Which is more Supreme, The constitution or the Parliament
Written By:- Pulkit Taneja
The debate of superiority between the constitution and the Parliament is going on for several years. The Indian constitution establishes a doctrine of separation of powers, which entails a division of power between the legislature, the Executive, and the Judiciary, each performing separate yet interlinked functions. The legislature or the Parliament is in charge of drafting new laws. The executive works towards implementing such laws, and the judiciary is entrusted with solving disputes and safeguarding the constitution. Considering that Parliament’s powers and duties revolve around legislating new laws, could it possibly make a new constitution or amend the existing constitution and establish parliamentary supremacy? I would best try to answer this question by supporting it with adequate research and case laws.
Amendment of the Constitution
The Indian Constitution’s makers were wise enough to understand that society cannot be held within a law that is static in nature. The supreme law of the land must not be static and should evolve according to society. The evolution of article 21 of the constitution serves as a perfect example to depict how the changing society affects the constitution. In 1950, when AK Gopalan was arrested under the Preventive Detention Act, he approached the supreme court under Article 32 to seek relief for violating his right to life as guaranteed under article 21 of the constitution. The supreme court then dismissed this argument of the right to life, and AK Gopalan was arrested under a procedure that was established by law.
It was not until the case of Maneka Gandhi v Union of India, 1978 that the supreme court increased the scope of article 21 to include that the procedure established by law must be reasonable and not infringe personal liberty. Soon in 1993 the case of Unni Krishnan vs. State of Andhra Pradesh, the Supreme court accepted a list of rights included within the scope of article 21. This dynamic nature of the constitution is essential for a healthy democracy, and therefore article 368 of the constitution grants power to the Parliament to amend the constitution.
According to article 368, the Parliament can amend the constitution by adding, deleting, or modifying any provisions laid down in the constitution. However, this power of the Parliament is not unlimited. The Supreme court in 1970 in a landmark judgment of Keshvananda Bharti established the basic structure doctrine. According to this doctrine, India’s Parliament cannot amend the constitution’s basic and fundamental features.
This ruling of the supreme court sought to end the debate of supremacy between the Parliament and the constitution. However, in 1976, India’s Parliament under Prime Minister Indira Gandhi’s leadership passed the 42nd constitutional amendment act, which invalidated Keshvanada Bharti’s ruling. The Parliament was now working with unlimited powers to amend the constitution and no supervision until 1977. In 1977, the case of Minerva Mills Ltd. and Ors. v. Union Of India, the court struck down the 42nd constitutional amendment provisions and limited the Parliament’s powers to amend the constitution. The court upheld the basic structure doctrine as established under Keshvananda Bharti. Therefore, the Parliament’s power to amend the constitution is limited by the constitution itself and therefore is not unlimited.
Implementation of Directive Principles of State Policy (DPSPs):
DPSPs are principles that are not enforceable by the courts but only should be intended to be implemented by the state. In many instances, the Parliament has tried to challenge the constitution, especially fundamental rights by justifying their actions under the implementation of DPSPs. In the case of State of Madras v Champakam Durairajan in 1951, the issue arose when the state sought to reserve some seats for the weaker section of the society which was countered on the basis of Article 14 and Article 15. Article 14 is the Right to Equality, and article 15 prevents the state from discriminating. The state countered by stating article 46 of the constitution which entails that the state must uplift the weaker sections of the society. The supreme court did not consider this argument of the state because DPSPs are not enforceable. Following this judgment, the Parliament sought to amend the fundamental rights to implement DPSPs.
Then came the Hanif Quarashee v state of Bihar where the state imposed a ban on cow slaughter. The petitioner challenged it to violate the right to free trade and practice. The court held that Article 19(6) restricts this right to conduct any trade and business public interests and reasonableness. In this case, the court used article 48 of the constitution, which is a DPSP to restrict a fundamental right. There came many cases and the debate surrounding the nexus between DPSPs and Fundamental Rights.
Similar to Hanif Quarashee, the Supreme Court in Kerala Education Bill (1957) established a doctrine of harmonious construction. This doctrine was established to understand that both the fundamental rights and the DPSPs can go in accord with each other and the Parliament must go to the full extent of harmonizing them. This, however, did not mean that DPSPs are to be taken with the same effect as Fundamental Rights. In many cases, the Supreme Court made it extremely clear that in case of a conflict between the DPSPs and the Fundamental Rights, the Fundamental Rights are to be given priority.
In 1971, the 25th constitutional amendment act exempted any law which is made in pursuance of articles 39(b) and 39(c) of the constitution from judicial review. Section 3 of the amendment established the nexus between articles 39(b) and 39(c) and the fundamental rights were held valid in the Keshvanand Bharti case. Therefore, the Parliament could make laws that would have a reasonable connection to articles 39(b) and 39(c) even if they violate article 14, article 19, or article 31.
Article 4(1) of the Indian Consitution declares itself to be the supreme law of the land and as observed that the Parliament’s power to amend the constitution is limited by the constitution itself. There have been few instances in history where the Parliament was acting supreme against the constitution; however, those instances were sooner repealed. The supreme court has been safeguarding our constitution from being misused by the Parliament or the people in power for their political gains and agendas. India is a country of many opinions and many political ideologies, and the constitution recognizes them all. However, it also ensures that democracy is prevailing in this country, and not one person or a group controls the fate of this country.