Follow Us:



A Leviathan in chains

Unlike Britain, India’s parliament is not sovereign, writes Nirmalendu Bikash Rakshit.

Nirmalendu Bikash Rakshit | Kolkata |


‘Sovereignty’, as a political concept, means absolute or unlimited power. It is an essential element of the state and no other institution, operating inside it, can claim to have it. But, peculiarly enough, Britain’s Parliament is universally regarded as a sovereign institution. AV Dicey, the well-known British political scientist, has popularised this idea and no one has ever disputed it.

According to Dicey, the British Parliament is Sovereign, because

1) It can pass any and every law it chooses

2) It can change or repeal any law according to its free will

3) It can amend any aspect of the Constitution.

However, these three aspects need a broader explanation.

First, in a federal system, power is properly divided between the Centre and the provinces. As such, both the Parliament and the provincial legislatures can make laws within their specific ambits.

But, Britain is a unitary state and it has no province at all. So, Parliament is the only legislative body of the land and there is not other legislature to share the law-making affairs. As A Ogg writes, ‘the Parliament possesses unlimited legal authority

Moreover, the concept of ‘Judicial Review’ has found no place of honour in the British political system and, hence, no court of Britain can examine the validity or constitutionality of a law. But, where such power of the judiciary has been constitutionally accepted, the superior courts can, in case of inconsistency of a law with the Constitution, declare it as void.

This is why, the Parliament of Britain can pass any and every law ‘except that it cannot unsex.

Secondly, it can, whenever it pleases, repeal or change a law in order to cope with a changing situation.

Thirdly, the unwritten Constitution of Britain is naturally silent on the method of amendment. So, parliament has gradually usurped the authority to amend the Constitution according to the need of the day

But, our Constitution has, in fact, been framed in a quite different way and it has granted limited power to Parliament. As such, it is a non-sovereign body and it cannot travel beyond the limited and specific orbit as determined by the written Constitution

Moreover, ours is a federal system and, hence, all powers, legislative, executive and financial, have been divided between the Centre and the states. So, none of them can, legally, cross the line.

Parliament makes laws in some limited spheres. As Dr MV Pylee writes, “The primary function of the Parliament is law-making.” But, normally, it can make laws only on matters as expressly mentioned in the Union and concurrent lists and also on residuary subjects. However, it can intrude in the state list on some specific grounds as mentioned in Art. 249, 252 and 253. If it lavishly deals with the matters mentioned in the state list, its law is sure to be annulled by the apex court.

Moreover, we have accepted the doctrine of ‘Judicial Review’. As such, the constitutionality of a Parliamentary Act may be carefully examined by the superior courts. In this way, the superior courts act as the guardians of the Constitution.

It needs to be noted that Parliamentary Sovereignty of Britain is a natural product of history. As Sir Jennings points out, a prolonged and fierce struggle of power was ultimately resolved by it – “the fundamental issue was the relationship between the King and the Parliament.” However, the execution of Charles I in 1649 and the banishment of King James II by the glorious Revolution of 1688 marked the end of the crisis and, thus, the supremacy of Parliament was firmly established. The King/Queen is now a mere figurehead who is practically asked to ‘sign on the dotted line.’

The British people heaved a sigh of relief by depositing supreme power in Parliament. But, the people of America went further and they imposed some limitations upon Parliamentary power, because they felt that even popular representatives might become capricious and tyrannical. So, they introduced the idea of ‘Judicial Review’ in the written Constitution.

We have largely followed them and, thus, the Constitution has accepted it in a slightly limited sense. As DD Basu writes, “The Indian Constitution wonderfully adopts a via-media between the American system of judicial review and the English principle of Parliamentary supremacy.”

Thus, instead of inserting the ‘due process of law’ clause of America, it has, like Japan, adopted the words ‘procedure established by law’ in Article 21. It means that the judiciary can, wherever needed, annul Parliamentary enactments. However, the American Supreme Court can even see whether or not the law itself is good or bad. Of course, our judiciary cannot go so far, it can only see whether or not the law is consistent with the letter and spirit of the Constitution. Thus, though our Parliament is more powerful than its American counterpart, it has been denied unlimited power of legislation.

Similarly, it cannot change a previous law according to its free whim or desire. The change must conform to the written Constitution, otherwise it would be invalid and inoperative.

Thirdly, its constituent authority is also strictly limited. It can, however, amend a large part of the Constitution by following the specific procedures as prescribed by Art. 368 of the Constitution.

However, in the case of Sankari Prasad v. Union (1951) the apex court had ruled that Parliament was empowered to amend any provision of the Constitution. But, in 1967, it held that the later could not, by an amendment, take away or abridge any fundamental right – (Golaknath v. Punjab.) The court’s verdict evoked a bitter controversy, but, in its view, such rights were transcendental and immutable. However, it again changed its view in the case of Kesavananda Bharati v. Kerala (1973) and held that such rights might be curtailed, but no amendment can alter or affect the ‘basic structure’ of the Constitution. In its view, the basic ‘structure means’ – (i) Supremacy of the constitution; (ii) republican system; (iii) secular nature; (iv) separation of power; (v) federal character etc.

Thus, even the amending power of our Parliament is not uncontrolled or absolute. All this means that it is a non sovereign body. Of course, it has tremendous power – yet it is a ‘Leviathan in chains.’

(The writer is a Griffith Scholar and former Reader, New Alipore College, Kolkata.)