Q.Indian parliament cannot be considered as a sovereign body. Analyze.
UPSC Mains Syllabus topic:
Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.
Why was this question asked?
- To what extent, in your view, the Parliament is able to ensure accountability of the executive in India? (2021)
Introduction:The doctrine of ‘sovereignty of Parliament’ is associated with the British Parliament. Sovereignty means the supreme power within the State. That supreme power in Great Britain lies with the Parliament. There are no ‘legal’ restrictions on its authority and jurisdiction.
Body: Therefore, the sovereignty of Parliament (parliamentary supremacy) is a cardinal feature of the British constitutional system.
According to AV Dicey, the British jurist, this principle has three implications:
1. The Parliament can make, amend, substitute or repeal any law. De Lolme, a British political analyst, said, ‘The British Parliament can do everything except make a woman a man and a man a woman’.
2. The 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.
3. The Parliamentary laws cannot be declared invalid by the Judiciary as being unconstitutional. In other words, there is no system of judicial review in Britain.
The Indian Parliament, on the other hand, cannot be regarded as a sovereign body in the similar sense as there are ‘legal’ restrictions on its authority and jurisdiction.
The factors that limit the sovereignty of Indian Parliament are:
1. Written Nature of the Constitution: The Constitution is the fundamental law of the land in our country. It has defined the authority and jurisdiction of all the three organs of the Union government and the nature of interrelationship between them. Hence, the Parliament has to operate within the limits prescribed by the Constitution. There is also a legal distinction between the legislative authority and the constituent authority of the Parliament. Moreover, to effect certain amendments to the Constitution, the ratification of half of the states is also required. In Britain, on the other hand, the Constitution is neither written nor there is anything like a fundamental law of the land.
2. Federal System of Government: India has a federal systemof government with a constitutional division of powers between the Union and the states. Both have to operate within the spheres allotted to them. Hence, the law-making
authority of the Parliament gets confined to the subjectsenumerated in the Union List and Concurrent List and does not extend to the subjects enumerated in the State List (except in five abnormal circumstances and that too for a short period). Britain, on the other hand, has a unitary system of government and hence, all the powers are vested in the Centre.
3. System of Judicial Review: The adoption of an independent Judiciary with the power of judicial review also restricts the supremacy of our Parliament. Both the Supreme Court and high courts can declare the laws enacted by the Parliament
as void and ultra vires (unconstitutional), if they contravene any provision of the Constitution. On the other hand, there is no system of judicial review in Britain. The British Courts have to apply the Parliamentary laws to specific cases, without examining their constitutionality, legality or reasonableness.
4. 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. Hence, a Parliamentary law that contravenes the fundamental rights shall be void. In Britain, on the other hand, there is no codification of justiciable fundamen. tal rights in the Constitution. The British Parliament has also not made any law that lays down the fundamental rights of the citizens. However, it does not mean that the British citizens do not have rights. Though there is no charter guaranteeing rights, there is maximum liberty in Britain due to the existence of the Rule of Law. Therefore, even though the nomenclature and organisational pattern of our Parliament is similar to that of the British Parliament, there is a substantial difference between the two. 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.
Conclusion In this regard, the Indian Parliament is similar to the American Legislature (known as Congress). In USA also, the sovereignty of Congress is legally restricted by the writ ten character of the Constitution, the federal system of government, the system of judicial review and the Bill of Rights.
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