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Admonishments that endanger the Constitution

  • Published
    19th Jan, 2023

The recent issue emerged as the Kesavananda Bharati case was questioned in view of the parliamentary sovereignty against the Constitutional provisions, and has highlighted the concerns surrounding the basic features of the Constitution.

  • Against the Vice president’s criticism of the decision taken by the National Judicial appointments commission (NJAC), the Supreme Court has held that its judicial pronouncements lay down the law. 
  • The Supreme Court has repeatedly been trying to convey to the government and high constitutional authorities in its oral observations and orders recently regarding its authority to decide on judicial appointments and commissions related to it.
  • The Parliament is free to bring a new law on judicial appointments, possibly through a constitutional amendment, but that too would be subject to judicial review.

Constitutional Supremacy vs. Parliamentary sovereignty:

  • 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 structures of the constitution are transgressed by such laws.
  • Once the parliament has done its job, its Supreme Court decides its constitutionality through judicial review.
  • There have been conflicts between parliamentary supremacy and judicial supremacy. The best example is of the 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.

Basic structure doctrine:

  • The Kesavananda Bharati verdict made it clear that judicial review is not a means to usurp parliamentary sovereignty, but only part of a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.
  • We are unable to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal Constitution.

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 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 is a union of states, India is a federal polity. Various federal provisions especially some special powers for scheduled 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 state legislature resolution.
  • Division of powers: Schedule 7 divides law-making power between the centre and the state. Parliament cannot make laws on the state list. Any law in state subject would require the state’s consent through a 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.
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