Constitutional Supremacy vs Parliamentary Sovereignty
Polity: The State of the State
29th Sep, 2022
- A society or nation where justice prevails always requires laws, rules and regulations for the proper functioning of various aspects of the society. Laws and rules are necessary for every society to maintain peace and harmony in society and to ensure the well-being of every individual.
- To make laws, Constitution is considered as the ground norm or the supreme law of the land which provides a basic structure for the laws and rule of the land and also defines the limit of various organs of the state functioning under the constitution. The organs of the state must act within the limits defined by the constitution. If there is any contradiction between the constitution and any other law, the provisions of the constitution will always prevail, this doctrine is known as constitutional Supremacy.
- The law-making power in democratic or sovereign nations is generally assigned to the parliament and it can make new laws or amend the existing laws prevailing in the country. When this law-making power is conferred absolutely (or unlimited power) to the parliament so that it can make any law or amend any existing statute without being questioned by any authority this is known as the supremacy of parliament or parliamentary sovereignty.
- The doctrine of parliamentary sovereignty is associated with the British Parliament, whereas the principle of judicial supremacy is associated with the American Supreme Court.
Basic Features of Parliamentary Supremacy:
- Parliament can change or modify any law,
- There is no distinction between constitutional law and ordinary law, and
- There is no superior authority which can declare the law passed by the parliament illegal or unconstitutional.
- The Constitution makers of India adopted the middle course between the American system of Judicial Supremacy and the British principle of Parliamentary Sovereignty, by empowering the Judiciary with the power of Judicial Review and the Parliament with the Sovereign power of amending the Constitution with certain restrictions.
- Parliamentary sovereignty means the supremacy of the legislative bodye parliament over all other government institutions including executive and judicial bodies. The sovereign legislature may change or repeal any previous legislation and is not bound by any written law like the constitution. In India there is no parliament sovereignty rather there is constitutional sovereignty.
- Parliamentary supremacy in India is governed by the Indian Constitution, which requires judicial review. In practice, this means that although the parliament has the authority to amend the constitution, the changes must be valid within the scope of the constitution. However, in India, Parliament sovereignty is not there rather there is constitutional sovereignty.
Checks to parliamentary sovereignty by various provisions of the constitution:
- Written Constitution: In India Constitution is written which put limitations on all organs of the state. Although Parliament can amend the constitution but it cannot supersede the written document. In the UK, as there is no written constitution, the Parliament possesses legislative sovereignty. So, any law passed by it cannot be questioned before any court on such grounds.
- Independent judiciary and Judicial review: Judiciary is independent and the guardian of the Constitution. It can declare any law or ordinance passed by the legislature void if any of its provisions violate one or more of the constitutional provisions.
- Federal structure: Although the constitution says India as a union of states, India is a federal polity. Various federal provisions especially some special powers for schedule areas limit parliament powers where many parliamentary laws are applicable only on presidential and governor consent.
- Limited amendment power: Parliament can amend most of the parts of the constitution but it cannot amend the ‘basic features of the constitution. Further, some amendments need a special majority and states’ legislature resolution.
- Division of powers: Schedule 7 divides law-making power between centre and state. Parliament cannot make laws on the state list. Any law in state subject would require state’s consent through majority.
- Limit by Presidential vetoes: A bill cannot become law without presidential assent. President can practice various veto powers like pocket veto that act as a limitation on parliament sovereignty.
Basic features of Constitutional Supremacy are as follows:
- Written and rigid constitution.
- The distinction between constitutional law and ordinary law
- Parliament itself was created and functioning with regard to the constitution.
- There must be some constitutional body to look after the legality or illegality of the act of the parliament.
- There should be an express or implied provision in the constitution which supports the supremacy of the constitution.
- Limited Doctrine of ‘Separation of Powers’: In India, there is no strict application of the doctrine of separation of powers. So, if the legislature encroaches on the functions of the other organs, the judiciary can prevent it to do so.
- Bar on the discussion of the conduct of judges: Article 121 and 211 of the Indian Constitution states that no discussion shall take place in the Legislature of a state or in the Parliament with respect to the conduct of any judge of the Supreme Court or of the High court in the discharge of his duties. Thus, the legislature has no power to discuss judges' conduct.
Affirmation of Constitutional Supremacy:
- The Judiciary, Legislature and Executive are the three pillars on which the effective functioning of the Government rests.
- A balance, as opposed to conflicts, is very necessary to achieve the ultimate public welfare and smooth functioning of the constitutional machinery.
