Q.4. Compare and contrast the British and Indian approaches to Parliamentary sovereignty. [UPSC 2023 GS P-2]

Parliamentary sovereignty, a cornerstone of the British constitutional framework, is interpreted and applied differently in the United Kingdom and India. Here is a detailed comparison and contrast of the British and Indian approaches to Parliamentary sovereignty:

British Approach to Parliamentary Sovereignty

1. Conceptual Basis:

• Absolute Sovereignty: The British Parliament is considered the supreme legal authority, capable of creating or ending any law. There is no authority that can override or set aside legislation passed by Parliament.
• Historical Context: Rooted in the constitutional developments from the Magna Carta (1215) to the Bill of Rights (1689), establishing Parliament’s supremacy over the monarchy and other institutions.

2. Legislative Powers:

• Unlimited Legislative Power: Parliament can legislate on any subject matter, and no other body can question the validity of its laws.
• Doctrine of Implied Repeal: New laws passed by Parliament can automatically repeal earlier inconsistent laws without any formal repeal process.

3. Judicial Role:

• Limited Judicial Review: Courts in the UK cannot declare an Act of Parliament invalid. Their role is limited to interpreting and applying laws, not questioning their validity.
• No Written Constitution: The UK operates without a single written constitution, relying on statutes, conventions, and legal precedents.

Indian Approach to Parliamentary Sovereignty

1. Conceptual Basis:

• Conditional Sovereignty: The Indian Parliament’s powers are subject to the Constitution of India, which is the supreme legal document.
• Written Constitution: India’s Constitution (1950) is comprehensive and explicitly delineates the distribution of powers, fundamental rights, and the functioning of government institutions.

2. Legislative Powers:

• Enumerated Powers: Parliament’s powers are enumerated in the Constitution (Union List, State List, Concurrent List). Parliament can legislate on matters in the Union and Concurrent Lists, but states have autonomy over matters in the State List.
• Amendability: The Constitution can be amended by Parliament, but basic structure doctrine limits this power to prevent alterations that would change its fundamental framework.

3. Judicial Role:

• Judicial Review: The Supreme Court and High Courts have the power to review and strike down any legislation or executive action that contravenes the Constitution. This judicial review ensures that Parliament does not violate fundamental rights or exceed its constitutional mandate.
• Basic Structure Doctrine: Established in the Kesavananda Bharati case (1973), this doctrine holds that while Parliament can amend the Constitution, it cannot alter its basic structure.

Key Contrasts

1. Sovereignty:

• Absolute vs. Conditional: British Parliamentary sovereignty is absolute, whereas Indian Parliamentary sovereignty is conditional upon the Constitution.

2. Judicial Oversight:

• Limited vs. Robust: In the UK, judicial oversight of Parliamentary laws is limited, while in India, robust judicial review ensures laws comply with the Constitution.

3. Flexibility and Rigidity:

• Unwritten vs. Written Constitution: The UK’s unwritten constitution allows for flexibility and evolution through statutes and conventions. India’s written constitution provides a clear, structured framework, ensuring stability but requiring formal amendments for changes.

4. Balance of Power:

• Centralized vs. Federal Structure: The UK’s unitary system centralizes power, whereas India’s federal structure distributes power between the central and state governments, reflecting a more balanced approach to governance.

In summary, while the British approach to Parliamentary sovereignty emphasizes absolute legislative supremacy with minimal judicial interference, the Indian approach is characterized by a balance between Parliamentary powers and judicial oversight within the framework of a written constitution.