07,July 2023
Introduction
“The Principle of Parliamentary Sovereignty means neither more or less than this: namely that Parliament thus defined has under the English Constitution, the right to make or unmake any law whatever and further no person or body is recognized by the law of England having a right to override or set aside the legislation of Parliament.” A.V. Dicey
The ability of any civilised society to fulfil its responsibilities is contingent upon the existence of a firm foundation and a network of coordinating institutions. A constitutional framework is required due to the significance of the laws, rules, and regulations it contains.
The legal systems of different nations are founded on varying relationship between the principles of parliamentary sovereignty and constitutional supremacy. The Indian Constitution doesn’t say much about the separation of powers between the legislature and the judiciary, but it does give the judiciary the power to interpret and nullify laws passed by the legislature, if they go against the principles and goals enshrined in of the Constitution.
This blog traces the genesis of constitutional and parliamentary sovereignty, their development, comparative analysis and ongoing conflict between aspects of India’s judicial and parliamentary sovereignty.
What is Parliamentary Sovereignty?
According to the premise of Parliamentary sovereignty, the power to enact and alter laws rests only with the legislative branch, and not with the executive or judicial branches. In the United Kingdom and other Commonwealth countries like Canada, it is considered essential to constitutional order. No other organisation or body in the United Kingdom reviews or challenges legislation passed by Parliament. A.V. Dicey, an eminent British constitutional scholar, explained the idea of designated parliamentary sovereignty as one of the defining characteristics of the British constitution. In fact, the doctrine of parliamentary sovereignty was central to the Brexit vote in 2016.
What is Judicial Supremacy?
In a constitutional supremacy framework, all laws must be in accordance with the constitution, and the document itself has the ultimate authority. The Constitution of the United States is supreme over all other government laws and regulations. If a court decides that a statute is unconstitutional, it can strike it down. In this set-up, the constitution restricts parliament’s authority through checks and balances such as judicial review, federalism, and the preservation of fundamental liberties
Judicial Supremacy v Parliamentary Supremacy: Indian Perspective
The first Prime Minister of India, Pt. Jawaharlal Nehru gave a great deal of thought to the primacy of the legislature when the Indian Constitution came to force. Since it drafted the Constitution, Nehru acknowledged Parliament’s power to influence the course of society. Since 1951, when the first constitutional amendment was enacted to safeguard the government’s reform agenda from judicial interference, there have been disputes between the administration and the court. Indira Gandhi altered the constitution and substituted a number of senior justices in an effort to assert her authority over the court during this time of turmoil.
Nevertheless, as opposed to its British counterpart, India’s parliament does not have unfettered authority. While the Indian Parliament is constrained by the Constitution, the British Parliament has a great deal of freedom to alter or even abolish it. The Supreme Court of India has said many times that the Constitution applies to the Judicial Branch just as it does to the Executive Branch and the Legislative Branch. Constitutional sovereignty in India was upheld in the Minerva Mills decision, 1980. In this case, the court ruled that Parliament’s power to amend the Constitution is limited by the Constitution itself.
Article 368 of the Indian Constitution grants the power to modify the constitution to the Indian Parliament. The President must sign a measure into law after it has been introduced in one of the two houses of Parliament and passed by a majority vote. Some policies, such as the allocation of parliamentary members, may require the approval of at least half of the states before being implemented.
In a landmark ruling, the Supreme Court of India determined that Article 368’s modification authority may be used to modify fundamental rights. However, this authority is not absolute, as the courts must ensure that any modifications they make do not undermine the Constitution’s underlying principles.
Appointment of Judges and the Collegium System in India
The collegium system, which allows already serving justices to select new judges to the constitutional courts, is a major source of tension between the judiciary and the administrative branch. The Chief Justice of India and his four most senior colleagues recommend candidates for the Supreme Court and High Court to the President of India under the Collegium system.
The logic behind the collegium system is that independence of the judiciary can be compromised when political leaders are responsible for making judicial selections. The collegium system serves to insulate the judicial branch from political meddling.
