Constitution, not Parliament, supreme in India: Gavai
A constitutional democracy is not organised around a single centre of power, former chief justice of India BR Gavai said on Saturday, while emphasising that Parliament is not supreme in the country but the Constitution is.
Speaking at the 19th Sujata Jayawardena Memorial Oration organised by the University of Colombo, Justice Gavai said clashes between Parliament and the judiciary have led to the evolution of constitutional safeguards and doctrines to manage such conflicts.
The former judge said it is not Parliament, nor the executive, nor even the judiciary that is supreme, but it is the Constitution.
All three derive their authority from it and all three are bound by it, he asserted.
“A constitutional democracy is not organised around a single centre of power. It is not a system in which one institution exercises unchecked authority. Rather, it is a carefully-calibrated arrangement in which power is distributed, structured and limited.
“In the Indian constitutional scheme, Parliament is not supreme in any absolute sense. Nor is any other organ. The only supremacy that the Constitution recognises is its own. All institutions derive their authority from it and all are bound by its limits,” Justice Gavai said.
Referring to BR Ambedkar’s speech in the constituent assembly, Gavai said each organ of the State has its domain.
Each is supreme within that domain, but only to the extent permitted by the Constitution, he pointed out.
The former CJI said the relationship between Parliament and the judiciary is not always adversarial.
“At times, it is collaborative, where judicial innovation identifies constitutional gaps and Parliament responds by institutionalising those principles within a democratic framework.
“Overall, the Indian experience shows that parliamentary authority, like the authority of any institution, is balanced by constitutional limitations and restraints. This is how a modern constitutional democracy is expected to function. Sri Lanka, too, appears to reflect a similar trajectory,” he said.
Justice Gavai said for a constitutional democracy to function well, all three organs of the State must operate within the boundaries assigned to them by the Constitution.
“At the same time, a certain degree of friction between them is inevitable. It is through this friction that constitutional meaning is tested, refined and sustained. Within this framework, the judiciary plays a crucial role as a constitutional watchdog.
“It must ensure that the exercise of power by the legislature and the executive remains within constitutional limits. At the same time, the judiciary must remain conscious of its own limits. Judicial review must not slide into judicial overreach. Activism must not become adventurism,” Justice Gavai said.
