Sovereignty of Parliament

The Doctrine of Sovereignty of Parliament is a fundamental principle that has shaped the constitutional frameworks of various democracies. While some nations like the United Kingdom have embraced the concept in its entirety, others, including India, have adopted a more nuanced approach that balances Parliamentary Sovereignty with constitutional supremacy and judicial oversight. This article of NEXT IAS aims to study in detail the concept of the Sovereignty of Parliament, its salient features, its application in India vis-a-vis the UK’s polity, and the factors that constrain the Sovereignty of the Indian Parliament. 

What is Sovereignty of Parliament?

The Doctrine of Sovereignty of Parliament means the Parliament is the supreme power within the State and there are no ‘legal’ restrictions on its authority and jurisdiction.

Salient Features of the Parliamentary Sovereignty

Major features of the Doctrine of Parliamentary Sovereignty can be seen as follows:

• Supreme Legal Authority– Parliament holds the highest legal authority within the country’s legal system. It has the power to create, amend, or repeal any law without constraints from other branches of government.
• Legislative Supremacy– Parliament’s enactments are supreme and cannot be overridden by executive orders, judicial decisions, or other legal authorities. Laws passed by Parliament take precedence over all other sources of law, including common law and treaties.
• Absence of Legal Limits– Parliament is not bound by any higher law, written constitution, or previous legislation. It has the authority to amend or repeal any law, including constitutional provisions, through the ordinary legislative process.
• Unlimited Jurisdiction– Parliament’s legislative power extends to all matters of policy and governance. There are no areas that are outside the scope of its authority.
• Judicial Non-Intervention– The courts cannot question the validity or legality of Acts of Parliament. They must give effect to the will of Parliament as expressed through legislation.

Doctrine of Parliamentary Sovereignty in Britain

• The most prominent example of the Doctrine of Sovereignty of Parliament is the polity of the UK.
• The Sovereignty of Parliament is a cardinal feature of the British constitutional system and the British Parliament is the supreme authority in the polity of Great Britain.
• As per the British jurist AV Dicey, the principle of ‘Sovereignty of Parliament’ in the United Kingdom has the following three implications:
  • The British Parliament can make, amend, substitute, or repeal any law.
  • The British Parliament can make constitutional laws by the same procedure as ordinary laws.
    • In other words, there is no legal distinction between the constituent authority and the legislative authority of the British Parliament.
  • The laws made by the British Parliament cannot be declared invalid by the Judiciary as being unconstitutional.
    • In other words, there is no system of Judicial Review in Britain.

Status of Parliamentary Sovereignty in India

• The framers of the Indian Constitution have preferred a proper synthesis between the British Principle of Parliamentary Sovereignty and the American Principle of Judicial Supremacy.
  • Thus, the Indian Parliament is not a sovereign body in the sense in which the British Parliament is a sovereign body.
• Unlike the British Parliament, the authority and jurisdiction of the Indian Parliament are defined, limited, and restrained by various factors as explained in the section that follows.

Factors Limiting Sovereignty of Indian Parliament

The factors that limit the Sovereignty of the Indian Parliament are explained in detail as follows:

• Limited Jurisdiction – The Indian Constitution has defined the authority and jurisdiction of all three organs of the Union Government, including the Indian Parliament. The Parliament has to operate within the limits prescribed by the Constitution.
• Limitations on Legislative Power – As per the constitutional distribution of legislative powers, the law-making authority of the Parliament is confined to the subjects enumerated in the Union List and Concurrent List and does not extend to the subjects enumerated in the State List. Accordingly, in normal circumstances, it can legislate only on subjects mentioned in the Union List and Concurrent List, and not the State List.
• Limitations on Constituent Power – The Indian Constitution makes a legal distinction between the legislative authority and the constituent authority of the Parliament. Thus, the Indian Parliament cannot amend the Constitution by the same procedure as Ordinary Laws. Moreover, to effect certain amendments to the Constitution, the ratification of half of the states is also required.
• Fundamental Rights – The authority of the Parliament is also restricted by the incorporation of a code of justiciable fundamental rights under Part III of the Constitution. Article 13 prohibits the State from making a law that either takes away totally or abrogates in part a fundamental right.
• System of Judicial Review – In India, the Judiciary can review laws made by the Parliament and declare them null and void if they violate the Constitution.

Note: Thus, it can be said that the Indian Parliament is similar to the American Legislature (known as Congress). In the USA also, the sovereignty of Congress is legally restricted by the written character of the Constitution, the federal system of government, the system of judicial review, and the Bill of Rights.

Comparison of Indian and British approaches to Parliamentary Sovereignty

Aspect	British Approach	Indian Approach
Constitutional Framework	The UK has an uncodified or unwritten constitution.	India has a written constitution.
Amendment Process	The British Parliament can amend the Constitution through a simple majority.	The Constitution of India is neither rigid nor flexible but a synthesis of both. Some amendments can be done by a Simple Majority, and some others by a Special Majority. Few others require a Special Majority as well as ratification by half of the State Legislatures.
Separation of Powers	The UK does not adhere to a formal Separation of Powers doctrine.	In India, a well-defined Separation of Powers prevails within the Constitution.
Federal vs Unitary State	Britain functions as a Unitary State, hence, all powers are vested in the Centre.	India operates as a Federal State, where authority is distributed between the Union Government and State Government.
Judicial Review	There is no system of Judicial Review. The British Courts have to apply the Parliamentary laws to specific cases without examining their constitutionality, legality, and reasonableness.	India’s judiciary holds the power of judicial review, permitting the examination and, when necessary, the annulment of laws enacted by Parliament or State Legislatures in cases of constitutional violations.
Basic Structure Doctrine	The UK does not have the concept of the Basic Structure Doctrine.	India has embraced the Basic Structure Doctrine, empowering its judiciary to assess and strike down constitutional amendments that compromise the fundamental structure or essence of the Constitution.
Fundamental Rights	There is no codification of justiciable Fundamental Rights in the Constitution. The British Parliament has also not made any law that lays down the Fundamental Rights of the citizens. Thus, there is no charter guaranteeing rights, but the citizens enjoy maximum liberty in Britain due to the existence of the Rule of Law.	The Indian Parliament’s authority is restricted by the incorporation of fundamental rights under Part III by the Constitution. Article 13 prohibits the State, including the Parliament, from enacting laws that abrogate or infringe upon these fundamental rights. As a result, any parliamentary legislation that contravenes the fundamental rights enshrined in the Constitution shall be deemed void by the judiciary.

Conclusion

Thus, even though the nomenclature and organizational pattern of the Indian Parliament is similar to that of the British Parliament, there is a substantial difference between the two. Several restrictions and limitations on the Indian Parliament, as defined by the Constitutional provisions, mean that unlike the British Parliament, the Indian Parliament is not a sovereign body.

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