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PARLIAMENTARY SOVEREIGNTY

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This article is written by Kavya Lakshmi, Intern at Legal Vidhiya.

INTRODUCTION: Every nation in this world has acivilised societies and in order to carry out its activities and functions, it becomes necessary to establish certain basic organs or agents. For the state to function effectively it requires laws, rules, and regulations, which creates the need for a Constitution.

In some countries, like India, the Constitution is considered the supreme law of the land. It provides the basic framework for making the laws and defines the limits of the various organs of the state. The constitution of India divides the powers of the country into three organs or bodies, namely, the legislature, the executive, and the judiciary. Here, the legislature make laws, and every law made by parliament is reviewed by the Supreme Court based on the Constitution. The law can be held null and void if it goes beyond or above the constitution of India.

But in the United Kingdom, Great Britain, or England there is no system of judicial review the supreme power is within the state without any legal restriction and cannot be declared invalid by the judicial branch. This is called parliamentary sovereignty.

SOVEREIGNTY:

Meaning: Sovereignty is derived from the old French word “souverain,” which means “supreme.” It was first introduced by the author Jean Bodin in the 16th century. He defined it as the supreme power of the state over citizens and subjects, unrestrained by laws. But A.V. DICEY, a jurist, divided sovereignty between the people and the parliament. According to him, political sovereignty resides with the people and the legal sovereignty resides with the parliament.

PARLIAMENTARY SOVEREIGNTY:

Meaning: The form of sovereignty that is explained in parliamentary terms is known as parliamentary sovereignty. Generally, in sovereign nations, the law making power is absolutely conferred on the parliament to make any new law or amend an existing law without being questioned or reviewed by any authority. It is called parliamentary sovereignty.

A.V.DICEY’S RULE:

A.V.Dicey, a British constitutional scholar, in his book introduction to “the study of the law of the constitution published” in 1885, presented three fundamental principles of the British constitution.

  1. The parliament’s sovereignty: This principle states that the supreme law making authority in the country is the parliament which can make or unmake  laws without interference from other institutions or authorities.
  2. Rule of law: According to this principle no one is above the law, and the law should apply equally to all citizens, including government officials; everyone is subjected to the law.
  3. Respect for fundamental rights: It holds that rights are inherent in individuals and that the state must protect and uphold them.

Dicey’s parliamentary sovereignty has the following main elements:

  1. The parliament has the right to make or unmake any law that it can legally legislate on any topic without interference.
  2. No person or body has a right to override or set aside a new law of parliament or challenge the validity of an act of parliament in any court of law.
  3. Parliament cannot bind its successors, i.e., a law passed by the current parliament can be changed or repealed by a future parliament.

Position in the United Kingdom:

The dominant characteristic of  the British system is the doctrine of sovereignty. It is also called the supremacy of parliament. The British constitution is not a written constitution there is no single document that sets out the fundamental laws of the country but rather a series of legal and political principles.

From a political perspective, the UK has a responsible government with an elected House of Commons, which reflects current public opinion, social morality, or consciousness. But from a legal point of view, there is no restriction on the British Parliament to make any laws.

The law enacted by parliament cannot be questioned because it has no doctrine of unconstitutionality of parliamentary legislation. The primary function of the court is to interpret and apply the law to the factual situation coming for adjudication. When there are several alternate interpretations of a statutory provision, the court would adopt a view that is fair and just. Although the courts in the UK do not have the authority to declare an act of parliament invalid, they do have the power to interpret it.

Case law: In the case of Blackburn vs Attorney General [1971] 2 All ER 1380,  it was held that the parliament cannot bind its successors and declare an act of parliament irreversible.

In Pickin vs British Railways Board [1974] A.C.765, it was held that the rule of the court is to interpret enactment appropriately while refraining from examining Parliament’s performance of its duty.

POSITION IN INDIA:

The Indian Constitution governs the supremacy of parliament, which requires judicial review. Indian constitution is a mix of parliamentary sovereignty like in Britain and judicial supremacy like in America.

The Indian parliament is different from the British parliament. In a political view, the Indian and British parliaments are similar as both have a parliamentary form of government, but in a legal view, they are different,  that is, the British parliament is undefined while the Indian parliament is defined and restrained. Below are some of the factors that limit the sovereignty of the Indian parliament.

