Constitutional Supremacy or Parliamentary Sovereignty
This Blog is written by Anvaya Singh from Amity Law School, Noida. Edited by Prakriti Dadsena.
Every nation in this world, having civilized societies desperately needs laws, proper administration, rules and regulations for the proper and efficient working of each and every aspect of the society. Laws, rules and regulations are the basic necessity for maintaining peace and harmony throughout the societies and also, the individuals.
All around the world, for the purpose of making laws, firstly, the Constitution is considered as the base as, it is considered as the supreme law of the land. The constitution provides the basic framework upon which the laws will be made in the future and if any law, if, considered to be violating the constitution then, that said law will not come into effect. But if the law has already been amended then, it will be considered unconstitutional and will be made void. In simple words, if there is any contradiction between the constitution and any other law, then, the constitution will prevail and will be considered as valid. This doctrine is known as Constitutional Supremacy.
Now, the power of making new laws or amending the existing laws which are already prevailing in a democratic or sovereign country is in-general assigned to the parliament. When, unchecked or unlimited power of making or amending existing laws and statute is given to the parliament, as a result of which it can do so without being questioned by any other authority, is known as Parliamentary Sovereignty.
SIGNIFICANCE OF THE DEVELOPMENT
The significance for the development of both the Parliamentary Superiority and Constitutional Superiority have their own purposes and stories.
Basic features of Constitutional Supremacy
1. The constitution is written and rigid.
2. The parliament was created to function in regards with the constitution.
Basic features of Parliamentary Sovereignty
1. The parliament has the right to make any law or amend the existing ones.
2. There is no distinction given between the constitutional laws and the ordinary laws
3. Also, there are no other authorities present who possess the power to declare any law passed by the parliament as illegal or unconstitutional.
Different thinkers and experts had different opinions regarding these two systems of supremacy as some believed that the Parliamentary is better while some believed that the constitutional supremacy is better. For example, Austin thought that the Parliamentary Sovereignty was a better idea as it will provide more control and balance in the lives of people and the state as, the parliament will be considered superior and will hold ultimate power. Whereas, many others believed that the Constitutional Supremacy will be a better idea as, it gives maximum freedom and power in the hands of the citizens and there is a very less chance that any of the government’s foundations i.e. the Executive, the Legislature and the Judiciary don’t try and grab the state of absolute power like in the Parliamentary Supremacy system.
Both the Parliamentary and the Constitutional superiority have different kind of impacts as both are of opposite nature. Whereas, one gives the constitution more preference and power while the other provides the parliament with the same.
THE PERSPECTIVE OF INDIA
The India sovereignty has one of the most important features which feature the Indian Constitution as the supreme law of the land instead of providing the parliament with the supremacy as it is created by a constituent assembly and the parliament can’t override it and the supremacy of the constitution cannot be challenged in the court of law as it is a well settled principle. It provides the basic framework to the parliament in order to make laws. If we elaborate the sentence ‘provides basic framework’ for the purpose of pointing out the precise powers and functions that the constitution provides to the different bodies and authorities are to frame the fundamental principles, practices, procedures and confers rights, power as well as duties to the government and other bodies and authorities.
The supremacy of the Constitution is further strengthened by some milestone cases like the Minerva Mills case and the Kesavananda Bharti case. In these milestone cases, it was held that parliament can’t amend the constitution or even change the basic structure such as some fundamental rights.
THE PERSPECTIVE OF THE UNITED KINGDOM
In the United Kingdoms, the country where the constitution is not a written document unlike most of the other countries, there, the Legislative or the Parliamentary supremacy is considered to be above the constitutional supremacy. This form of Parliamentary supremacy is the essential feature of the constitution of UK.
The parliament of the United Kingdom can pass or amend any law as to their heart’s wish and no other authority or the court of law has the power or authority to question the validity of the law in question and as a result, it can’t hold a law as unconstitutional.
