Changes

== Background ==

== Background ==

Having evolved the concept of enforceability of the law through the institution of kingship, ancient Indian jurists proceeded to define the law. The law was recognized as a mighty instrument necessary for the protection of individual rights and liberties. Whenever the right or liberty of an individual was encroached upon by another, the injured individual could seek protection from the law with the assistance of the king, however, powerful the opponent (wrong doer) might be. The power of the king (state) to enforce the law or to punish the wrong doer was recognized as the force (sanction) behind the law which could compel implicit obedience to the law. After declaring how and why the Kshatra power (i.e.; the King) was created, the [[Brihadaranyakopanishat]] proceeds to state, finding that the mere creation of kingship was not enough, that the most excellent Dharma (law), a power superior to that of the king, was created to enable the king to protect the people, and gives the definition of law (Dharma) as follows:<blockquote>'''rnsrr&{k=L; {k=a ;)eZ%A rLek)ekZRija ukfLrA vFkks vcyh;ku cyh;kalek'kalrs ?kesZ.kA ;Fkk jkKk ,oeÃA'''"</blockquote><blockquote>The law (Dharma) is the king of kings No one is superior to the law (Dharma) ; The law (Dharma) aided by the power of the king enables the weak to prevail over the strong.

Having evolved the concept of enforceability of the law through the institution of kingship, ancient Indian jurists proceeded to define the law. The law was recognized as a mighty instrument necessary for the protection of individual rights and liberties. Whenever the right or liberty of an individual was encroached upon by another, the injured individual could seek protection from the law with the assistance of the king, however, powerful the opponent (wrong doer) might be. The power of the king (state) to enforce the law or to punish the wrong doer was recognized as the force (sanction) behind the law which could compel implicit obedience to the law. After declaring how and why the Kshatra power (i.e.; the King) was created, the [[Brihadaranyakopanishat]] proceeds to state, finding that the mere creation of kingship was not enough, that the most excellent Dharma (law), a power superior to that of the king, was created to enable the king to protect the people, and gives the definition of law (Dharma) as follows:<blockquote>"'''rnsrr&{k=L; {k=a ;)eZ%A rLek)ekZRija ukfLrA vFkks vcyh;ku cyh;kalek'kalrs ?kesZ.kA ;Fkk jkKk ,oeÃA'''"</blockquote><blockquote>"The law (Dharma) is the king of kings No one is superior to the law (Dharma) ; The law (Dharma) aided by the power of the king enables the weak to prevail over the strong.

"</blockquote>Commenting on the above provision, Dr. S. Radha krishnan observes that even kings are subordinate to Dharma, to the Rule of law.2 The utility and the necessity of the power of king to enforce the law is explained thus:-<blockquote>'''loksZ n.Mftrks yksdks nqyZHkks fg 'kqfptZu%A n.ML; fg Hk;knHkhrks Hkksxk;So izorZrsAA'''"</blockquote><blockquote>'''MANU VII-22'''"</blockquote><blockquote>There is hardly an individual in this world, who on his own, is pure in his conduct.

"</blockquote>Commenting on the above provision, Dr. S. Radha krishnan observes that even kings are subordinate to Dharma, to the Rule of law.2 The utility and the necessity of the power of king to enforce the law is explained thus:-<blockquote>"'''loksZ n.Mftrks yksdks nqyZHkks fg 'kqfptZu%A n.ML; fg Hk;knHkhrks Hkksxk;So izorZrsAA'''"</blockquote><blockquote>"'''MANU VII-22'''"</blockquote><blockquote>"There is hardly an individual in this world, who on his own, is pure in his conduct.

"</blockquote>

"</blockquote>

== Supremacy of the Constitution ==

== Supremacy of the Constitution ==

The Constitution of India given to themselves by the people of India having been adopted on 26th day of November 1949 in the Constituent Assembly came into force on 26th January 1950. To put in the language of ancient Indian jurisprudence it is the "Raja Dharma", which is supreme. All the three organs of the State, the Legislature, the Executive and the Judiciary are bound by the provisions contained therein and are required to function within the four corners of the provisions. The argument some time advanced, as to the supremacy of the one organ over the other is futile.

The Constitution of India given to themselves by the people of India having been adopted on 26th day of November 1949 in the Constituent Assembly came into force on 26th January 1950. To put in the language of ancient Indian jurisprudence it is the "Raja Dharma", which is supreme. All the three organs of the State, the Legislature, the Executive and the Judiciary are bound by the provisions contained therein and are required to function within the four corners of the provisions. The argument some time advanced, as to the supremacy of the one organ over the other is futile.

This aspect was forcefully brought out by Dr, S. Radhakrishnan, in his speech made in the Constituent Assembly supporting the Objectives Resolution moved by Jawaharlal Nehru. He said <blockquote>'''DHARMAM KSHATRASYA KSHATRAM'''

This aspect was forcefully brought out by Dr, S. Radhakrishnan, in his speech made in the Constituent Assembly supporting the Objectives Resolution moved by Jawaharlal Nehru. He said <blockquote>"'''DHARMAM KSHATRASYA KSHATRAM'''

"</blockquote><blockquote>Dharma, righteousness is the king of kings It is the ruler of both the people and the rulers themselves It is the sovereignty of the law we have asserted.

"</blockquote><blockquote>"Dharma, righteousness is the king of kings It is the ruler of both the people and the rulers themselves It is the sovereignty of the law we have asserted.

"</blockquote>Dr. Ambedkar the Chairman of the Drafting Committee, and the main architect of the Constitution, explaining the significance of the restrictive clauses contained in Article 368 expounded the supremacy of the Constitution in the following words :

"</blockquote>Dr. Ambedkar the Chairman of the Drafting Committee, and the main architect of the Constitution, explaining the significance of the restrictive clauses contained in Article 368 expounded the supremacy of the Constitution in the following words :

The Constitution is a fundamental document. It is a document which defines the position and power of the three organs of the State -the executive, the judiciary and the legislature. It also defines the powers of the executive and the powers of the legislature as against the citizens, as we have done in our chapter dealing with Fundamental Rights. In fact, the purpose of a constitution is not merely to create the organs of the State but to limit their authority, because, if no limitation is imposed upon the authority of organs, there will be complete tyranny and complete oppression. The legislature may be free to frame any law; the executive may be free to take any decision; and the Supreme Court may be free to give any interpretation of the law. It would result in utter chaos.

The Constitution is a fundamental document. It is a document which defines the position and power of the three organs of the State -the executive, the judiciary and the legislature. It also defines the powers of the executive and the powers of the legislature as against the citizens, as we have done in our chapter dealing with Fundamental Rights. In fact, the purpose of a constitution is not merely to create the organs of the State but to limit their authority, because, if no limitation is imposed upon the authority of organs, there will be complete tyranny and complete oppression. The legislature may be free to frame any law; the executive may be free to take any decision; and the Supreme Court may be free to give any interpretation of the law. It would result in utter chaos.

# Brihadaranyakopanishat Upanishad

# Brihadaranyakopanishat Upanishad

# Dharmasastras I

# Dharmasastras I

# M. RAMA JOIS, DHARMA - The Global Ethic, Published by "Bharatiya Vidya Bhavan”

# M. RAMA JOIS, DHARMA - The Global Ethic, Published by "Bharatiya Vidya Bhavan