Parliamentary Sovereignty v. Judicial Supremacy: World and India

Introduction

When it comes to the relationship between the legislature and the judiciary, two key concepts often come up: parliamentary sovereignty and judicial supremacy. These concepts represent different approaches to the question of who has the final say in interpreting and applying the law. In this post, we'll explore what parliamentary sovereignty and judicial supremacy mean, how they've evolved, and how they operate in India and around the world.

Parliamentary sovereignty is a doctrine that originated in the UK [1], where it is still considered a fundamental principle of the British constitution. Under this doctrine, Parliament is the supreme law-making authority and can make, unmake, or amend any law. This means that no other body, including the judiciary, can overrule or invalidate an act of Parliament. In other words, Parliament has the final say on what the law is.

The doctrine of parliamentary sovereignty has been praised for its simplicity and its ability to ensure that laws are made by elected representatives who are accountable to the people. However, it has also been criticized for giving too much power to the legislature and potentially allowing for laws that violate individual rights or the principles of democracy.

In contrast to parliamentary sovereignty, the doctrine of judicial supremacy gives the judiciary the final say on the meaning and application of the law. This means that if a court finds that a law is unconstitutional, it can strike it down or declare it invalid. Judicial supremacy is a common feature of constitutional democracies around the world, including the United States. The advantage of judicial supremacy is that it can help protect individual rights and prevent abuses of power by the legislature. However, it can also be criticized for giving too much power to unelected judges and potentially allowing for judicial activism or interference with the democratic process.

The relationship between parliamentary sovereignty and judicial supremacy varies from country to country. In the UK, parliamentary sovereignty is still considered a fundamental principle, although it has been subject to some limitations in recent years. In the United States, judicial supremacy is enshrined in the Constitution and has been a key feature of the American legal system since the landmark case of Marbury v. Madison in 1803 [2]. In India, the Constitution provides for both parliamentary sovereignty and judicial supremacy. The Supreme Court has the power to strike down unconstitutional laws, but Parliament can also amend the Constitution and override court decisions in some cases. This has led to some tension between the judiciary and the legislature, particularly in cases involving fundamental rights.

Parliamentary sovereignty and judicial supremacy represent two different approaches to the question of who has the final say in interpreting and applying the law. While both concepts have their advantages and disadvantages, the tension between them can sometimes lead to conflict or uncertainty. In the next post, we'll explore some of the arguments for and against parliamentary sovereignty and judicial supremacy in more detail.

Parliamentary Sovereignty 

Parliamentary sovereignty is a doctrine that gives the legislative body of a country the supreme authority to make, amend or repeal laws. In this post, we'll explore what parliamentary sovereignty means, look at some countries that follow this doctrine and examine the pros and cons of this approach to governance.

Under the principle of parliamentary sovereignty, the legislative body, which is usually the Parliament, is considered the highest legal authority in a country. This means that Parliament has the power to create or modify laws without being overruled by any other governmental body, including the judiciary. This approach is often described as "the will of the people," as Parliament is made up of elected representatives who are accountable to the citizens they represent. The doctrine of parliamentary sovereignty is primarily associated with the United Kingdom, where it originated. The UK is widely considered to be the most prominent example of a country that follows this doctrine. Other countries that follow this approach include New Zealand, Canada, and Australia.

One of the main arguments in favour of parliamentary sovereignty is that it ensures that laws are made by elected representatives who are accountable to the people. This makes it easier for the government to respond to the changing needs of society and to make laws that reflect the will of the people.

On the other hand, critics argue that parliamentary sovereignty can lead to abuse of power by the legislature, as there are no limits to what laws Parliament can make. This means that Parliament can make laws that violate individual rights or go against democratic principles.

