PARLIAMENTARY SOVEREIGNTY V. CONSTITUTIONAL SUPREMACY BY - TEJAS JOSHI
PARLIAMENTARY SOVEREIGNTY V.
CONSTITUTIONAL SUPREMACY
AUTHORED BY - TEJAS JOSHI
Student
3rd Year BA.LLB.
ILS Law College, Pune
Current Scenario:
Parliamentary supremacy has never
been as prominently highlighted as it is now, thanks to the comments made by
the Hon’ble Vice President on various occasions. Here are the statements that
shed light on this matter:
A) During the 83rd All India
Presiding Officers Conference in Jaipur on January 10, 2023, the Hon’ble Vice
President stated, "In a democratic society, the supremacy of the people's
mandate should be the foundation of any basic structure. Therefore, the primacy
and sovereignty of Parliament and the legislature are inviolable."[1]
B) On February 3, 2023, the
Vice-President referred to Parliament as the "North Star" of
democracy.[2]
However, these comments and
assertions have faced criticism from several legal scholars in India. This
paper aims to explore the concept of Parliamentary Sovereignty, Constitutional
Supremacy, and their relevance in the Indian context.
Introduction to these Concepts:
I) What is Parliamentary Sovereignty?
Parliamentary Sovereignty, also known
as legislative supremacy, is a principle of constitutional law observed in some
parliamentary democracies. According to this principle, Parliament holds
supreme authority over all other branches of government, including the
executive and judiciary.[3]
The concept of Parliamentary Sovereignty was articulated by AV Dicey, who
stated that Parliament has the right to create or abolish any law and that no
other person or body has the authority to override or invalidate legislation
passed by Parliament.[4]
The key features of Parliamentary
Sovereignty can be summarized as follows:
- Parliament can modify or repeal any
law.
- There is no distinction between
constitutional law and ordinary law.
- No higher authority can deem laws
passed by Parliament illegal or unconstitutional.[5]
The concept of Parliamentary Sovereignty
has a unique historical background. It traces back to the trial, conviction,
and execution of King Charles I of England in 1649 for his alleged assault on
Parliament during the Second English Civil War[6].
England experienced a period of republican rule under Lord Protector Oliver
Cromwell, followed by the restoration of King Charles II in 1660. The Glorious
Revolution, the election of the English Convention Parliament in 1689, and the
ascension of William and Mary to the throne further solidified the supremacy of
Parliament. The Bill of Rights Act of 1689[7]
was subsequently passed, establishing parliamentary supremacy.
II) Constitutional Supremacy:
Constitutional Supremacy, also known
as Constitutional Democracy, differs from Parliamentary Sovereignty as it
places constraints on the powers of Parliament through a written constitution.[8] In
most constitutional democracies, if a citizen believes that a law violates any
provision of the constitution, they can challenge it in a court of law. The
courts have the authority of judicial review to determine the constitutionality
of legislation. If a law is found to be in violation of the Constitution, the
court can nullify it.
The basis for Constitutional
Supremacy in the United States is the Supremacy Clause, found in Article VI,
Clause 2 of the Constitution[9],
which states that the Constitution, federal laws, and treaties are the supreme
law of the land. Similarly, Canada transitioned from Parliamentary supremacy to
Constitutional supremacy[10]
with the adoption of the Canadian Charter of Rights and Freedoms in 1982.
While justifying the Supremacy Clause, Alexander Hamilton, in Federalist
Paper[11] No.
33, states that-
"A law, by the very meaning of the term, includes
supremacy. It is a rule which those to whom it is prescribed are bound to
observe. This results from every political association. If individuals enter
into a state of society, the laws of that society must be the supreme regulator
of their conduct. If a number of political societies enter into a larger political
society, the laws which the latter may enact, pursuant to the powers entrusted
to it by its constitution, must necessarily be supreme over those societies,
and the individuals of whom they are composed."
Judicial Review:
Judicial review is a process by which
the judiciary reviews and evaluates the constitutionality of, in some
countries, government actions, whereas, in some countries, the legislation.
I)
Countries with Parliamentary Sovereignty:
In countries with Parliamentary
Sovereignty like England, judicial review operates against the backdrop of
parliamentary superiority.[12]
The courts in England have gradually gained control over the interactions
between government agents and citizens. Over time, administrative powers were
delegated to local authorities, leading to the development of the ultra vires
doctrine and principles of natural justice.
In countries with Parliamentary
Sovereignty, such as England and jurisdictions following the Westminster model,
the concept of judicial review emerged against the backdrop of the supremacy of
Parliament.
