Who owns the Supermacy power in India or say Who owns India?

I know, explicitly and with certainty, that I am not a legal eagle much less a constitutional expert. Yet, as I believe this topic deserves some debate even amongst layman as a matter of being an informed citizen, I venture to put down my thoughts here with the full knowledge that I can be, indeed, highly likely to be taken apart because of what I am going to write.

The preamble to the Indian Constitution says:

We, the people of India … do hereby adopt, enact and give to ourselves this Constitution (my emphasis)

I take this to mean that the people of India have all the powers to do whatever they want with the words of the Constitution (I deliberately made distinct the “words” from the “spirit” of the Constitution, reasons to follow). It is a different matter as to who imbues it with the spirit and further who is the caretaker of the spirit of the Constitution. Could it be the Supreme Court?

For the question to be answered we do need to look at how the US jurisprudence has evolved. It is in Marbury v. Madison Chief Justice John Marshall of the US Supreme Court, at the beginning of the 19^th century, brought forth the idea of judicial review and this may be taken to be the start of defending the “spirit” of the Constitution.Marshall claimed in the judgment that the Constitution means what the Supreme Court says it does, the power of interpretation.

What connection can we make between the Indian and US jurisprudence to assert and claim that the Indian version invests that responsibility with the judiciary? Well, that is why I started with the preamble of our Constitution, to note that it is identical to how the US Constitution starts off in its preamble. It is the power of the people, delegated to its elected representatives on some issues, to the executive on others and to the judiciary on still others, which reigns supreme. On this the ideas of governance of both Indian and the US converge – govern through the provisions of the Constitution.

It is not as woolly an idea as it may appear at first look. By these very words, the Constitution asserts the superiority of the people over the organs of the state, and in a representational democracy like ours, the idea manifests itself mainly and most often through the elected body, the Parliament.

Then, the question to be asked is has the Supreme Court arrogated to itself the responsibility of interpreting the Constitution. The answer is a definite no, at least with regard to the laws passed by the Parliament. The Supreme Court interprets and checks the laws created by the Parliament against the norms set forth in the Constitution. Some one has to be the gatekeeper for the Constitution and Supreme Court is better placed to play that role than the other organs in our system.

But when it comes to amending the Constitution, the tables are turned, so to say. The Constitution is the very essence, the words and the spirit, of our existence and the people are supreme in deciding what it is. The robed nobles on the Supreme Court bench can interpret all they want but shall have no say in writing that document, even amending it. The process of placing the document in the sanctum sanctorum shall be the exclusive preserve of the people, bypassing the gatekeepers, through the mechanisms of its elected representatives. The Supreme Court should stand aside and let the people speak.

True, and I would be the first one to admit so, that the elected representatives have at times not edified themselves by their fork tongued speeches and devious and devilish deeds. But, that is a risk we have taken upon ourselves in full knowledge. The remedy lies in the election process we have given ourselves which has stood us in good stead over the past nearly six decades, notwithstanding the critics’ assertions to the contrary. This is the spirit of our Constitution. The solution lies definitely not in suborning the judiciary and creating unnecessary friction in the functioning of the various elements of governance.

Coming to the process of amending the Constitution, I would like to point out that in the US, neither the Supreme Court nor the President is evoked in the process. If the Congress and the required number of states agree as per the prescribed procedure the amendment is enshrined, no need for the President’s signature even. One cannot have a clearer exposition of the principle of people’s supremacy than this.

It is in the above context I want to write a few words about the ignored part of the recent judgment in the reservations in educational institutions case. Part of the judgment pronounces the validity of the 93^rd Amendment (insertion of Article 15(5)), justifying it in the light of the “basic structure of the Constitution” which in itself is a product of another judgment and is not found in the supreme document itself. That is, this portion of the current judgment itself is valid not less than at one remove. Hence, what is its legitimacy, what is its locus standi, one might as well ask.

In my opinion, the Supreme Court, in the first instance of expounding the “basic structure of the Constitution” and then of interpreting Constitutional Amendments in the light of that judgment is indulging in Constitution writing, a task definitely not assigned to it by the Constitution. If it were to be argued that the “basic structure” doctrine is an interpretation of the Constitution one must remember its provenance, as tortured as it was and far from clarifying.

Writing the Constitution and indeed imbuing it with the spirit, to be interpreted by the Supreme Court, is solely the prerogative of the people.

Tell me about your views?