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Wednesday, January 1, 2014

Parliamentary Sovereignty Vs. Judicial Supremacy

In the British parliamentary system, Parliament is supreme and sovereign. There are  no limitations on its powers, at least in theory, inasmuch  as there is no written constitution and the Judiciary has no power of judicial review of legislation.

In the U.S. system, the Supreme Court with its power of judicial review and of interpreting the Constitution has assumed supremacy.

In India, the Constitution has arrived at a middle course and a compromise between the British sovereignty of Parliament and American judicial supremacy. We are governed by the rule of law and judicial review of administration action is an essential part of rule of law. Thus, courts can determine not only the constitutionality of the law but also the procedural part of administrative action (State of Bihar v.Subhash Singh, AIR 1997 SC 1390). But, since we have a written constitution and the powers and functions of every organ are defined and delimited by the Constitution, there is no question of any organ-not even Parliament- being sovereign. Both Parliament and the Supreme Court are supreme in their respective spheres. While the Supreme Court may declare a law passed by Parliament ultra vires as being violative of the Constitution, Parliament may within certain restrictions amend most parts of the Constitution.
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