Blogs

Understanding the Law of Land

The expression ‘Law of the Land’ comes from the Latin words lex terrae or legem terrae which is defined in Black’s Law Dictionary to mean all laws that are in force within a country or region, including statute law and case-made law. The concept of ‘Law of the Land’ first flapped its wings in 1215 in Magna Carta. Since then the term has been interpreted by different scholars and jurists to formulate numerous legal propositions and doctrines.

A narrow analysis of the expression may suggest that the term is a mere synonym of the concept of Natural Justice and Rule of Law. However, a wider connotation of the expression opens gates to many possibilities like- it can be understood as the law that fulfils the basic necessities of man i.e. Fundamental Rights; or the law which prohibits arbitrary use of powers by an authority; or laws which primarily define the structure of the Government of a country; or an aggregate of basic principles of all fields of life like property, rights, crime, tort, etc.

Magna Carta

The Holy Legal Bible of Magna Carta, in one of its clause states ‘No freeman shall be taken or imprisoned or be disseised of his freehold or of his liberties or free customs, or be outlawed or exiled or in any way destroyed; nor will we go against such a man, nor condemn him, but by the lawful judgment of his peers, or by the Law of the Land.’

In today’s time, these words govern every corner of our daily lives. They have further bigoted concepts like Rule of Law, Right to Freedom, Right to Equality, Right against Exploitation, with Writ of Habeas Corpus and the principles of Natural Justice.

Interpretation

As stated above the Doctrine has been interpreted by many scholars and jurists. Drawing inspiration from Magna Carta Edward Coke wrote ‘No man be taken or imprisoned but per legem terrae, that is, by the common law, statute law, or custom of England.

British Chief Justices have presented different tenets of the concept. In 1519 the British Chief Justice John Fineux placed the concept of lex terrae and Divine Law on the same pedestal and remarked ‘The Law of God and the Law of the Land are all one.’

A century later in 1677 British Chief Justice John Vaughan with his creative interpretation of the Doctrine brought forth the idea of ‘Presumption of Constitutionality.’ This idea paves a roughly permanent path for new legislation. According to Chief Justice John if new legislation has been made then by the concept of Law of the Land it becomes a part of the legal system of a country and until proven to be against the Divine Law, the Courts are obligated to consider it to be correct. India also adopted the Doctrine of Presumption of Constitutionality in the case of ML Kamra v New India Assurance. In this case, Justice K Ramaswamy remarked: ‘The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality.

Adoption of Doctrine

Many countries of the world have incorporated the principle of ‘Law of the Land’ in their constitution; for example Virginia Constitution of 1776, the Constitution of North Carolina of 1776, the Delaware Constitution of 1776, the Maryland Constitution of 1776, the New York Constitution of 1777, the South Carolina Constitution of 1778, the Massachusetts Constitution of 1780, and the New Hampshire Constitution of 1784.

  • The United States of America
    The US Constitution also adopted the concept in its Supremacy Clause ‘This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land….‘ This inclusion reflects the predominant nature of the term within every field of US Administration, Legislation and Judiciary. None of the branches can suffix without the firm roots of Law of the Land.
  • Britain
    Unlike India and the US, the British legal structure is governed by an unwritten law. Customs form the prominent source of law in Britain. Thus the concept of Law of the Land has been read into British legal stage by judicial interpretation and customary legal norms.
  • India
    When it comes to Indian legal system there is no limit as to what can be read as Law of Land and what cannot. Nevertheless, the Constitution is held as the Supreme Law of Indian Land. Although the legislature has never used the exact term ‘Law of the Land‘ in any legal draft, the Apex Court has successfully established the Constitution of India to be our Law of the Land.

Law of the Land – Indian Perspective

India has the lengthiest written constitution of the world and as of 2020, there have been 104 Amendments in the Constitution. There are more than a hundred statutes and more than a dozen principles which mould the three pillars- Legislature, Executive and Judiciary of our country. In this bottomless Mariana Trench, no one law or principle can be held to be or not to be the Law of the Land. Yet there are certain principles which loom at the bottom of our legal ocean and have maintained the perfect pressure for the other laws to breathe in. It can be said that without these principles there can be no law on this land. Primary of these principles are:

Supremacy of Constitution

As stated above, the Constitution is considered as the Supreme Law in India. There can be no law, not even the legislature without any Constitution. The principle of Supremacy of Constitution was reiterated by the Supreme Court in the case of Minerva Mills v Union of India. It was held that ‘Supremacy of the Constitution is undisputed and cannot be challenged in a Court of law…..people of the country, the organs of the Government, legislature, executive and judiciary are all bound by the Constitution, which is the paramount law of the land and nobody is above or beyond the Constitution.

