Synthesis of Parliamentary Sovereignty and Judicial Supremacy – Indian Polity Notes

What is Parliamentary Sovereignty:

Parliamentary Sovereignty is a constitutional doctrine which argues that Parliament is superior than other two branches of Government and holds final authority in legislative domain.

Famous British Jurist A V Dicey explained the concept of parliamentary sovereignty as, “The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

In essence, it meant, parliament is final authority when it comes to law, it can create new, amend existing laws or abolish any law. These laws created are not subject to judicial review to check whether they satisfy constitutional norms or not. The position of Parliament is a vis-à-vis superior than Executive and Judiciary.

The doctrine of parliamentary supremacy may be summarized in three points:

• Parliament can make laws concerning anything.
• No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
• A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker

What is Judicial Supremacy:

Principle of Judicial Supremacy is observed in countries with written constitution. It owes its origin to American Constitution.

This doctrine vests the Judiciary with the power of being ultimate interpreter of the constitution. The power of judicial review flows from this doctrine. Which means the courts have authority to review acts of Parliament and Executive, if the acts found against the principles of constitution, they can be termed and unconstitutional and nullified by Judiciary.

This doctrine ensures effective implementation of separation of power and no organ of government interferes into domains of other organs. It ensures that constitution is supreme not any organs of government.

Judicial supremacy is also needed especially in Parliamentary Democracies like India wherein Executive is fused Legislature to protect rights of citizens and to ensure that government does not turn into authoritarian dictatorship. This also allows courts to widely interpret the rights available to citizens widening it’s ambit.

Synthesis of Parliamentary Sovereignty and Judicial Supremacy:

Indian Constituent Assembly in its wisdom have chosen Westminster style democracy for India and has adopted features from several then existing constitutions of the world. As a result, India has synthesis or a harmonious construction of various features.

Indian Constitution is not rigid like US and not flexible like UK(which has no written constitution). But synthesis is found wherein features of both have been incorporated.

India has adopted Judicial Supremacy from US while adopting British Parliamentary Style, both are stand opposite to each other. 

But Indian context, the judicial review powers of judicial are toned down and ‘procedure established law’ doctrine is followed above ‘due process of Law’ unlike US. 

On one hand Parliament has given powers under article 368 to amend majority provisions of constitution and on the other hand courts have powers to nullify such amendments if found unconstitutional. One more synthesis is Doctrine of Basic Structure, wherein Parliament can amend any part of constitution subject to basic structure, in such cases that amendment won’t be called unconstitutional.

Every branch has relative independence in its own domain subject to checks and balances.

Significance:

• It makes People of India real sovereign.
• It limits powers of parliament in Amendment of constitution.
• Power of judicial review ensures that one organ of government does not act in arbitrary manner.
• Constitution is supreme powers of Parliament are limited by constitution itself.

Judgements:

1. Kesavananda Bharati Case: Supreme Court propounded the doctrine of Basic Structure. Which restricted Parliaments unlimited power of amendment, to ensure despite of changes, one shall be able to understand original essence of the constitution.
2. Minerva Mills Case 1980: Supreme Court held that India Constitution is based on bedrock of balance between Fundamental Rights and Directive Principles of State Policy. State can amend Fundamental Rights to give effect to Directive Principles.
3. S R Bommai Case: Supreme Court held that Centre even by means of legislative cannot usurp powers of state, as states are not satellite organs of centre. And federalism is basic structure.
4. National Judicial Appointment Case: Supreme Court nullified the 99^th constitutional amendment act, which has proposed to given executive a say in judicial appointments when constitution itself gives primacy to views of Judiciary.

Conclusion:

It’s is due to wisdom of constituent assembly that they arrived at functional synthesis or harmony among the all organs of State, India continues as vibrant democracy.

Though parliament has been granted right to amend constitution but Judicial review works as checks and balances to protect rights of citizens. It is indicative of fundamental belief that in democracy, people are real sovereign.

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