Introduction

The constitution consists of the basic fundamental principles according to which a country is to be governed and constituted. It provides a basic framework and structure for the government policies that are to be implemented in a state. It provides the citizens with the knowledge of their rights and duties, thereby providing them with a lens through which they have to evaluate the government functioning. The parliament gets its authority from the constitution, the constitution sets limits on the government’s powers, but to what extent can the parliament amend its own source of formation and trespass the limits set by the constitution determines the difference between constitutional supremacy and parliamentary sovereignty.

In India, the source of all the legitimate power exercised by the government is the constitution. The parliament is organized according to the constitution and it decides the policies within the scope provided by the constitution. It lays down that there shall be three different organs of the government, namely the legislature, the executive and the judiciary, as propounded by Baron de Montesquieu in order to maintain a check and balance on each other. So, the pertinent question is whether India should switch from constitutional supremacy to parliamentary sovereignty or not? This article incorporates the advantages of parliamentary sovereignty comparing the same with the constitutional supremacy and deciding which one is to be placed above and why?

In India, the system of constitutional supremacy is followed with the judiciary being its protector. It has been 70 years since the Indian constitution was framed, and since then, there has been a significant development in the mindset, rationality, or the inclusive development of the whole society. There has been a significant evolution particularly in the field of law. But, a question that has remained the same throughout is the inefficient nature of Indian Justice System as compared to other common law countries such as U.K, Australia, Malaysia etc. The difference, among others, is that these nations have the concept of parliamentary sovereignty which facilitates them to have an effective as well as efficient Justice system with quick remedial actions.

The doctrine of Constitutional Supremacy

The supremacy of the constitution means whatever is described in the constitution is supreme and no question shall arise against it whatsoever. Article 50 states that there shall be a separate executive from judiciary.[1] Article 122 and 212 restricts the right of the court to inquire about the validity of the legislature[2]. It means there are three different organs in which the power has been equally divided in India, which facilitates the system of checks and balances.

Judiciary has the vested power of judicial review, which empowers it to check the validity of any law that is passed by the legislature and to review the functioning of the executive. The executive appoints the judges. There are various judicial pronouncements in which this system of division of power has been strengthened like Kesavananda Bharati v. State of Kerala[3] in which the Supreme Court of India laid down the theory of the Basic Structure of the Indian Constitution and said that this structure cannot be amended in any case by the parliament; Ram Jawaya v. Punjab (1955[4]), in which the Supreme Court observed that “the executive organ is derived from the legislative body and thus it must be dependent upon the latter for its legitimacy.”[5].

Over the years, these cases have set an exemplary landmark in constitutional matters. Although it helps in the protection of liberty and rights, prevents abuse of power, and maintains order in the democratically established government but it is requisite to note the other side of the coin. This theory is not fully attainable as the president is part of both the legislature and the executive and also some of the judicial functions are performed by the legislature like the impeachment.

Separation of power also leads to friction, conflict or deadlock between the organs of the government. In recent years, there have been various instances of judicial activism, meaning that judiciary is not limited to adjudication but it has also issued laws and policy related orders. In Vishaka v. State of Rajasthan[6], guidelines related to sexual harassment were issued by the apex court. In 2010. A Bench of Justices Dalveer Bhandari and Deepak Verma passed an order that instructs the centre to distribute the food grains to poor at very low or no cost.[7]

Another instance was the appointment of the Special Investigation Team to replace the High-Level Committee that was established by the centre for the investigation of the black money deposits in the Swiss Banks.[8] In 2016, the Supreme Court also made various attempts for the reformation in BCCI, the issue that remained unanswered was the fact that BCCI is a private body.

Thus, one thing that needs to be noted by the Judiciary is that it is the evaluator of the law and not the creator of law. In addition to this, this theory is based upon equality of powers but, this principle is only for the namesake. Legislature represents the will of the people hence it is the most powerful in the parliamentary form of the government. So, all the demerits when are looked upon closely, they lead to the disturbance in the balance of power and also disturbs the smooth flow of democratically elected government.

The doctrine of Parliamentary Sovereignty

All these limitations have one common solution, i.e. Parliamentary Sovereignty. As proposed by AV Dicey this doctrine is defined as – “The Principle of Parliamentary Sovereignty seeks to achieve neither less nor more than this means the Parliament that is defined under the English Constitution, has the right to make or unmake any law whatever the case may be and no further person or body has the right to override it.”[9]

The parliament is constituted according to the will of the people through their representatives, and these representatives make policymaking decisions. Parliamentary supremacy implies that there is no law that the parliament cannot implement or modify, and no other institution holds the authority to question the parliament.

The system of parliamentary sovereignty can be considered more democratic than that of separation of powers because the parliament is elected by the people, it represents the will of the people. Whereas understanding the constitution is complex because requires a considerable period of time and resources, presently in India, many of the citizens are not fully aware of their right, duties and other constitutional provisions.

