Q. It is said that constitution of India provides for a balance between parliamentary sovereignty and judicial supremacy.
Q. It is said that constitution of India provides for a balance between parliamentary sovereignty and judicial supremacy.
The issue of parliamentary sovereignty versus judicial supremacy has been a subject of heated scholarly debate over the last few years. It has exercised the minds of legislators, jurists, politicians and non-professionals through-out the world
The Judiciary, Legislature and Executive are the three pillars on which the effective functioning of the Government rests. A balance as opposed to conflicts is very necessary to achieve the ultimate public welfare and smooth functioning of constitutional machinery
Balance between parliamentary sovereignty and judicial supremacy in India:
- The Indian Parliament is not supreme as the British Parliament as Indian Parliament works within the boundaries or peripherals set by the constitution and there is American policy of judicial review in India
- In U.K. Parliament is given immense power to amend, repeal or modify the constitution but in India there is difference between statutory law and constitutional law and special provisions are incorporated in the constitution to make amendments as per article 368
Thus, the power of the Indian Parliament is not unfettered as the British Power because it is circumscribed within the four walls of constitution
The sovereignty of the Parliament is limited by the following provisions in the Constitution:
- Article 13 declares that the states must not make any laws inconsistent with part III of the constitution violating Fundamental rights or that take away or abridge Fundamental Rights. Thus, the article provides a judicial review of the pre-constitutional and post constitutional laws providing a synchronizing approach to the provisions of the constitution
- The power to amend Constitution under Article 368, has been subjected to the basic structure of the Constitution, by the Supreme court in the ‘Keshvananda Bharati’ case
- Parliament does not have any say in matters pertaining to the Elections, as the powers regarding such matters is vested with the election commission of India as per Article 324
Judicial supremacy in India
Limited by rule of law and not by due process of law
The Indian Constitution has established an Integrated Judicial system with Supreme court at the top and high courts below it
To ensure Independence, Constitution through Articles 124 to 147 in Part V of the Constitution, has provided for its jurisdiction, powers, procedures
The Supremacy of Judiciary has been made possible through following provisions:
- Making appointments without the absolute discretion of the Executive
- Providing judges security of tenure
- The constitution prohibiting any discussion on the Parliament with respect tot the conduct of judges
- Providing it the power to punish any person for contempt
In recent time, the exercise of Judicial review, has given an upper hand for judiciary in the light of several legislations being scrutinised by the Supreme Court
The supremacy of Judiciary is limited by the following provisions:
- The Parliament is authorised to regulate the appointment and provide for more powers to the Judiciary
- The Parliament can remove the judges, through a support of special majority on the floor of the house, as regulated in the ”Judges Enquiry Act 1968”
- The courts in India are to follow the ‘due process of law’ as opposed to the ‘procedure established by the law’
It can be inferred from the above mentioned constitutional provisions that Indian Parliament does not enjoy sovereignty over Indian Constitution and Judiciary derives its mandate from the Constitution itself. Hence, the balance between parliamentary sovereignty and judicial supremacy exists in India