Advantages of parliamentary sovereignty include:

• The ability of Parliament to create laws that reflect the will of the people
• The flexibility to respond quickly to changes in society
• The simplicity of having a clear legal hierarchy with Parliament at the top

Disadvantages of parliamentary sovereignty include:

• The potential for abuse of power by the legislature

• The lack of judicial review to ensure that laws are consistent with the Constitution or human rights standards
• The potential for laws to be inconsistent between different parts of the country, as there is no overarching legal framework

Parliamentary sovereignty is a doctrine that gives the legislative body supreme authority over the creation and modification of laws. While this approach has its advantages, such as greater flexibility and responsiveness to the needs of society, it can also lead to potential abuses of power by the legislature. As such, the doctrine of parliamentary sovereignty has been subject to criticism and debate in many countries.

Judicial Supremacy

Judicial supremacy is a doctrine that gives the judiciary the ultimate authority to interpret the Constitution and laws of a country. In this post, we'll explore what judicial supremacy means, look at some countries that follow this doctrine and examine the pros and cons of this approach to governance.

Under the principle of judicial supremacy, the judiciary has the power to interpret the Constitution and laws of a country, and its interpretations are binding on all other branches of government. This means that if the judge determines that a law or action is unconstitutional, it can strike it down, even if it was enacted by the legislative or executive branches.

The doctrine of judicial supremacy is primarily associated with the United States, where it originated. The US Supreme Court is widely considered to be the most powerful and influential court in the world due to the extensive powers granted to it by the US Constitution. Other countries that follow this approach include India, Canada, and South Africa.

One of the main arguments in favour of judicial supremacy is that it protects individual rights and ensures that the government is held accountable to the Constitution. By giving the judiciary the final say on legal matters, it provides a check on the power of the other branches of government and ensures that laws are consistent with the Constitution.

On the other hand, critics argue that judicial supremacy can lead to unelected judges making political decisions and interfering with the democratic process. They also argue that the judiciary may overstep its bounds and become too powerful, leading to an imbalance in the separation of powers.

Advantages of judicial supremacy include:

• Protection of individual rights and freedoms
• Ensuring that the government is accountable to the Constitution
• Providing a check on the power of the other branches of government

Disadvantages of judicial supremacy include:

• Unelected judges may make political decisions that go beyond their legal authority
• Potential for an imbalance in the separation of powers, with the judiciary becoming too powerful
• Judicial supremacy may interfere with the democratic process by allowing unelected judges to strike down laws enacted by elected representatives

Judicial supremacy is a doctrine that gives the judiciary ultimate authority to interpret the Constitution and laws of a country. While this approach has its advantages, such as protecting individual rights and ensuring government accountability, it can also lead to concerns about unelected judges interfering with the democratic process and an imbalance in the separation of powers. As such, the doctrine of judicial supremacy has been subject to criticism and debate in many countries.

Comparison of Parliamentary Sovereignty and Judicial Supremacy in India 

The relationship between parliamentary sovereignty and judicial supremacy has been a long-standing debate in constitutional law around the world. India's constitutional framework attempts to balance these two concepts, with the judiciary playing an increasingly important role in interpreting and enforcing the Constitution. Let’s, examine the role of the judiciary and legislature in Indian governance and look at some landmark cases that highlight the tension between parliamentary sovereignty and judicial supremacy.

India's constitutional history is deeply intertwined with the country's struggle for independence from British colonial rule. After gaining independence in 1947, India adopted a democratic Constitution that established a federal system of government with a strong central government and separate state governments. The Constitution also established the supremacy of the Constitution and the rule of law and created an independent judiciary.

Over the years, India's judiciary has become increasingly powerful and active in interpreting and enforcing the Constitution. The Supreme Court of India has the power to strike down laws that are inconsistent with the Constitution, and it has used this power to protect individual rights and freedoms. The court has played an important role in upholding the principles of secularism, democracy, and the rule of law, which are enshrined in the Indian Constitution.

In India, the judiciary and legislature both have important roles in governance. The legislature, which consists of the Lok Sabha (House of the People) and Rajya Sabha (Council of States), is responsible for making laws and overseeing the government. The judiciary, which is independent of the other branches of government, is responsible for interpreting the Constitution and laws and ensuring that they are enforced.

