Indian Political Science Association

PARLIAMENTARY SOVEREIGNTY VS. JUDICIAL SUPREMACY IN INDIA

Author(s): D. C. Chauhan
Source: The Indian Journal of Political Science, Vol. 74, No. 1 (January - March, 2013), pp.
99-106
Published by: Indian Political Science Association
Stable URL: https://www.jstor.org/stable/24701031
Accessed: 30-08-2022 09:06 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Indian Political Science Association is collaborating with JSTOR to digitize, preserve and
extend access to The Indian Journal of Political Science

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
The Indian Journal of Political Science
Vol. LXXIV, No. 1, Jan.-March, 2013, pp. 99-106

PARLIAMENTARY SOVEREIGNTY VS.

JUDICIAL SUPREMACY IN INDIA
D. C. Chauhan

The paper discusses various phases of judicial activism in view of its increasing powers though prominent
decisions and their fall out on the parliamentary sovereignty in India.

The Constitution of India enshrined relationship between the Parliament and

the middle course between the doctrine of the Judiciary. Also, this paper suggests
reasonable relations between the Parliament
Parliamentary Sovereignty and the Judicial
and the Supreme Court for maintaining the
Supremacy. The working of the Constitution
shows that the Constitution has been Constitutional balance between the two
amended 104 times till 2011. The Supreme
organs of the government and the proper
Court has expressed positive response to the
functioning of constitutional democracy in
Constitutional Amendments enacted theby country.
the
Parliament except of some cases like Golak
The Constitution-makers of India
Nath case (1967). But. the doctrine of'basic
adopted the middle course between the
structure' of the Constitution enumerated
American system of Judicial Supremacy
by the Supreme Court in the Keshvananda
Bharati case (1973) checked on the and the British principle of Parliamentary
Parliament's sovereign power to amendSovereignty, by empowering the Judiciary
the Constitution. On the one hand, the with the power of Judicial Review and the
Parliament with'the Sovereign power of
Parliament claims that it represent the will
amending the Constitution with certain
of people so that it has the sovereign power
to amend the every part of the Constitutionrestrictions. As Basu observed, "The
in our democratic system of governance, on harmonisation which our Constitution has

the other hand, the Supreme Court claimseffected between Parliamentary Sovereignty
that it is the interpreter and guardian of and a written Constitution with a provision
for Judicial Review, is a unique achievement
the Constitution so that constitutionality of
every legislative enactment is determinedof the trainers of the Constitution."1
by its judicial review power. Moreover
the judicial activism has created the The Supreme Court of India is the
jurisdictional conflicts between the interpreter and guardian of the Constitution.
Parliament and the Judiciary. This scenario Thus, the every legislation passed by
provides the relevance of this research the Parliament must be in confirmity
with the Constitution of India and the
paper. This paper critically analyses the
doctrine of Parliamentary Sovereignty constitutionality of every legislative
and Judicial Supremacy, the response of enactment is determined under the judicial
the Supreme Court to the Constitutional review power by the Supreme Court. As
amendments enacted by the Parliament Hardgrave and Kochanek pointed out, "A
into the four phases and its impact on the remarkable feature of judicial review in

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
The Indian Journal of Political Science 100

