There was no ambiguity in the statement of Bhushan Ramkrishna Gavai, the current chief justice of India. He had stated recently that the Constitution alone was supreme; clearly not Parliament, as had been claimed by the vice-president of India, Jagdeep Dhankhar. The broader context for this was the tension between the Supreme Court and the executive; this had sharpened recently when the apex court, while hearing a petition for president’s rule in West Bengal, had remarked that there were already allegations about the judiciary encroaching on the executive. Mr Gavai’s remarks seemed to envisage the Constitution as the governing framework of India’s democracy. Its three wings, Parliament, the executive and the judiciary, would have to work within the four corners of the Constitution. This implied that the Constitution was the source of rights, lawfulness, and notions of justice as well as of the structure and the system of democracy. Each wing has its allotted rights and duties; these mark the boundaries within which it works. He also said that the Supreme Court stepped in only when the executive or Parliament did not discharge its duties. In other words, the term, ‘overreach’, in the negative sense could not be applied in such cases.
There could be no competition between the judiciary and Parliament for supremacy, as Mr Dhankhar’s comments seemed to imply. All three wings are subservient to the Constitution. The powers of the Supreme Court, including that of judicial review — the new CJI had emphasised its relevance in an earlier speech — and that of passing any order or judgment to render complete justice, were derived from this foundational text. Mr Gavai’s portrayal of the stature of the Constitution made Mr Dhankhar’s claim that elected representatives were ‘ultimate masters’ of constitutional content seem irrelevant. That constitutional rights, such as the right to life, were superior to statutory provisions was established by Mr Gavai’s response to the charge that the Enforcement Directorate was misusing the law by keeping the accused in jail without trial. This understanding is of special importance in a country where bail is the exception and not the rule. The allegation of ‘overreach’ is at heart political. Mr Gavai’s clarification that the court considered only the merits of an issue and remained apolitical should be an adequate answer to the allegation.