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9-November-2023

1.  The doctrine of Parliamentary sovereignty and judicial supremacy has exerted considerable influence in shaping the constitutional frameworks of India and the USA. Citing relevant case laws discuss the role of the judiciary in influencing the constitutions in these countries. Is the scope of judicial review wider in India?

ANSWER

  • According to the principle of parliamentary sovereignty, Parliament is the supreme law-making authority and can make, unmake, or amend any law. No other body can overrule or invalidate an Act of Parliament. This doctrine originated in the United Kingdom. The concept of judicial supremacy, on the other hand, grants the judiciary the last word on the interpretation and application of the law. This implies that a court has the authority to overturn or declare a statute illegal if it determines that it is unconstitutional.

PARLIAMENTARY SOVEREIGNTY AND JUDICIAL SUPREMACY IN INDIA AND USA

  • Judicial supremacy is a fundamental aspect of the American legal system and is established in the Constitution of the United States of America. However, the Indian Constitution guarantees both judicial and parliamentary primacy.
  • While the Supreme Court can invalidate unconstitutional laws, Parliament can also change the Constitution and, in certain situations, overrule court rulings. The courts and legislature are now at odds with one another as a result of this.
  • Thus, tussle between the two doctrines, the doctrine of parliamentary sovereignty and the doctrine of judicial supremacy plays a considerable role in shaping the constitutional frameworks of India and the USA. This is manifested through various case laws that influenced the Constitutions of India and th e USA.

ROLE OF THE JUDICIARY IN INFLUENCING THE CONSTITUTION OF INDIA

  1. A.K. Gopalan vs. State of Madras and L.Chandra vs. Union of India: In these cases, the Supreme Court explicitly declared that the judiciary has the power to judicially review any law under Article 13 to the extent it violates the rights given under Part III of the Constitution.
  2. I.C. Golaknath vs. the State of Punjab, 1967: The Supreme Court in this case decided that the powers of the Parliament to amend the Constitution under Article 368 does not include the power to amend the Fundamental Rights, thus severely curtailing the amending powers of the Parliament. The Parliament reacted by passing the 24th Constitutional Amendment, in 1971.
  3. Keshavanand Bharati vs. State of Kerala, 1973: This landmark judgment outlined the principle of “Basic Structure Doctrine”. Through this judgment, the Supreme Court declared that the amending powers of the Parliament are restricted by the “Basic Structure” of the Constitution.
  4. Maneka Gandhi vs. Union of India, 1978: The Supreme Court in this judgment expanded the scope of Article 21 of the Constitution. This judgment led to a broader interpretation of Fundamental Rights and has led to the expansion of the scope of Part III beyond the conventional readings.
  5. Minerva Mills vs. Union of India, 1980: Through this case, the Supreme Court established the relationship between the Fundamental Rights under Part III and the DPSPs under Part IV making them complementary to each other.
  6. S.R. Bommai vs. Union of India, 1994: Through this case, the Supreme Court provided stability to the State Governments and restricted the Union’s power to proclaim President’s Rule in States. Through this case, the Supreme Court strengthened the federal structure of the Indian Constitution.
  7. NJAC Case, 2017: Supreme Court struck down the 99th Constitutional Amendment which established NJAC stating it is in violation of the principle of judicial independence which is a part of the Basic Structure of the Constitution.
  8. Navtej Singh Johar vs. Union of India, 2016, Sabarimala Case, 2020, Triple Talaq Case, 2017: In recent times, the Supreme Court has taken the interpretation of the Constitution, laws, and Acts in a manner to reflect the mind and purpose of the Constitution makers.

ROLE OF THE JUDICIARY IN INFLUENCING THE CONSTITUTION OF THE USA

  1. Marbury vs. Madison, 1803: The Supreme Court can overturn laws that it deems to be unconstitutional thanks to the idea of judicial review, which was established by this historic decision from the United States.
  2. Roe vs. Wade, 1973: This historic decision overturned state laws that restricted access to abortion and established the right to an abortion as guaranteed by the Constitution. The case illustrated the judiciary’s function in upholding individual rights and interpreting the US Constitution.
  3. Planned Parenthood vs. Casey, 2022: The US Supreme Court, in a 6:3 judgment, overturned Roe vs. Wade judgment, In this manner, the Supreme Court moved back from due process to procedure established by law.

But this case showed that in the US, the principle of judicial supremacy takes precedence over the principle of parliamentary sovereignty.

JUDICIAL REVIEW IN INDIA

  • The Supreme Court in India described judicial review as a part of the Basic Structure of the Constitution. This was reiterated in the I. R. Coelho vs. State of Tamil Nadu, 2007. Articles 13, 32, and 226 read with Articles 136, 139, 141, and 142 provide the Indian Supreme Court, the power to judicial review. The scope of judicial review in India has evolved since independence through cases like A.K Gopalan, I.R. Coelho, S.R. Bommai, etc. However, there are certain areas where there is scope of judicial review is still limited Some of them are:
  1. The privileges and rights conferred on the MPs and MLAs under Articles 105, 191, and other conventions.
  2. The role of the Speaker under the Anti-Defection Law was discussed in the Keisham Meghachandra vs. Hon’ble Speaker of Manipur Legislative Assembly, 2021.
  3. The role and jurisdiction of Governors under Article 152 of the Constitution and misuse of the discretionary powers.
  4. The ambiguities, and irregularities during the conduct of proceedings of the Legislatures. This is prohibited under Article 211 of the Constitution.
  • However, many times courts have taken some decisions, which had various implications on society and were not well thought out. There are also allegations from the executive and legislature of the judiciary interfering or overreaching its duties.
  • Thus there is a need to balance the power of judicial review and prevention of judicial overreach. The line between judicial activism and judicial overreach is very thin, thus the courts must restrain themselves until the matter before them has very large implications.

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