CONSTITUTIONAL SUPREMACY OR PARLIAMENTARY SOVEREIGNTY? – A STRUGGLE FOR POWER

Written By: Naina Agarwal 

         Naina Agarwal is a 5th Year Student at the University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University

 

 

INTRODUCTION

The tussle between Constitutional Supremacy and Parliamentary Sovereignty has been going on for ages. While the major democracies in the world claim that since it is the constitution that is supreme, the true power lies with it. Needless to say, the constitution promises that no pillar of the State has the authority to override it.

Interestingly, the flip side to this coin comes in the form of Parliament which consists of the elected representatives of the people. People rule themselves through their elected representatives in a democracy. It is an inherent characteristic of a democracy. Therefore, those in favor of parliamentary sovereignty believe that the absolute power must reside with the parliament which is the representative of the sovereigns of the State, its people.

PARLIAMENTARY SOVEREIGNTY

Parliamentary sovereignty has been a host of debates since the 17th century when Sir Edward Coke in the famous Case of Proclamations ruled that the King of England had no power under the Royal Prerogative to amend the law or bring a new law in its place without the consent of the Parliament.[1] While arguments were put forward that the law-making power was delegated by the king to the parliament, that is, the monarch was the true sovereign, it was not until 1689 when through the Bill of Rights the royal power was finally done away with. [2]

 

This was followed by the Declaration of Indulgence in 1687 which imposed certain limitations on the powers of the crown and laid down the powers of Parliament. It provided for free and fair elections, freedom of speech, and regular parliaments. It stated that no law could be made or repealed without the consent of Parliament.[3]

 

The Parliamentary Supremacy is believed to owe its existence to the unwritten and flexible character of the British Constitution. Though it is uncodified, it cannot, however, be called completely unwritten. There are statutes that are followed and various other conventions that are implemented in the practice. As Earl of Shaftesbury puts it, “The Parliament of England is that supreme and absolute power, which gives life and motion to the English government”.[4]

 

A.V. Dicey has defined the principle of Parliamentary Sovereignty as ‘the right to make or unmake any law whatever: and, further, that no person or body is recognized by the law of England having a right to override or set aside the legislation of Parliament.’[5]

 

According to Dicey, it has both positive and negative aspects attached to it. The positive constitutes the power of the Parliament to create valid laws or declare a law invalid. However, along with it comes the negative aspect that is the immunity given to the Parliament. As Dicey puts it, the laws created by the Parliament cannot be changed or set aside by anyone. Therefore, the Parliament a clear immunity against everyone including the Judiciary when it comes to legislation. As per Dicey, the principle has 3 aspects, namely-

  1. Supremacy of Parliament in enacting laws on any subject matter without any limitations.
  2. Parliament may not be bound by its predecessors nor can it bind its successors.
  3. The validity of law created by Parliament cannot be questioned by any person or body.

In simpler terms, Parliament has the power to legislate in any matter of its choice as it deems fit. This makes the Parliament the supreme authority to enact, amend or repeal laws. It is not subject to the authority of its predecessors or its successors. The validity of its laws cannot be challenged by anybody.

The traditional view and especially Dicey’s definition has been heavily criticized by some scholars and judges who have argued that the Parliament can impose upon itself certain procedural restrictions for regulating the legislature.[6] The doctrine has been touted as a reason by the modern American legal historians why the “English law did not develop the due process in the American sense.”[7]

 

The power of Parliament has been diluted since its inception. In the case Madzimbamuto v Lardner-Burke[8], Lord Reid held that though parliament can legally pass any legislation as per its wishes it will be unconstitutional when people regard it as morally or politically unreasonable. Nevertheless, Parliament can go ahead and pass such a law.[9]

Various laws have been enacted to limit the application of supremacy of the parliament.  These laws were passed due to political development across the world including the United Kingdom. Some of them include the establishment of bodies like the Scottish Parliament and the Welsh Assembly, The United Kingdom Human Rights Act, 1998, the United Kingdom’s membership of the European Union in 1973, and the establishment of the United Kingdom Supreme Court in 2009.

Interestingly in theory, these changes do not undermine the doctrine of Supremacy of Parliament because these laws can be repealed at any time by the Parliament in order to bring about changes. Thus, even though the doctrine has been diluted over the time and some changes have been successful in limiting the power of the Parliament to a large extent in practice but, the Parliament still retains its supremacy to amend, make or unmake laws in the legal sense. Hence, it remains autonomous.

