Addressing the 83rd All India Presiding Officers Conference in Jaipur, the Vice-President Jagdeep Dhankar has mentioned that Parliamentary sovereignty cannot be permitted to be diluted or compromised by the Executive or the Judiciary and public posturing or ‘one-upmanship’ that is being frequently witnessed in this matter is not wholesome.
About the 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 body 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.
Evolution of Parliamentary Sovereignty and Judicial Supremacy - India's Context:
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 42ndAmendment 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).
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.
The Indian Perspective:
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 SupremeCourt 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.