Provisions of Indian Constitution Supporting Supremacy of Constitution as –
1. The Article 14 of the Indian Constitution provides for ‘equality before the law and the equal protection of laws.’ The term “Equality before the Law” means that everyone is equal in the eyes of law and no one is above the law and there are no exceptions.
2. The Article 124(1) of the Indian Constitution provides for the establishment of a Supreme Court of India.
The Supreme Court of India is the supreme judicial authority which safeguards and protects the constitution. It is the duty of the judiciary to test the laws and constitutional amendments for their validity and their ‘constitutionality’ i.e., whether or not they are violating the provisions of the constitution.
1) In the case of K. Gopalan V. State, the court stated that – “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 idea and in delegating to the legislature, executive and judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, we apprehend, because they have been retained by the people and made paramount to the delegated powers”. The Indian Parliament does not have any jurisdiction over the Constitution of India and our country strikes a balance between the judicial and the legislative scrutiny. However, the foundations of government namely: the executive, the judiciary, and the legislature must function in unity and must not infringe on the rights of the others. However, Parliament holds the right to expand its authority to the said lists; List I and List III and also, it can act on the behalf of two or more states as stated in the Article 252.
2) In the milestone case of Keshvananda Bharati v. State of Kerala, 1973, the decision taken by the Supreme Court outlined the basic structure doctrine of the Constitution of India. The judgement included a solution for both Parliament’s right to amend laws and citizen’s right to protect their Fundamental Rights. The bench came up with the idea of Doctrine of Basic Structure in order to safeguard the interests of both the parliament and the citizens of India. This case answered many questions which were left unanswered in the case of Golaknath v. State of Punjab. This case also overruled the Golaknath case by putting restrictions on parliament’s right to amend the constitution.
So far as we have seen, both the Constitutional Supremacy and the Parliamentary Supremacy have numerous differences and different countries have adopted either one of them. Both have their own pros and cons but from my point of view, the constitutional supremacy has more benefits and it is more ‘balanced’ as compared to the parliamentary supremacy. As we saw in the case of the United Kingdom, the parliament holds the supreme power and no court of law or any other authority has the right to even challenge the law in question. Even if the said law oppresses 90% of the population, it will not be held as unconstitutional. Whereas, in the Constitutional Supremacy, if a law is contradicting with the constitution, then, it is made invalid or void. Also, the Parliament has to make laws within the framework provided by the constitution else, it will be considered as unconstitutional and will be made void. The Supreme Court has the authority to interfere in cases where it finds that the law so passed by the parliament is violating or contradicting with the constitution and take actions accordingly.
Also, the Constitutional Supremacy gives the citizens more rights and control over the government and the laws that are being passed as, if the citizens feel that a certain law is not beneficial or in some cases rather harmful (violating some fundamental rights), then, they can file a petition in the court of law and the matter will be handled with utmost importance. Whereas, the citizens of countries where Parliamentary Supremacy persists, don’t have this right and no one can do anything about it as the Parliament holds the ultimate power.
From the abovementioned facts and discussion, we can conclude that the supremacy of the Constitution holds a better position when compared to the supremacy of the Parliament. In our country, the parliament is subject to our Constitution which includes Judicial Review. The Parliament can’t pass any laws or amend pre-existing laws which are already prevailing in the country if they are contradicting with the principles of the constitution. The constitution is the ‘supreme law’ of the land and every authority or body of the state is restricted to work within the limits prescribed by the constitutional provisions and principles.
(1) Constitutional Supremacy and Parliamentary Sovereignty –
https://www.soolegal.com/roar/constitutional-supremacy-and-parliamentary-sovereignty (Last Visited on 01.07.2021)
(2) Judicial Supremacy v. Parliamentary Supremacy –
https://www.lloydlawcollege.edu.in/blog/judicial-supremacy-v-parliamentary-supremacy.html (Last Visited on 01.07.2021)
(3) Constitutional Supremacy vs. Parliamentary Sovereignty –
(Last Visited on 01.07.2021)