CONSTITUTION OF INDIA AS THE GRUNDNORM

INTRODUCTION

In this small article it is sought to be explicated that how the Constitution of India is a
Grundnorm as defined by Hans Kelson, a German philosopher and jurist. Hans Kelson (1881-
1973) was an Austrian jurist highly influential in the domain of public discourse. Additionally he
was the author of the constitution of Austria which is still in some way in force. He is a puissant
character in the legal realm for his theory of ‘Pure Theory of law’ which immensely contributed
in the realm of jurisprudence.

One of the most celebrated theories of Kelson is the theory of Grundnorm as the highest
authority to have occurred naturally and as the source of all the other norms. This paper firstly
discusses about the theory of ‘Grundnorm’ in detail. This paper also analyses the theory of
Kelson of the Grundnorm in the light of the Indian Constitution as well as gives remarks as to
whether the Constitution is the highest norm and whether every other law in India has to be
tested on the basis of the Grundnorm as any legislation in contradiction to the same, is rather
invalid.

PURE THEORY OF LAW

Kelson wanted to confine and restrict the gamut of study of law to its purest form. He wanted to
cut the linkage of law with other social sciences. Kelson sought to reduce the mayhem which is
caused when law is studied with an interdisciplinary approach. Thus his theory sought to
distinguish and emphasize on what ‘law’ is and not law what law ‘ought’ to be. That is why his
theory came to be known as ‘Pure theory of law’ as it sought to divorce law from all the
extraneous and non-legal factors. Thus in this context he came up with the concept of what is
known as Grundnorm. 1

GRUNDNORM

Kelson in his theory presents a hierarchical structure of legal system in which the grundnorm is
the basic norm from which all the other norms derive their validity. Kelson defined grundnorm

1
Tejas Vasani, Kelsen’s Pure Theory of Law & HLA Hart’s Theory, LEGALBITES (March 23, 2021, 5:31 PM),
legalbites.in/kelsens-pure-theory-of-law-hla-harts-theory/.
as-“the postulated ultimate rule according to which the norms of this order are established and
annulled, receive or lose their validity”. In other words Grundnorm is the super norm from
which all other norms emanate. At this juncture it must be stated that according to Kelson it is
the grundnorm which defines the content of a norm and its validity. But the question which
troubled everyone’s mind was what is the source or cause of Grundnorm. This question was not
answered by Kelson. It was stated that Grundnorm is a fiction which gives rise to all the legal
norms. In order words it is the ‘first cause’. 2

Grundnorm is the initial point of any legal system. It is the base of the pyramid type structure
from which all the norms derive its validity. As we move forward the legal system broadens
because there are myriad norms which spring from the Grundnorm. In simple terms, the
Grundnorm is the root of a tree and the leaves and branches are the other norms, which derive its
life from the roots. It is a dynamic process. All the other norms are controlled by the Grundnorm.
In other words it was opined by Kelsen that if one is searching for the justification of laws
prevalent in a place and the legal system, then it is the Grundnorm. 3

Another question which arose subsequently was that how one can ascertain the validity of the
Grundnorm. It was thus opined by Kelson that usually the answer should always be begin with
the presumption that the Grundnorm is valid. But if one has to determine whether it is valid or
not in real sense, then he should check the effectiveness of the Grundnorm. Principle of
effectiveness means that whether the Grundnorm is accepted by a certain number of people and
whether they are ready and willing to follow such norm or not. If is accepted by certain number
of people and they are ready and willing to abide by it then the Grundnorm is said to be valid and
effective. However to be called as valid, it need not be accepted and abided by all. At last he
stated that when a Grundnorm loses its basic support which is needed to sustain and survive then
it ceases to be the Grundnorm and it will be replaced by another basic norm having support of
people. 4

2
Khyati Sharma, The Efficacy of Grundnorms in Legal Systems of India and UK: A Comparative Study, IJLMH
(March 22, 2021, 6:11 AM), https://www.ijlmh.com/wp-content/uploads/2019/10/The-Efficacy-of-Grundnorms-in-
Legal-Systems-of-India-and-UK-A-Comparative-Study.pdf.
3
Id.
4
Shubham Joshi, Grundnorm in India: A New Perspective, THE LAW BRIGADE (March 21, 2021, 5:42 PM),
https://thelawbrigade.com/wp-content/uploads/2019/05/Shubham.pdf.
To buttress the stand, this could be better understood when applied to the Indian context. Now
suppose a person commits a heinous offence such as murder and he is needed to be punished.
This is catered by the Indian Penal Code, 1860, which could be understood as a norm. Art.21 of
the Constitution of India talks about protection of life and personal liberty. By a catena of
judgments it is settled that state has a duty saddled upon it to protect the life and personal liberty
of its people. For that purpose Indian Penal Code, was enacted. Thus it could be inferred that IPC
derives its sanctity and validity from Art. 21 of the Constitution of India. So if we apply the
theory propounded by Kelson to the aforementioned fact-situation then resultantly it would be
clear that the Constitution of India is the Grundnorm and IPC is the norm. However this
proposition must not be left with a simplistic explanation and it needs a detailed analysis. Thus to
check the validity of the proposition as to whether Constitution of India is the Grundnorm or not
it requires a much more broad analysis.

