Tuesday, 26 May 2020

Constitution as Supreme law


Hello law knowledge seekers. In this article a brief discussion about Supremacy of Constitution is done. It is big question to every general person that "Why Constitution of India is Supreme law of land?". As Legal System in India allows judicial review and is also based on Common law, there is supremacy of Constitution of  India.

What is the Supremacy Clause? (with pictures)
Image Credit: www.wisegeek.com

The reason why the Constitution had to be made the supreme law was that in addition to judicial review of administrative action, the superior courts had to be given the power of judicial review of legislation. These two powers of judicial review are distinct from each other and are exercised at two different levels.

The rule of law is, therefore, to be distinguished from the rule of the Constitution or that of the higher law in India. Even if the latter or a part of it is suspended when the enforcement of certain fundamental rights is suspended during emergency, the former would continue to operate. The suspension of the rule of the Constitution or of the higher law is intended to make legislation temporarily invulnerable. It can have, however, no effect on the rule of the ordinary law which is directed mainly against illegalities of administrative action. No difficulty is, therefore, experienced in the co-existence of the Constitution with the pre-existing law. It is to be noted that the fundamental rights are guaranteed expressly by article 13 only against inconsistent legislation. Similarly, the Constitution is supreme law against any inconsistent ordinary law. A fortiori, therefore, the fundamental rights and the rest of the Constitution would prevail against administrative action.
This should not, however, cloud our understanding of the basic purpose of the Constitution which was to provide the supreme law as against legislation. For, before the commencement of the Constitution, ordinary legislation, however unjust, had to prevail against the liberties of the people based upon the common law or the principles of justice, equity and good conscience. The effect of the Constitution was to place the fundamental rights and other provisions of the Constitution above the ordinary law and to protect them against any inconsistent legislation.

While legislation can be challenged as being inconsistent with the Constitution, administrative action may be reviewed on totally different grounds such as being based on mala fides or irrelevant considerations or being without jurisdiction or showing apparent error of law on the face of the record, etc. The existence of the Constitution and the remedies given by it are not a sine qua non for obtaining judicial review against administrative action by way of suits even though a more expeditious remedy may be available by way of writ petitions when disputed questions of fact are not involved. It would appear, therefore, that the suspension of the enforcement of a fundamental right during Emergency should not affect the ordinary remedy of judicial review of administrative action without seeking the enforcement of a fundamental right as embodied in the Constitution and not challenging the validity of any law but restricted only to the validity of administrative action on the abovementioned grounds all of which have existed from before the Constitution.


Even after the making of the Constitution and enactment of relevant statutes, the ecology of the Constitution and the statutes, is formed by "that part of common law which has been received in India as rules of ‘justice, equity and good conscience’ as suited to the genius of this country".



Thanks for reading till the end.

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