Constitutional Supremacy vs Parliamentary Sovereignty in India

Published On: 23rd January, 2024

Authored By: Mani Balaji S
Christ (Deemed to be University)

INTRODUCTION

In India, parliamentary sovereignty and constitutional supremacy are two essential concepts central to the country’s political and legal system. Parliamentary sovereignty refers to the idea that the Parliament, the legislative branch of government, has supreme authority to make laws and govern without external interference. Constitutional supremacy, on the other hand, refers to the principle that the Constitution is the supreme law of the land and that all government laws and actions must comply with the Constitution. The Indian Constitution, adopted in 1950, lays down the framework for the government’s functioning and establishes citizens’ rights and liberties. The Constitution also establishes the judiciary as the guardian of the Constitution, with the power to review and strike down laws that are deemed unconstitutional. The relationship between parliamentary sovereignty and constitutional supremacy in India is complex and constantly evolving, with ongoing debates and challenges around the appropriate balance between the two concepts. On the one hand, parliamentary sovereignty is seen as an essential component of a democratic system, providing the government with the authority to make decisions and govern effectively. On the other hand, constitutional supremacy is seen as a means of protecting the rights and freedoms of citizens, ensuring that the government operates within the bounds of the Constitution and is accountable to the people. Both are equally important, but there still needs to be clarity about which is superior.

PARLIAMENTARY SOVEREIGNTY

India adopted the term “Parliamentary Sovereignty” from the British principle of Parliamentary Sovereignty and gave Parliament the power to make changes to the Constitution with certain restrictions. If a Parliament makes a law, it must undergo judicial review to determine whether it has passed any unconstitutional law or is against the constitution of India. So, five main reasons restrict the sovereignty of the parliament. They are Written form, Judicial review, Federalism, fundamental rights, and restrictions by presidential votes.

Written constitution

The Indian constitution is the supreme law of the land and is a written constitution. It is rigid and flexible. The Indian constitution protects the natural rights of the people in the State. The Parliament must obey the rules and regulations mentioned in the Constitution. It should not make laws that are against the constitution of the state. Any law or act made by the parliament should not be unconstitutional.

Judicial Review

Judicial review means that the Supreme Court and High Court of India review the process and actions of the Executive and Legislative to check whether their actions were against the constitution or not. If the parliament makes any unconstitutional law, it will be declared void; it won’t be considered a law.

Shankari Prasad v. Union of India was a landmark case in Indian constitutional law, decided by the Supreme Court of India in 1951. The case dealt with the constitutional validity of the First Amendment to the Indian Constitution, enacted in 1951 to make specific changes to the Fundamental Rights guaranteed under the Constitution.

The petitioner, Shankari Prasad, challenged the amendment because it violated the Fundamental Right to property, which was then a fundamental right under the Constitution. The amendment had inserted Article 31A and Article 31B into the Constitution, which protected specific laws relating to land reform and acquisition of estates and gave immunity to such laws from judicial scrutiny.

The Supreme Court, in a landmark decision, upheld the validity of the First Amendment and held that the Parliament had the power to amend the Constitution under Article 368. The Court held that the Fundamental Rights, including property rights, were not absolute and could be abridged or amended by Parliament, provided it followed the procedure prescribed in Article 368.

The Court also held that the doctrine of basic structure, which later became a cornerstone of Indian constitutional law, did not apply at that time. The Court held that the Constitution did not have an implied limitation on the amending power of the Parliament and that the Parliament was free to amend any part of the Constitution, including the Fundamental Rights. This decision was widely criticized for its narrow interpretation of Fundamental Rights and failure to recognize the basic structure doctrine. However, it established the power of the Parliament to amend the Constitution and provided a framework for subsequent amendments.

Veto Power by President

When the bill is introduced in the Parliament, if both houses of the Parliament pass the bill before it becomes an act, it has to be sent to the president for their permission. The President can accept or reject the bill or return it to the parliament if it requires any changes. The President’s decision or the President’s power to choose whether to accept or reject the bill is called veto power. Article 111 of the Indian Constitution talks about the President’s Veto power.

Federal system of India

India has a federal system of government that separates the Union and the State. So Parliament, if it is supposed to make laws, gets restricted within the subjects mentioned in the Union and Concurrent lists, and it is not allowed within the State list. This makes the Parliament limit itself to laws related to the State list.

Fundamental Rights

Indian Parliament can’t make laws against the Part III of the Indian Constitution. Article 13 of the Indian Constitution prohibits the parliament from making laws that entirely or partially neglect fundamental rights. Any regulation made by the Parliament which ignores fundamental rights will be considered null and void.

Golaknath v. State of Punjab was a landmark case in Indian constitutional law, decided by the Supreme Court of India in 1967. The case dealt with the constitutional validity of certain amendments to the Constitution, specifically the 1st, 4th, and 17th Amendments, which curtailed the fundamental rights guaranteed under the Constitution.

The petitioner, Golaknath, challenged the amendments on the ground that they violated the basic structure of the Constitution and, therefore, could not be validly enacted. Golaknath argued that Fundamental Rights were an essential feature of the Constitution and formed part of its basic structure, which the Parliament could not amend.

