Opposing the view expressed by Vice President Jagdeep Dhankhar that the Parliament has supremacy over other organs of the State, former Supreme Court judge Justice Madan B Lokur said that it is the Constitution which is supreme.
"It is the Constitution of India that is supreme. The Judiciary is not supreme, the Executive is not Supreme, the Parliament is not Supreme. The Constitution of India is supreme", Justice Lokur said in an interview with Manu Sebastian, Managing Editor of LiveLaw.
Justice Lokur added that the role assigned to the judiciary by the Constitution is to check if the laws enacted by the legislature are contrary to the Constitution or if they violate any fundamental rights. Article 13 of the Constitution expressly state that laws which infringe fundamental rights are void, and it is the judiciary, which has to make that examination.
Vice President Dhankhar has been voicing vehement criticism against the Supreme Court judgment of 2015 which struck down the National Judicial Appointments Commission as unconstitutional. According to Dhankhar, since the 99th Constitutional Amendment, which paved the way for the NJAC, was unanimously passed by the Parliament and approved by majority of State Legislatures, the Supreme Court could not have struck down. The VP also questioned the 'basic structure doctrine' - which was invoked by the Supreme Court to strike down the NJAC.
Responding to Dhankhar's comments, Justice Lokur- who was also a part of the Constitution Bench which delivered the NJAC verdict- said :
"I don't want to speak too much about the NJAC Judgment because I was one of the authors of the judgment. In the judgment, the Supreme Court they've given reasons that the amendment to the Constitution violated the basic structure of the Constitution in the sense that the independence of the Judiciary was being taken away or was being compromised and therefore it was declared unconstitutional. Like I said, the Constitution is supreme".
While saying that one is entitled to criticise the NJAC judgment, Justice Lokur opined that to question the verdict on the ground that the law was passed unanimously by the Parliament is not a correct approach.
"Whether the legislature passed it with an overwhelming majority of unanimously or with a thin majority is irrelevant. If it is unconstitutional, it is unconstitutional. That's it. Who decides whether it is unconstitutional or not? That has to be decided by the Judiciary and the Judiciary did that. One may say that the judgment is wrong. Okay, fine you can have your own views. Some may say judgment is wrong and some may say the judgment is right. Fine that's perfectly okay. But it is the Judiciary that has to decide whether a particular law or an amendment to the Constitution is violating the basic structure".
It is also relevant to note that Chief Justice of India DY Chandrachud, at a recent public event, supported the basic structure doctrine, which was earlier questioned by the Vice President. The CJI termed basic structure doctrine as the "north star" guiding the interpretation of the Constitution.