However, the power of the judiciary in India has led to tension with the legislature. The judiciary has struck down laws that were passed by the legislature on several occasions, leading to questions about the balance of power between the two branches of government. This tension is rooted in the fundamental disagreement about the role of the judiciary in a democratic society.

Proponents of parliamentary sovereignty argue that the legislature should be the supreme authority in a democratic society. According to this view, the legislature is accountable to the people and has the authority to make and amend laws in the best interests of the country. Any attempt to limit the power of the legislature would be a violation of the principles of democracy and the separation of powers.

On the other hand, proponents of judicial supremacy argue that the judiciary should be the final authority on matters of constitutional interpretation. According to this view, the judiciary has the responsibility to protect the Constitution and ensure that it is being followed by all branches of government. The judiciary acts as a check on the legislature and the executive, ensuring that they do not exceed their constitutional authority and act within the confines of the law.

One of the most significant examples of the tension between parliamentary sovereignty and judicial supremacy in India is the Kesavananda Bharati case of 1973 [3]. In this case, the Supreme Court of India ruled that the Constitution of India could not be amended in a way that would alter its basic structure or undermine its fundamental principles. This decision limited the power of the legislature to amend the Constitution and strengthened the power of the judiciary to interpret it.

In the case of Indira Gandhi v. Raj Narain, (1975) [4] case, the Supreme Court invalidated the election of then Prime Minister Indira Gandhi to the Lok Sabha, the lower house of the Indian Parliament, due to electoral malpractices. This decision was a major blow to the authority of the Prime Minister and the legislature and reaffirmed the power of the judiciary to uphold the rule of law.

Further, the case of S. R. Bommai v. Union of India, (1994) [5], involved the dismissal of state governments by the central government, which led to a constitutional crisis. The Supreme Court held that the power to dismiss a state government could only be exercised under certain limited circumstances and that such power was subject to judicial review. This decision strengthened the role of the judiciary as a check on the power of the central government.

Another example is the National Judicial Appointments Commission (NJAC) case of 2015 [6] in which the Supreme Court struck down a law passed by the legislature that sought to change the way judges were appointed to the higher judiciary. The court held that the law was unconstitutional and violated the principle of judicial independence.

India's constitutional framework attempts to balance parliamentary sovereignty and judicial supremacy, with the judiciary playing an increasingly important role in interpreting and enforcing the Constitution. While the tension between these two concepts has led to debate and controversy in India, the country's independent judiciary has been instrumental in protecting individual rights and ensuring that the government is accountable to the Constitution.

Comparison of Parliamentary Sovereignty and Judicial Supremacy in the World. 

Parliamentary sovereignty and judicial supremacy are two legal doctrines that have played a significant role in shaping the constitutional frameworks of many countries around the world. The way these concepts are applied, however, can differ significantly depending on the legal system in place in a particular country While some countries follow the doctrine of parliamentary sovereignty, others subscribe to the principle of judicial supremacy. Here is an overview of different legal systems around the world and their approach to parliamentary sovereignty and judicial supremacy, along with examples of landmark cases from other countries that demonstrate the tension between these two doctrines.

The legal systems of different countries around the world can be broadly classified into two categories: common law and civil law.

Common Law Countries

Common law countries, such as the United Kingdom, Australia, Canada, and New Zealand, follow the doctrine of parliamentary sovereignty. Under this doctrine, the legislature is the supreme law-making body, and its laws cannot be challenged or struck down by the judiciary. In these countries, the role of the judiciary is to interpret the law, rather than to create or strike down laws.

In the United Kingdom, parliamentary sovereignty has been a fundamental principle since the Glorious Revolution of 1688. The UK Parliament is the ultimate law-making authority and has the power to create, amend, or repeal any law. The courts, however, have no power to strike down laws as unconstitutional. The UK's membership in the European Union, however, has introduced some limits to parliamentary sovereignty, as EU law takes precedence over national law in certain areas.