- India, on the contrary, bears the supremacy of the Constitution where the powers of the Parliament are circumscribed within the four walls set by the Constitution and yet provides for striking a balance between the various pillars without any encroachment on each other’s area and providing effective governance.
- Constitutional supremacy is a significant factor in the country's improvement. The creators of our constitution granted constitutional sovereignty to the citizens of the land, allowing them to live freely and with dignity.
- When we consider the situation in practice, the reaction is a resounding affirmation of constitutional supremacy. The Indian Constitution declares itself to be the supreme law of the land and restricts the power of parliament to pass laws in Article 49(1).
- When it comes to safeguarding people's natural rights, the constitution has always proven to be a blessing. The Indian Constitution divides the country's authority into three bodies that are both autonomous and interdependent. This division of power instils the importance of accountability and keeps each of these institutions in line.
- The legislature, executive, and judiciary are the three organs of the constitution. The parliament is the name for the legislature. These forces, on the other hand, never demonstrate that parliamentary sovereignty is any less effective. In accordance with Article 159 of the Indian Constitution, it has the power to amend the Constitution's rules. Citizens' rights can be lifted in their entirety.
- The Supreme Court of India expressly affirmed constitutional supremacy in the Minerva Mills case, holding that "government, legislature, executive, and the judiciary are all bound by the Constitution, and none is above or beyond the Constitution." Any law passed by the parliament is subject to interpretation by the Supreme Court in light of the constitution's principles and goals, and if it goes above or above those, it can be declared null and void. Although the Indian Constitution does not expressly provide for the division of judicial and parliamentary supremacy, it is not entirely clear.
- 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 the basic structure of the constitution are transgressed by such laws. Once the parliament has done its job, its Supreme Court which decides its constitutionality through judicial review. 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.
The legislature has the authority to amend the constitution and enact legislation; the judiciary has the responsibility to determine if those laws violate the constitution's basic structure. After the parliament has completed its task, the Supreme Court decides on the constitutionality of the law by judicial review.
- The constitution has indeed given superior powers of review to the judiciary to decide the constitutionality of the acts passed by the legislature. Discharge of the judicial functions should not be seen as against the will of the people for; the constitution derives its authority to give this power to Judiciary. The SC enforced the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980) and Supreme Court AOR Association Vs. Union of India (2016). Judiciary should be free from the influence of the executive so that it could promote the ends of justice.
- The most basic and important feature of Indian Sovereignty is the Supremacy of the Constitution. The Constitution of India is the supreme law of India. It frames fundamental principles, procedures, and practices and confers rights, powers, and duties to the government and other organs of the state. It imparts constitutional supremacy and not parliamentary supremacy, as it is not created by the parliament but by a constituent assembly, and adopted by its people, with a declaration in its preamble. The parliament cannot override it. Supremacy of the constitution is a well-settled principle and cannot be challenged in a court of law
- In addition to the Minerva Mills Case, the Basic Structure Doctrine, reiterated by the Supreme Court in the Kesavananda Bharti Case also strengthened constitutional Supremacy. It was held that the parliament cannot amend the constitution to destroy or change the basic structure of the constitution such as specific fundamental rights.
Provisions of Indian Constitution Supporting Supremacy of Constitution:
- Article 14 of the Indian Constitution provides for equality before the law and the equal protection of laws. The term “Equality before the Law” is adopted from English common law, which means everyone is equal in the eyes of law and no one is above the law.
- Article 124(1) of the Indian Constitution provides the establishment for the establishment of a Supreme Court of India.
Concept of Judicial Review:
- The judicial review entails the power of the judiciary to review legislative and judicial actions, thereby enshrining the principle of Rule of Law and upholding the separation of powers principle at the grassroots level and also maintaining the separation of power principle at the grassroots level.
- The Indian constitution reflects the doctrine of separation of powers by separating the powers and functions of various state organs such as the legislature, executive and judiciary. But in India, this doctrine is applied with checks and balances which acts as a safety valve against arbitrariness.
- The concept of Judicial review has been emerged over time to ensure the supremacy of the constitution, under which the Courts have the power to review any legislative, judicial or executive action and policies and if they have been found inconsistent with the constitution then courts have the power to render it unconstitutional.
- A judicial review is a powerful tool for reining in public bodies and holding them accountable when their decisions or policies exceed the powers granted by the Constitution.
- It maintains effective checks and balances by limiting arbitrary, irrational, or unjust acts taken on behalf of the Executive and the Legislature.
