By Vasu Singh
The constant conflict between Constitutional Supremacy and Parliamentary Sovereignty forms a major part of the political landscape of India. The supreme text which is the Constitution lays down the basic framework for laws, the rule and law and also defines the limits of the state. The state must operate within the limitations expounded in the Constitution of India, if any law made by the state comes into the conflict with the provisions written in the Constitution, The Constitution must always prevail, this doctrine is known as Constitutional Supremacy.
In a democratic state such as India, the parliament holds the authority to establish laws. In a democracy like India, The Parliament which is elected by the citizens can make new laws and also amend the existing ones. The Parliament is provided with the absolute power to formulate the new laws and amend the existing statute, this is known as Parliamentary Sovereignty.
For the rule of law to prevail in the landscape of a democracy the balance between Constitutional Supremacy and the Parliamentary Sovereignty is essential.
Understanding the Doctrine of Constitutional Supremacy in Indian Polity
“The Sovereignty of the Constitution is by far the most fundamental and significant element of Indian Sovereignty. The Indian Constitution is indeed the ultimate legislation of the country. It establishes basic elements, processes, and practices, as well as granting the administration and other state institutions privileges, responsibilities, and obligations. It confers constitutional supremacy rather than parliamentary supremacy since it is produced by a legislative assembly and approved by its citizens, as stated in its preamble. It is unassailable by the legislature.”[1] In the Minerva Mills[2] case, the Supreme Court held that the three main organs of the Indian democracy the legislature, the judiciary and the executive are not above and beyond the Constitution, they are bound by the Constitution.
The Constitution is the supreme law, all the state’s institutions, organs and their laws must be in accordance with the provisions provided in the Constitution. The Constitution safeguards the rights of the people it provides the people with the Fundamental Rights and the Fundamental Duties. The Constitution also provides the state with the outline of their duties in the form of Directive Principles of State Policies under Articles 36-51 Part-IV. The Constitution being both rigid and flexible in nature gives the liberty to the legislature the power to amend itself by establishing the procedure. With the presence of Constitutional Supremacy in the framework of democratic India, it can be made sure that the Parliament must adhere to the principles of the Constitution.
The Concept of Parliamentary Sovereignty in the Indian Polity
Though the Constitution of India is the supreme law of the land, it does not demonstrate the Parliamentary Sovereignty to be ineffective in any way. Being the British legal concept, it evolved into the Indian polity through its colonial legacy. The Legislature under which the Parliament comes is the most democratic of the three main organs, as its members are directly elected in an electorate by the citizens of India. There have been some instances in the history where the legislature has showed undemocratic behaviour such as in the general elections of 1971, the Allahabad High Court held the then Prime Minister of India Indira Gandhi for rigging and corruption in the elections and cancelled the elections. The Court also barred her from contesting elections for the period of next 6 years. She approached the Supreme Court and the next day she misused the power of the Parliament and forcefully declared the National Emergency using the Article 352 of The Constitution causing a great political havoc. After this dark phase of the Indian democracy, The Supreme Court came with many landmark judgements followed by the huge 44th Amendment Act, 1978 of the Indian Constitution which limited the powers of the Parliament. In the case of A.K. Gopalan v. State of Madras the court said- “There can be no doubt that the people of India have, in the exercise of the sovereign will as expressed in the preamble, adopted the democratic ideal ….and in delegating to the legislature, executive and judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, so-called, I apprehend, because they have been retained by the people and made paramount to the delegated powers”[3]
In the landmark judgement of Keshavanand Bharathi v. State of Kerala, the Supreme court held that the any law made by the state which violates the basic structure of the Constitution is to be considered null and void. This judgement further limited the power of the Parliament and gave the right interpretation of the Article 368 of the Indian Constitution.
The Balance between Constitutional Supremacy and Parliamentary Sovereignty
The balancing dynamic between Constitutional Supremacy and Parliamentary Sovereignty in India is an ever evolving one. It is a well-established fact that the Constitution is the supreme law, and Parliament is the only organ which holds the power to amend the Constitution under the Article 368. The Supreme Court in the Keshavanand Bharathi judgement said that “the Constitutional Supremacy is the first and foremost part of the basic structure and no law can be superior to the Constitution”[4] There have been many instances when Parliament has tried to overpower the Constitution, but ultimately failed in each attempt. For the smooth functioning of the governance in India there needs to be a balance between these two doctrines.
The Parliamentary Supremacy is directly governed through the power of the Judicial Review given to the Judiciary by the Indian Constitution. To interpret as well as uphold the values of The Constitution, Indian Judiciary plays a significant role. The Judiciary is the organ who has the authority to judicially review every law passed by the Legislature, in order to make sure that state does not violate the ‘basic structure doctrine’ of the Constitution. The Judiciary exercises this right of judicial review under the Article 13 (2) of the Constitution. The Constitution separated the powers and functions of the three organs in the ‘doctrine of separation of powers’ This doctrine is applied in India with check and balances. The Judicial Review is one such part of the safety valve against any unconstitutional legislation.
The Supreme Court states that the Judicial Review falls under the paradigm of the ‘doctrine of basic structure’, which means it cannot be amended by the Parliament making it one of the fundamental features of the Constitution. Hence, making sure there is always a balance between Constitutional Supremacy and Parliamentary Sovereignty, with the Judiciary there to safeguard it.
Conclusion
The mixed political system of India known as parliamentary federalism establishes the power of the parliament, but gives the supreme authority to the Constitution. It would be safe to say that the Constitution holds more power than the Parliament. The Parliamentary is subjected to various checks and balances such as the Judicial Review, a power vested by the Constitution in the Judiciary. The Judiciary makes sure there is a balance between the two and assumes the role of the watchdog of the Constitutional supremacy, safeguarding the rights and freedom of the citizens.
As the Indian Polity is an ever evolving one, the balance between the Constitutional Supremacy and the Parliamentary Sovereignty will remain a cornerstone of the democratic system of India.
The author of this article is Vasu Singh, a first-year LLB student at Symbiosis Law School, Pune.
[2] AIR 1789, 1981 SCR (1) 206
[3] 1980 AIR 1789, 1981 SCR (1) 206
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
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