Judicial Review and Fundamental Rights in India
Judicial review is the courts’ ability to determine whether or not a law is in line with the Constitution. The idea of judicial supremacy has its origins in the United States Constitution and relies heavily on the legal process of judicial review. In accordance with India’s constitution, the country’s courts can nullify statutes that they find to be invalid. Under Articles 226 and 227 of the Indian Constitution, the High Courts have judicial review jurisdiction, while the Supreme Court has review authority under Articles 32 and 136.
Article 368 (1) of the Constitution of India, grants power to the Parliament to amend the Constitution by adding, changing, or removing any provision in accordance with the procedure laid out therein. The basic structural doctrine was widely discussed as a result of the landmark Kesavananda Bharati case, 1973. The decision concluded that even a constitutional amendment could not modify the Indian Constitution’s basic structure. The basic structure doctrine holds that the Indian Parliament lacks the authority to amend or abolish the Indian Constitution. The protection of individual rights under the law is one of the integral parts of this doctrine.
Part III of the Indian Constitution (Articles 12–35) safeguards certain liberties, and Article 13 prohibits the enactment of any new laws that could contravene these liberties. This provision grants the courts the authority to ascertain the constitutionality of laws enacted both before and after the ratification of the Constitution. To protect the fundamental rights, the Supreme Court can issue writs such Habeas Corpus, Mandamus, Certiorari, and Quo Warranto. The judiciary’s authority over the legislature and executive upholds the Constitution’s provision of a separation of powers.
Judicial review has been applied in many cases, such as the Supreme Court’s AOR Association v . Union of India, Kesvananda Bharti v. State of Bihar, Minerva Mills v. State of Bihar, etc. Controversy has surrounded the Indian Supreme Court’s authority to review legislation and interpret the constitution. Legislative sovereignty and the concept of judicial review have come into conflict as a result of the court’s use of judicial review.
Some landmark decisions in India that expanded the role of the judiciary are as follows:
- Shankari Prasad Union of India (1951): The court ruled that Parliament has the authority to amend the constitution, rejecting the argument that fundamental liberties could not be diminished.
- Sajjan Singh State of Rajasthan (1965): The court explained that challenges to amendments to Article 368 lack merit.
- The Golaknath Case (1967): The court determined that Article 368’s amendment power cannot be used to undermine or eliminate fundamental safeguards.
- Kesavananda Bharati State of Kerala (1973): As a result of this precedent-setting ruling, we now know that Parliament cannot use its amending authority to harm the Constitution’s fundamental framework.
- Minerva Mills Ltd. Union of India (1980): In this case, the court’s decision to invalidate certain amendments was a crucial step in preserving the Constitution’s fundamental structure.
The Global Picture: Comparative Analysis
A comparative analysis of these concepts, focusing on the United Kingdom, India, and the United States is provided in the table given below:
| Aspect | United Kingdom | United States of America | India |
| Written Nature of Constitution | The United Kingdom’s Constitution is undocumented. The Constitution is composed of numerous statutes, treaties, and judicial decisions. | The United States Constitution was created by a group of individuals as a single document. Since it was drafted in 1787, the United States Constitution has undergone numerous revisions. | India has one of the bulkiest written constitution in the world. Since it first came in to force in 1950, Constitution of India has been amended numerous times since then. |
| Limitations on Law-Making Power | Parliamentary sovereignty is fundamental to the British constitutional system. Parliament has the unquestioned authority to pass or repeal any law in the United Kingdom. | The Constitution of the United States provides the courts with the authority to interpret the document and invalidate laws that contravene it. | The Indian judiciary has the authority to examine the legality of laws and invalidate them if they violate the constitution. |
| Judicial Review | The United Kingdom lacks a formal system of judicial review because it lacks a constitution against which laws can be reviewed. | The Marbury v. Madison (1803) case established the concept of judicial review. | Judicial review is explicitly guaranteed by Articles 13, 32, 131–136, 143, 226, and 246 of the Indian Constitution. |
| Treatment of Fundamental Rights | In the United Kingdom, there is no comprehensive charter of rights. The Human Rights Act of 1998 guarantees certain fundamental rights and liberties to all citizens of the United Kingdom. | The Bill of Rights in the US Constitution ensures that basic liberties of all citizens be safeguarded. The American judiciary has the authority to strike down laws that violate auch fundamental rights. | Articles 12-35 of the Indian constitution define Fundamental Rights. The Supreme Court of India has ruled that Parliament cannot amend the constitution by jeopardizing its basic structure. |
Conflicts between Parliamentary and Judicial Supremacy
The increasing divide between India’s judiciary and executive has numerous underlying causes. In the event that the Supreme Court rules that a statute is unconstitutional, Parliament needs to alter the prior law. Judicial and legislative branches have been at odds over the protection of civil liberties. The Golak Nath (1967) and Kesavanda Bharti (1973) cases are examples of conflict between the judicial and parliamentary sovereignty.
