Parliamentary sovereignty in UK and India

Parliament is the country's national legislature, where citizens' representatives debate and discuss
the country's political and national issues. Despite being essentially a legislative body, it now has
power over the executive branch and serves as a nationwide forum for popular opinion. In India,
parliament consists of the house of the people, the council of states, and the president of India.
On the other hand, in England, parliament essentially means the King-in parliament. The king is
at the apex of the parliamentary triangle, with the House of Lords and the House of Commons at
its base. The term "parliament" refers to the three institutions that work together. Of course, as a
popular assembly, the House of Commons is the most powerful partner. According to the
decision in Stockdale v. Hansard, any one of these, acting alone or in concert, does not
constitute parliament.

The History of Parliamentary Sovereignty

During the 17th century, a sequence of cases developed in which the Monarch and the courts
recognized Parliament's legislative primacy.

 Chief Justice Coke contended in Dr Bonham's Case (1610) 8 Co Rep 114 that the
common law as created by the judiciary was the ultimate legal protection for the people.
Coke states (at 118) "...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 such an Act to be void".

 Chief Justice Coke stated in The Case of Proclamations [1611] 12 Co Rep 74; 77
ER1352 that he doubted the King's legislative supremacy because he only has the
prerogatives that the law affords him, and he is also unable to create new laws.

 In the case of Day v Savadge (1614) Hob 85, it was decided that an Act of Parliament
was unconstitutional if it was "formed against natural equity."
  However, it was contended in R v Hampden (1687) 3 State Tr 825 and Godden v Hales
(1686) 11 St Tr 1166 that the King's prerogative authorized him to charge tax without
parliamentary assent, despite Parliament's ability to petition.

The character of Parliamentary supremacy was altered by the Glorious Revolution of 1688 and
the constitutional settlement of 1689. Charles I proclaimed his sole authority to rule and
legislate, which he claimed came from God. Years later, when the crown was offered to William
of Orange and Mary, it was contingent on their acknowledgement of Parliament's legislative
authority, which was embodied in Article 9 of the Bill of Rights of 1689. The power of
Parliament and Parliamentary privilege are clearly stated in the Bill of Rights of 1689, although
it has been incrementally developed since then.

 British Railways Board v Pickin [1974] AC 765 Lord Reid stated that since the
Revolution of 1688, the law of God, or nature or of natural justice could not overrule an
Act of Parliament.

However, more recently Parliament is considered to be supreme, or sovereign.

The legislative sovereignty of parliament in England signifies the following:

1) That no law can be passed without the approval of parliament. It has the ability to enact,
repeal, or modify any law.

2) That all courts in the country must recognize and apply any legislation passed by
parliament, regardless of whether it is reasonable or absurd, moral or immoral.
3) No court has the authority to declare any law passed by parliament void or
unconstitutional. There is legislative supremacy in England, but no judicial supremacy,
and the courts of law have judicial review power.
4) That no other individual or group of individuals can claim the authority of a parallel or
competing legislature. No other entity has the authority to override or overrule
parliamentary law, and parliament has the authority to do so. Other law-making authority
is therefore derivative and must be subordinate to parliament.
The first three are referred to as positive aspects, while the fourth is referred to as negative
aspects. The positive aspect is parliament's unrestricted legislative power; the negative aspect is
the lack of legislative competition. In a nutshell, parliamentary sovereignty means that the triple
entity known as the King-in-Parliament has the unrestricted power to make or repeal any law,
and that no person or body of persons is recognized by English law as having the authority to
make rules that override, derogate from, or otherwise compete with an act of parliament, or that
would be enforced by courts in violation of an act of parliament. As a result, parliament's
legislative powers are unchecked and uncheckable, infinite and illimitable.

Parliamentary sovereignty in India

India's parliament is not sovereign in the same way that England's parliament is. The
constitution, as found in the Union List and Concurrent List, determines its jurisdiction.
However, even within that limited competence, parliament is prohibited from enacting
legislation that infringes any of the Fundamental Rights. The courts have the authority to rule on
the constitutionality of legislation after they have been enacted. This is owing to India's adoption
of both England's parliamentary mode and the United States of America's supremacy of
judiciary, i.e. the authority of judicial review.

