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THE JOURNEY FROM PARLIAMENTARY SUPREMACY TO JUDICIAL SUPREMACY

INTRODUCTION

The three strong pillars, in the Constitution for the governance of our Country constitute of Legislature, Executive, and Judiciary. The Legislature comprises Parliament which has the prerogative to enact laws. The role of the Judiciary is mainly interpretation of laws and to declare such laws null and void which transgress the basic features of the Constitution. During the framing of the Constitution and after the accomplishment of India’s Independence, Judiciary as an instrument of the State has been bestowed with the most important position to fulfill the responsibilities. The establishment of the Judiciary shall lead to a welfare state which aims to provide social, economic, and political justice to all its citizens. Indian Judiciary has somehow been able to achieve its goal and therefore, emerged as one of the most dynamic and largest judiciary across the world.[1] Along with far-reaching achievements of the judiciary. It has been subject to a plethora of drawbacks, which demanded Judicial Reforms. The Judiciary is itself considered a Guardian of the Constitution. The immediate question which comes forward is who will govern the judiciary if it makes errors or omissions in such cases? Will it be Legislature, the Executive, or Judiciary itself? The Judiciary as given in Article 50 [2] of the Constitution ensures that it is free from the control of any organ. Will the regulation of the Judiciary violate the provisions of the Constitution? The recent controversial topic of appointments in the judiciary, ongoing judicial corruption, etc. These were the primary questions that are still not resolved and as such the debate continues.

PARLIAMENTARY SUPREMACY

Supremacy represents the belief of it being the ultimate authority in the final decision in any form of governance. Parliamentary supremacy means dominance over all the other governmental organs, including the executive and judiciary which are in the hands of Parliament (Legislature). However, India follows constitutional supremacy more than parliamentary supremacy because the Constitution is considered the fundamental supreme law of the land. Moreover, numerous attacks have been made by the parliament to dominate and subdue the Constitution but all the efforts unfortunately culminated in vain.[3]

JUDICIAL SUPREMACY

The judiciary is known as the watchdog of the Constitution. It is an indispensable pillar of the country. India is considered one of the countries which has the oldest legal traditions in the world. The vital concept of Jurisprudence is “Dharma” which means law and justice. The word ‘Dharma’ is regarded as the origin of the establishment of the justice system in the country. The common law system which India followed from the British after independence adopted the federal structure. The judiciary was established for the purpose to regulate the central and state laws. The Supreme Court is considered the apex court for the administration of justice, as per the Constitution. The Supreme Court was bestowed with the supreme powers to permit special leave from any judgement, order, or decree to appeal. The Supreme Court was also given exclusive powers to review the legislative and administrative domain, known as the Judicial review under Article 13(2) of the Constitution. The important power, which raises the above-mentioned question is based on the independence of the judiciary which is the basic feature of the Constitution.[4]

CONFLICTS BETWEEN PARLIAMENT AND THE JUDICIARY

There are numerous issues between the Parliament and the Judiciary. One of the issues which culminated in 1973, between parliament and judiciary was in the case of Kesavananda Bharati v State of Kerala.[5] In this case, it was declared that the Parliament has the power to modify the fundamental rights, but without altering basic features of the Constitution by a majority of 7: 6 judgment. It was clear from the judgment that fundamental rights are unamendable. The case of Kesavananda overturned the allocation of power from parliamentary supremacy to judicial supremacy.

As far as Article 21[6] is concerned, it states that ‘An individual should not be deprived of his life or liberty except a procedure established by law.’ During the framing of the Constitution, the clause of due process was not provided, limiting the scope of the Article. In 1975, when an internal emergency was declared all the fundamental rights were suspended. Moreover, there have been attempts at several attacks on judicial independence. 

In the year 1978, the Supreme Court in Maneka Gandhi v Union of India[7] widened the meaning and scope of Article 21 – by adding the due process clause. By reintroducing the scope of Article 21 to include the clause of due process which had been avoided by the constitution makers. The Supreme Court was surely broadening its jurisdiction as absolute and unfettered and indicating its supremacy.

The Judiciary has been subject to constant complaints that they are encroaching into the other two domains and even usurping their functions. The best example is the National Judicial Appointment Commission (NJAC), where the Supreme Court declared its judgement on the 99th Constitution Amendment Act. The Court observed that the Parliament’s Act was beyond the powers of the Constitution. The Judiciary had the superior powers in the Constitution to examine the constitutionality of the acts passed by the legislature. The judiciary should remain free from the control of the other two domains as its main purpose is to administer justice. The main functions of the judiciary are to secure the rights of people against the obtrusion of the government or any other association or individual. The higher courts can enforce the fundamental rights of the people through the following writs such as – Habeas Corpus, Certiorari, Prohibition, Mandamus, Quo-Warranto, etc.[8] The following cases are illustrative of the trajectory from parliamentary supremacy to judicial supremacy.

CONCLUSION

Parliamentary supremacy is under control by the Constitution of India, as it is subject to judicial review. In India, under the Constitution, the Supreme Court has been granted the prerogative of judicial review under Article 13(2).[9] Thus, it is evident that the Parliament entails the right to alter the provisions of the Constitution, the said amendments should be legal and within the parameters and boundaries. The Constitution makers had granted both organs exclusive powers. For instance, The Parliament deals with the power to modify the constitution with certain restrictions and the Judiciary has the ability of judicial review, which means it can review the laws enacted by the Legislature. The Doctrine of Judicial Supremacy is associated with America’s System which focuses more on judicial supremacy whereas Britain’s system is associated with the doctrine of Parliamentary Supremacy. Legislature and Judiciary should cooperate to maintain peace and harmony in the country. The Parliament and the Judiciary should not attempt to exceed their limits as restricted by the constitution of India.

Author(s) Name: Astha Prakash (Central University of South Bihar, Gaya)

[1] ‘The responsibilities of the judiciary in strengthening the rule of law’ (United Nations Office on Drug and Crime) <http://www.act4ruleoflaw.org/en/news/judiciary> accessed on 15 July 2023

[2] The Constitution of India 1950, art 50

[3] Arghya Sen, ‘Parliamentary Sovereignty v. Judicial Supremacy: World and India’ (Legal Bites, 16 March 2023) <https://www.legalbites.in/topics/articles/parliamentary-sovereignty-v-judicial-supremacy-world-and-india-895546#:~:text=In%20India%2C%20the%20Constitution%20provides,court%20decisions%20in%20some%20cases> accessed 15 July 2023

[4] Patil Amruta, ‘Synthesis of Parliamentary and Judicial Supremacy’ (Prepp, 29 March 2023) <https://prepp.in/news/e-492-synthesis-of-parliamentary-sovereignty-and-judicial-supremacy-indian-polity-notes> accessed 15 July 2023

[5] Kesavananda Bharati v State of Kerala AIR 1973 SC 1461

[6] The Constitution of India 1950, art 21

[7] Maneka Gandhi v Union of India AIR 1978 SC 597

[8] ‘Jurisdiction of the Supreme Court’ (Supreme Court of India) <https://main.sci.gov.in/jurisdiction> accessed 15 July 2023

[9] Constitution of India, art 13(2)