After the transition from monarchy to
parliamentary supremacy[13],
the courts, particularly the King's Bench, gained more control over the
interaction between government agents and citizens in England. Throughout the
19th century, as administrative powers shifted to elected local authorities,
the courts developed doctrines like ultra vires and principles of natural
justice[14].
These principles were later extended to the central government as it grew in
the latter half of the century.
While Parliamentary Sovereignty has
been a fundamental principle in England, there have been cases challenging its
absolute authority. One notable case is the Bonham case, where the court found
in favor of Dr. Bonham[15]
against the Royal College of Physicians. Chief Justice Coke reasoned that when
an Act of Parliament contradicts common law or common right, the common law can
render it void.
Dr. Bonham’s Case: A changemaker
Even though the principle of Parliamentary Sovereignty originated in
England, there have been cases holding otherwise. One such case is the famous
Bonham case.
Dr Bonham had obtained a doctorate in
medicine from the University of Cambridge and set about practicing his
profession in the city of London. This provoked the ire of the Royal College of
Physicians, which had been granted by letters patent issued by King Henry VIII
the power to fine any person who practiced as a physician in London and
surrounding areas who had not been admitted into the College. The terms of the
patent were confirmed by two statutes.2 Half of the fine was payable to
the College and half to the Sovereign. Those who defaulted in paying the fine
could be imprisoned. This was the fate that befell Dr. Bonham, who appeared
before the College for examination in 1606 and was found to be deficient in
medical knowledge. Nevertheless, he continued to practice. The College fined
him and then, when he refused to pay the fine, imprisoned him.
The Court found, 3–2, for Dr. Bonham.
In his judgment, Chief Justice Coke reasoned that by benefitting from any fines
it imposed, the College was acting not only as a judge, but also as a party in
its own cause — contrary to an established maxim of common law. He wrote:
“…..And it appears in our books, that
in many cases, the common law will control Acts of Parliament, and sometimes
adjudge them to be utterly void: for when an Act of Parliament is against
common right or reason, or repugnant, or impossible to be performed, the common
law will control it and adjudge such Act to be void.”[16]
In the 20th century, the central
government in England consolidated political and administrative power. During
the Second World War, there was a concentration of power in the executive
branch[17],
which persisted for some time. However, the case of Ridge v. Baldwin[18]
in 1963 revived the principles of natural justice and contributed to the
development of administrative law based on the ultra vires doctrine.
In countries like England and other
common law jurisdictions following the Westminster system, "judicial
review" refers to the higher courts' authority to review the lawfulness of
administrative decisions, actions, or omissions related to public functions.[19]
In some jurisdictions, courts also
have the statutory power to issue declarations of incompatibility or
inconsistency, as seen in the Human Rights Act[20].
In Canada, prior to 1982, Parliamentary supremacy prevailed until the adoption
of the Canadian Charter of Rights and Freedoms. This constitutional supremacy
granted courts the power to strike down laws that violated the charter.[21]
II)
Countries with Constitutional Supremacy:
However, in the United States,
judicial review in these countries can be used to challenge the
constitutionality of legislation passed by Parliament. The court's role in
judicial review is supervisory[22],
focusing on determining the lawfulness of decisions or actions or legislation
rather than replacing them with its own.
The American version of judicial
review, as established in Marbury v. Madison[23],
survived due to various factors. Chief Justice Marshall's involvement in the
case created a conflict of interest[24],
but the doctrine was not invalidated. Jefferson and his administration saw
advantages in allowing the doctrine to stand, as long as they could control the
appointment of jurists exercising judicial review[25].
The federal government also found judicial review appealing as it asserted
federal authority over the states.
Judicial review in the United States
has been used sparingly, with judges exercising caution in striking down
congressional statutes that violate the Constitution[26].
This approach has helped maintain public confidence in the federal judiciary
and the legitimacy of judicial review. Landmark cases like Brown v. Board of
Education[27] and
Obergefell v. Hodges[28]
have further reinforced the value of judicial review in protecting
constitutional rights.
III)
Judicial review in India
The judiciary acts as a custodian,
ensuring the government's actions are in accordance with the Constitution and
protecting the fundamental rights of citizens[29].
The concept of parliamentary supremacy and constitutional supremacy coexist in
the Indian context, shaping the relationship between the legislature and the
judiciary[30].
During the initial years[31]
after India's independence, the relationship between Parliament and the
judiciary was harmonious and cordial. However, the turning point came in the
second phase (1967-1972)[32]
with the Golak Nath judgment. The judgment stated that Parliament cannot amend
Part III of the Constitution and emphasized that an amendment is a
"law" within the meaning of Article 13(2). This led to a clash
between the judiciary and Parliament, as it restricted the power of the
legislature to amend the Constitution.