CONSTITUTIONAL SOVEREIGNTY

In many countries, the Constitution is the supreme authority where every other organ of the state is subordinate to it. This is known as the doctrine of Constitutional Supremacy.[10] While the law making power lies with the Parliament, it is subject to the principles of the Constitution. No law can be made in contravention of these principles. If made, the law can be struck down for being unconstitutional.

The Legislature cannot act in excess of its powers which are clearly defined under the Constitution. It has to act within the ambit prescribed by the Constitution. Moreover, the judiciary has the power to bring into question the laws made by the Parliament by virtue of Judicial Review where the court is of the opinion that the law transgresses the Constitution.[11] According to D.D. Basu, ‘judicial review, in the constitutional law of such countries, means that courts of law have the power of testing the validity of legislative as well as other governmental actions.’[12]

They are certain attributes of the doctrine of Constitutional Supremacy. The Constitution must be supreme-every other organs must owe its existence to it. The constitution must be written and rigid, meaning thereby, it cannot be amended easily. Further, there must exist a clear distinction between ordinary law and a constitutional provision. The constitution must define the powers and limitations of each organ of the state including the powers and duties of the law making authority.[13] It must specify that any law inconsistent with the provisions of the constitution will be held invalid or unconstitutional. For this purpose, it has to envisage an independent authority, that is, the judiciary which shall uphold the principles of the constitution and examine the validity of laws created by the Parliament and the actions of the executive. Perhaps that is why it is also known as “Judicial Supremacy”.[14]

INDIAN PERSPECTIVE

The Indian Parliamentary system has been derived from the British Parliamentary system. However, it is not completely sovereign unlike the British Parliamentary system. In India, the Indian Constitution retains the supreme authority where in fact, the parliament derives its

All the other organs of the state such as Judiciary, Executive and the Parliament are bound by this Constitution.[16] According to the Indian Constitution the true sovereignty lies in the people of India. It is they who are the sovereigns in every sense.[17] The Indian Parliament though enjoys innumerable set of powers but is a non-sovereign as it is quite similar to the U.S. Model in that sense.

While in the United States of America, judicial supremacy prevails over legislative supremacy. The distinctive feature of this being the judiciary’s power of judicial review. The concept of Judicial Review has also been incorporated in India subjecting the law making powers of the Parliament to judicial scrutiny. There exists a system of cthrough which all the three organs of the state, namely, the Parliament, the Judiciary and the Executive keep a check on each other. Through this a balance is created amongst all the three organs since no one is above or below another.[18]

 

In India Constitutional Supremacy trumps over parliamentary sovereignty due to the following reasons:

  1. Written Constitution: The Indian constitution is written and codified. It makes a clear distinction of jurisdiction and authority of each organ of the state and thus incorporates separation of powers among organs, all of which are subject to the Constitution.
  2. Fundamental Rights: As per Article 13[19], no law can be made in contravention of the Fundamental Rights guaranteed to each citizen of India by the Constitution. Such a law, will be struck down as void. By virtue [20], constitutional remedies can be sought by the people for breach of any of the Fundamental Rights. Also, Public Interests Litigations have been introduced to act as a safeguard of the public interests.
  3. Federal Structure: The law making power has been divided among the Central and the State Governments. As per Article 246 of the Indian Constitution, the Union and the State Government can legislate in the matters of Union List and State List respectively. Also, both can make laws in matters relating to the Concurrent List. The State Government can also ask the Parliament on its behalf to legislate in the matters relating to the State List.
  4. Amendment Procedure: Under Article 368[23], the Union Government has the sole power to amend the constitution provided that no amendment can be brought which alters the basic structure of the Constitutional framework.[24]
  5. Supremacy over the Executive: The parliament enacts laws which are administered by the executive in the day to day life of the people. The parliament is answerable as well as accountable to the people. It controls and keeps a check on the powers of the executive.
  6. Judicial Review: The judiciary acts as the guardian of the Constitution. The court can declare any law void if it finds it unconstitutional. It has the authority to examine or review the laws made by parliament along with the administrative acts to determine if they are in consonance with the principles enshrined in the Constitution or if they in any way exceed the powers granted to them by the Constitution.[25]
  7. Independent Judiciary: The Constitution of India establishes an independent judiciary in India where the Supreme Court is the apex court or the final court of appeal. This independent judiciary acts as the guardian protector of the rights of the people. In India, the judiciary also keeps a check on the other two organs of the state by discouraging any abuse of power. The judiciary does not have the authority to create laws. It can only be an upholder of the constitutionality of the law. However, the court can give directions to the Parliament to create the necessary laws.

