Parliamentary Sovereignty and Judicial Supremacy

The Constitution of India had been drafted after studying the constitutions of 60 different countries. Some of the basic principles have been adapted from the constitution of the United Kingdom and The United States of America. The relationship between Parliament and judiciary is an important part of the Indian Polity syllabus for UPSC. This article discusses the topic with perspectives on the British and the American forms of government for Civil Services preparation.

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Amalgamation of Judicial Supremacy and Parliamentary Sovereignty

The constitution of India rests on three pillars, the executive, the judiciary and the legislature. To strike a balance between the judiciary and the legislature, the Indian constitution uses the following principles:

  • The doctrine of Parliamentary Sovereignty has been adapted from the British Constitution.
  • The doctrine of Judicial Supremacy has been adapted from the American Constitution.
  • The power of judicial review of the Supreme Court of India is narrower in scope than the Supreme Court of the USA.
  • The Constitution of India guarantees ‘established procedure by law’ in Article 21 instead of the ‘due process of law’ provided in the American Constitution.
  • The Indian Constitution has opted for an amalgamation of Britain’s principle of parliamentary sovereignty and the judicial supremacy of the USA.
    • The Supreme Court, on one hand, can declare the parliamentary enactments as unconstitutional using the power of judicial review.
    • The Parliament, on the other hand, can amend a large chunk of the Constitution using its constituent power.

Judicial Review In the Constitution

The Supreme Court of India has the power to review the constitutionality of any enactment by the legislature and executive orders of the central and state governments. This power is called the power of judicial review in India. If any of the enactments or orders are found to be in violation (ultra vires) of the constitution by the judiciary, they can be declared unconstitutional, invalid(null & void) or illegal.

The Need for Judicial Review

  • To uphold the principle of supremacy of the constitution.
  • To maintain the federal structure of the government.
  • To protect the fundamental rights of Indian citizens.

The SC has wielded the power of judicial review in many cases. Some landmark cases on judicial review in India are:

  • The Gokalnath Case: 1967
  • The Bank Nationalisation Case: 1970
  • The Privy Purses Abolition Case: 1971
  • The Keshavnanda Bharati Case: 1973
  • The Minerva Mills Case: 1980

The phrase ‘Judicial Review’ is not contained in the constitution. The principle has been established through several provisions of Articles 12 and 13 of the Constitution of India.

The constitutional validity of any law, enactment or executive order can be challenged in the SC on the following grounds:

  • The said law, enactment or order infringes or undermines Fundamental Rights
  • It is outside the competence or authority of the legislative body which has framed it.
  • It is repugnant to provisions and principles of the Indian Constitution.

Judicial review is a very strong tool to enforce accountability on public bodies whenever their actions go beyond the powers vested in them.

Parliamentary Sovereignty

The parliament of India has the power to amend, modify or repeal the constitution. This is called parliamentary sovereignty. However, the following provisions are in place to regulate the use of this power:

  • Article 13: The Government of India or State Governments may not enact any legislation inconsistent with Part III of the constitution. This article also provides the conditions for a judicial review in case of pre and post-constitutional laws to synchronise them.
  • Article 368: Constitutional amendments are to be introduced as a bill in either house of the parliament and passed by a majority of the total members of both houses. Such bills have to get the assent of the President.
  • In case the bill refers to Articles 54, 55, 73, 162 or 241, at least half of the states have to ratify the amendment.
  • The parliament does not have jurisdiction over Article 324 regarding the powers and functions of the Election Commission of India.
  • The parliament does not have the power to diminish the expenses and salary of the CAG, Supreme Court Judges and members of the UPSC except during financial emergencies. These expenses are paid out of the Consolidated Fund of India. It also has limited powers over union servants such as IAS officers and Armed Forces officers as they are selected by the authority of the Office of the President of India.
  • Articles 250, 252, 253 and 262 provide for the parliament to act during emergencies on behalf of two or more states, solve water disputes and to implement international treaties.
  • Article 370 constrains the parliamentary jurisdiction on the state of Jammu and Kashmir.

Parliamentary Sovereignty in the UK

The sovereignty of Parliament is a unique feature of the British Constitution. The British Parliament has 3 parts namely, the Monarch, the House of Lords and the House of Commons. None of the parts can enact laws on their own. Presently, the Monarch’s has a purely ceremonial function, and the powers of the House of Lords (Upper House) are limited. Therefore, the main legislative authority is with the House of Commons. There is no distinction between ordinary and constitutional law in the British system. In other words, the Parliament has limitless constituent powers. It can pass any constitutional act in the same way as an ordinary law can be passed.

Parliamentary form of Government:

Great Britain is the 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. Other salient features of the system are political homogeneity and collective responsibility. 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. The 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.

As we can see from the above, the Constitution of India has successfully amalgamated concepts of Parliamentary Sovereignty and Judicial Supremacy to deliver effective governance. IAS aspirants should keep these concepts in mind while preparing for Polity and the Constitution of India for UPSC 2019.

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