Jurisprudence
Parliamentary Sovereignty versus Constitutional Supremacy
At a Glance ▪ Parliamentary sovereignty (Dicey, 1885): Parliament may make or unmake any law (positive limb), and no court or body may set aside its Acts (negative limb). It cannot bind its successors: a later Act impliedly repeals an inconsistent earlier one (Vauxhall Estates, 1932; Ellen Street Estates, 1934). ▪ Constitutional supremacy: a written Constitution is higher law; legislatures are its creatures, and courts declare void laws that exceed it (Marbury v Madison, 1803). ▪ Coke in Dr Bonham's Case (1610) suggested that the common law could control an Act against common right and reason: not followed in England, but echoed in American judicial review. ▪ UK qualifications: Factortame (EU law); the Human Rights Act 1998 (s.4 declaration of incompatibility leaves the Act valid); obiter in Jackson (2005); the UK Supreme Court (2009), which cannot strike down an Act. ▪ India takes a middle path: Parliament is not sovereign (Arts. 13, 245, 368; basic structure), nor is the judiciary a supreme third chamber. Key cases: Keshav Singh (1964), Kesavananda (1973), Indira Gandhi (1975), Minerva Mills (1980), I.R. Coelho (2007), NJAC case (2015). |
Two families run businesses. In the first, the eldest brother decides everything: what he says today is the rule, he may reverse it tomorrow, and nobody can overrule him. In the second, the brothers have signed a partnership deed. The senior partner manages the firm only within the deed; an arbitrator can declare his acts outside it void, and the deed can be changed only by a special procedure. The first family lives under parliamentary sovereignty, the second under constitutional supremacy. Britain has long been the model of the first and the United States of the second; India, as this note shows, borrows from both. Legal and political sovereignty are compared in Note 94, and the Indian doctrines are set out in full in Note 46.
1. Dicey's Parliamentary Sovereignty
The doctrine received its classic statement from Dicey. Parliament, meaning the Crown, the House of Lords and the House of Commons acting together, has the right to make or unmake any law whatever, and no person or body is recognised by English law as having a right to override or set aside its legislation. The first proposition is the positive limb: no subject lies beyond Parliament's reach, whether the succession to the throne, its own life or retrospective legislation. The second is the negative limb: no court may hold an Act invalid. Earlier, Blackstone had said that Parliament can do everything that is not naturally impossible.
Classic Definitions ▪ Dicey (Law of the Constitution, 1885): Parliament has 'the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'. ▪ Coke CJ (Dr Bonham's Case, 1610): when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge it void (paraphrase). ▪ Marshall CJ (Marbury v Madison, 1803): 'It is emphatically the province and duty of the judicial department to say what the law is.' |
2. Parliament Cannot Bind Its Successors
A body that can make any law must be able to unmake any law, including those made by its predecessors. Hence a sovereign Parliament cannot bind its successors: if a later Act conflicts with an earlier one, the later prevails, even if the earlier Act declared that it should not be altered. Where the later Act does not mention the earlier, the courts apply the doctrine of implied repeal.
Vauxhall Estates v Liverpool Corporation; Ellen Street Estates v Minister of Health King's Bench Division, 1932; Court of Appeal, 1934 The Acquisition of Land (Assessment of Compensation) Act 1919 fixed a basis of compensation and provided that inconsistent provisions in other Acts should cease to have effect. Later Housing Acts fixed a less generous basis. In both cases the later Act prevailed by implied repeal. In Ellen Street Estates, Maugham LJ explained that the legislature cannot bind itself as to the form of subsequent legislation; if a later Act plainly alters the earlier, effect must be given to it (paraphrase). |
Some writers, notably Jennings, argued that Parliament may still bind its successors as to the manner and form of legislation, though not as to substance; the debate remains open in Britain.
3. An Early Contrary View: Coke
Parliamentary sovereignty was not always accepted. In Dr Bonham's Case (1610), the College of Physicians, acting under a charter confirmed by statute, fined and imprisoned Dr Thomas Bonham for practising in London without its licence, and the College was entitled to a share of the fines. Sir Edward Coke CJ held that the College could not be judge in its own cause, adding that the common law will control Acts of Parliament and adjudge them void when they are against common right and reason. Whether Coke meant that courts could strike statutes down, or only construe them to avoid absurdity, is debated. After 1688 parliamentary supremacy was settled in England and the dictum was not followed; it travelled instead to the American colonies and became one strand in the idea of judicial review.
