The supremacy of Parliament in India has to be assessed in the context of its relationship to:
- The Constitution,
- The Judiciary and
- The Executive (or even the Prime Minister).
Though the Constitution of India adopted the language of Britain in describing its Legislature at the Centre, and makes the President, like the Monarch of Britain, a constituent part of Parliament, yet the Indian Parliament is not a sovereign legislature like the British Parliament. It functions within the bounds of a written Constitution setting up a federal polity and a Supreme Court invested with the power of judicial review.
The legislative competence of Parliament is limited, during normal times, to the subjects enumerated in the Union List and the Concurrent List in the Seventh Schedule of the Constitution. Besides, its supremacy within its own sphere of jurisdiction is limited by the Fundamental Rights guaranteed to the citizens in Part III of the Constitution.
Article 13 Clause (2) prohibits, subject to specified restrictions, the State from making any law which would take away or abridge any of the Fundamental Rights. Where the State makes a law in contravention of the Fundamental Rights, that law shall, to the extent of contravention be void.
The Supreme Court held in Keshavananda Bharati v. the State of Kerala that Article 368 does not enable Parliament to alter the ‘basic structure’ or framework of the Constitution. The term basic structure is a vague and general term and the Judges themselves did not offer a common agreed meaning.
Some included Fundamental Rights and federation in the concept of basic structure while others saw no limit to the amending power of Parliament. The Constitution (Forty-second Amendment) Act, 1976, provided that Parliament had full power to amend the Constitution and no amendment made under Article 368 could De questioned in any Court on any ground.
The validity of the Forty-second Amendment was questioned and in May 1980, the Supreme Court struck down in the Minerva Mills case Section 55 of the Amendment incorporated in Clauses (4) and (5) of Article 368 as it altered or destroyed the basic structure or framework of the Constitution.
It was affirmation of the Keshavananda Bharati case (1973) judgment. Unless this judgment is reversed by the Court on the review application of the Union Government or a new amendment of the Constitution is enacted and the Supreme Court upholds that amendment, the power of Parliament cannot extend beyond the limitations placed by the Constitution and the Supreme Court.
Despite these limitations on the authority of Parliament, it is the pivot on which revolves the whole machinery of the Government. Its legislative competence embraces a large field and its financial powers are vast. Its sanction is also necessary for declaring war and making peace. Parliament and the State legislatures have equal rights to make laws in respect of subjects in the Concurrent List, but if a law enacted by a State Assembly is not in conformity to the law passed by the Parliament, the law made by Parliament prevails.
Parliament can also legislate on any subject in the State List if the Council of States declares by a resolution that it is necessary in the national interest to do so. During emergency, all restrictions on the legislative and financial jurisdiction of Parliament disappear.
However, these immense powers vested in Parliament are, to a large extent, the powers of the Executive; indeed, increasingly, of the Cabinet headed by the Prime Minister. The doctrine of Parliamentary supremacy originated in Britain, but even the supremacy of Parliament was subject to certain practical and political restraints, such as public opinion, international law and international agreements.
Ivor Jennings points out that parliamentary supremacy in the modern world is synonymous with unfettered power of the executive. Much of the business of Parliament is initiated by the government. And so long as the ruling party has majority, the government is in complete control of the House of the People. The Constitution certainly makes the Council of Ministers responsible to the Lok Sabha, but a ruling party with a comfortable majority has little to fear from this stipulation.
Furthermore, India is a federation; as such, there is a separation of powers, and State Legislatures exist as independent legislative bodies. Thus it cannot be accepted that Parliament is sovereign.