The third phase (1973-1979)[33]
marked a significant milestone in defining the balance of power between
Parliament and the judiciary. The case of Keshavananda Bharati v. State of
Kerala, decided by a 13-judge bench, established the basic structure doctrine.
This doctrine enables the judiciary to review constitutional amendments that
abridge the basic structure of the Constitution. It was a landmark judgment
that affirmed the judiciary's role as the protector and interpreter of the
Constitution.
The fourth phase[34]
(1980-present) witnessed further developments in the relationship between
Parliament and the judiciary. In the Minerva Mills case[35],
the court struck down certain provisions of the 42nd Amendment to the
Constitution, restoring the balance of power between the executive and the
judiciary. The court emphasized the importance of preserving the basic
structure of the Constitution and preventing any arbitrary exercise of power.
Therefore, in the Indian system,
parliamentary sovereignty is not absolute[36].
While Parliament holds significant legislative power, it operates within the
boundaries set by the Constitution. The concept of constitutional supremacy
ensures that the government's actions are subject to judicial review and
scrutiny. The judiciary plays a crucial role in upholding the Constitution and
safeguarding the rights and liberties of individuals.
Other controversial moments in the
Post 1980 era:
1) 44th Amendment Act: In the post-1980 era, several
important cases and events have shaped the interaction between Parliament and
the judiciary. One such significant event was the adoption of the 44th
Amendment Act in 1978, which restored the primacy of fundamental rights over
parliamentary sovereignty. This amendment rectified some of the issues raised
by the Golak Nath judgment[37]
and reaffirmed the judiciary's authority to review constitutional amendments.
2) Striking down important legislations: In subsequent years, there have
been instances where Parliament and the judiciary have disagreed on various
matters. These disagreements often arise when the judiciary strikes down laws
or executive actions deemed unconstitutional or in violation of fundamental
rights.
3) The Supreme Court's intervention in
matters of corruption and governance[38]: Over the years, the judiciary has
played an active role in combating corruption and promoting good governance.
The court has intervened in cases related to electoral reforms, the appointment
of public officials, and the implementation of anti-corruption measures. These
interventions have sometimes been perceived as encroaching upon the domain of
Parliament and the executive, leading to debates on the separation of powers.
4) NJAC issue; The National Judicial
Appointments Commission (NJAC) case: In 2015, the Supreme Court struck down the constitutional
amendment[39]
establishing the NJAC, a body intended to play a significant role in the
appointment of judges. The court held that the NJAC would compromise judicial
independence and the principle of checks and balances. This decision sparked a
debate on the separation of powers and the role of Parliament in judicial
appointments.
5) The Aadhaar case[40]: In 2017, the Supreme Court delivered
a landmark judgment on the Aadhaar program, a unique identification system in
India. The court upheld the constitutional validity of Aadhaar but imposed
certain limitations and safeguards to protect citizens' privacy rights. This
case highlighted the judiciary's role in balancing individual rights with the
government's objectives and raised questions about the scope of Parliament's
power in enacting legislation that affects fundamental rights.
It is worth noting that while
conflicts between Parliament and the judiciary arise from time to time, the
relationship between the two institutions is not characterized solely by
confrontation. There are instances of collaboration and synergy as well.
Parliament has the authority to amend laws and enact new legislation, and the
judiciary often interprets these laws and provides clarity on their constitutionality.
This interplay helps refine the legal framework and ensures the effective
functioning of the democratic system.
In summary, the relationship between
Parliament and the judiciary in India is dynamic and complex. While there have
been instances of disagreement and conflict, both institutions play crucial
roles in upholding the constitutional values and safeguarding the rights of
citizens. Their interaction helps maintain a system of checks and balances,
ensuring that the principles of democracy, rule of law, and protection of
fundamental rights are upheld.
Suggestions over the Recent tussle between the Executives
and the Judiciary
The tussle between the Parliament and
the judiciary in India has been the subject of debate and discussion. While
both institutions are essential pillars of democracy, clashes between them can
arise due to differences in interpretation, jurisdictional boundaries, and the
exercise of power. Here are some key suggestions to address and manage such
tussles:
1. Clear Jurisdictional Boundaries: Clearly defining the jurisdiction
and powers of both the Parliament and the judiciary is crucial to avoid
conflicts. Establishing well-defined boundaries will help prevent encroachment
and ensure a smooth functioning of both institutions.
2. Effective Communication and
Collaboration:
Encouraging regular communication and collaboration between Parliament and the
judiciary is vital. This can be achieved through structured dialogues, joint
committees, and consultations on issues where both institutions have a stake.
