as opposed to the law that operates between countries.
Municipal law covers two broad areas, which stand alongside each other rather than one inside the other.
Public law governs relations between the state and those within it. It includes criminal law, which defines offences and their punishment; administrative law, which controls how officials exercise their powers; and constitutional law.
Private law governs relations among individuals and organisations, with the state supplying the courts rather than being a party. It includes contract, tort, family law and property law. The Transfer of Property Act, 1882, which governs how immovable property passes from one person to another, is an example.
The practical difference shows up in who starts a case. A prosecution under the criminal procedure law — now the Bharatiya Nagarik Suraksha Sanhita, 2023 — is brought by the state on behalf of society. A suit for breach of contract is brought by the person who claims to have been let down.
5.3.2 National Law
National law is the law made by the central authority of a country and applying uniformly throughout its territory. In India it means the law made by Parliament under the Constitution, enforced by the machinery of the Union and the states, and interpreted finally by the Supreme Court.
Two examples show the range. The Right of Children to Free and Compulsory Education Act, 2009 gives every child aged six to fourteen a right to free and compulsory schooling, and applies in every state. The Central Goods and Services Tax Act, 2017 replaced a patchwork of separate indirect taxes with a single national system.
The relationship between national and municipal law is one of part and whole. All national law is municipal law, because it operates inside the state. But not all municipal law is national law: a State Legislature makes law for its own state, and a municipal corporation makes bye-laws for its own city, and both are municipal law without being national.
What national law adds is uniformity. A contract, a tax rule or a right to schooling means the same thing in Kerala as in Assam, and that is what allows people, goods and claims to move across a large and diverse country.
5.3.3 Constitutional Law
Constitutional law is the body of law that establishes the organs of government, distributes power among them, sets the limits of that power, and guarantees the rights of citizens against it. It is the supreme branch of a country’s law: every other law must conform to it, and a law that does not can be struck down.
In India, constitutional law includes the text of the Constitution, the amendments made to it, and the judicial decisions that have interpreted it.
Its content can be grouped under four heads. It creates the institutions — Parliament, the executive, the judiciary, the states — and lays down how each is composed. It divides powers between the Union and the states. It guarantees the fundamental rights and sets out the Directive Principles of State Policy. And it prescribes how it may itself be amended, by the special procedure in Article 368.
That amending procedure is real, not decorative. Education was made a fundamental right for children aged six to fourteen by inserting Article 21A into the Constitution through the Eighty-sixth Amendment. The Act of 2009 mentioned above was the ordinary legislation that gave the new right its working machinery.
Constitutional law is thus harder to change than ordinary law, higher in authority than ordinary law, and concerned with the framework within which ordinary law is made.
5.3.4 International Law
International law is the body of rules that governs relations between sovereign states and international organisations. It comes from three main places: treaties that states sign, customs that states have followed over time and treat as obligatory, and general principles of law recognised across legal systems.
It has two branches, and they are often confused.
Public international law governs states and organisations in their dealings with one another — diplomacy, the use of force, trade, the treatment of civilians and prisoners in war, the environment. The Charter of the United Nations and the Geneva Conventions belong here.
Private international law, also called conflict of laws, deals with private disputes that cross borders. When an Indian company and a German company disagree about a contract, private international law answers two questions: which country’s courts may hear the case, and which country’s law they should apply.
The most important institution is the International Court of Justice, the principal judicial organ of the United Nations, which sits at The Hague and has fifteen judges elected for nine-year terms. Its authority differs from that of a national court in one decisive way: it can decide a dispute between states only if the states concerned accept its jurisdiction.
That points to the central difficulty. There is no world legislature, no world police force and no jail for states. Compliance rests on treaty obligation, reciprocity, reputation, the desire to trade and, occasionally, sanctions imposed by other states.
Because that difference is so often misunderstood, it is worth setting national and international law side by side.