India is the power of the Supreme laws of land reforms and nationalisation
Court
to rale a constitutional amendment invalid of private bus transportation, etc. from
if it violates the 'basic structure' of the judicial review. The Constitutionality
Constitution".2 of the First Constitutional Amendment
(1951) was challenged in the Supreme
It is noteworthy that framers of the Court in the Shankari Prasad v. Union
Indian Constitution adopted the doctrine of of India case (1951)4 and a five-judge
'procedure established by law' and avoided bench of the Supreme Court upheld the
the American Constitutional doctrine of
First Constitutional Amendment Act by
the 'due process of law'. The formulation
its 3:2 majority. The Court ruled that
'procedure establish by law' would, itArticle
was 368 of the Constitution granted the
hoped, bind the judicial fight of imagination
Parliament the power to amend every part
to a given law made by the legislature.3
of the Constitution, including Part-Ill on
Thus, the Supreme Court of India is bound
Fundamental rights and Article 368 itself.
to give judgment according to law enacted
The Court also ruled that 'law' in Article
by the Parliament. 13(2) referred to ordinary legislation
made by Parliament as a legislative body
The Constitution of India is a and it would not include an amendment
flexible Constitution. The working to the of the
Constitution which was passed by
Constitution from 1950 to 2011 shows
the Parliament in its constituent capacity.
that it has been amended 104 times. The
Obviously, the First Amendment established
first, fourth, Twenty-fourth, Twenty-fifth,
the precedent of amending the Constitution
Thirty-ninth, Fourty-second, Fourty-fourth,
to overcome judicial judgments impeding
Seventy-third, Seventy-fourth and Eighty
fulfillment of the government's perceived
sixth amendments of the Constitution have
responsibilities to the seamless web and
affected the Fundamental rights, powers of
to particular policies and programmes.5
the Supreme Court and the Parliament. Also, the Fourth and the Seventeenth
Constitutional Amendments Acts enacted
We can analyse the relationship between
by the Parliament were challenged in the
the Parliament and the Supreme Court into
Supreme Court in the Sajjan Singh v. State of
the four phases as follows.
Rajasthan case (1965).6The Court rectified
its judgement in the Shankari Prasad case
First Phase (1950-1966): In the first
by its 3:2 majority that the Parliament
phase relationship between the Parliament
was competent to amend every part of the
and the Judiciary was harmonious and
Constitution including Fundamental rights
cooperative. Two landmark judgementsand Article 368 itself.
were given by the Supreme Court in this
phase regarding Constitutionality of the Second Phase (1967-1972): The
First, Fourth and the Seventh Constitutional
second phase started with the Golak
Amendments. The Parliament had enacted
Nath case judgement (1967). The First,
the First Amendment to the Constitution
Fourth and Seventeenth Constitutional
(1951) and added the Ninth Schedule to the
Amendments, which added new laws to
Constitution to protect certain progressive
the Ninth Schedule, were challenged in the

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
Parliamentary Sovereignty Vs. Judicial Supremacy in India 101

Golak Nath case on the ground that they any part of the Constitution 'by
to amend
violate the Fundamental Rights, mainly the
way of addition, variation or repeal', and it
amended
property ownership. In the Golak Nath v. another clause in Article 368 to
State of Punjab case (1967),7 the Supreme
fulfill requirement that the President of India
Court by a majority of 6:5 reversed its 'shall'
earliergive his assent to any Constitutional
decisions and ruled that Parliament cannot
amendment bill presented to him for assent.
amend the Fundamental rights enshrined Even
in the Twenty-fifth Amendment (1973)
the Part-Ill of the Constitution. Although,
inserted the new Article 31C that any law
this judgement has prospective effect andwhich is made for implementation of the
save the First, Fourth, and Seventeenth Directive Principles in Article 39 (b) and
Amendments of the Constitution. The Court (c) cannot be challenged in the Court on the
also ruled that Article 368 of the Constitution ground that they violate the Fundamental
laid down only the procedure for amendmentrights. The Twenty-fourth, Twenty-fifth an
and did not give the Parliament substantiveTwenty-ninth Constitutional Amendments
power to amend the Constitution and thewere challenged in the Supreme Court
power to amend the Constitution is also ain the Keshvananda Bharati Case. In the
legislative power conferred by Article 245 Keshvananda Bharati v. State of Kerala
of the Constitution, so that a Constitutioncase (1973)8, a 13-Judge bench of the
Amendment Act was also a 'law' within the Supreme Court reviewed the decision of
Golak Nath case. The Court upheld by its
purview of Article 13 (2) and it is judicially
reviewable. The Court also held that if 9:4 majority the Twenty-fourth and Twenty
any Fundamental Right is to be amended, ninth Amendments, and struck down the
a new Constituent Assembly must be third clause in Article 31C of the Twenty
convened for making a new Constitution fifth's Amendment. The Court ruled that
or radically changing it. Hence, the Golak Article 368 contained both the power and
Nath's judgement established the Judicial procedure for amending the Constitution,
Supremacy on Parliament and it started the and that the word 'law' in Article 13 (2)
cold war between the Parliament and the did not include Constitutional amendments.
The Court also ruled that Article 368 did
Supreme Court regarding their jurisdictions.
not enable Parliament to alter the basic
Third Phase (1973-1979): The third structure or framework of the Constitution.
phase started with the superseding of the However, the majority of the bench did not
Golak Nath's judgement by the Twenty clear all the elements of the basic structure
fourth and Twenty-fifth Amendments of the Constitution. Thus, the majority
in the Constitution. The Twenty-fourth judgement of the Keshvananda Bharati
Constitutional Amendment (1971) excluded case "is confusing itself". Although it was
amendments of the Constitution passed in a landmark judgement for maintaining
accordance with Article 368, will not be 'law' the Constitutional balance between the
within the meaning of Article 13 (2) and the Parliament and the Judiciary. It enumerated
validity of a Constitution Amendment Act the doctrine of basic structure of the
shall not be open to question on the ground Constitution, which has been followed
that it effects a fundamental right [Article by the Court even today. As Baxi opined,
368 (3)]. It made the Parliament competent The Keshvananda Bharati judgement 'is,

