In the United Kingdom, the concept of parliamentary sovereignty originally emerged. The essential idea was that the UK Parliament had unrestricted and unfettered lawmaking powers, and that neither the king nor the judiciary may set regulations arbitrarily. Legislation may only be created, amended, or repealed by Parliament.
It is possible to define parliamentary sovereignty as implemented by the UK government by four principles:
- Parliament has absolute power to lay down laws and statutes.
- The tribunals have no power to declare any statute invalid.
- No present Parliament is bound by previous parliamentary laws or precedents.
- Parliament will never be able to pass any legislation which a future Parliament cannot undo.
However, this concept applies differently to India with a sense of restriction being placed, so as to promote the ideals of democracy wherein the citizens of a country hold the utmost power.
The Constitution of India sets down the scope of parliamentary authority, and parliament is not given unrestricted or arbitrary authority to ignore the Constitution. It is not a matter of judicial or legislative supremacy; rather, it is a matter of finding a balance between the two in order to have a democratic system where public interests are not compromised. Therefore, it is necessary to evaluate Parliament’s dominance in India in light of how it interacts with the Executive, Judiciary, and Legislature itself. In contrast to the Parliament of Britain, the Indian Parliament is not a sovereign body of law. It functions within the confines of a written constitution that outlines a federal structure and a Supreme Court that is vested with judicial review authority.
The Union List and Concurrent List in the Constitution’s Seventh Schedule are the only topics on which Parliament may normally pass legislation. Furthermore, the fundamental rights that individuals are granted in Part III of the Constitution place restrictions on its authority within its own domain of authority. In accordance with certain limitations, Article 13 Clause 2 forbids the State from passing any law that would restrict or abridge any of the Fundamental Rights. Any law made by the State that violates constitutional rights is void to the extent that it violates such rights.
So, now if we conclude the factors why the Indian Parliament cannot be regarded the sovereign body in the similar sense as there are ‘legal’ restrictions on its authority and jurisdiction, those are-
1. Written Nature of the Constitution
In our country, the Constitution serves as the supreme law. It has outlined the roles and responsibilities of each of the Union government’s three branches as well as how they interact. As a result, the Parliament must act within the boundaries established by the Constitution. There is also a legal distinction between the legislative authority and the constituent authority of the Parliament. Moreover, to effect certain amendments to the Constitution, the ratification of half of the states is also required. In Britain, on the other hand, the Constitution is neither written nor there is anything like a fundamental law of the land.
2. Federal System of Government
The Union and the states are given different constitutional authority under India’s federal form of governance. Both must function within their own areas. Hence, the law-making authority of the Parliament gets confined to the subjects enumerated in the Union List and Concurrent List and does not extend to the subjects enumerated in the State List (except in five abnormal circumstances and that too for a short period). Britain, on the other hand, has a unitary system of government and hence, all the powers are vested in the Centre.
3. System of Judicial Review
The adoption of an independent Judiciary with the power of judicial review also restricts the supremacy of our Parliament. Both the Supreme Court and high courts can declare the laws enacted by the Parliament as void and ultra vires (unconstitutional), if they contravene any provision of the Constitution. On the other hand, there is no system of judicial review in Britain. The British Courts have to apply the Parliamentary laws to specific cases, without examining their constitutionality, legality or reasonableness.
The Judicial Review in the Keshvananda Bharati Case was eventually considered to be the basic structure of the Indian Constitution. Similar view has been echoed in S.P. Sampath Kumar v. India, Justice PN Bhagwati, relying on Minerva Mills Ltd (1980) 3 SCC 625 claimed that Judicial Review is the fundamental framework of our Indian Constitution.
4. Fundamental Rights
The integration of a set of basic rights that are actionable in courts under Part III of the Constitution also limits the power of the Parliament. Article 13 prohibits the State from making a law that either takes away totally or abrogates in part a fundamental right. Hence, a Parliamentary law that contravenes the fundamental rights shall be void. In Britain, on the other hand, there is no codification of justiciable fundamental rights in the Constitution. The British Parliament has also not made any law that lays down the fundamental rights of the citizens. However, it does not mean that the British citizens do not have rights. Though there is no charter guaranteeing rights, there is maximum liberty in Britain due to the existence of the Rule of Law.
In Golaknath v State of Punjab (1967) 2SCR 762 it was provided that Parliament’s amending power does not include the power to amend Fundamental Rights and, as a consequence of this decision, 24th amendment was introduced that the amendment of the Constitution made pursuant to Article 368 applies to the addition of clause 4 to Article 13 which does not provide for anything in this Article.
In Keshavananda Bharati v. the State of Kerala, the Supreme Court held that Article 368 did not allow the Parliament to alter the ‘basic structure’ or the constitutional framework. The term basic structure is a vague and general term, and a commonly agreed meaning did not come from the Judges themselves. Unless this judgment is reversed by the Court on the Union Government’s review application or a new amendment to the Constitution is enacted and the Supreme Court upholds that amendment, Parliament’s power can not extend beyond the limitations placed by the Constitution and the Supreme Court.
The Indian Parliament has no hegemonic control over the Indian Constitution, and India strikes a balance between judicial review of legislative actions and executive action. However, the three pillars of the Indian government—the executive, the judiciary, and the legislature—will work together to prevent infringements of rights.