Provisions of the Indian Constitution that affect Parliamentary sovereignty:

The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be
void.1

Powers of parliament in India:

 The union parliament can legislate on all matters and subjects specified in Union and
Concurrent Lists.2

1
. Art. 13, constitution of India.
2
Art. 246, Ibid.
  In case of breakdown of the constitutional machinery in a state and when a proclamation
has been made to that effect, the State Legislature stands suspended and the Union
parliament legislates for that State even on subjects that are included in the State List.3
 If States authorize the parliament to legislate on certain matters, parliament makes such
legislation even if those subjects are on States List.4
 The parliament is competent to legislate on any matter in state List if the Council of State
passes a resolution by a two-thirds majority declaring such a matter or matters to be of
national importance and interests.5
 The union parliament is competent to legislate for the whole of India or any part thereof
on any matter in the Union, State or, Concurrent List, in order to give effect to any treaty,
Agreement or, Convention with any foreign State.6
 The power to amend the constitution rests with the Union Parliament only.7
 Parliament controls the national finances. No taxes can be levied, money borrowed or
spend without the permission and authority of parliament and in the manner prescribed
by it. Parliament has, however, no control over expenditure which is charged on the
revenues of India, but may discuss it.8
 It has the power to impeach the President and remove him from office.9
 The supreme command of the Defense Forces is vested in the President but the exercise
of this power is to be regulated by law and it is the parliament which has the exclusive
legislative power in regard to the Defense Forces, war, and peace.10
 The ministers of union cabinet must be member of the parliament. If they are not member
at the time of their appointment they must get themselves elected within six mounts,
otherwise they cease to be ministers.11
 Parliament controls the administration and working of the different ministries by seeking
information by means of questions and supplementaries, passing resolutions, votes of
censure and motions of no-confidence. This also establishes the supremacy of parliament
3
Art. 250, Ibid.
4
Art. 252, Ibid.
5
Art. 249, Ibid.
6
Art. 253, Ibid.
7
Art. 368, Ibid.
8
Art. 265, Ibid.
9
Art. 61, Ibid.
10
Art. 53(2), Ibid.
11
Art. 75(5), Ibid.
 over the executive. The ministry can also be criticized when the Budget is being
discussed or supplementary grant are moved.12
 The two Houses of parliament participate in the election of the president. But in the
election of the vice-president, the parliament’s right is exclusive.13
 Parliament can by law form a new State or change after ascertaining the view of State
concerned.14
 It can create or abolish the Upper Chamber in the State on the recommendation of the
Assembly of the State concerned.15

The stance of the Indian judiciary to Parliamentary sovereignty

The Supreme Court of India is the final interpreter and guardian of the constitution, as well as the
keeper of citizens' fundamental rights. As a result, it plays a crucial role. The most effective
leading cases that balanced our legislative sovereignty are listed below:

The Kasavananda Bharati case, which gives a decision on amending the constitution
that Article 368 does not allow parliament to alter the core structure of framework of the
constitution, has played the most crucial role to date in saving our constitution. On Article 356
S.R. Bommai case also has played most relevant role.

So far, we've looked at the philosophy and position of parliamentary sovereignty in the
Indian parliament in comparison to the UK parliament. The constitution, not the parliament, is
supreme in India, as we've discovered. No law passed by the Indian parliament affects basic
rights or violates constitutional requirements. And so, the parliament of India is supreme under
the constitution. The British parliament, on the other hand, has the authority to enact any law,
whether moral or immoral, lawful or criminal. No court has the power to examine its legality like
the Indian supreme court. As a result, the Indian parliamentary system is more accountable to the
ideal premise of constitutional supremacy with judicial review authority.

12
Art. 113-116, Ibid.
13
Art. 55 and 66, Ibid.
14
Art. 3, Ibid.
15
Art. 169, Ibid.