 

COMPARITIVE ANALYSIS & CONCLUSION 

Parliamentary sovereignty signifies the supremacy of legislature. The parliament is the supreme law making authority and has freedom to make or unmake laws. It cannot bound any future parliament and no one can question the validity of these laws enacted by the parliament. In the United Kingdom, the application of the sovereignty of legislature has been limited to a certain extent but in theory, the parliament continues to be supreme Thus, the British Parliament retains its autonomous character and becomes the prime model of Parliamentary Sovereignty.

there is the model of Constitutional Supremacy. Indian parliamentary system is based on the British Parliamentary system but unlike the British Parliament, Indian Parliament is non-sovereign in nature. Indian Parliamentary system in this sense is similar to that of United States of America where judicial supremacy prevails. In India the constitution is the supreme where the organs of the state derive their powers from the constitution making India an example of constitutional supremacy.

In Parliamentary Sovereignty, the unbridled power of the legislature can lead to autocracy and tyranny where everyone is subject to the whims of the Parliament and despite objections, the word of the Parliament will prevail. Opposed to this is Constitutional Supremacy, where by way of written and rigid constitution, powers are clearly defined and separated. An independent judiciary acts as the guardian of constitution preventing oppression and absolutism. On close inspection, Constitutional Supremacy can be found to be a more effective and peaceful system in comparison to Parliamentary Sovereignty.

REFERENCES

[1] Case of Proclamations, [1610] EWHC KB J22.

[2] A. Bradley & K. Ewing, Constitutional and Administrative Law 53–54 (14th ed. Longman 2007).

[3] Oliver Wright, The Independent guide to the UK constitution: The supremacy of Parliament, Independent (May 15, 2020, 10:44 PM), https://www.independent.co.uk/news/uk/politics/the-independent-guide-to-the-uk-constitution-the-supremacy-of-parliament-10308704.html.

[4] Jeffery Jowell & Dawn Oliver, The Changing Constitution 28 (6th ed. Oxford University Press 2004).

[5] A. V. Dicey, Introduction to the Study of the Law of the Constitution 3-4 (8th ed. Macmillan 1982).

[6] W. Ivor Jennings, The Law and the Constitution (1st ed. University of London press 1933).

[7] John V. Orth, Due Process of Law: A Brief History 28-31 (University Press of Kansas 2003).

[8] [1969] 1 AC 645.

[9] [1969] 1 A.C. 645, 723 (Lord Reid).

[10] Jahaberdeen M. Yunoos, Constitutional supremacy or parliamentary supremacy?, The Star (May 15, 2020, 11:03 PM), https://www.thestar.com.my/opinion/columnists/through-many-windows/2019/08/11/constitutional-supremacy-or-parliamentary-supremacy.

[11] Edward S. Corwin, A Constitution of Powers in a Secular State 3-4 (The Michie Company, USA, 1951).

[12] D.D. Basu, Limited Government and Judicial Review 275 (1st ed. Lexis Nexis, 2015).

[13] Md. Shamsul Arefin Arif, Debate on Constitutional Supremacy and Parliamentary Supremacy, New Nation (May 15, 2020, 11:06 PM), http://m.thedailynewnation.com/news/148577/debate-on-constitutional-supremacy-and-parliamentary-supremacy.

[14] Veit Bader, Parliamentary Supremacy versus Judicial Supremacy- How can adversarial judicial, public, and political dialogue be institutionalised?, 12(1) Utrecht Law Review 160 (2016).

[15] INDIAN CONST. art 245.

[16] Minerva Mills v. Union of India, AIR 1980 SC 1789.

[17] Abhijit Bhattacharyya, Constitution is the supreme law of the land, Financial Express (May 15, 2020, 11:06 PM), https://www.financialexpress.com/opinion/constitution-is-the-supreme-law-of-the-land/154982//.

[18] Anand Nandan, Parliamentary Supermacy and Judicial Review: Indian Perspective, TIMES OF INDIA (May 15, 2020, 11:06 PM), https://timesofindia.indiatimes.com/blogs/les-avis/parliamentary-supermacy-and-judicial-review-indian-perspective/.

[19] INDIAN CONST. art 13, cl. 2.

[20] INDIAN CONST. art 32.

[21] INDIAN CONST. art 246.

[22] INDIAN CONST. art 252.

[23] INDIAN CONST. art 368 cl. 1.

[24] Keshavnanda Bharti v. State of Kerala and Ors., (1973) 4 SCC 225.

[25] Edward Conard Smith & Arnold Jhon Zurcher, Dictionary of America Politics 212 (Barnes and Noble, New York, 1959).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *