Issue of parliamentary sovereignty

Issue of parliamentary sovereignty

The position of the Indian Parliament is half way house between the British Parliamentary  sovereignty and the American supremacy of the constitution.

British Parliament is supreme. British parliament can do everything that is not naturally impossible. The laws enacted by the British parliament are regarded as the supreme laws. Court cannot decide its validity. Thus, English courts are denied any power “to sit as a court of appeal against Parliament”. The theory of the Parliamentary sovereignty is maintained in England.

In USAthere is a supremacy of constitution. It means constitution is supreme and the courts have the power of interpretation of the constitution. The Supreme Court has power to invalidate a law enacted by the Congress (Parliament) not only on the ground that it transgresses the legislative powers vested in it by the constitution or by the prohibitions contained in the Bill of rights but also on the ground that it is opposed to such general principles as due process of law.

Thus, the supremacy of the constitution is maintained.

Indian constitution embodies a healthy combination of the theory of the supremacy of the constitution like US and the theory of the parliamentary sovereignty like England. Indian Judiciary is empowered to declare a law as unconstitutional if it is beyond the competence of legislature and against the constitution. But at the same time judiciary has no power to ascertain wisdom of legislative policy.

Secondly the constitution can be amended by the Parliament and can overcome difficulties created by judicial decisions.

It was expressed by Pandit Nehru that “No supreme Court can stand in judgment over the sovereign will of parliament. It can pull-up that sovereign will if it goes wrong; but where the future of the community is concerned, no judiciary can come in the way, It means Legislature must be supreme and must not be interfered with by the courts of law in such measures as social reform.”

Thus, the compromise between judicial review and Parliamentary sovereignty is one of the basic features of the constitution of India.

Disturbance :

In 1976, 42nd amendment Act disturbed the balance between the Parliamentary sovereignty and Judicial review by moving towards the former by introducing some new provisions to the constitution. But in 1977, 43rd and 44th amendments Acts restored it. Thus, balance between the parliamentary supremacy and the judicial review has been achieved which makes the Indian Parliament not as omnipotent as British Parliament and not as helpless as the American Congress.