Constitutional Supremacy or Parliamentary Sovereignty By – Vishal Rana

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Introduction

Every civilized society or nation in the world requires laws, rules and regulations for the proper functioning of various aspects of the society. Laws and rules are necessary for every society to maintain peace and harmony in the society and to ensure the well-being of every individual. For the purpose of making laws Constitution is considered as the grundnorm or the supreme law of the land which provides a basic structure for the laws and rule of the land and also defines the limit of various organs of the state functioning under the constitution. The organs of the state must act within the limits defined by the constitution. If there is any contradiction between the constitution and any other law, the provisions of constitution will always prevail, this doctrine is known as constitutional Supremacy.

The law-making power in democratic or sovereign nations is generally assigned to the parliament and it can make new laws or amend the existing laws prevailing in the country. When this law-making power is conferred absolutely (or unlimited power) to the parliament so that is can make any law or amend any existing statute without being questioned by any authority this is known as supremacy of parliament or parliamentary sovereignty.

Basic Features of Parliamentary Supremacy:

Three basic features of Parliamentary Supremacy are as follows:

  • Parliament can change or modify any law,
  • There is no distinction between constitutional law and ordinary law, and
  • There is no superior authority which can declare the law passed by the parliament illegal or unconstitutional.

Basic Feature of Constitutional Supremacy:

The basic features of Constitutional Supremacy are as follows:

  • Written and rigid constitution.
  • Distinction between constitutional law and ordinary law
  • Parliament itself was created and functioning with regard to constitution.
  • There must be some constitutional body to look after the legality or illegality of act of the parliament.
  • There should be an express or implied provision in the constitution which supports the supremacy of constitution.

Indian Perspective

The most basic and important feature of Indian Sovereignty is the Supremacy of Constitution. The Constitution of India is the supreme law of India. It frames fundamental principles, procedures, practices and confers rights, powers, and duties to the government and other organs of the state. It imparts constitutional supremacy and not parliamentary supremacy, as it is not created by the parliament but by a constituent assembly, and adopted by its people, with a declaration in its preamble. The parliament cannot override it. Supremacy of constitution is a well settled principle and cannot be challenged in the court of law

In addition to the Minerva Mills Case, the Basic Structure Doctrine, reiterated by the Supreme Court in the Kesavananda Bharti Case also strengthened the constitutional Supremacy. It was held that the parliament cannot amend the constitution to destroy or change the basic structure of the constitution such as specific fundamental rights.

Concept of Judicial Review

The Indian constitution reflects the doctrine of separation of powers by separating the powers and functions of various state organs such as legislature, executive and judiciary. But in India this doctrine is applied with checks and balances which acts as a safety valve against the arbitrariness. The concept of Judicial review has been emerged over the time to ensure the supremacy of the constitution, under which the Courts have power to review any legislative, judicial or executive action and policies and if they have been found inconsistent with the constitution then courts have power to render it unconstitutional.

Provisions of Indian Constitution Supporting Supremacy of Constitution

  • Article 14 of the Indian Constitution provides for equality before the law and the equal protection of laws.The term “Equality before the Law” is adopted from English common law, which means everyone is equal in the eyes of law and no one is above the law.
  • Article 124(1) of the Indian Constitution provides the establishment for the establishment of a Supreme Court of India.

Supreme Court of India is the supreme judicial authority of India, which safeguards and protects the constitutional principles. It is the duty of the judiciary to test the laws and constitutional amendments for their constitutionality.

Position In Other Countries

United Kingdom (U.K.)

In United Kingdom the legislative or parliamentary supremacy is above the constitutional supremacy. Parliamentary supremacy is the most essential feature of the UK Constitution which is not a single written document like most other countries.
The parliament of UK has a supreme authority to pass or amend any law and no court of law has the authority to question the validity of law and cannot held a law unconstitutional. Moreover, Parliament cannot pass any law which cannot be changed by the future parliament.

America (U.S.A)

Article VI of the American Constitution is known as the Supremacy clause. This supremacy clause reflects the supremacy of the constitution in America. This clause prohibits the state government from making or amending any law which is in conflict with the constitution or any other federal law.

Finland

In Finland the sovereignty of the state lies in the people i.e., the member of the parliament. Parliament has the absolute authority to pass any law and to override presidential vetoes. It can also pass an emergency law with special majority. There is no constitutional court in Finland which is empowered to declare any law unconstitutional.

Israel
The legislative branch of the Israel has the power to enact any laws, amend laws or repeal any law with a simple majority even the new law is in conflict with the basic law of the Israel. Hence in Israel supremacy of parliament is in upfront.

Conclusion

From the above discussion we can conclude that that position of supremacy of constitution is above the supremacy of parliament. In India, parliamentary sovereignty is subject to the Constitution of India, which includes Judicial review. Parliament cannot pass any law or amend any provision of the constitution which is in contradiction with the principles of the constitution. The power of examining legislative actions is conferred upon the judiciary which acts as a watchdog of the constitution and individual rights and freedom. Constitution is supreme law of the land and every organ of the state is restricted to work withing the umbrella of constitutional provisions and principles.

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