The Constitution of India- A Grundnorm of Compliance

Introduction

The constitution is the body of fundamental principles to which the obligation arises either through willingness or through legal compulsion. When India became independent and sovereign in 1947, it was not having a consolidated base of fundamental principles which could be made legally binding and obligatory on every Indian citizen in each domain of his or her life. This necessitated the process of constitution making for India and ultimately, on 26th November 1949, India adopted its constitution. Thus, the Constitution of India became a foundation on which the whole Indian legal structure is built up and sustains till date. Being a citizen of independent and sovereign nation, every Indian citizen and institution has to comply with each and every word of the Constitution in each and every sphere of his life, be it social, political, legal etc.

The Ministry of Social Justice and Empowerment on 19th November 2015 notified the decision of Government of India to celebrate the 26th day of November every year as 'Constitution Day' to promote the above discussed spirit of compliance with constitutional values among citizens.

The Concept of Grund Norm -

Hans Kelson’s pure theory of law has a pyramidical structure of hierarchy based on the basic norm of Grund norm. The word ‘Grund norm’ is a German word meaning fundamental norm. He has defined it as ‘the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity’. It is the Grund norm which determines the content and validates to other norms derived from it[1].

The Grund norm is the starting point in a legal system and from this base, a legal system broadens down in gradation becoming more and more detailed and specific as it progresses. This is a dynamic process. At the top of the pyramid is the Grund norm, which is independent. The subordinate norms are controlled by norms superior to them in hierarchical order. The system of norms proceeds from downwards to upwards and finally closes at Grund norm. The study of dynamics of law is also necessary because law regulates its own creation and Kelson’s theory includes it. Thus, according to Kelson in every legal order there will always be a Grund norm of some kind[2].

Application of Concept of Grund norm for India

Grund norm is regarded as a source of validity of any legal system. In the ancient period, Dharma was considered as the source of all laws and everyone including the King was bound by Dharma. Thus, it can be said that in ancient India, Dharma was the Grund norm for Indian legal system. In the medieval and modern era of the Indian history, the Rulers rejected this ancient concept of Dharma as the supreme source of law and enacted their systems of ruling over India. Thus, the British legal principles got inroads into the Indian legal system leading to consolidation of the scattered pieces of law and forming the basis for governing India.

When India got independence and it became sovereign, these scattered pieces of legal architecture were to be compiled together to build a sound body of legal principles which will be independent and supreme in its own and which will be obeyed by each and every Indian citizen. This work was done through the Indian Constituent Assembly and India got its own document of governance in the form of “The Constitution of India”.

The Preamble of the Indian Constitution starts with the word “We the People of India[3]” which signifies that the Indian citizenry has accepted the Constitution as the supreme and sovereign source of law of the land and they pledge to abide by its each and every provision. The Constitution of India has endowed Indian citizens and non-citizens with fundamental rights and has bounden the states with the directive principles of state policies in their system of governance. Thus, it has laid down the Dharma of citizens as well as the governing institutions.

The Constitution in India is regarded as “the basic law of the land”. This can be said due to the social acceptance and recognition that it gets. The other laws assume validity because they find their conformity with the Constitution. The institutions of the Legislature, the Executive and the Judiciary, which are established under the Constitution, are in-fact subordinate to the Constitution and they have to act in conformity with provisions of the Constitution. The legislative power of Parliament and that of the State Legislature is derived from the Articles 245 and 246 and has to be exercised within the boundaries of the limitations which are outlined under Article 13 of the Constitution. Thus, the legal system is established for all laws enacted that trace their validity from a sole source, that is the paramount source of law, the Constitution. Thus, the principle of Grund norm again comes into play in the modern era, as the organs of the government, namely, the Legislature, the Judiciary, and the Executive, are the sub-norms to the basic law embodied in the Constitution[4].

The judicial development of Indian legal jurisprudence also points out in the same direction. In the year 2001, the Supreme Court of India in the case of Government of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi [5] observed, ‘According to Kelson, in every country there is a hierarchy of legal norms, headed by what he calls as the ‘Grund norm’. If a legal norm in a higher layer of this hierarchy conflicts with a legal norm in a lower layer the former will prevail. In India, the Grund norm is the Indian Constitution.’

The various High Courts in India have followed same thread of jurisprudence with respect to Indian Constitution being the Grund norm. In the case of Squadron Leader H. S. Kulshrestha v Union of India[6], the Allahabad High Court held that “According to the theory of the eminent jurist Kelson, in every country there is a hierarchy of laws, and the highest law is known as the Grund norm of law. In our country the Grund norm is the Constitution.” In another case of Om Prakash Gupta v Hindustan Petroleum Corporation Ltd. & Anr[7]., it was again held by the Rajasthan High Court that “Since the limits have been defined by the Constitution, they are, in jurisprudential term, ‘the Grund norm’.” Recently in the year 2022, in the case of Sunil v State of M. P. & Another[8], it was again mentioned by the Madhya Pradesh High Court that, “The Constitution of India is the Grund norm – the paramount law of the country. All other laws derive their origin and are supplementary and incidental to the principles laid down in the Constitution.”

Conclusion

Thus, it is crystal clear that since ages, the concept of Grundnorm as elaborated by jurist Hans Kelsan is being applied to India in the form of various fundamental principles. The journey started from the concept of Dharma and the contemporary form of the same is the Constitution of India. It is the supreme, independent and sovereign source of law of India endowing validity to the Indian legal structure and sustaining the spirit of rule of law in governance mechanism. This reveals that whatever we have to comply even at the base level of administrative pyramid, it has its origin and validity in the Constitution of India. Thus, the Constitution of India shall be looked at as the “Grund norm of Compliance” and this legacy must be cherished and preserved for the ages to come.

Article by- Dr. Mayura Sabne

[1] Zainab Arif Khan, Application of Grundnorm in India, iPleaders, 30 Nov 2020, available at https://blog.ipleaders.in/application-of-grundnorm-in-india/, last seen on 28/10/2022

[2] Ibid

[3] The Preamble, the Constitution of India, 1950

[4] Supra 1

[5] 2008 AIR SCW 1826

[6] 1999 (1) AWC 668

[7] RLW 2007 (4) Raj 3059

[8] CRA No. 2316 of 2014, The High Court of Madhya Pradesh