That last point deserves a sentence of its own. India is a party to many treaties, and Parliament has legislated to give effect to several of them. Once that happens, an international obligation is enforced in an Indian court as Indian law.
5.3.5 Statute Law
Statute law is law formally enacted by a competent legislature and set out in an authoritative written text. In India it means the Acts of Parliament and of the State Legislatures.
A statute is identified by its short title and year, which is how lawyers cite it: the Consumer Protection Act, 2019, for instance, which gives buyers of goods and services a system of redress against unfair trade practices and defective products.
Three contrasts fix what statute law is.
It is not case law. A statute states the rule in advance, in general terms, for everybody; a judicial decision settles a dispute that has already arisen, and states the rule as part of deciding it.
It is not delegated legislation. Rules made by a ministry are law, but they draw their authority from a parent statute and must stay within it.
And it is not constitutional law. A statute is made by the ordinary procedure and may be amended or repealed by the same procedure, whereas constitutional provisions require the special procedure of amendment — and a statute that conflicts with the Constitution is void.
Statute law is the workhorse of a modern legal system. Almost every rule a citizen meets in a year — about taxes, schooling, food, wages, tickets, licences — begins life as a statute.
5.3.6 Ordinances
An ordinance is a temporary law made by the executive when the legislature is not in session and immediate action is required. It is an exception to the ordinary principle that only the legislature makes law, and the Constitution surrounds it with conditions.
The President may promulgate an ordinance for the country under Article 123; a Governor may do so for a state under Article 213.
The life of an ordinance is short by design, and it can end in more than one way. Fig. 5.3-1 showed where ordinances sit among the kinds of law; FC 5.1 shows what happens to one after it is made.
Flowchart
FC 5.1 — The Life Of An Ordinance Caption: The route an ordinance travels under Article 123, from promulgation to the several ways it can end. Nodes: Both Houses not in session, and the President is satisfied that immediate action is needed → Ordinance promulgated; it has the same force as an Act of Parliament → Ordinance laid before both Houses when Parliament reassembles → [Branch 1] Parliament enacts it as a statute → it continues as an Act; [Branch 2] Both Houses pass resolutions disapproving it → it ceases to operate from that date; [Branch 3] Parliament does neither → it ceases to operate six weeks after reassembly; [Branch 4] The President withdraws it at any time → it ceases to operate
Ordinances are used for genuinely urgent matters. In 2020, while Parliament was not sitting, an ordinance amended the banking law to bring cooperative banks under closer supervision by the Reserve Bank of India; Parliament enacted the measure as a statute later that year. That is the power working as intended: a gap filled quickly, and then filled properly.
The obvious danger is that a government finds the shorter route more convenient than the longer one. In D. C. Wadhwa vs. State of Bihar (1987), the Supreme Court examined a practice in Bihar of promulgating ordinances and then re-promulgating them again and again over years, without ever placing them before the legislature for enactment. The Court held that this was a fraud on the Constitution. The power is meant to meet an emergency, not to replace the legislature.
An ordinance is also subject to every limit that binds an Act. It cannot violate the Constitution, and a court may strike it down exactly as it would strike down a statute.
5.4 Summary
Law is a body of general rules of conduct, made or recognised by the state, applying to everyone within its territory, and enforced by the state’s own authority. Three things are packed into that definition: the rules are general, the state makes or accepts them, and machinery stands behind them.
Law prescribes what must be done and proscribes what must not be done. Two purposes are claimed for it — order and justice — and they do not always run together, since a legal system can be orderly and still unjust.
Law is one member of a family of social rules. It overlaps with morality but does not coincide with it, and it overlaps with custom, which becomes law only when the state recognises and enforces it.
John Austin held that law is the command of a sovereign backed by punishment. The account captures much of modern law, but not all of it: some law is custom the state merely recognises, and some rules grant powers rather than issue orders.