- In India, the Supreme Court has the authority to exercise judicial review under Article 13 (2).
- Judicial review in India consists of three aspects:
- of legislative action
- of administrative action
- of judicial decisions
- According to the Supreme Court, judicial review is a fundamental feature of the Constitution. As a result, the power of judicial review by courts is not subject to change and has effectively been removed from the realm of Parliament's power to amend or abridge. The judiciary has vowed to give the legislature a "hands-off" order. In exercising its judicial review power, the court would vigorously protect human rights, fundamental rights, and citizens' rights to life and liberty.
Evolution of Parliamentary Sovereignty and Judicial Supremacy - India's Context:
- The scope of judicial review power of the Supreme Court in India is narrower than that of the US, just as the Indian parliamentary system differs from the British system. This is because the American Constitution guarantees 'due process of law,' as opposed to the Indian Constitution's guarantee of 'procedure established by law' (Article 21).
- The Indian Constitution's framers preferred a proper synthesis of the British principle of parliamentary sovereignty and the American principle of judicial supremacy.
- As a mixed political system, India has backed a completely unique politico-constitutional arrangement known as parliamentary federalism, which has no precedent in the history of constitution development.
- The Supreme Court, on one hand, has the power of judicial review to declare parliamentary laws unconstitutional. The Parliament, on the other hand, can amend the major portion of the Constitution through its constituent power under Article 368.
- Our constitution vests legislative sovereignty in the legislature and the Supreme Court with judicial review authority. The 42nd Amendment Act of 1976 tainted this delicate balance by inserting Articles 31(D), 32(A), 131(A), 144(A), 226(A), 228(A), 323(A-B), and 329. (A).
However, the Janata government corrected this imbalance in 1977 with the 43rd and 44th amendments, which repealed all of the preceding articles except 323. (A-B).
- In the Keshavananda Bharti case in 1973, the Supreme Court gained much ground for judicial review by inventing a new doctrine known as "the basic structure."
- Under the Constitution, the legislature, executive, and judiciary are to exercise their powers with checks and balances, but not in a watertight rigid mold.
Basic Structure Doctrine and Constituent Powers of Parliament:
- In 1975, parliamentary powers were used in the most undemocratic and unconstitutional manner possible by the then Prime Minister of India Indira Gandhi. A petition was filed against Indira Gandhi for using unfair practices for winning the 1971 general elections.
- In this case, the Allahabad High Court held her guilty of misusing government machinery in the elections and declared the elections as cancelled the court also barred her from contesting another election for the next six years and ordered her to vacate the position of Prime minister.
- As she approached the apex court against this judgment and the court allowed her case to be heard, the very next day she forcefully declared an emergency. In the name of this emergency, many great leaders of the opposition were arrested and many senior journalists were jailed. Any person who opposed the emergency was taken into police custody, reportedly 11 lakh people were forced into jail without any reasonable cause. This emergency is called the darkest phase of Indian democracy.
- For the protection of the same, the constitution has given the powers to the judiciary for nullifying any action, law, or policy of the government which is violating the constitution. The constitution has provided constituent powers to the parliament for amending the document according to the dynamic nature of the country. These powers were conferred to the parliament to make the constitution a more adaptive document rather than a rigid document. Article 368 of the constitution gives an impression that parliament has absolute amending powers which covers the entire document as it says that “Nothing in article 13 shall apply to any amendment made under this article.”
- But ever since independence the Apex court has acted as a brake over the enthusiasm of parliament towards amending the constitution. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort, damage, or alter the basic features of the Constitution under the pretext of amending it.
- This misunderstanding of parliament having absolute powers of amending the entire constitution was cleared and profoundly explained by the Supreme Court in the case of IC Golakhnath vs. the State of Punjab. In this case, an eleven-judge bench was formed and the court along with overruling its previous judgment also held that article 368 does not contain the power to amend the constitution but only prescribes a procedure for it and that article 13(2) prevents the passing of any law that abridges or take away the fundamental rights from the citizens.
Attack on Constitutional Supremacy and Indian Democracy:
- After the ruling of Kesavanada Bharti vs. State of Kerala (1973) emergency was declared by the then Prime Minister Indira Gandhi in 1974 and during this 21-month-long emergency Constitutional (Forty-Second Amendment) Act, 1976 was passed. This amendment Act added the 4th and 5th clauses in article 368 stating as follows.
- (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground.
