Constitutional, Judicial and Parliamentary Supremacy in India

The first and foremost feature of Indian Sovereignty is that Constitution is the supreme law of the land; and all state organs including parliament, judiciary, states etc. are bound by it. They must act within the limits laid down by the Constitution. This is called Doctrine of Constitutional Supremacy.

There are several preconditions of doctrine of Constitutional Supremacy. Firstly, the constitution must be written and somewhat rigid. If there is no rigidity in the constitutional, the parliament would amend it easily and may dissolve its ideals. Secondly, Constitutional law must be different from the ordinary law. This implies that there can be different types of laws such as Civil Law, Penal Law, Family Law, Business Law, Contract Law, Labor Law, Administrative Law, Environmental Law etc. but the Constitutional Law serves as a “common trunk” of all these branches. Every other law, rule, order, bylaw, ordinance etc. have to be in line with the constitution. Thirdly, since the constitutional law is supreme, it cannot be challenged in a court of law. Fourthly, if there is any contradiction between the constitutional law and ordinary law; the constitutional law will prevail and get priority.

Questions for Analysis

• Is Constitutional Supremacy applicable to India? If yes, what are the principles of this doctrine?
• How Constitutional Supremacy is related to Judicial Supremacy and Parliamentary Sovereignty?
• India has often witnessed a conflict between parliamentary supremacy and judicial supremacy; and often Judiciary has won. Isn’t it tyranny of the unelected by undermining the elected?

Is Constitutional Supremacy applicable to India? If yes, what are the principles of this doctrine?

In India, the constitutional supremacy was explicitly echoed in the Minerva Mills case whereby the Supreme Court held that “government, legislature, executive and judiciary are all bound by the Constitution, and nobody is above or beyond the Constitution.” Every law made by the parliament is subject to interpretation by supreme court in the light of ideals and objectives of the constitution and if they go beyond or above that, they can be held null and void. The Constitutional Supremacy is founded on the below principles in India:

• The Constitution draws its authority from the people and has been promulgated in the name of the people. This is evident from the Preamble which states “We the people of India …. do hereby adopt, enact and give to ourselves this Constitution.” This implies that the direct authority of the people cannot be claimed or usurped by the legislature. Under the constitution, legislature is a representative body but people constitute the ultimate sovereign.
• The constitution is the source of authority of all organs of the state including legislature. This implies that they cannot exercise any power which is not conferred upon them by the Constitution.

The constitutional supremacy has further strengthened by the Basic Structure Doctrine. The constitutional has provided the weapon of judicial review to the Supreme Court to upheld Constitutional Supremacy.

How Constitutional Supremacy is related to Judicial Supremacy and Parliamentary Sovereignty?

The Constitution of India was honestly adapted through a middle path between Judicial Supremacy {of United States} and Parliamentary Supremacy {of UK}. In fact, both parliament and the judiciary should not exceed their limits as defined by the constitution of India, so that harmony can be maintained between the legislature and judiciary. At the same time, Judiciary was given the power of declaring a law unconstitutional if it is perceived to be going beyond the competence of the legislature as per distribution of powers enshrined in the constitution.

Though Indian Constitution does not have express provision of separation of judicial and parliamentary supremacy but it’s not quite unclear also. While it is the prerogative of the parliament to amend the constitution and make the laws; it is the duty of the judiciary to decide if basic ideals and structure of the constitution are transgressed by such laws. One the parliament has done its job, its Supreme Court which decides its constitutionality through judicial review.

India has often witnessed a conflict between parliamentary supremacy and judicial supremacy; and often Judiciary has won. Isn’t it tyranny of the unelected by undermining the elected?

Yes, indeed there have been conflicts between parliamentary supremacy and judicial supremacy. The best example is of National Judicial Appointment Commission when Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution. Two days after this judgement, the Finance Minister said: “Indian democracy cannot be a tyranny of the unelected and if elected are undermined, democracy itself would be in danger.”

Though it is true that constitution has given superior powers of review to judiciary {which is unelected} to decide the constitutionality of the acts passed by legislature {whose members are elected}. However, since it is the Constitutional Supremacy which matters in the end, the power to strike down any offending amendments should be in hands of judiciary, so that Indian democracy does not become tyranny of elected too! This is because discharge of the judicial functions should not be seen as against the will of the people for; constitution derives its authority to give this power to unelected from the people.