In Australia, parliamentary sovereignty is also a fundamental principle. The Australian Constitution provides for a federal system of government, with the powers of the federal government and the state governments delineated. The Australian High Court has the power to interpret the Constitution and to determine the validity of laws, but it cannot strike down laws as unconstitutional in the same way that the US Supreme Court can.

Civil Law Countries

Civil law countries, such as France, Germany, and Japan, follow the principle of judicial supremacy. Under this principle, the judiciary is the ultimate arbiter of the constitutionality of laws and has the power to strike down laws that are deemed to be unconstitutional. In these countries, the role of the legislature is to create laws, while the role of the judiciary is to ensure that those laws are consistent with the constitution.

In France, judicial review is carried out by the Constitutional Council, which is composed of nine members appointed by the President of the Republic, the President of the National Assembly, and the President of the Senate. The Council can strike down laws that are deemed to be unconstitutional, and its decisions are final and binding.

In Germany, the Federal Constitutional Court is responsible for carrying out judicial review. The Court has the power to declare laws unconstitutional and to order the government to change them. The Court's decisions are binding on all other courts and government bodies.

In Japan, the Supreme Court has the power to interpret the Constitution and to declare laws unconstitutional. Its decisions are final and binding, and there is no provision for the parliamentary override.

Examples of Landmark Cases from Other Countries that Demonstrate the Tension between Parliamentary Sovereignty and Judicial Supremacy

1. Marbury v. Madison,(1803) [7]: This landmark case from the United States established the principle of judicial review, which gives the Supreme Court the power to strike down laws that are deemed to be unconstitutional. In doing so, the case also established the principle of judicial supremacy in the US and demonstrated the tension between this principle and the doctrine of parliamentary sovereignty that is followed in the UK.
2. Minister of Home Affairs v. Fisher, (1980) [8]: In this case, the Constitutional Court of South Africa declared a law that allowed for the detention of individuals without trial to be unconstitutional. The case demonstrated the role of the judiciary in protecting fundamental rights and freedoms and underscored the tension between the principle of judicial supremacy and the doctrine of parliamentary sovereignty that had previously held sway in South Africa.
3. Roe v. Wade, (1973) [9]: This landmark case from the US established the right to abortion as a constitutional right and struck down state laws that restricted access to abortion. The case demonstrated the role of the judiciary in interpreting the US Constitution and protecting individual rights and highlighted the tension between the principle of judicial supremacy and the doctrine of parliamentary sovereignty.

Parliamentary sovereignty and judicial supremacy are two legal doctrines that have played a significant role in shaping the constitutional frameworks of many countries around the world. While the doctrine of parliamentary sovereignty holds sway in common law countries, the principle of judicial supremacy is followed in civil law countries. Landmark cases from different countries demonstrate the tension between these two doctrines and the ongoing struggle to balance the powers of the legislature and the judiciary in a democratic society.

Reconciling Parliamentary Sovereignty and Judicial Supremacy

The tension between parliamentary sovereignty and judicial supremacy has been a long-standing debate in constitutional law. While both concepts have their advantages and disadvantages, reconciling them has been a challenge for many countries. In this section, we will explore the possible approaches to reconciling the tension between parliamentary sovereignty and judicial supremacy, as well as the advantages and disadvantages of different approaches. We will also look at case studies of how other countries have reconciled these two concepts.

Possible Approaches to Reconciling Parliamentary Sovereignty and Judicial Supremacy

1. Judicial deference to the Legislature: One approach to reconciling parliamentary sovereignty and judicial supremacy is for the judiciary to defer to the legislature on matters of policy. Under this approach, the judiciary would only intervene in cases where there is a clear violation of constitutional rights or principles. This approach is often associated with parliamentary sovereignty, as it allows the legislature to make decisions without fear of judicial intervention.

