FORMS OF SUPREMACY IN A CONSTITUTIONAL SETUP
Author – Aakash Sharma (Faculty of Law, University of Lucknow)
Co-Author – Shatakshi Pathak (Delhi metropolitan Education, Noida, U.P.)
Supremacy is derived from the Latin word “supremus” which means highest. It generally means the highest in authority or rank. Supremacy means the position in which one is more powerful or advanced than anyone else. Sovereignty is derived from the Latin term “superanus” which means the superior power or supreme. Sovereignty means the full right and superiority of an administering body over itself with no obstruction from external bodies or sources.
There are various types of sovereignty such as legal sovereignty, internal sovereignty, external sovereignty, de jure sovereignty, de facto sovereignty and popular sovereignty. In legal sovereignty, the supremacy lies with the law making body in a state such as Parliament. In internal sovereignty, the state has absolute power to enact law within its area of jurisdiction. In external sovereignty, the state has power to administer without any foreign interference. De jure sovereignty is having independent legal rule over one’s own country. In this sovereignty, the state has authority to control its territory, military, finances and people. In De Facto sovereignty, the state considers itself to be a sovereign state while other countries may not. In popular sovereignty, the legality, legitimacy and authority of the government are constituted by the consent or will of its people.
In India, there is a parliamentary form of government. In this form of government, the Council of Ministers headed by the Prime minister who holds real executive powers and the head of the state is only the Constitutional head.
In Parliamentary Sovereignty, the Parliament has the unrestricted right and supreme authority over all other Governmental institutions, popularly known as Legislative Supremacy. The Parliament has the authority to repeal or amend any previous codification and its power is not restricted by any written law even a Constitution or not bound by any precedent in the Parliamentary Sovereignty. In this type of sovereignty, the Parliament is completely supreme and no authority can question the Parliament for its actions in any manner.
- CONSTITUTIONAL SUPREMACY
Article 4(1) of the Federal Constitution of Malaysia talks about the rule of the Constitutional Supremacy. It states that “this Constitution is the supreme law of the Federation and any law passed after Mardeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
In the Constitutional Supremacy, all other laws and actions of the government must be in consonance with the provisions laid down in the Constitution and should not violate the basic norms and rules set out in the Constitution.
According to the doctrine of colorable legislation, under the ‘color’ or ‘guise’ of the power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on and outside the purview of the competence of the parliament.
In Minerva Mills Ltd. v. Union of India, the Supreme Court held that “executive, legislature, judiciary and government are bound by the Indian Constitution and nobody is above or beyond the Constitution.”
SUPREMACY IN INDIA
In India, there is a parliamentary form of government. Parliament under the garb of its constitutional power tried to gain supremacy but as per Article 13 of the Indian Constitution which directs the state not to make any law which is inconsistent or in derogation of any Fundamental Rights guaranteed by the constitution. In landmark judgement of Minerva Mills, the Supreme Court has added that the power of Parliament to amend the provisions of the constitution is limited, into the purview of ‘Doctrine of Basic Structure’.
Constitutional Supremacy is maintained by empowering the courts to review legislative and executive acts on the constitutional provisions. The Constitutional Supremacy has further intensified by the “Doctrine of Basic Structure”. The tool has been provided to the Supreme Court by the Constitution of India to support the Constitutional Supremacy. The courts had invalidated hundreds of executive actions which are violative of the provisions given in the Constitution.
- JUDICIAL REVIEW:
The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution in so far as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions. Judicial review plays an eminent role as a protector or custodian of the constitution when the legislature and executive bodies violates the constitutional provisions and try to waive off the rights. In India there exist a parliamentary form of democracy in which every citizen from every section of the society takes part in policy making as well as decision making process. It is the responsibility of the courts to ensure that the rule of law must be applied which cannot be subjected to any modification. All the public officers are accountable for every action. They have to administer power within the democratic provisions which are provided by the Constitution of India.
PUCL v. UOI is a landmark judgment in which the Supreme Court gave the verdict that to disobey or disregard the judgment given by the court, the lawmakers of India have no authority to question for the instrumentality, if there is the influence of legislature over the subject matter.
- CONSTITUTIONAL AMENDMENT:
The Indian Constitution is flexible as well as rigid in nature. The Amendment procedure of the constitution is laid down in Article 368 of the Indian Constitution. Since, ordinary laws can be amended with simple majority whereas constitutional amendments can only be passed by Special majority of the Parliament. Interestingly, Basic structure of the constitution is unamendable and Parliament holds no power to amend the Basic features of the constitution.
The Supreme Court in Keshavananda Bharti v. State of Kerala propounded the formula of ‘Basic Structure’ which in no possible circumstances be violated by Parliament but indeed Parliament has unrestricted power to amend any and every part of the Constitution except for Basic Structure of the Constitution.
According to Article 13(2) of the Indian Constitution, the state is bound not to make any law which violates the fundamental rights granted by Part III of the Indian Constitution because fundamental rights are part of the basic structure of the Constitution.
It is clearly evident from the Preamble which states “We the people of India….do hereby adopt, enact and give to ourselves this Constitution.” Thus, the Preamble declares in distinct terms that it is the People of India who have adopted, executed and given unto themselves this Constitution. Therefore, it declares that under the Constitution, the source of authority is the “People of India” and there is no subjection to any external authority.
So in India, it is we the people who have authorised the Constitution and enabled it to be a grundnorm to which all the organs of the Government as well as people of India are also under its purview.