CONSTITUTION AS A GRUNDNORM

Considering a country like India, laws laid down in the Constitution are considered as the basic
parameters to declare any law to be valid. This means that any law has to pass through the
constitutional parameters in order to be considered valid. Every other law can be said to be
subordinate to the Constitution. Therefore, considering the aforementioned structure, we can
state that our Constitution is a Grundnorm. However, the authority of the Constitution can also
be delegated itself considering the fact that the laws in the constitution can be amended. Once the
Constitution is successfully amended in a substantial manner, it lacks the conferring validity of
the laws under it. Repealing a provision of the Constitution has the similar effect. Furthermore, it
is a considerable fact that the framers of the constitution had framed the constitution from the
norms that were superior for higher in nature. Hence, it is derived from certain set of principles.
So here we see that Kelson's idea of the Grundnorm as the ultimate norm with no rule behind it
gets defeated and remains unfulfilled making it skeptical.

Now, another pertinent question is that what were the main principles on which are Constitution
was primary framed by its framers? In my personal opinion, the framers had taken the idea of
justice, equality and fraternity as the same has been laid down in the Preamble of the
Constitution. The same set of principles can be said to be in the mind of the framers of our
Constitution. Therefore these aforementioned principles can be set to be the grundnorm. If the
provisions of the Constitution go against these principles, they will be taken down.5

BASIC STRUCTURE OF THE CONSTITUTION AS THE GRUNDNORM

Taking India into consideration, the Constitution's Basic Structure can be considered to be the
grundnorm which is the penultimate legal source as the Constitutional laws derive their validity
from the basic structure.

The basic structure is basically inclusive of: the Constitutional supremacy, India as a welfare
state on the principles of sovereign, social, secular, democratic and republic, Constitution's
federal character, the nation's unity and integrity, powers being separated in regards to the
legislature, executive and judiciary, and Part III of the Constitution i.e. Fundamental Rights. The
basic structure can be considered to be the authority that legally sanctions particular law
enforcement and the same can be considered to be the touchstone of validity for that particular
law.

However, some critics question the legitimacy of the basic structure and disregard its usage. The
Doctrine of Implied Legislation comes down as the answer to this. It lays down that it isn't
necessary that everything is expressly stated in a written Constitution. Therefore, there are some
sets of principles and limitations in the Constitution that cannot be avoided or amended.
Therefore it is to be stated that the doctrine of implied legislation goes in consonance with the
basic structure. The idea of constitutional morality lays down that the constitutional norms are
supreme and are to be obeyed.

Laws have to run in consonance with the basic structure (Grundnorm) for them to be valid. This
approach was visible in the Naz Foundation v. NCT of Delhi6. The argument in this particular
case has been that criminalization of homosexuality is justified on the basis of morality.
However, constitutional morality was considered to be the most valid approach in the instant
case. If Constitutional morality is absent, such laws should be invalid. Hence, referring the basic
structure i.e. Grundnorm is the ideal method to resolve such conflicts involving the aspects of
morality.
5
Diva Rai, Application of Grundnorm in India, IPLEADERS (March 23, 2021, 10:22 PM),
https://blog.ipleaders.in/application-of-grundnorm-in-india/.
6
Naz Foundation v. Government of NCT of Delhi, 2010 Cri LJ 94.
The Parliament can amend the constitution subjected to its on procedural and substantive
limitations. Art. 368 has laid down the set of procedural limitations while substantive limitations
were pointed out in Kesavananda Bharati v. State of Kerela 7, in accordance with the basic
structure principle. Basic structure denotes a sphere where the parliament cannot indulge in
interference. It lies in the core of the ultimate rule of recognition. This particular case supported
the claim of calling the basic structure to be the authority to validate any law or norm.

The Supreme Court upheld the Basic Structure notion in Indira Nehru Gandhi v. Raj Narain 8,
when it struck down Clause (4) of Article 329-A, which was added by the 39th Amendment, on
the grounds that it was beyond the amending authority of the parliament because it eroded the
constitution's "basic feature."

In L. Chandra Kumar v. Union of India9 it was opined that “ the power of judicial review vested
in the High Court under Article 226 and in the Supreme Court under Article 32 of the
Constitution is an integral feature of the Constitution, constituting part of its basic structure".

Therefore it is observed that every law needs a legal sanction from the basic structure which
cannot be amended. Efficacy of the law is proven by its validity and effectiveness.

CONCLUSION

Therefore, it can be concluded that some values of the Constitution can be genuinely considered
to be the grundnorm. Whether the basic structure doctrine or the Preamble itself, some non
deviated parts of the constitution can be said to be the grundnorm as any law has to be validated
and run in consonance with the same. However, the idea of the framers having derived the
principles of the Constitution from some other norms raises skepticism but the same cannot be
said to be completely true. How we practically perceive the Constitution, signifies the fact that
the Constitution is definitely a grundnorm. All in all, whether the Constitution is a grundnorm or
not, is an idea that varies from belief to belief. However, the researcher through this article has
tried to give an open ended approach towards the same, definitely edging towards the idea in
favor of Constitution being the Grundnorm.

7
AIR 1973 SC 1461.
8
AIR 1975 SC 2299.
9
AIR 1997 SC 1125.