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
The Indian Journal of Political Science 102

in some sense, the Indian Constitution also was held unconstitutional because it
of the future', and the truth is that all the
deprived the courts of power to question an
Fundamental Rights together with theamendment even if it destroyed the basic
structure of the Constitution. However, the
majority of the Directive Principles elucidate
the Constitutional conceptions of social judgement could not repeal Article 31C
justice for India... values which cannot as expanded by the 42nd Amendment nor
be fulfilled concurrently in an economy delete it from the Constitution. Obviously,
the judgement of the Minerva Mills case
of scarcity".9 The Supreme Court rectified
the Keshvananda Bharati judgement in thewas also landmark judgement regarding
Indira Nehru Gandhi v. Raj Narain casethe establishment of constitutional balance
(1975)'° and repeated the doctrine of thebetween the Parliament and the Judiciary.
basic structure of the Constitution. It established the Constitutional Supremacy
in the country. As Austin observed, "The
Fourth Phase (1980-2011): The fourth Minerva Mills case upholding the
phase started with the 42nd Amendment in basic structure, the Supreme Court ensured
the Constitution (1976) by the Parliament for that it would remain the foundation of the
imposing the Parliamentary Sovereignty. It country's Constitutionalism. The Court had
disturbed the balance between Parliamentary reaffirmed that the checks and balance of the
Sovereignty and Judicial Review and tilted Constitution were vital to the preservation
towards the Parliament. The Fourty-second of democracy and of the Fundamental
Amendment was challenged in the Supreme Rights"12.
Court in Minerva Mills case. In the Minerva
Mills case (1980),11 the Supreme Court by The Supreme Court rectified the Minerva
a majority of 4:1 declared unconstitutional
Mills case judgement by a majority of 4:1
the Sections 4 and 55 of the Fourty-secondin the Waman Rao case (1981 )13. The Court
Amendment. The Court ruled that Section upheld the First and Fourth Amendments
4 was beyond the amending power of the and Article 31C as it stood prior to the
Parliament 'since it damages the basicchange wrought by the 42nd Amendment.
features of the Constitution and destroys In the Ninth Schedule case (2007)14, the
its basic structure by the total exclusion
Supreme Court's nine-judges bench ruled
of challenge' to laws to implement the unanimously that laws placed in the Ninth
Schedule after Keshvananda Bharati case
Directive Principles at the expense of the
Fundamental Rights in Articles 14 and (1973) are subject to judicial scrutiny on
19. Section 55 of the Amended also was whether they violate fundamental rights
ruled as beyond the amending power offorming
the part of the basic structure of the
Parliament 'since it removes all limitations Constitution.
on the power of the Parliament to amend
the Constitution and confers powers upon it The present position regarding the
to amend the Constitution so as to damageParliament's amending power to the
or destroy its features'. This Section's Constitution and the Supreme Court's power
to review the Constitutional Amendment
other change to Article 368, which said
that no amendment made before or after Acts is as follows:

