British parliament is
‘sovereign’ (supreme power within the State without any legal
restrictions on its authority and jurisdiction):
1.
The Parliament can make, amend, substitute or
repeal any law. De Lolme, a British political analyst, said, ‘The British
Parliament can do every thing except make a woman a man and a man a woman’.
2.
The Parliament can make constitutional laws by
the same procedure as ordinary laws. In other words, there is no legal
distinction between the constituent authority and the legislative authority of
the British Parliament.
3.
The Parliamentary laws cannot be declared
invalid by the Judiciary as being unconstitutional.
In other words, there is no system of judicial review in
Britain.
The Indian Parliament, on the
other hand, cannot be regarded as a sovereign body in the similar sense as
there are ‘legal’ restrictions on its authority and jurisdiction. The factors
that limit the sovereignty of Indian Parliament are:
1. Written Nature of the Constitution
The Constitution is the fundamental law of the land in our
country. It has defined the authority and jurisdiction of all the three organs
of the Union government and the nature of interrelationship between them.
Hence, the Parliament has to operate within the limits prescribed by the
Constitution. There is also a legal distinction between the legislative
authority and the constituent authority of the Parliament. Moreover, to effect
certain amendments to the Constitution, the ratification of half of the states
is also required. In Britain, on the other hand, the Constitution is neither
written nor there is anything like a fundamental law of the land.
2. Federal System of Government
India has a federal system of government with a
constitutional division of powers between the Union and the states. Both have
to operate within the spheres allotted to them. Hence, the law-making authority
of the Parliament gets confined to the subjects enumerated in the Union List
and Concurrent List and does not extend to the subjects enumerated in the State
List (except in five abnormal circumstances and that too for a short period).
Britain, on the other hand, has a unitary system of government and hence, all
the powers are vested in the Centre.
3. System of Judicial Review
The adoption of an independent Judiciary with the power of
judicial review also restricts the supremacy of our Parliament. Both the
Supreme Court and high courts can declare the laws enacted by the Parliament as
void and ultra vires (unconstitutional), if they contravene any provision of
the Constitution. On the other hand, there is no system of judicial review in
Britain. The British Courts have to apply the Parliamentary laws to specific
cases, without examining their constitutionality, legality or reasonableness.
4. Fundamental Rights
The authority of the Parliament is also restricted by the
incorporation of a code of justiciable fundamental rights under Part III of the
Constitution. Article 13 prohibits the State from making a law that either
takes away totally or abrogates in part a fundamental right. Hence, a
Parliamentary law that contravenes the fundamental rights shall be void. In
Britain, on the other hand, there is no codification of justiciable fundamental
rights in the Constitution. The British Parliament has also not made any law that
lays down the fundamental rights of the citizens. However, it does not mean
that the British citizens do not have rights. Though there is no charter
guaranteeing rights, there is maximum liberty in Britain due to the existence
of the Rule of Law.
Therefore, even though the nomenclature and organizational
pattern of our Parliament is similar to that of the British Parliament, there
is a substantial difference between the two. The Indian Parliament is not a
sovereign body in the sense in which the British Parliament is a sovereign
body. Unlike the British Parliament, the authority and jurisdiction of the
Indian Parliament are defined, limited and restrained.
In this regard, the Indian Parliament is like the American
Legislature (known as Congress). In USA also, the sovereignty of Congress is
legally restricted by the written character of the Constitution, the federal
system of government, the system of judicial review and the Bill of Rights.
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