The system of separation of powers gives the judiciary the authority to intervene in the legislations passed by the legislature even though it is not elected by the people, whereas the parliament is. The judiciary in recent times has itself been interfering with the doctrine of separation of power, it has been issuing guidelines for the states to follow. Recently the Supreme Court issued such guidelines to reduce air pollution[10], but this is clearly the task for the executive and the legislature.

One major reason why parliament cannot call itself a sovereign body is because the constitution of the country provides for a federal structure which means the powers are distributed between the union and the state government and also doctrine of Judicial Review restricts the complete sovereignty of the parliament. There are various authors who supported the concept of parliamentary sovereignty in their books. Dr S.P. Sathe in his book ‘Fifty Years of Indian Constitution’ (2002) said that true power must be in the hands of the representatives that are elected directly by the people, then only people of India are considered to be as sovereign. This doctrine of parliamentary sovereignty gained popularity after the Golak Nath Case Judgement in 1967 and the electoral victory of Mrs Indira Gandhi.

In the UK, the parliament has the supreme authority over the laws that are implemented in the nation. It has complete sovereignty which allows for quick decision making with sufficient deliberations by the representatives of the citizens. But in India, the lines created by the doctrine of separation of powers are rather getting blurred because of the overlap and interventions of authorities of the judiciary and the other two organs.

The parliament can have more authority because it represents the citizens, but giving it absolute authority can have certain deleterious effects. With absolute authority the parliament, if gets corrupt, can destroy the entire democratic structure of a nation because it can pass a law without regulation that directly interferes with the democratic principles, it can alter the rights of the citizens, introduce a law that reduces the autonomy enjoyed by the citizens. If there is one-party dominance in the parliament, then all its policies and laws can be passed without opposition, even if these policies are not suitable for the development of the nation.

The judiciary should keep a check on the actions of the parliament, but without interfering with the doctrine of separation of powers, it cannot supersede its own authority while keeping a check on the parliament. We have a landmark example of Indira Gandhi when she came to power in the year 1971, she amended half of the constitution, as there was no check and authority to govern her. This example can clearly demonstrate the exploitation caused, when once this doctrine was given prior importance.

Conclusion: the way ahead 

As we have discussed so far that both the doctrines have their flaws and discrepancies. So, in order to turn into a developed economy from a developing stage, we must strive to strike a balance between both the systems. The legislature must focus upon its law-making and should formulate laws for all the section of the society. In this growing pandemic, the rights of the migrant workers are at stake because we have only law, and that is also not enforced properly. The major problem of the Indian society is that “we rise only at the time of crisis”, this mentality must be changed and laws must be formulated before any crisis arises in the future. The Judiciary must also limit its boundaries to review the validity of the existing law and not the formulation of new laws. Judicial Activism, must be limited to certain restrictions, then only the adjudicating authority can attain the effectiveness as well as efficiency. Hence in order restore good governance in the society, there must be a proper check and balance between all the organs of the government and this must be realized by everyone including judges, parliament, and lawyers.

[1] Indian Constitution

[2] Ibid.

[3] 1973) 4 SCC 225

[4] AIR 1955 SC 549, 1955 2 SCR 225

[5] Separation of Powers in the Constitution of India, gktoday, available at https://www.gktoday.in/gk/separation-of-powers-in-constitution-of-india/( last accessed on 29 April 2020)

[6] (AIR 1997 SUPREME COURT 3011).

[7] J. Venkatesan, Distribute food grains at very low or no cost, Supreme Court tells Centre, The Hindu, AUGUST 12, 2010, available athttps://www.thehindu.com/news/national/Distribute-foodgrains-at-very-low-or-no-cost-Supreme-Court-tells-Centre/article16129362.ece (last accessed on 29 April 2020)

[8] Simran, legislature versus Judiciary, October 4, 2011, available athttps://www.prsindia.org/theprsblog/legislature-versus-judiciary(last accessed on 29 April 2020).

[9] Anand Nandan, Parliamentary Supremacy and Judicial Review: Indian Perspective, Times of India, September15, 2018, available at https://timesofindia.indiatimes.com/blogs/les-avis/parliamentary-supermacy-and-judicial-review-indian-perspective/ (last accessed on 1 May 2020)

[10] Markande Katju, We Need Clean Air but Spare Us the Judicial Overreach, available at https://thewire.in/environment/we-need-clean-air-but-spare-us-the-judicial-overreach/amp/ (last accessed on 1 May 2020).

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ABOUT THE AUTHOR

Akshat Jaithlia

Akshat Jaithlia is a first-year law student at Rajiv Gandhi National University of Law, pursuing BA LLB (Hons). He has good communication and debating ability and possesses critical and analytical skills to research upon legal matters.

Pranav Sharma

Pranav Sharma is a first-year law student at Rajiv Gandhi National University of Law, pursuing BA LLB (Hons). He has good communication and debating ability and possesses critical and analytical skills to research upon legal matters.