The main advantage of this approach is that it allows the legislature to make decisions without fear of judicial intervention, which is in line with the principles of parliamentary sovereignty. However, this approach can also lead to the violation of constitutional rights and principles, as the judiciary would not intervene unless there is a clear violation.

2. Judicial activism: Another approach is for the judiciary to take an active role in checking the powers of the legislature. Under this approach, the judiciary would actively review legislative actions to ensure that they comply with constitutional principles and values. This approach is often associated with judicial supremacy, as it empowers the judiciary to overrule legislative decisions.

The main advantage of this approach is that it empowers the judiciary to protect constitutional rights and principles from potential legislative violations. However, this approach can also be seen as undemocratic, as it allows the judiciary to overrule the decisions of elected representatives.

3. Dialogue theory: A third approach is the dialogue theory, which suggests that the legislature and the judiciary should engage in a continuous dialogue to reconcile their respective roles. Under this approach, the judiciary would use its powers to strike down unconstitutional laws, but it would also engage in a dialogue with the legislature to help it better understand and respect constitutional principles and values.

The main advantage of this approach is that it encourages a continuous dialogue between the legislature and the judiciary, which can help to reconcile their respective roles. However, this approach requires a high level of trust and cooperation between the two branches of government, which may not always be possible.

Case Studies of How Other Countries Have Reconciled Parliamentary Sovereignty and Judicial Supremacy

1. United States: The United States follows the doctrine of judicial supremacy, where the Supreme Court has the power to strike down any law or action that violates the US Constitution. However, the principle of separation of powers ensures that the legislative branch also has significant power to make laws. The Constitution provides a framework for the two branches to work together and check each other's power. In practice, this means that the Supreme Court interprets the Constitution and strikes down unconstitutional laws, while the legislative branch has the power to amend the Constitution and change the law.
2. Germany: Germany follows a form of parliamentary sovereignty, but with some limitations. The German Constitutional Court has the power to review and strike down any law that violates the German Basic Law (Constitution). However, the court does not have the power to create laws or make policy decisions. This means that the German Parliament is still the primary law-making body, but the Constitutional Court acts as a check on its power.
3. Canada: Canada follows the doctrine of parliamentary sovereignty, but the Canadian Charter of Rights and Freedoms provides some protection for individual rights. The Supreme Court of Canada has the power to interpret the Charter and strike down laws that violate it. This means that while the Parliament is still the primary law-making body, it must take the Charter into account when making laws.

In all of these cases, the tension between parliamentary sovereignty and judicial supremacy is managed through a system of checks and balances. The different branches of government work together to limit each other's power and ensure that no one branch becomes too dominant. These checks and balances help to reconcile the tension between parliamentary sovereignty and judicial supremacy and ensure that both concepts can coexist in a functional democracy.

Conclusion

The tension between Parliamentary Sovereignty and Judicial Supremacy is an important issue in many countries, including India. Both concepts have their advantages and disadvantages, and their respective proponents have strong arguments to support their position.

In India, the Constitution grants the Parliament the power to make laws, but the judiciary has the power to review and strike down any law that violates the Constitution. This tension between parliamentary sovereignty and judicial supremacy has played out in several landmark cases, such as the Kesavananda Bharati case and the Minerva Mills case, which have shaped the interpretation of the Constitution and the balance of power between the two branches of government.

Around the world, different countries have taken different approaches to reconcile parliamentary sovereignty and judicial supremacy. The United States follows the doctrine of judicial supremacy, while Germany and Canada have developed unique systems that incorporate elements of both concepts.

In the end, the tension between parliamentary sovereignty and judicial supremacy is best managed through a system of checks and balances, where the different branches of government work together to limit each other's power and ensure that no one branch becomes too dominant. This helps to ensure that both concepts can coexist in a functional democracy, with the ultimate goal of protecting individual rights and promoting the common good.

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