4. Modern Qualifications in the United Kingdom
How British sovereignty has been qualified ▪ European Union membership. By the European Communities Act 1972, Parliament gave directly applicable Community law priority over inconsistent national law. In R v Secretary of State for Transport, ex parte Factortame, the House of Lords, after a ruling of the European Court of Justice, disapplied provisions of the Merchant Shipping Act 1988 that discriminated against Spanish-owned fishing vessels. Lord Bridge explained that the limitation had been accepted voluntarily by Parliament in 1972. The European Union (Withdrawal) Act 2018 repealed the 1972 Act: Parliament took back what it had given. ▪ Human Rights Act 1998. Courts must read legislation compatibly with Convention rights so far as possible (s.3). Otherwise a higher court may make a declaration of incompatibility (s.4), which does not affect the validity or operation of the Act; the remedy lies with Parliament and ministers. ▪ Jackson v Attorney General (House of Lords, 2005). The Hunting Act 2004, passed under the Parliament Acts without the Lords' consent, was upheld. In obiter remarks Lord Steyn, Lord Hope and Baroness Hale doubted that parliamentary sovereignty is absolute; Lord Steyn suggested that an attempt to abolish judicial review might meet a constitutional fundamental that even a sovereign Parliament could not abolish. ▪ The UK Supreme Court (2009). Created by the Constitutional Reform Act 2005, it replaced the Appellate Committee of the House of Lords, separating the highest court from the legislature. It has no power to strike down an Act of Parliament. |
5. Constitutional Supremacy
Under constitutional supremacy the highest law is a written Constitution, harder to change than ordinary law. Every organ, the legislature included, derives its power from it and is limited by it. A law beyond those limits is void, and the courts have power to say so: judicial review. Alexander Hamilton, in The Federalist No. 78 (1788), defended the power on the ground that the Constitution expresses the will of the people, which must prevail over the will of their agents in the legislature.
Marbury v Madison Supreme Court of the United States, 1803 William Marbury sought mandamus against Secretary of State James Madison, who withheld his commission as a justice of the peace. The Court held that Marbury had a right to the commission, but that the provision of the Judiciary Act 1789 authorising such a writ in the Court's original jurisdiction was unconstitutional, because it enlarged the jurisdiction fixed by the Constitution. Marshall CJ reasoned that a written constitution is paramount law and an Act repugnant to it is void. The Constitution does not expressly grant judicial review; Marshall derived it from the nature of a written constitution. |
6. The Three Models Compared
Basis | United Kingdom | United States | India |
|---|---|---|---|
Highest law | Acts of Parliament | The written Constitution | The written Constitution |
Legislature | Sovereign: may make or unmake any law | Limited by the Constitution | Limited by the Constitution and the basic structure |
Review of statutes | None; s.4 declaration only | Full, implied (Marbury, 1803) | Express (Arts. 13, 32, 226) |
Amendment | By ordinary legislation | Art. V: supermajorities and ratification by the States | Art. 368; cannot destroy the basic structure |
Binding successors | Not possible (implied repeal) | Constitution binds every Congress | Constitution binds every Parliament |
Final word | Parliament | The Supreme Court, subject to amendment | Shared: Parliament amends, courts guard the core |
7. India: A Middle Path
The Indian Constitution is written, supreme and enforced by courts, so India belongs to the family of constitutional supremacy. Art. 13 declares void laws inconsistent with fundamental rights; Art. 245 gives Parliament and the State legislatures power to legislate 'subject to the provisions of this Constitution'; Arts. 32 and 226 empower the Supreme Court and the High Courts to enforce rights by writ; and Art. 368 prescribes a special procedure for amendment. Yet India did not copy the American model wholesale. Most provisions can be amended by a special majority of Parliament alone; Art. 21 speaks of 'procedure established by law' rather than 'due process of law'; Parliament can answer a judgment by amending or validating the law; and judges can be removed by Parliament under Art. 124(4). The judiciary tests validity, not wisdom. Parliament is not sovereign as in Britain, and the judiciary is not supreme as in the United States.
