The relationship between the Parliament and the judiciary is an important part of polity for the IAS exam. Here, we give an interesting article on the topic with a perspective on the British and the American forms of government for your civil services preparation.
- The doctrine of sovereignty of Parliament is associated with the British Parliament while the judicial supremacy principle with that of the Supreme Court of USA.
- The scope of the Indian Supreme Court’s judicial review power is narrower than that of what exists in US.
Note: This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ contained in the Indian Constitution (Article 21).
- The Constitution-makers have opted for a due amalgamation between Britain’s principle of parliamentary sovereignty and the judicial supremacy of the USA.
- The Supreme Court, on the one hand, can declare the parliamentary laws as unconstitutional through its power of judicial review.
- The Parliament, on the other hand, can amend a large chunk of the Constitution by its constituent power.
Judicial Review UPSC
Power of Judicial Review
The SC’s power to examine the constitutionality of the enactments by the Legislature and the executive orders of the governments (both Central and State) is called Judicial Review. If they are found to be in violation of the constitution (ultra-vires) on examination by the judiciary, they can be proclaimed unconstitutional, illegal and invalid (null & void) by the SC. As a result of this, the government cannot enforce such laws.
Why we need judicial review?
- To uphold the principle of the supremacy of the Constitution.
- To maintain federal equilibrium (balance between Centre and states).
- To protect the fundamental rights of the citizens.
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 so on.
Though the phrase ‘Judicial Review’ does not exist in the Constitution, the provisions of several articles 12 explicitly confer the power of judicial review on the Supreme Court.
The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court on the following three grounds:
- it infringes the Fundamental Rights (Part III)
- it is outside the competence of the authority which has framed it
- it is repugnant to the constitutional provisions.
Note: Nor do we fully follow the British Principle of parliamentary supremacy. There are many limitations on the sovereignty of Parliament in our country, like the written character of the Constitution, the federalism with division of powers, the Fundamental Rights and the judicial review. In effect, what exists in India is a synthesis of both, that is, the American principle of judicial supremacy and the British principle of parliamentary supremacy.
Universal Adult Franchise
The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every citizen above 18 years of age has a right to vote without any discrimination of caste, religion, race, literacy, sex, wealth and so on. The 61st Constitutional Amendment Act 1988 reduced the voting age from 21 to 18 years.
- Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship.
- In countries like USA, on the other hand, every US citizen is also a citizen of the state to which he or she belongs to. So, he enjoys two sets of rights – one conferred by the national government and the other conferred by the state government. He also owes his allegiance to both the nation and the state.
- But in India, all citizens enjoy the same civil and political rights irrespective of the state of their birth or domicile. There is no discrimination excepting in the case of a few select areas such as Jammu & Kashmir and a few tribal areas.
- In spite of the constitutional assurance of a single citizenship and uniform rights for every citizen, sadly, India has seen its share of communal riots, caste wars, class conflicts, ethnic and linguistic clashes. This implies that the constitution-makers’ vision of building an integrated and united India is yet to be fulfilled.
Parliamentary Sovereignty UK
Parliamentary Sovereignty: Transcendental and Absolute Authority
The sovereignty of Parliament forms a unique feature of the British Constitution. The British Parliament is comprised of 3 parts namely, the House of Commons, the House of Lords, and the Monarch. But no one part can make laws on its own. Today the Monarch’s (king or queen) function is purely ceremonial, and the powers of the House of Lords (Upper House) have been greatly diminished. Therefore, the real legislative authority is with the House of Commons. Hence, parliamentary sovereignty implies the authority of the House of Commons. There is, under their constitution, no distinction between ordinary and constitutional law. In other words, the Parliament possesses limitless constituent powers. It can pass any constitutional act in the same way as an ordinary law can be passed. Indeed, the whole structure of the constitutional fabric can be changed by a simple law that is passed by the parliament. In England, there is no concept of judicial review. The judiciary has recognized every act of the Parliament as valid law, without interfering in the supreme authority of the parliament.
Parliamentary form of Government
Great Britain is the classic home of the parliamentary form of government. The most powerful ruler in a parliamentary system of government is the Prime Minister, as the head of the Cabinet, which dominates in this system. Other essential features of this system are political homogeneity and collective responsibility. All the ministers are collectively responsible to the House of Commons. The ministers are generally from a single party or from a coalition of parties, but all with similar policies and views. Coalitions are rare in British political history. Another major feature of the parliamentary form if the strict separation of powers. Both the legislature and the executive work in tandem and there is cooperation between the two.
Note: The Cabinets in England and America play different roles. In the United States of America the role of the Cabinet is not as dominating as in England. While the American Cabinet is independent of the legislature, the British Cabinet dominates both in executive and legislative fields. Concentration of authority therefore, is a cardinal principle of the British constitutional system, leading to criticisms that there is a dictatorship of the cabinet in this system. Since the PM dominates on the “cabinet dictatorship”, it is often referred to as the Prime Ministerial form of government.