Dharma and Constitution

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:

"rnsrr&{k=L; {k=a ;)eZ%A rLek)ekZRija ukfLrA vFkks vcyh;ku cyh;kalek'kalrs ?kesZ.kA ;Fkk jkKk ,oeÃA"

"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. "

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:-

"loksZ n.Mftrks yksdks nqyZHkks fg 'kqfptZu%A n.ML; fg Hk;knHkhrks Hkksxk;So izorZrsAA"

"MANU VII-22"

"There is hardly an individual in this world, who on his own, is pure in his conduct. "

Defining the Modern Concept of Law

The most ancient and perhaps the earliest definition of law given in the Upanishad brings forth the essential aspects of the word 'law' as defined in modem jurisprudence that the law is an imperative command which is enforced by some superior power or sovereign. The superior power which serves as an instrument of coercion for the enforcement of the law is called the' sanction' .According to Austin, the law consists of the general command issued by the State to its subjects and enforced if necessary by the physical power of the State. Therefore, declaration of law by a political superior or sovereign (the King) and the availability of the power of the state machinery for the enforcement of that law are stated to be the essential requisites of an imperative law. The law as defined in the Upanishad also meant that it was enforceable against individuals with the aid of the physical power of the king as is made clear from the statement, 'The law aided by the power of the king enables the weak to prevail over the strong' .The power of the king constituted the instrument of coercion. This aspect is forcefully put by Manu VII-22 supra.

Dharma & Law

However, one of the most distinguishing aspects as between the concept of the law as defined in the western jurisprudence and that as defined in Dharmasastras is, whereas the imperative command of the king constituted the law according to the former, under the concept of Dharma, the law was a command even to the king and was superior to the king. This meaning is brought out by the expression 'the law is the king of kings'. The doctrine 'the king can do no wrong' was never accepted in our ancient constitutional system. Another aspect discernible from the definition of 'law' given in the Brihadarayaka Upanishat and accepted in the Dharmasastras is, that the law and the king derive their strength and vitality from each other. It was impressed that the king remained powerful if he observed the law and the efficacy of the law also depended on the manner in which the king functioned, because it was he who was responsible for its enforcement. There was also a specific provision which made it clear to the king that if he was to be respected by the people, he was bound to act in accordance with the law. Thus the first and foremost duty of the king as laid down under Rajadharma was to rule his kingdom in accordance with the law, so that the law reigned supreme and could control all human actions so as to keep them within the bounds of the law. Though Dharma was made enforceable by the political sovereign -the king, it was considered and recognized as superior to and binding on the sovereign himself. Thus under our ancient constitutional law (Rajadharma) kings were given the position of the penultimate authority functioning within the four corners of Dharma, the ultimate authority. Rules of Dharma were not alterable according to the whims and fancies of the king. The exercise of political power in conformity with "Dharma" was considered most essential. This principle holds good for every system of government and is a guarantee not only against abuse of political power with selfish motives and out of greed but also against arbitrary exercise of political power.

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.

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

"DHARMAM KSHATRASYA KSHATRAM "

"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. "

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 Law Commission presided over by Justice P.B.Gajendragadkar, former Chief Justice of India, in its 46th Report expressed similar views : The Commission believes that, in a democratic country like India which is governed by a written constitution, supremacy can be legitimately claimed only by the constitution. It is the Constitution which is paramount, which is the law of laws, which confers on the Parliament and the State Legislatures, the Executive and the Judiciary their respective powers, assigns to them their respective functions, and prescribes limitations within which the said powers and functions can be legitimately discharged.

Thus we gave ourselves a system of governance which can aptly be described as a System based on the Constitutional Supremacy, same as the Dharmic Supremacy, as declared in Brihadaranyaka Upanishad, the basic structure of which is unalterable. This must be uppermost in the minds of all those who exercise the power of the State under the doctrine of separation of powers.

References

1. Brihadaranyakopanishat Upanishad
2. Dharmasastras I
3. M. RAMA JOIS, DHARMA - The Global Ethic, Published by "Bharatiya Vidya Bhavan