Constructive engagement can foster understanding and reduce the potential for
conflict.
3. Strengthening Judicial Independence: Upholding the principle of judicial
independence is essential to maintain a healthy balance between the Parliament
and the judiciary. Safeguards such as appointment processes, security of
tenure, and adequate financial resources for the judiciary are crucial to
protect it from undue influence.
4. Enhancing Legislative Scrutiny: The Parliament can play a more
active role in scrutinizing proposed legislations for constitutional validity
and potential conflicts with judicial pronouncements. Conducting thorough
reviews and seeking expert legal opinions can help avoid situations where laws
are struck down by the judiciary.
5. Promoting Alternative Dispute
Resolution:
Encouraging the use of alternative dispute resolution mechanisms, such as
mediation and arbitration, can reduce the burden on the judiciary and provide
timely resolution to conflicts. This can help alleviate some of the pressure on
the courts and foster a more cooperative environment.
6. Promoting Judicial Restraint: The judiciary can exercise
self-restraint while dealing with matters that fall within the domain of the
Parliament. It is important for the judiciary to respect the principle of
separation of powers and intervene only when there are clear violations of
constitutional provisions.
7. Continuing Judicial Education: Regular training and education
programs for judges and parliamentarians on constitutional principles,
legislative processes, and the role of each institution can foster a better
understanding and appreciation of each other's functions. This can contribute
to a more harmonious relationship between the Parliament and the judiciary.
8. Public Awareness and Engagement: Encouraging public awareness about
the roles, powers, and importance of both the Parliament and the judiciary can
generate public support for their respective functions. Engaging citizens
through public debates and discussions can help build consensus and
understanding of the complexities involved.
It is important to note
that tussles between the Parliament and the judiciary are inherent to the
democratic process, and a certain level of tension is healthy. However,
adopting these suggestions can help manage conflicts and ensure that both
institutions work in tandem to uphold the rule of law and protect the rights
and interests of the citizens.
[1]
Vice President Secretariat Press Release, Link- https://pib.gov.in/PressReleasePage.aspx?PRID=1890297
[2]
The Hindu Daily, Feb. 3,2023, Link- https://www.thehindu.com/news/national/parliament-is-the-north-star-of-democracy-vice-president/article66467335.ece
[3]
United Kingdom Parliament, Official website.
[4] A V Dicey, An Introduction to the
Study of the Law of the Constitution (first published 1885),
10th ed., 1959, London: Macmillan, pp 39–40
[5] ibid.
4
[9]
United States Constitution, created Sept. 17, 1787
[12]
The Rule of Law and Parliamentary Sovereignty by T.R.S. Allen, Oxford University
Press.
[14]
Origins in various Indian, Greek, and Roman documents. Also propounded in Magna
Carta
[16]
Pollard, David (2007) ISBN:978-0-19-928637-9.
[17] California Law Review, Courts and the Executive in Wartime:
A Comparative Study of the American and British Approaches to the Internment of
Citizens during World War II and Their Lessons for Today, Amanda L. Tyler,
dated June 2019
[20] 1998 c. 42, Passed as envisaged by EU Convention on Human
Rights.
[21]
Section 4 and 10 of Human Rights Act, 1998
[22]
The Super The Supervisory Power of the Supreme Court of the Supreme Court by
Amy Coney Barrett, Notre Dame Law School.
[23] 5
U.S. 137, United States Supreme Court
[24]
As incoming President Jefferson was his political rival.
[25] A
practice that is used even today.
[26] A
Preference for Deference? The Supreme Court and Judicial Review by Robert M.
Howard and Jeffrey A. Segal, Political Research Quarterly Vol. 57
[27]
347 U.S. 483, United States Supreme Court.
[28]
576 U.S. 644, United States Supreme Court.
[29]
Report, Department of Legal Affairs Of India, Link- https://legalaffairs.gov.in/sites/default/files/chapter%207.pdf
[30] PARLIAMENTARY SOVEREIGNTY VS. JUDICIAL SUPREMACY IN
INDIA by D. C. Chauhan, The Indian
Journal of Political Science, Vol.74
[31]
First Phase from 1947 to 1967
[32] Ibid.,30
[33] Ibid.,30
[34] Ibid.,30
[35]
Minerva Mills v UOI, AIR 1980 SC 1789, Supreme Court of India.
[36] Ibid.,30
[37]
Golak Nath v. State of Punjab, 1967 AIR 1643, Supreme Court of India.
[38]
Anti- Corruption Litigation In Supreme Court of India by Arghya Sengupta,2006
[39]
99th Constitutional Amendment Act,2014