Parliamentary Sovereignty and Judicial Supremacy

The Constitution of India had been drafted after studying the constitutions of countries. Some
of the basic principles have been adapted from the constitution of the United Kingdom and
The United States of America.
India, bears the supremacy of the Constitution where the powers of the Parliament are
circumscribed within the four walls set by the Constitution and yet provides for striking a
balance between the various pillars without any encroachment on each other’s area and
providing effective governance.
Judicial review encompasses the power of judiciary to review actions of legislative and
judiciary thus enshrining the principle of Rule of Law and maintaining separation of power
principle at the grassroots level.
Parliamentary sovereignty has been very well interpreted by AV Dicey-“The Principle of
Parliamentary Sovereignty means neither more or less than this: namely that Parliament thus
defined has under the English Constitution, the right to make or unmake any law whatever
and further no person or body is recognized by the law of England having a right to override
or set aside the legislation of Parliament.”

Amalgamation of Judicial Supremacy and Parliamentary Sovereignty

 The Indian Constitution has opted for an amalgamation of Britain’s principle of
parliamentary sovereignty and the judicial supremacy of the USA.
o The Supreme Court, on one hand, can declare the parliamentary enactments as
unconstitutional using the power of judicial review.
o 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 phrase ‘Judicial Review’ is not contained in the constitution. The principle has been
established through several provisions 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 (Limitations)

Article 121 and 211 no discussion on conduct of SC and HC judges in the legislature
Article 122 and 212 courts not to enquire into proceedings of legislature.
The parliament of India has the power to amend, modify or repeal the constitution. 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 doctrine of separation of powers and supremacy of the Constitution is the basic
structure of our Constitution.
 Parliament does not have any say in matters pertaining to the elections as the powers
regarding such matters is vested with the election commission of India as per Article
324.
 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.
In India, Parliamentary Powers derive their mandate from the Constitution and parliament
has no unfettered or arbitrary jurisdiction to override the constitution The question is not
of Parliamentary Supremacy or Judicial Supremacy, rather the question is of striking the
balance between the two so as to have a democratic set up where the public interests are
not violated.
 The verdict of the Supreme Court on the 99th Constitution Amendment Act and the
National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the
Constitution is another glaring example when any parliamentary act is overturned as
unconstitutional on the principle of judicial review.
Powers of parliament in India:
1) The union parliament can legislate on all matters and subjects specified in
Union and Concurrent Lists.
2) If States authorize the parliament to legislate on certain matters,
parliament makes such legislation even if those subjects are on States
List.
3) In case of breakdown of the constitutional machinery in a state and when
a proclamation has been made to that effect, the State Legislature stands
suspended and the Union parliament legislates for that State even on
subjects that are included in the State List.
4) The parliament is competent to legislate on any matter in state List if the
Council of State passes a resolution by a two-thirds majority declaring
such a matter or matters to be of national importance and interests.
5) The union parliament is competent to legislate for the whole of India or
any part thereof on any matter in the Union, State or Concurrent List, in
order to give effect to any treaty, Agreement or Convention with any
foreign State.
6) The power to amend the constitution rests with the Union Parliament
only.
7) It has power to impeach the President and remove him from office.
8) The supreme command of the Defence Forces is vested in the President
but the exercise of this power is to be regulated by law and it is the
parliament which has the exclusive legislative power in regard to the
Defence Forces, war, and peace.
9) The ministers of union cabinet must be member of the parliament. If they
are not member at the time of their appointment they must get themselves
elected within six mounts, otherwise they cease to be ministers.
10) Parliament can by law form a new State or change after ascertaining the
view of State concerned.
11) It can create or abolish the Upper Chamber in the State on the
recommendation of the Assembly of the State concerned.

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.