- (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
- These clauses took away the challenging and questioning powers of the citizen and also removed limitations over constituent powers of parliament to amend the constitutions resulting in the death of the democracy of India.
- Later the Supreme Court acted as a brake on such undemocratic activities. The court in the case of Minerva Mills vs. UOI struck down articles 4 and 55 of the Constitutional (Forty-Second Amendment) Act, 1976, and declared clauses 4 and 5 of article 368 as unconstitutional and invalid.
- The court said that the constitution is the donor of such amending power and the donee cannot exercise that power to convert the limited power into an unlimited one. Justice Y.V. Chandrachud said that “Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Constitutional (Forty Second Amendment) Act, 1976 has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering in an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual”.
- It not only explained the position of the constitution but also explained the need and importance of preventing the basic structure because the basic structure is something that preserves the rights, liberties, and equality of the citizens, making the constitution the supreme power of the country as preserving basic structure the constitution has pulled the country out of monarchy into democracy.
- The Constitution of India is supreme, and the powers of the Parliament are limited within the four walls established by the Constitution. Still, it provides for striking a balance between the various pillars without any encroachment on each other’s area and providing effective governance.
- The power of judicial review is a necessary corollary of fundamental rights; otherwise, enshrining individual rights as fundamental in a constitution is meaningless if they are not enforceable in courts of law against the state.
- The conflict for the thrust of supremacy between the Parliament and Supreme Court cannot be disregarded as this conflict resulted in the evolution of many prominent and prodigious doctrines such as:
- The doctrine of Basic Structure, the essence of the word ‘law’ under Article 21e., the due process of law, etc.
- Article 13 states that states must not pass laws that are inconsistent with Part III of the constitution and violate Fundamental Rights.
- Thus, the article provides a judicial review of pre-constitutional and post-constitutional laws, providing a synchronizing approach to the constitution's provisions.
- Article 368 of the Constitution provides for amendments to the Constitution, which require the introduction of such a bill in either house of Parliament by a majority of total members.
- It must then be presented to the President, who must give his approval.
- In some cases, such as Articles 54, 55, 73, 162, or 241, state representation in the Parliament requires ratification by at least half of the states.
- The supporters of complete judicial independence argue that democracy cannot succeed in the absence of an impartial, independent, and supreme judiciary.
- As per the supporters of parliamentary supremacy, the concept of judicial supremacy which is conveyed in the form of judicial review is discordant with a democratic government.
- The legislature is regularly repealing and amending previous laws, as well as enacting new ones. The judiciary is also doing its part by declaring certain laws or parts of laws unconstitutional.
There is misperception and instability all the time. A sort of enmity and competition has ongoing between the two most important organs of the government. The constitution rules supreme in India. Parliament's powers are defined and limited by the constitution.
- Because of India's federal system, there is a division of powers between the Union and the states. Parliament cannot pass legislation on subjects on the state list.
- Also, since the constitution is supreme, any law enacted by parliament is subject to being declared "Ultra vires" by the Supreme Court.
- Only laws that are consistent with the provisions of the constitution may be enacted by Parliament. As a result, the supremacy of the constitution limits the powers of parliament.
- In the verdict of the Supreme Court on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC).
- The Supreme Court declared them to be ultra vires.
- This is an example of when a parliamentary act is overturned as unconstitutional on the principle of judicial review.
- According to the Supreme Court's decision on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989:
- The Parliament enacted Section 18A in the said Act which virtually circumvents the diktat of the judgment passed by the Supreme Court. These are the challenges that ‘judicial review’ keeps on facing.
We can conclude that the position of the supremacy of the constitution is above the supremacy of parliament. In India, parliamentary sovereignty is subject to the Constitution of India, which includes Judicial review. Parliament cannot pass any law or amend any provision of the constitution which is in contradiction with the principles of the constitution. The power of examining legislative actions is conferred upon the judiciary which acts as a watchdog of the constitution and individual rights and freedom. The constitution is supreme law of the land and every organ of the state is restricted to work within the umbrella of constitutional provisions and principles.
In the case of Kesavanada Bharti vs. State of Kerala the court, while defining the basic structure of the constitution said that constitutional supremacy is the first and foremost part of the basic structure and that there can be no law superior to the constitution. There have been attempts when parliament tried to overpower the constitution but failed because the constitution is the ultimate source of authority and the legislature cannot exercise a power that is not conferred upon it by the constitution. The Constitution of India is an idea and parliamentary actions ought to be the roads to achieving that idea and should not be the source to change it.