Our Constitution contains an identity card in form of Preamble reflecting the hopes and aspirations of the People of India, part-IV provides for Directive Principles of State Policy, indicating the manner in which the people’s welfare can be attained by legislative action, with due respect for the fundamental rights of the citizens, and establishing a concept of ‘Welfare state’.
The supremacy of the Constitution is adopted by the people of India by setting up, through the Constitution they gave unto themselves, independent courts should act as guardians of their constitutional rights and liberties of people guaranteed by the Constitution against arbitrary invasions of these either by the executive or by the legislature. Our system of government is based upon a secular democratic faith which, in the words of Abraham Lincoln, is “that government of the people, by the people, and for the people shall not perish from this earth.”
In the case of Virendra Singh vs. State of U.P, it was held that the Constitution by reason of the authority derived from and conferred by the people of India destroyed all vestiges of arbitrary and despotic power in the territories of India and over its citizens. The Dominion of India and all those who were invited there sat in the Constituent Assembly not as conquerors and conquered, not as those who ceded and as those who absorbed but as the sovereign people of India, free democratic equals. Every vestige of sovereignty was abandoned by the Dominion of India and the States and surrendered to the peoples of the land who framed the new Constitution of India.
To find out the real distinction between the countries as to what type of supremacy exist around the world, the comparative analysis has been put forth.
- Comparison with U.K.
The parliamentary system of U.K. is based on the concept of Parliamentary sovereignty based on Westminster model. On the other hand India’s parliamentary system and procedures are different from Westminster model and have some fundamental differences. The British parliament has grown through hundreds of years of history, the Parliament is said to be the only Institution with complete sovereignty while compared to the Indian Parliament whose powers and functions are delimited by Constitution. Moreover, the Indian parliament is a direct representative of the people of India.
The British constitution consists of unitary characters as opposed to a federal ones. The British Parliament is a sovereign body in Britain and all governmental powers are vested in the British Parliament. Executive organs of the state have approved authority and are subordinate to the Parliament. They have delegated powers and are answerable to it. There is only one legislature. England, Scotland, Wales etc. are administrative units and not politically autonomous units. The Indian Constitution, on the other hand, is federal and there exists Separation of powers between different organs of the Government accompanied by Strong provisions of Checks and balances.
British Legal system is completely based on the concept of ‘Common law’ i.e. developed by Judges, convention, precedents, etc. While on contrary the Indian judicial system incorporates the Common Law System along with major statutory and regulatory laws.
British system lacks the ‘doctrine of Basic Structure’ which makes amending power of the Parliament supersede Judicial Pronouncements. While in India, a landmark case of Kesavananda Bharti, popularly known as ‘Fundamental Rights’
Case, Hon’ble SC of India held ‘Basic structure’ of the constitution is not amendable.
The term Sovereignty simply means Supreme Power. A very interesting feature of the British Constitution is the sovereignty of the British Parliament (no codified constitution). The British Parliament holds unfettered power of legislation i.e. it can make, amend or repeal any law and is supreme authority in the Nation.
The British courts have no power to question the validity of the laws passed by the British Parliament, they can simply check the legality of procedures followed by the British Parliament while legislating a law. There is no distinction between ordinary law and constitutional law and Parliament has Sovereign authority to make changes to the constitution like as ordinary laws in Britain. British parliament can legalize an illegal and can make illegal as legal, that all depends on the sole discretion of the Parliament.
- Comparison with USA
US Constitution is most briefly written Constitution in the world and holds Constitution as the highest law of land following the path of Constitutional supremacy. US has strictly followed the doctrine of separation of power proposed by John Locke and Montesquieu.
- Separation of Power
The Parliament of US is known as Congress, which enacts the law, President is the executive body who executes the law and Supreme Court interprets the law and also acts as protector of the constitution. The American President has not been conferred with law making power; moreover, he is neither member of House of Representative nor Senate. President of the US holds veto power, the Congress controls Presidents and vice versa. In this way, checks and balance are maintained.
Theoretically, the doctrine of separation of power is adopted in our Constitution, but it is not so. Prime Minister and Council of Ministers are real head executive powers of Indian government because the President has to act on the aid and advice of Prime Minister, he is specifically a rubber stamp office. Prime Minister and his Council of Ministers are major part of Parliament and also act as Executives which is a blatant violation of doctrine of separation of power.
The principle of judicial supremacy lies with the American Supreme Court. Since the Constitution is the supreme law of the land and grundnorm, the judiciary is provided with the power to uphold the law, the courts have absolute authority to declare state laws and even laws passed by Congress as null and void if it contradicts in any manner with the principles of Constitution. The Supreme Court pronouncements on questions of constitutionality are final and binding for all other courts and governmental authorities, whether state or federal.
The doctrine of Parliamentary supremacy is associated with the British Parliament while the American constitution stipulates judicial supremacy. The Indian constitution holds the middle position by synthesizing both aspects to advocate constitutional supremacy.
On the concluding note, we have seen forms of Supremacy that exist in different countries around the world and their significance in the administration of the country. This article focus upon the very unique form of sovereignty which is known as Popular sovereignty in India i.e. supremacy of the People of India as opposed to the Parliamentary supremacy of Britain and Judicial Supremacy of USA.
In India, we the people of India have adopted the constitution as the grundnorm which is Supreme law of Land and every Institution derives its authority from the Constitution. This power and supremacy of the constitution in India is authorized by the Sovereign authority i.e. we the people of India who are directly represented by the Parliament and hence, Supremacy of We, The people of India is foremost in our democratic setup.