Special Reference No. 1 of 1964 (Keshav Singh) Supreme Court of India, 1964 (7 judges) Arising from a clash between the Uttar Pradesh Legislative Assembly and the Allahabad High Court over Keshav Singh's committal for contempt, the Court held that Indian legislatures are not sovereign like the House of Commons. Their powers and privileges under Art. 194(3) are subject to the Constitution, including the jurisdiction of the High Courts under Art. 226. Legislative privilege, too, lives within constitutional supremacy. |
Kesavananda Bharati v State of Kerala; Indira Nehru Gandhi v Raj Narain Supreme Court of India, 1973 (13 judges, 7:6) and 1975 Kesavananda: Golak Nath was overruled, but Art. 368 does not confer power to destroy the basic structure of the Constitution. Indira Gandhi: clause (4) of Art. 329A (39th Amendment), which validated the Prime Minister's election and ousted judicial scrutiny, was struck down on basic structure grounds. |
Minerva Mills v Union of India; I.R. Coelho v State of Tamil Nadu Supreme Court of India, 1980 and 2007 (9 judges) Minerva Mills: clauses (4) and (5) of Art. 368, inserted by the 42nd Amendment to make the amending power unlimited and unreviewable, were struck down: limited amending power is itself a basic feature. I.R. Coelho: laws placed in the Ninth Schedule after 24 April 1973 are open to challenge on basic structure grounds, including the essence of the rights in Arts. 14, 19 and 21. |
Supreme Court Advocates-on-Record Association v Union of India (NJAC case) Supreme Court of India, 2015 (5 judges, 4:1) The 99th Amendment and the National Judicial Appointments Commission Act, 2014 were struck down because giving the executive a decisive role in judicial appointments would impair judicial independence, a basic feature. Critics asked whether a Court deciding its own appointments leans towards judicial supremacy. |
8. Evaluation
Each model has its characteristic danger. Under parliamentary sovereignty a temporary majority may override rights with only the next election to stop it, which is why Britain added the Human Rights Act and why judges in Jackson hinted at a protected core. Constitutional supremacy entrenches rights but hands great power to unelected judges, the counter-majoritarian difficulty (Note 46). India's basic structure doctrine carries both anxieties: even amendments are reviewable, yet Parliament keeps wide room to amend everything else. The honest description is constitutional supremacy with shared custody: the people's representatives write and rewrite most of the Constitution, and the courts guard a core that no majority may destroy. In India neither Parliament nor the Supreme Court is sovereign; the Constitution is.
Memory Aid ▪ Analogy: the eldest brother and the partnership deed. The eldest brother's word is final and only he can reverse it (parliamentary sovereignty); the deed binds even the senior partner and an arbitrator enforces it (constitutional supremacy). ▪ Dicey's doctrine: 'Make, Unmake, No Brake, No Bind'. Make or unmake any law; no court may apply the brake; no Parliament may bind its successor. ▪ British dents: 'E-H-J-S'. EU and Factortame; Human Rights Act s.4; Jackson obiter (2005); Supreme Court (2009), which still cannot strike down an Act. ▪ Indian ladder: 'Kings In Mumbai Can't Sleep'. Kesavananda 1973, Indira Gandhi 1975, Minerva Mills 1980, Coelho 2007, SCAORA 2015. |
Exam Corner: Likely Questions ▪ Distinguish parliamentary sovereignty from constitutional supremacy. Which does India follow? ▪ Examine Dicey's doctrine of parliamentary sovereignty. How far has it been qualified in the United Kingdom? ▪ 'The Indian Constitution strikes a balance between parliamentary sovereignty and judicial supremacy.' Discuss with reference to the basic structure doctrine. |
Exam Corner: MCQ Traps ▪ Implied repeal: Vauxhall Estates (1932) and Ellen Street Estates (1934); Parliament cannot bind its successors. ▪ Dr Bonham's Case (1610) is Coke's; it was not followed in England but influenced American judicial review. ▪ A s.4 declaration of incompatibility under the Human Rights Act 1998 does not invalidate the Act. ▪ 'Emphatically the province and duty of the judicial department to say what the law is': Marshall CJ, Marbury v Madison (1803). ▪ The NJAC case (2015) struck down the 99th Amendment; Minerva Mills (1980) struck down Art. 368(4) and (5), inserted by the 42nd Amendment. |
9. Frequently Asked Questions
Q. Is the Indian Parliament sovereign?
A. No. Parliament legislates subject to the Constitution (Art. 245), its laws can be declared void for violating fundamental rights (Art. 13), and even its amending power cannot destroy the basic structure (Kesavananda Bharati, 1973; Minerva Mills, 1980).
Q. Can a British court strike down an Act of Parliament?
A. No. During EU membership courts could disapply an Act inconsistent with directly effective EU law (Factortame); under the Human Rights Act a higher court may only declare an Act incompatible, and it remains valid.
Q. Does India follow judicial supremacy?
A. Not strictly. The courts review laws and even amendments, but Parliament can amend most of the Constitution, validate legislation and remove judges. India follows constitutional supremacy, not judicial supremacy.
See also: Note 38 (sovereignty), Note 46 (constitutional doctrines), Note 94 (legal versus political sovereignty), Note 40 (rule of law), Note 45 (fundamental rights), Note 12 (Kelsen).
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