The following article has been submitted by Aaditya Kapoor, a law student of Vivekananda Institute of Professional Studies. Through his research, Aaditya analyzed the prevalence of the construct of parliamentary sovereignty in India.
As jurists began to clutch a definition of law and ways to apply structure to its implementation within society, the concept of “Sovereignty” was fabricated and identified to be the central element of law as a governing instrument. Over decades and decades of evolution, the implementation of law itself has undergone a plethora of alterations, but a sovereign ideology has always revolved around bodies that ensue and profess what their arrangement of law entails.
What is Parliamentary Sovereignty?
The sovereignty explained in parliamentary terms is called Parliamentary Sovereignty. This dominance may be viewed in two ways –one may offer absolute hegemony, retaining the parliamentary opinion or judgment to the final say in matters of eliminating dark clouds emerging from problems in constitutional definition, and another opinion of preserving or upholding parliamentary sovereignty in one area, whereas in other areas Parliament ‘s position may be restricted or reduced.
Parliamentary sovereignty or supremacy ensures that parliament is equal to government branches of the executive and judiciary, and can thus pass or amend whatever legislation it wishes. A V Dicey, a 19th-century constitutional scholar, aptly sums up the principle of parliamentary sovereignty as a construct that entails the parliament to possess the right to make or unmake any law, as per and under the English constitution. Most of today’s existing monarchies are bound by some kind of constitution that does not place lawmaking and governing powers in the hands of kings and queens but a legislative body called a Parliament. Today, parliament is a major part of many governments around the world, and in order to prevent monarchs from ensuing political supremacy, a nation needs parliamentary sovereignty.
Origin of Parliamentary Sovereignty
The construct of Parliamentary Sovereignty first came into being in the United Kingdom. The basic principle was, that there are limitless and unregulated lawmaking rights in the UK Parliament, and the king cannot arbitrarily make rules, nor can the courts circumvent the rules. Only Parliament can make, change, and delete legislation. It is possible to define parliamentary sovereignty as implemented by the UK government by four principles:
- Parliament has absolute power to lay down laws and statutes.
- The tribunals have no power to declare any statute invalid.
- No present Parliament is bound by previous parliamentary laws or precedents.
- Parliament will never be able to pass any legislation which a future Parliament cannot undo.
However, the concept applies differently to India with a sense of restriction being placed, so as to promote the ideals of democracy wherein the citizens of a country hold the most power.
Parliamentary Sovereignty in India
India, parliamentary powers derive their mandate from the Constitution, and
parliament does not have unfettered or arbitrary jurisdiction to override the
Constitution. It is not a question of parliamentary supremacy or judicial supremacy;
rather it is a question of striking the balance between the two in order to
have a democratic establishment where public interests are not violated. Parliament’s
supremacy in India, therefore, must be assessed in relation to its relationship
to The Executive, The Judiciary and The Legislature itself. The Parliament of
India is not a sovereign legislature in the same manner as the Parliament of
Britain. It operates within the limits of a written constitution defining a
federal framework, and a Supreme Court entrusted with judicial review powers. Parliament’s
legislative competence is limited, in normal times, to the subjects listed in
the Union List and the Concurrent List in the Constitution’s Seventh Schedule.
Moreover, in Part III of the Constitution, its supremacy within its own sphere
of jurisdiction is limited by the fundamental rights guaranteed to citizens.
Article 13 Clause (2) forbids the State from creating any legislation that
would take away or abridge any of the Fundamental Rights, subject to defined
restrictions. Where the State creates a law in violation of constitutional
rights, the law shall be null and void to the point of contravention.
In Keshavananda Bharati v. the State of Kerala, the Supreme Court held that Article 368 did not allow the Parliament to alter the ‘basic structure’ or the constitutional framework. The term basic structure is a vague and general term, and a commonly agreed meaning did not come from the Judges themselves. Unless this judgment is reversed by the Court on the Union Government’s review application or a new amendment to the Constitution is enacted and the Supreme Court upholds that amendment, Parliament’s power can not extend beyond the limitations placed by the Constitution and the Supreme Court.