  1. Written nature the of constitution:  Indian Constitution is a written one, and it is a fundamental law of the land. The fundamental law contains many rules and restrictions that the parliament has to observe while making law. Its provisions are enforceable by the court and cannot be changed in the ordinary legislative process.
  2. Federal system of government: India has a federal system with the division of powers between the union and the states. The law making authority of parliament is only confined to the union list, and it cannot make laws enumerated in the state list, but can make laws on any item enumerated in state list for example in cases of emergency provision. In the case of S.R. Bommai vs Union of India, the court held that the constitution provides a federal system of government, and that parliament’s power is limited by the principle of federalism.
  3. Judicial review: The Indian parliament is the creator of the Indian constitution. Therefore, the law of the legislature to be valid, it must be decided or reviewed by the court or judiciary whether an enactment is constitutional or not.  If the court finds any law inconsistent with the provisions of the constitution, it will be declared void. For example, the Supreme Court held and declared its verdict that the 99th constitutional amendment act and the NJAC ultra vires the Constitution.
  4. Fundamental rights: As all, we know that fundamental rights are justiciable. Part III of the Indian Constitution consists of fundamental rights. Parliament cannot make laws that are inconsistent with fundamental rights. These rights cannot be suspended or curtailed by the legislature.
  5. Limit by presidential vetoes: A bill cannot be passed as a law without the assent of the president.  Here the president can practice various veto powers that act as a limitation on the parliament’s sovereignty.

Constitutional provisions which effects Parliamentary sovereignty in India:

The Supreme Court is the judicial authority of India, which protects and safeguards constitutional principles. The judiciary has to test the laws for their constitutionality. The court simply cannot declare a statute unconstitutional on the ground of unjust provisions, or because it is supposed to violate the natural, social, or political rights of citizens. Instead it must be demonstrated that the Constitution clearly prohibits such injustice or guarantees protection of such rights.

 If legislation made by the parliament does not infringe any constitutional limits, then the duty of the courts is only to interpret and apply the law. Parliament may delegate legislative power up to a point, and beyond that limit, delegation will not be valid.

Case Analysis:

In Minerva Mills 1 case  it was held by the court that three organs(the executive, the judiciary and the legislature) of the country are bound by the constitution and none is above or beyond the constitution.

In Golaknath vs State of Punjab 2, It was provided that the power to amend fundamental rights is not a power of parliament.

In Keshavnanda Bharathi vs State of Kerala It was held that laws, rules, and regulations violating the basic structure of the constitution will be considered null and void. This judgement gave solutions for both the parliament’s right to amend the laws and protect the citizen’s fundamental rights.

These cases have established the principle that the parliament’s power to make law is limited and restrained and have made the Indian Constitution the supreme law.

Position in USA:

 The American Congress, cannot enact a law that is against the Bill of Rights or that contravenes the scheme of distribution of powers or other constitutional provisions. Like the Indian parliament, the written constitution is supreme in America. The law made by the American Congress must be in conformity with the provisions of its constitution. If laws are inconsistent then the court will intervene and declare the law void.

CONCLUSION:

From the above, it can be said that in the United Kingdom, the parliament acts as the supreme law of the land, and the laws enacted by it cannot be altered or removed by any other authority or institution. On the other hand in India and the USA, the constitution takes the supreme power. It can be concluded that the Constitution’s supremacy holds a better position than parliamentary sovereignty because it protects the people’s rights and liberty to live.

References:

  1. (1980) AIR 1789, 1981 SCR (1)206
  2. (1967) 2 SCR 762
  3. Teacher, Law. (November 2018). Parliamentary Sovereignty Lecture. Retrieved from https://www.lawteacher.net/lectures/public-law/parliamentary-sovereignty/?vref=1
  4.  MP JAIN INDIAN CONSTITUTIONAL LAW
  5. https://www.soolegal.com/roar/constitutional-supremacy-and-parliamentary-sovereignty
  6. https://legalutility.com/constitutional-supremacy-or-parliamentary-sovereignty-by-vishal-rana/
  7. https://judicateme.com/constitutional-supremacy-or-parliamentary-sovereignty/
  8. https://lawcorner.in/parliamentary-sovereignty-under-constitution-of-india/
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