Further when one talks about the Constitution as the Supreme Law one has to keep in mind that the Constitution derives its essence from the Preamble. It’s our Preamble which defines our Government structure to be the Democratic Republic, our religion to be secular, and our objective to maintain equality, fraternity and justice.

Rule of Law

The principle of Supremacy of Constitution only holds water in the presence of Rule of Law. The three-pointers given by Dicey while explaining his Rule of Law are:

  1. The Supremacy of Law
    No man is above the law. No man is punishable by law except for a distinct breach of the same. The Government cannot punish anyone at its own whims and fancies. Wherever there is discretion there is room for arbitrariness and thus law must always protect individuals against arbitrary discretion.
  2. Equality before Law
    Every man, whatever his rank, is subject to the law of the land and the Courts. No man is above the law.
  3. The predominance of the Legal Spirit
    Judicial decisions are important in determining the rights of private persons in particular cases brought before the Court from time to time. Thus, judicial pronouncements hold a very important place in the moulding and development of law.

The Indian Legal system rests heavily on these pointers. Thus there is no doubt that in India the term ‘Law of the Land’ stands tall because of the Rule of Law. It not only establishes the Supremacy of Law but also sets forth as to who are the subjects who are to be governed by these Supreme Laws and how.

Basic Structure Doctrine

A distinct concept of our legal system is the Basic Structure Doctrine. This Doctrine was formulated by the Supreme Court of India in 1973 in the landmark case of the Kesavananda Bharati v the State of Kerala. Since then the Court has interpreted various rules and principles within this Doctrine. These interpretations have made them a peculiar aspect of our legal system, one that cannot be altered even by a procedure established by law. Some of the principles and rules being:

  • Federation,
  • Secularism,
  • Democracy,
  • The Supremacy of the Constitution,
  • Rule of Law,
  • Independence of the Judiciary,
  • The Doctrine of Separation of Powers,
  • Sovereign Democratic Republic,
  • The Parliamentary System of Government,
  • Principle of Free and Fair Elections,
  • Welfare State, etc.

The Doctrine has not been defined by the Courts but has been interpreted from time to time expanding the ambit of Laws which govern our Land. Thus although the Doctrine has no defined standard in Indian legal structure, it is definitely the Law of our Land.

Conclusion

Recently former Vice President Joe Biden pledged committed stand to legalize abortion and voiced his desire to make Roe v. Wadethe law of the land‘ if he’s elected President. If we analyze the above statement then one can easily understand that the Law of the Land is a dynamic concept. It is driven by the social elements of a country with time and necessity as its companions. The concept of Law of Land is wider than any legal system could fathom or define.

When the expression Law of the Land is seen in Indian perspective one might settle down by only defining Constitution as our legem terrae but that would certainly be a limited interpretation. In order to realize the true nature of Law of Indian Land one has to simultaneously read the above three principles: Supremacy of Law, Rule of Law and Basic Structure Doctrine simultaneously.


Editor’s Note
Each and every country is governed by a certain set of rules and regulations. This includes statutory laws as well as case laws and precedents. These set of laws governing a particular region is known as the ‘Law of the Land.’ This article tries to explain the meaning and origin of this concept, the interpretation of this concept by various jurists and scholars and the adoption of this concept in various countries like the US, Britain and India. Further, the article describes the Indian perspective on the concept of ‘Law of the Land’ in light of certain important concepts such as- Supremacy of the Constitution, Rule of Law and the Basic Structure Doctrine. The author is of the view that the ‘Law of the Indian Land’ is essentially governed by these three essential principles. The author concludes by saying that the concept of ‘Law of the Land’ is a dynamic one and it keeps on changing according to the social circumstances of a particular country.


Submitted by

Harshita Rajnish, University of Lucknow.

One Comment

Leave a Reply

Your email address will not be published. Required fields are marked *