Eight features mark law off from other rules. It is a general rule of conduct; it is definite and largely written; it expresses the will of the state; it is backed by sanctions; it is uniform within the state’s jurisdiction; it must be public and knowable; it binds the government as well as the governed, which is the rule of law; and it changes with the society it governs.
A source of law answers two questions at once — what a rule grew out of, and what gives it binding force today. Article 13(3)(a) shows how wide the Constitution’s own idea of law is, counting ordinances, rules, bye-laws, notifications, customs and usages as law for the purpose of testing them against fundamental rights.
Customs are the oldest source. A custom is enforced only if it is long established, certain, reasonable, consistently observed, and not opposed to statute, public policy or morality. Where a custom was found unjust, the state abolished it rather than enforcing it.
Usages are settled practices within a trade or locality, read into the dealings of those who work in it. A usage is the repeated practice; a custom is the general rule that grows out of such repetition and binds a whole community.
Religion supplies rules chiefly through personal law, much of it now codified in statutes. Personal law is applied by the ordinary civil courts of a secular state and must operate within the Constitution, which also contains, in Article 44, a Directive Principle on a uniform civil code.
Judicial decisions make law through precedent, under the doctrine of stare decisis. Only the ratio decidendi binds, not passing remarks. Supreme Court decisions bind every court in India under Article 141, and courts have created binding doctrine — the basic structure limit on amendment, and the recognition of privacy as a fundamental right — where the text alone did not settle the matter.
Scientific commentaries are persuasive and never binding. Courts read and cite scholars, but it is the court’s decision, not the scholar’s opinion, that becomes law.
Equity is fairness applied to correct a general rule that would work injustice in a particular case. It supplements law and cannot override a statute or the Constitution; in India its remedies are now largely statutory.
Legislation is law made deliberately by a body authorised to make it, and is the dominant source in a modern state. Supreme legislation is made by the legislature itself; delegated legislation is made under a parent Act and is void as ultra vires if it exceeds those powers.
The sources are ranked. Legislation overrides custom and usage, the Constitution overrides ordinary legislation, judicial decisions fill the gaps legislation leaves, and legislation can in turn displace a judicial decision.
Municipal law is the whole internal legal order of a state, covering public law, which governs relations between the state and those within it, and private law, which governs relations among individuals. The two stand alongside each other.
National law is the law made centrally and applying uniformly throughout the country. All national law is municipal law, but state law and municipal bye-laws are municipal law without being national.
Constitutional law establishes the organs of government, distributes and limits their power, and guarantees rights. It is supreme over every other law, and is amended by the special procedure of Article 368 rather than the ordinary legislative route.
International law governs relations between states and international organisations, and comes from treaties, international custom and general principles. Public international law deals with states in their dealings with one another; private international law decides which country’s court and which country’s law govern a cross-border private dispute.
International law differs from national law chiefly in enforcement. There is no world legislature or police force, the International Court of Justice decides between states only where they accept its jurisdiction, and compliance rests on obligation, reciprocity, reputation and sanctions.
Statute law is law formally enacted by a legislature in an authoritative written text, distinct from case law, from delegated legislation, and from constitutional law.
An ordinance is a temporary law made by the executive when the legislature is not in session and immediate action is needed, under Article 123 for the Union and Article 213 for a state. It carries the force of an Act, must be laid before the legislature, and lapses six weeks after reassembly. Repeated re-promulgation to bypass the legislature has been held to be a fraud on the Constitution.
The Arguments In One Place
The chapter’s central claim is that law is marked off from every other social rule by two things together: it is made or recognised by the state, and the state stands behind it with organised force.
The strongest position against that claim also runs through the chapter. If force is what makes law law, then international law is not law at all, since no power compels states — yet states argue in its terms, accept tribunals under it, and treat it as binding.
A second disagreement is left open rather than settled. On one view, a grossly unjust rule is not law however correctly it was passed; on the other, it is law, and the right response is to repeal it.
What the chapter does establish is that the two questions are separate. Whether a rule is valid law and whether it deserves obedience are asked in different ways, and answered from different evidence.