the 42nd could be questioned in court,

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
Parliamentary Sovereignty Vs. Judicial Supremacy in India 103
1. The Parliament has constituent In the Indira Nehru Gandhi case
(1975)16,
and sovereign power to amend theJustice Chandrachud found the
Constitution following the following
process of
elements of the basic structure
the Article 368. of the Constitution: (i) India as a sovereign,
democratic, republic, (ii) Equality of status
2. The Parliament can amend any part and opportunity, (iii) Secularism and
of the Constitution including the freedom of Conscience and (iv) Rule of law.
Fundamental Rights.
In the Minerva Mills case (1980)'7,
3. The Parliament cannot amend the Justice Chandrachud added the following
basic structure or framework of the elements the basic structure of the
Constitution by its amending power. Constitution: (i) Amending power of
Parliament, (ii) Judicial Review, (iii)
4. The theory of basic structure has to Balance
be between the Fundamental Rights
considered in each individual case and
by the Directive Principles of the State
the Supreme Court. Policy. In the P.V. Narasimha Rao case
(1998)18, Justice S.C. Agrawal ruled that
5. The Supreme Court has not foreclosed
'Paliamentary Democracy' is a part of the
the list of basic features and it has been
basic structure of the Constitution. In the
decided by different judges in different
Kihoto Hollohan case (1993)19, the Supreme
cases.
Court held that free and fair elections
and sovereign, democratic, republican
6. The laws placed in the Ninth Schedule
after Keshvananda Bharati case
structure were part of the basic features
of the Constitution. In the S.R. Bommai
(1973) are subject to judicial review
case (1994)20, the Supreme Court added
if they violate the fundamental.rights
the following elements the basic structure
forming part of the basic features of the
Constitution.
of the Constitution: (i) Democracy, (ii)
Federalism, (iii) Unity and integrity of the
We can find out the basic features of the nation, (iv) Secularism, (v) Judicial Review.
Obviously, the doctrine of basic structure of
Constitution through the various judgements
the Constitution has created the uncertainty
given by the Supreme Court as follows:
and confusion in the functioning of Indian
In the Keshvananda Bharti case political system. This is so because, there
has the
(1973)15, the Supreme Court disclosed been no consensus regarding the basic
structure among the Judges and no majority
following basic features of the Constitution:
(i) Supremacy of the Constitution, judgment(ii) is available which may disclose
the list of basic features of the Constitution.
Republican and democratic form of the
Consequently,
Constitution (iii) Secular character of the the Supreme Court may
gradually
Constitution (iv) Separation of powers, (v) establish the Judicial Supremacy
Federal character of the Constitution, (vi) Parliamentary Sovereignty through
over the
the doctrine of basic structure of the
Sovereignty and unity of India and (vii)
Individual freedom. Constitution. It would lead the Constitutional
imbalance between the Parliament and

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
The Indian Journal of Political Science 104

the Supreme Court. Moreover, after to

1980
reclaim the lost ground from the court at
the Supreme Court changed its direction
least in the matter of legislative proceedings
to securing the fundamental rightswhich,
and under the Constitution, are beyond
creating a human rights jurisdiction by judicial
an intervention. It is a welcome
enlarged meaning of Article 14 (the right development from the Supreme Court that
to equality)and Article 21 (the right toa life two-judge bench of Justices A.K. Mathur
and personal freedom). The Supreme Court and Markendey Katju in the Divisional
has for all practical purposes introduced Manager
the Aravali Golf Club v. Chander case
'due process provision' in the Constitution (2007)*2, has given an introspective verdict
in such matters. disapproved of overactivism by the supreme
court and high courts, saying they 'cannot
In the public interest litigations (PILs), arrogate' to the functions of the other two
the Supreme Court freely decrees rules of organs (executive and legislature) of the
conduct for government which are akin to government. The Court disapproved its
legislation. Justice (Retired) V.R. Krishna intervention in the U.P. (1998) and Jharkhand
Iyer, opined that the PIL and Judicial (2005) case concerning floor tests. Thus, the
activism is a people-oriented dimension to question which arises is - can judges ignore
protect fundamental rights and necessary to the separation of powers in the Constitution
keep the democratic process on track. He and do they have the competence to make
opined, "Judicial activism is the oxygen of policy choices? In face, the judiciary cannot
the rule and the rule of life ... to Jettison ensure Constitutionalism alone without a
judicial activism is to commit seppuku."21
balance Constitutional Government in which
In Uttar Pradesh (1998), the Supreme Court
each organ performs its functions and duties
ordered a composite floor test between BJP
within the framework of the Constitution.
leader Kalyan Singh and Congress-backed
The Parliament can be made accountable
Jagdambica Pal. In Jharkhand (2005) also,
for its legislation by the electorate if they
the Supreme Court gives directive to the
eiT and the Supreme Court do not substitute
Jharkhand Assembly to meet and elect the their social and economic beliefs for the
leader of the House. Moreover, the Supremejudgement of legislative bodies, who are
Court issued directives to the 'Presiding elected to enact laws. Hence, the Court can
Officers' of the Parliament in 2005 on being
never be a super-legislature to weigh the
approached by some expelled members wisdom of legislation. As Chief Justice of
after the sting operation by a T.V. channel
the Supreme Court, S.K. Kapadia, observed
(Tehlaka Dot Com) which caught some in
ofthe fifth M.C. Setalvad Memorial Lecture
on Judicial Ethics at New Delhi on 16lh
them accepting bribe for raising questions
in the Parliament. Consequently, the then
April, 2011, "The function of the Courts
Lok Sabha Speaker, Somnath Chatterjee, is to review the acts of the legislature and
convened a conference of the speakers not to substitute its own policies or values
of the state assemblies to debate on the on the society or the legislature. We do
encroachment of legislature's powers notbyhave the competence to make policy
courts. The conference decided that the choices and run the administration. Judicial
Supreme Court's summons would not beism which is not grounded on textual
acti\
accepted. Thus, the legislatures are seeking
commitment to the Constitution or the