Despite these limitations on Parliament’s authority, it is the pivot on which the entire Government’s machinery revolves. Its regulatory competence covers a wide area and it has wide financial resources. It also requires its permission to wage war and to make peace. Parliament and the State legislatures have equal freedom to legislate on subjects in the Concurrent List, but if the law enacted by the State Assembly does not comply with the law passed by the Parliament, the law enacted by the Parliament shall prevail. Parliament can also legislate on any matter in the State List if, by a resolution, the Council of States decides that it is appropriate to do so in the national interest. All restrictions on Parliament’s legislative and financial jurisdiction disappear during an emergency. It is important to note that these immense powers conferred on Parliament are, to a large extent, the powers of the Executive. Even Britain’s implementation of Parliamentary Sovereignty was subject to certain practical and political restrictions, such as public opinion, international law, and international agreements.
However, as mentioned above, parliamentary supremacy in India is best relayed through each wing of the nation’s political configuration. Therefore, it is important to relate Judicial Review as a part of the aforementioned ambit.
India has resorted to the parliamentary form of government as opposed to the presidential form of government under which each head of government is accountable. In the initial years, under the rule of the British Government, the judiciary followed a pre-legislative stance in its various rulings, but more than 100 laws were passed by the state that the Parliament considered unconstitutional.
The Judicial Review in the Keshvananda Bharati Case was eventually considered to be the basic structure of the Indian Constitution. Similar view has been echoed in S.P. Sampath Kumar v. India. Justice PN Bhagwati, relying on Minerva Mills Ltd (1980) 3 SCC 625 claimed that Judicial Review is the fundamental framework of our Indian Constitution.
Judicial review includes the authority of the courts to review legislative and judicial decisions, thereby enshrining the rule of law principle and upholding, at grassroots level, the separation of power concept. Thus, the key structure through which the judicial limits are circumscribed is the judicial review of administrative and legislative acts and the examination of many constitutional changes in the light of constitutional requirements, thereby preserving the constitution’s sanctity and preserving the citizens’ fundamental rights. Judicial review is a powerful tool for holding public bodies under control and making them accountable if their decisions or policies go beyond the powers laid down in the Constitution. By regulating unconstitutional or unjust actions taken on behalf of the Executive and the Legislature, it ensures effective checks and balances. The Supreme Court held in L.Chandra Kumar v UOI (1997) 3 SCC 261, that the power of judicial review under Articles 32 and 226 is an integral and essential feature of the basic structure of our Constitution. Consequently, judicial review formed a specific and special tool in the hands of the judges whereby unlawful legislative and executive actions could be quashed.
Limitations of Power on The Indian Parliament
The Indian Parliament is not supreme as the British Parliament, as the Indian Parliament operates within the boundaries or peripherals that were laid down by the Constitution, and there is s strong policy of judicial review in India. In the United Kingdom, Parliament has enormous power to modify, revoke or change the Constitution, but there is a distinction in India between substantive law and constitutional law, and specific clauses are inserted into the Constitution to allow changes pursuant to Article 368. Therefore, the Indian Parliament’s power is not unfettered like the British Power, because it is circumscribed within the four constitutional walls. Article 13 states that State shall not make any law inconsistent with Part III of the Constitution which violates Fundamental Rights or which removes or abbreviates Fundamental Rights.
In Golaknath v State of Punjab (1967) 2SCR 762 it was provided that Parliament’s amending power does not include the power to amend Fundamental Rights and, as a consequence of this decision, 24th amendment was introduced that the amendment of the Constitution made pursuant to Article 368 applies to the addition of clause 4 to Article 13 which does not provide for anything in this Article. The expenses and salaries of the Comptroller and Auditor General, Judges of the Supreme Court, members of UPSC etc. are charged from India’s consolidated fund and Parliament has no power to diminish such allowances except during a financial emergency.
The Indian Parliament has no hegemony over the Indian Constitution and India strikes a balance of judicial scrutiny of the legislative acts; but the three pillars: the executive, the judiciary and the legislature will function hand in hand and not infringe the rights of another person.