The Supreme Court, in a landmark decision, held that the Parliament did not have the power to amend the Constitution in a manner that would take away or abridge the Fundamental Rights guaranteed under Part III of the Indian Constitution. The Court held that the Fundamental Rights formed part of the basic structure of the Constitution and, therefore, could not be amended or abridged by the Parliament.

This decision was a significant departure from the earlier decision in Shankari Prasad v. Union of India, where the Supreme Court had held that the Parliament had the power to amend any part of the Constitution, including the Fundamental Rights. The Golaknath decision established the basic structure doctrine as a fundamental principle of Indian constitutional law and limited the power of the Parliament to amend the Constitution.

However, the decision was later overruled by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala in 1973, where the Court upheld the power of the Parliament to amend the Constitution, subject to the fundamental structure doctrine. The Kesavananda Bharati decision has been widely regarded as one of the most significant and influential decisions in Indian constitutional law.

CONSTITUTIONAL SUPREMACY

Constitutional supremacy is a fundamental principle of Indian constitutional law, which means that the Constitution is the supreme law of the land, and all laws, including the government’s actions, must conform to its provisions. The Constitution of India was adopted on January 26, 1950, and since then, it has been the guiding force of the Indian polity. The Constitution of India provides for a federal system of government, with a division of powers between the central government and the state governments. The Constitution also lays down the basic structure of the government, including the principles of democracy, republicanism, secularism, and socialism.

One of the essential features of the Indian Constitution is the system of judicial review, which allows the courts to review the actions of the government and strike down laws that are found to be unconstitutional. The Constitution provides for an independent judiciary responsible for upholding the Constitution and ensuring that the principles of constitutional supremacy are upheld. The Constitution of India also guarantees a range of fundamental rights to the citizens, which include the right to equality, freedom of speech and expression, freedom of religion, and the right to life and liberty. The courts enforce these fundamental rights and can strike down any law or action that violates these rights.

In summary, the principle of constitutional supremacy in India ensures that the Constitution is the supreme law of the land, and all government laws and actions must conform to its provisions. The Constitution of India guarantees fundamental rights to the citizens and provides for an independent judiciary to uphold the Constitution and protect these rights.

Minerva Mills Ltd. and Ors. v. Union of India and Ors.  It was a landmark case in Indian constitutional law, decided by the Supreme Court of India in 1980. The case dealt with the constitutional validity of specific provisions of the 42nd Amendment to the Indian Constitution, which had made significant changes and curtailed the judiciary’s powers.

The petitioners challenged the validity of the 42nd Amendment because it violated the Constitution’s basic structure, including the principles of federalism, separation of powers, and the rule of law. The petitioners argued that the amendment sought to undermine the independence of the judiciary and the federal structure of the Indian polity. The Supreme Court held that the 42nd Amendment was unconstitutional as it violated the basic structure of the Constitution. The Court held that the Constitution could be amended, but the amending power was not unlimited and that the Parliament could not amend the basic structure of the Constitution. The Court further held that the principle of judicial review was an integral part of the basic structure of the Constitution, and the Parliament could not curtail the powers of the judiciary to review laws for their constitutional validity. The Court also held that the Constitution was based on the principles of limited government and the separation of powers, and any attempt to subvert these principles would be unconstitutional. The Court observed that the judiciary was a vital component of the separation of powers and that its independence was essential to maintain the rule of law and protect the rights of citizens.

The Minerva Mills case is significant because it reaffirmed the principle of constitutional supremacy and the basic structure doctrine as fundamental principles of Indian constitutional law. It also established the superiority of the judiciary in matters of constitutional interpretation and cemented the importance of judicial review as a check on the powers of the government.

CONSTITUTIONAL SUPREMACY V. PARLIAMENTARY SOVEREIGNTY IN INDIA

In India, the principle of constitutional supremacy is recognized as the bedrock of the constitutional system. The Constitution of India is the supreme law of the land, and all laws, including the government’s actions, must conform to its provisions. This means the courts can strike down any law or action violating the Constitution.

In contrast, the concept of parliamentary supremacy is not explicitly recognized in the Indian Constitution. Parliamentary supremacy refers to the idea that the Parliament, as the representative body of the people, has the power to make any law and that no other body, including the judiciary, can question the validity of the laws made by Parliament.

However, in India, the Parliament’s power to make laws is not absolute and is subject to the limitations imposed by the Constitution. The Constitution provides an independent judiciary with the power of judicial review, allowing it to strike down any law violating it. Thus, the principle of constitutional supremacy takes precedence over the principle of parliamentary sovereignty.

In various cases, the Supreme Court of India has upheld the principle of constitutional supremacy and the importance of judicial review as a check on the powers of the government. For instance, in the Kesavananda Bharati case, the Supreme Court held that the Constitution had a basic structure that the Parliament could not amend. Similarly, in the Minerva Mills case, the Supreme Court held that Parliament could not curtail the judiciary’s powers to review laws for their constitutional validity.

CONCLUSION

In conclusion, while the Indian Constitution does not explicitly recognize the principle of parliamentary supremacy, it acknowledges the principle of constitutional sovereignty. It provides for an independent judiciary with the power of judicial review. The Constitution takes precedence over the laws made by the Parliament, and any law that violates the Constitution can be struck down by the courts. Thus, the principle of constitutional supremacy is of paramount importance in the Indian constitutional system.

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