Differentiate parliamentary supremacy from parliamentary sovereignty. Would you consider the Indian Parliament as a Sovereign Parliament, Examine. (2017, 20 Marks)
A. V. Dicey, in Introduction to the Study of the Law of the Constitution (1885), defined parliamentary sovereignty as Parliament’s right to make or unmake any law whatever, with no person or body entitled to override or set aside its legislation. British writers often use “supremacy” for the same idea, but in constitutional analysis the terms separate: sovereignty denies any legal limit on the legislature, while supremacy means pre-eminence over the other organs inside a system that itself sets limits. India’s Parliament is supreme, not sovereign.
Sovereignty and supremacy distinguished
| Criterion | Parliamentary sovereignty (UK) | Parliamentary supremacy (India) |
|---|---|---|
| Source of authority | Parliament itself | A written Constitution framed by a distinct constituent body |
| Legal limits | None; no Parliament binds its successor | Fundamental Rights, federal lists, basic structure |
| Judicial review of statutes | Absent; courts apply Acts | Laws void under Article 13; enforced through Articles 32 and 226 |
| Constitutional change | Ordinary statute | Article 368 special majorities, state ratification for federal provisions |
| Ultimate sovereign | Crown-in-Parliament | The people, through “We, the People” |
Even the British model has softened: Factortame (1991) disapplied a statute conflicting with European law, the Human Rights Act 1998 allows declarations of incompatibility, and Law Lords in Jackson (2005) doubted, obiter, that sovereignty is unlimited. Brexit restored much of Dicey’s orthodoxy, showing that sovereignty is a political achievement rather than a logical necessity.
Why the Indian Parliament is not sovereign
- A created body: Parliament exists under the Constitution and exercises only the powers it confers.
- Federalism: Articles 245–246 and the Seventh Schedule confine it to the Union and Concurrent Lists; a law on a State subject is void for incompetence.
- Rights and review: courts strike down primary legislation routinely, a power a British court has never held over an Act of Parliament.
- The basic structure: Kesavananda Bharati (1973; 13 judges, 7:6) held that Parliament may amend any provision but not destroy the Constitution’s identity. The doctrine struck at the 39th Amendment in Indira Nehru Gandhi v. Raj Narain (1975), at the 42nd Amendment’s claim to unlimited amending power in Minerva Mills (1980), and at the 99th Amendment in the NJAC case (2015) — though both Houses had passed it almost unanimously and the states had ratified it.
Why it is nonetheless supreme
- The framers leaned towards the legislature: they chose “procedure established by law” over American due process in Article 21, and Jawaharlal Nehru treated the amending power as the people’s corrective against courts.
- Parliament has repeatedly reversed judgments — the First Amendment (1951) after Romesh Thappar and Champakam Dorairajan, and the Government of NCT of Delhi (Amendment) Act 2023 within months of the Court’s services ruling.
- The executive is answerable only to it, and it alone controls the purse.
- Even its constituent power is hedged politically. On 17 April 2026 the Constitution (131st Amendment) Bill was negatived in the Lok Sabha, 298–230, short of the two-thirds needed — a majority government unable to amend.
An assessment
The counter-majoritarian critique of the basic structure is serious: it is judge-made, its content is settled case by case, and in NJAC the Court judged its own appointments. Pratap Bhanu Mehta has warned of a drift towards judicial sovereignty. Yet the doctrine emerged from a real crisis: without it the Emergency-era amendments shielding the Prime Minister’s election and removing limits on amendment would have stood.
Conclusion
India’s Parliament is supreme among the organs of government and subordinate to the Constitution: supremacy without sovereignty is the design, not a defect. Sovereignty rests with the people, and the basic structure should remain a reserve check on excess rather than a routine veto on democratic choice.