5.5 Key Terms
Constitutional law — the branch of law that creates the organs of government, distributes and limits their powers, and guarantees the rights of citizens.
Custom — a practice followed by a community over a long period and treated by it as binding, which becomes law when the state recognises and enforces it.
Delegated legislation — rules made by a ministry, department or agency under powers granted by a parent Act, and void if they go beyond those powers.
Equity — fairness applied to correct a legal rule that would produce injustice in a particular case; it supplements law but cannot override a statute or the Constitution.
International law — the body of rules governing relations between sovereign states and international organisations, drawn from treaties, international custom and general principles.
Jurisdiction — the territory and the persons over which a particular authority’s law runs.
Law — a body of general rules of conduct, made or recognised by the state, applying to everyone within its territory, and enforced by the state’s own authority.
Legislation — law made deliberately and directly by a body authorised to make it, chiefly a legislature.
Municipal law — the whole internal legal order of a state, as opposed to the law that operates between states; it has nothing to do with municipalities.
National law — law made by the central authority of a country and applying uniformly throughout its territory.
Ordinance — a temporary law made by the executive when the legislature is not in session and immediate action is needed, which lapses six weeks after the legislature reassembles.
Personal law — the law governing marriage, divorce, maintenance, adoption, guardianship and inheritance within a community, much of it drawn from religion and now largely codified.
Precedent — a decided case that later courts must follow when the same question of law arises again.
Rule of law — the principle that everyone, including every official, is subject to the law, and that public power may be exercised only in the manner the law allows.
Sanction — the penalty the state attaches to breaking a law, such as a fine, imprisonment, damages or the cancellation of a licence.
Statute law — law formally enacted by a competent legislature and set out in an authoritative written text.
Usage — a settled practice within a trade, business or locality, which courts read into the dealings of those who work in it.
5.6 Points to Ponder
A court will enforce a custom only after testing it for certainty, reasonableness and consistency with statute. Does that make custom a source of law in its own right, or does it make the court the source and the custom only its raw material?
A statute announces the rule before the dispute; a judgment announces it afterwards. On what grounds can a person be held bound by a rule that was declared only after they had acted?
The rule of law says that the government is bound by law like everybody else. Who is in a position to enforce the law against the body that commands the police and controls the budget of the courts?
Ignorance of the law is no excuse. Given the volume of statutes, rules and regulations a modern state produces every year, what would have to be true for that maxim to remain fair?
International law binds states although no power compels them to obey. Does that show that force is not essential to law, or that international law is something other than law?
Equity exists to soften general rules that would work injustice in particular cases. Once equitable principles are written down as statutes, has equity survived in a more usable form, or has it been abolished by being codified?
5.7 Objective Questions
- Which of the following is the oldest source of law?
- Legislation
- Custom
- Equity
- Scientific commentaries [1 mark]
- In political science, the term ‘municipal law’ means:
- Bye-laws framed by a city corporation
- Law made only by a State Legislature
- The internal law of a state, as opposed to law between states
- Law governing institutions of local self-government [1 mark]
- An ordinance promulgated under Article 123 ceases to operate on the expiry of:
- Four weeks from the reassembly of Parliament
- Six weeks from the reassembly of Parliament
- Three months from the date of promulgation
- One year from the date of promulgation [1 mark]
- Scientific commentaries, as a source of law, are:
- Binding on all courts in the country
- Binding on lower courts only
- Persuasive, but not binding on any court
- Binding once cited by a High Court [1 mark]
- Assertion (A): A practice that a community has followed for a very long time is automatically enforceable as law. Reason (R): Courts require a custom to be certain, reasonable and not opposed to statute or public policy before enforcing it.
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true. [1 mark]
- Assertion (A): International law is enforced in the same manner as the law of a state. Reason (R): The International Court of Justice decides a dispute between states only where the states concerned accept its jurisdiction.
