Synthesis of Parliamentary Sovereignty and Judicial Supremacy

At a Glance

• What it is The Constitution combines the British principle of parliamentary sovereignty with the American principle of judicial supremacy
• Parliamentary sovereignty Associated with the British Parliament
• Judicial supremacy Associated with the American Supreme Court
• The Supreme Court Can declare parliamentary laws unconstitutional through judicial review
• Parliament Can amend the major portion of the Constitution through its constituent power
• Why narrower than the USA The Indian Constitution uses “procedure established by law” (Article 21), not “due process of law”
• Exam link UPSC Prelims, Polity: Salient Features

Where Does It Fit?

The previous topic showed that India differs from the British model because its Parliament is not sovereign. This topic explains what the Constitution does instead. It does not follow the British principle fully, nor does it follow the American principle fully; it combines the two.

What Are the Two Principles?

The doctrine of sovereignty of Parliament is associated with the British Parliament, while the principle of judicial supremacy is associated with the American Supreme Court. In Britain the courts have to apply the laws of Parliament, and there is no system of judicial review. In the USA the Supreme Court, through the power of judicial review, can declare laws void.

How Is the Synthesis Made?

Just as the Indian parliamentary system differs from the British system, the scope of the Supreme Court’s judicial review in India is narrower than in the US. This is because the American Constitution provides for “due process of law”, while the Indian Constitution provides for “procedure established by law” in Article 21.

Therefore the framers preferred a proper synthesis between the British principle of parliamentary sovereignty and the American principle of judicial supremacy.

What Limits Parliament’s Sovereignty?

The American principle of judicial supremacy is recognised in the Indian constitutional system, but to a limited extent. The British principle of parliamentary supremacy is not fully followed either. There are many limitations on the sovereignty of Parliament in India: the written character of the Constitution, federalism with the division of powers, the Fundamental Rights and judicial review. In effect, what exists in India is a synthesis of the American principle of judicial supremacy and the British principle of parliamentary supremacy.

How Does Due Process Differ from Procedure Established by Law?

The due process of law gives wide scope to the American Supreme Court to protect the rights of citizens. It can declare laws violative of these rights void not only on substantive grounds of being unlawful, but also on procedural grounds of being unreasonable. The Indian Supreme Court, while determining the constitutionality of a law, examines only the substantive question, whether the law is within the powers of the authority concerned, and is not expected to go into the question of its reasonableness, suitability or policy implications.

The wide use of the power by the American Supreme Court in the name of the due process clause has made critics describe it as a “third chamber” of the legislature, a super-legislature and the arbiter of social policy. In the Maneka Gandhi case (1978), however, the Indian Supreme Court took a wider view of Article 21 and ruled that the procedure prescribed by a law must be reasonable, fair and just, and not arbitrary, fanciful or oppressive.

Why Is This Topic Important?

• A distinctive feature: It is the answer to the question why India follows neither the British nor the American model in full.
• Links judicial review and amendment: It ties the Supreme Court’s power of review to Parliament’s power of amendment.

What Came Next?

The next topic describes the judiciary itself, which is both integrated and independent.

Key People and Terms

• Sovereignty of Parliament The British doctrine; Parliament is supreme
• Judicial supremacy The American principle; the Supreme Court can strike down laws
• Due process of law American; allows review on procedural as well as substantive grounds
• Procedure established by law Indian; Article 21
• Constituent power Parliament’s power to amend the Constitution

Exam Corner

Mains Angle

Questions here ask for a balance between the legislature and the judiciary. Use these points to add depth.

• Two limits at once: The Court can review parliamentary laws, and Parliament can amend the Constitution.
• Four limits on Parliament: the written Constitution, federalism, Fundamental Rights and judicial review.
• Narrower review: The Indian text uses procedure established by law, though the Maneka Gandhi case introduced a test of reasonableness.
• Criticism of the American model: The wide use of due process has led critics to call the American Court a third chamber of the legislature.