One of the major bone of contention in this tussle is the collegium system. It has been argued that the collegium system lacks transparency and openness because the rationale for promotion recommendations and promotions is not made public. In this respect, the NJAC (National Judicial Appointment Commission) ruling (2015) was also a landmark moment. The Supreme Court ruled that the NJAC was unconstitutional due to concerns about political involvement and government control over judicial nominations. This verdict deepened the schism between the court and the executive branch.
Another reason for the conflict between the courts and the parliament is the concept of judicial review. The courts use judicial review to ensure that laws do not violate the precepts of the Constitution. As per this provision, the Indian Parliament is subordinate to the Constitution of India.
Strengthening Parliament and Judiciary
The efficacy of the checks and balances among the three branches of government is largely determined by the actions of the executive branch. Conflict has been exacerbated by public dissatisfaction with the government and by ineffective leadership, emphasizing the need for substantial change. To increase productivity and preserve harmony, it is essential to identify institutional challenges and develop institutional solutions. To limit the power of the Executive, Parliament and the Courts must be strengthened. Uniquely, judicial review of the conduct of other government agencies functions as a check on that authority. Both judicial review and individual liberties must be protected at all costs.
Since its foundation in 2003, Lloyd Law College has been actively advocating for changes in law and policy. The Public Interest Law Centre and the Legal Aid Centre concentrate on court proceedings, whereas the Environmental Law Centre and the Corporate Law Centre deal with administrative law. The institution recognises the importance of examining the interaction between the judicial and policymaking processes.
Conclusion
In governance and lawmaking, constitutional supremacy and parliamentary sovereignty differ. Constitutional supremacy upholds the written constitution, whereas parliamentary sovereignty confers unrestricted authority on the legislature. In India and the United States, constitutional protections and judicial scrutiny constrain legislative authority, whereas the British parliament has enormous power without a constitution. The Indian Constitution is interpreted and safeguarded by the judiciary. When there is a conflict between parliamentary and judicial supremacy, the judiciary’s review power protects the constitution. It is essential that the legislative and judicial branches work together. Finding a middle ground between parliamentary and constitutional supremacy, where both branches respect the constitution and work towards democratic principles, is essential. The dispute can be resolved through sincere reform and a commitment to justice, accountability, and openness.
References
- https://www.legalbites.in/topics/ articles/parliamentary- sovereignty-v-judicial-supremacy-world-and-india-
- https://www.civilsdaily.com/judiciary-executive-tussle/
- https://legalvidhiya.com/parliamentary-sovereignty/
- https://www.civilsdaily.com/judiciary-executive-tussle/
- https://www.linkedin.com/pulse/judicial-supremacy-v- parliamentary-fastrack-legal-solutions/
- https://www.legalserviceindia.com/legal/article-3681- collegium-system-in-india.html
- https://www.polyas.com/election-glossary/parliamentary -sovereignty