- Both A and R are true, and R is the correct explanation of A.
- Both A and R are true, but R is not the correct explanation of A.
- A is true, but R is false.
- A is false, but R is true. [1 mark]
- Match the terms in Column A with their meanings in Column B: [1 mark]
| Column A | Column B |
|---|---|
| a. Stare decisis | i. Beyond the powers granted by a parent Act |
| b. Ultra vires | ii. A settled practice followed within a particular trade |
| c. Article 141 | iii. Standing by what has already been decided |
| d. Equity | iv. Fairness correcting a rule that would work injustice |
| e. Usage | v. Decisions of the Supreme Court bind all courts in India |
Fill in the blank: Rules made by a ministry or agency under powers granted by a parent Act are known as ______ legislation. [1 mark]
State whether the following statement is True or False: A statute that conflicts with the Constitution remains valid until Parliament repeals it. [1 mark]
5.8 Check Your Concepts
Define law. [2 marks]
State any two features of law. [2 marks]
Differentiate between a custom and a usage. [3 marks]
Explain briefly why delegated legislation is necessary, and state one limit upon it. [3 marks]
Explain, with an example, how judicial decisions operate as a source of law. [4 marks]
‘An unjust rule is still law.’ Evaluate this claim, giving arguments on both sides. [4 marks]
Describe any four sources of law, giving one example of each. [6 marks]
Distinguish between national law and international law, and discuss whether international law can properly be called law. [6 marks]
Explain the ordinance-making power under the Constitution: when it may be used, how long an ordinance remains in force, and what limits it. [6 marks]
5.9 Source & Passage-Based Questions
- Two grain merchants sign a short written contract for the sale of a consignment. The contract describes the grain as being of ‘fair average quality’ but nowhere defines the phrase. A dispute arises about whether the consignment met the description. In the trade, the phrase has carried a settled and well-known meaning for many years, and both merchants have dealt on those terms before. The court is asked to decide what the words mean.
- Which source of law is the court applying when it gives the phrase its trade meaning? [2 marks]
- State two conditions this practice must satisfy before a court will apply it. [2 marks]
- If a statute defined the phrase differently, what would the court do, and why? [2 marks]
- A State Legislature rises for the season. Three weeks later the state government decides that a change in the law regulating markets cannot wait, and an ordinance is promulgated. The Legislature reassembles two months later. The ordinance is laid before the House, but no bill is introduced and no resolution is moved on it. Some weeks after the session ends, the government promulgates the same ordinance again.
- Name the constitutional provision under which a Governor promulgates an ordinance, and state when the first ordinance would cease to operate. [2 marks]
- Explain why the Constitution gives the executive this power at all. [2 marks]
- What objection can be raised against promulgating the same ordinance a second time? [2 marks]
- Study the following description of a cartoon. A courtroom door carries a signboard reading ‘Admitted: certain, reasonable, not against statute’. Inside, a figure labelled ‘Statute’ walks straight through. Outside, a much older figure labelled ‘Custom’ waits on a bench, holding a heavy bundle of yellowed papers tied with string, while a clerk examines each sheet through a magnifying glass.
- What claim about custom as a source of law is the cartoonist making? [2 marks]
- Explain, using the chapter, why courts test a custom before enforcing it. [2 marks]
- State one thing about the relationship between custom and statute that a cartoon of this kind cannot show. [2 marks]
- An Act of Parliament sets up a regulatory authority and empowers it to frame rules on the standards that a certain class of goods must meet. The authority frames the rules, and also inserts a rule requiring every trader in those goods to pay an annual licence fee. The Act says nothing about any fee. A trader challenges the rule in court.
- Under which doctrine may the rule about the fee be struck down? [1 mark]
- Why does the Constitution permit a legislature to delegate rule-making powers in the first place? [2 marks]
- Would the position be different if Parliament had itself imposed the fee by an amendment to the Act? Give one reason. [3 marks]