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
Parliamentary Sovereignty Vs. Judicial Supremacy in India 105
statute, unlike activism in cases...raises Constitution and should not interfere with
questions of accountability of a judiciary
each other 's jurisdiction for maintaining the
whose members are not chosen byConstitutional
any balance between the three
democratic process and whose membersorgans
are of the government. It is essential
not answerable to the electorate or to the that the delicate balance between three
legislature"23. pillars of democracy should be maintained
for the proper functioning of India's vibrant
It may be concluded that India hasdemocracya and good governance.
written Constitution and the supreme law is
the law of the Constitution, and it is so even References
for the parliament, executive and judiciary
to accept that their powers are limited by 1. Basu, Durga Das (2008j, Introduction to the
Constitution of India. Twentieth edition.2010,
the written Constitution. The findings of
Nagpur: Lexis Nexis Butterworths Wudhwa,
this paper are that neither the Parliament, p. 40.
nor the Supreme Court is supreme, but the
Constitution is the supreme in India. The 2. Hardgrave Jr., Robert L. and Kochanek, Stanely
mandate in the Preamble to the Constitution, A. (2000), India: Government and Politics in

' We the people of India', empowers the a Developing Nation, Seventh edition. 2008,
Boston: Thomson Wadswonh. p. J] 7.
Parliament to enact any law and amend the
any part of the Constitution in the interest 3. Austin, Granville (1966), The Indian
of the people of India. Also, the Preamble Constitution: Cornerstone of a nation, Fifteenth
of the Constitution has declared India as a impression. 2010, New Delhi: Oxford University
Republican and Democratic State so that Press, pp. 101-U2.
the members of the Parliament, who are
4. Shankari Prasad v. Union of India. AIR 1951 SC
elected by the people, represent the will 458.
of people and they have sovereign power
to enact any law and amend the any part 5. Austin. Granville (1999). Working a Democratic
of the Constitution as per the requirement Constitution: A History of the Indian
of the socio-economic conditions of the Experiences, Seventh impression, 2010, New
Delhi: Oxford University Press, p. 97.
country according to the provisions of the
Constitution. The Supreme Court should
6. Sajjan Singh v: State of Rajas than, AIR 1965
protect the fundamental rights of the peopleSCR 933.
enshrined in the Constitution and protect the
7. Golak Nath u State of Punjab, AIR 1967 SC
Constitution by declaring unconstitutional
1643.
arbitrary constitutional amendments and
laws enacted by the Parliament. The Supreme
8. Keshvananda Bharati v. Stare of Kerala, AIR
Court should disclose the list of all elements
1973 SC 1461
of basic staicture of the Constitution by a
majority judgement for ending the confusion
9. Baxi, Upendra (1975). The Constitutional Quick
sands of Keshvananda'. in Surendra Malik (cel.).
in this regard and should not intervene in the
The Fundamental Rights case: The Critics speak.
Parliament's jurisdiction. The Parliament
Lucknow: Eastern Book Co , / 9 75. pp. 130,32.
and the Supreme Court should act within
the specific sphere determined by the

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms
 The Indian Journal of Political Science 106

10. Indira Nehru Gandhi v. Raj

pp.55, 213. Narain, AIR 1975
SC 2299.
17. Minerva Mills v. State of Kerala, op. cit., 1789.
11. Minerva Mills v. State of Kerala. AIR 1980 SC
1789. 18. P. V Narasimha Rao v. state, AIR 1998 SC 2120.

12. Austin. Granville (1999), op.cit., p 506. 19. Kihoto HoUohan v. Zachilhu, AIR 1993 SC 412.

20. S.R. Bommai v. Union of India. AIR 1994 SC

13. Waman Rao v. Union of India, AIR, 1981 (2) SCR
1. 1918, 1919,1939.

14. The Hindu. Delhi, January 13,2007. 21. Economic Times, New Delhi, December 18,
2007.

15. Keshvananda Bharati v. State of Kerala, op.cit. .

pp.302,682. 22. The Tribune, New Delhi, December 11. 2007.

16. Indira Nehru Gandhi v. Raj Narain, op. cit., 23. India Express, New Delhi, April 16.2011.

This content downloaded from 15.206.238.150 on Tue, 30 Aug 2022 09:06:23 UTC
All use subject to https://about.jstor.org/terms