A COMPARATIVE ANALYSIS ON THE CONSTITUTION OF INDIA AND UNITED KINGDOM
INTRODUCTION:
The concept of the supremacy of the constitution confers the supreme authority in a legal system on the Constitution. This does not solely mean that the Constitution just gives a rank in the order of legal norms.
The principle of Constitutional supremacy also has to deal with the intricate institutional structure of the organs of State. In simple words, constitutional supremacy refers to the system of government where in the law- making freedom of parliamentary supremacy cedes to the requirements of a Constitution. On the contrary, parliamentary supremacy as defined by Dicey states under the British Constitution, the Parliament has the absolute right to make or unmake any law and that nobody has the right to override the legislation of the Parliament[1].
With the passage of time, the Indian Constitution and the Constitution of the United Kingdom has evolved a lot. And yet to this day the debate on whether or not Constitutional Supremacy precedes over Parliamentary supremacy in India at all times is still ongoing. Therefore this paper seeks to draw out some level of clarification on this matter while comparing the Indian Constitution with that of the United Kingdom.
THE INDIAN CONTEXT
The Indian Constitution is the longest written document in the world that came into force on 26th January, 1950. The objectives that are specified in the preamble of constitute the basic structure of the Constitution, which cannot be amended under any circumstances. The basic structure can be called the “grundnorm”[2] or the fundamental norm that forms the primary principle for our legal system. It is not created by legal procedure or a law making body; it is presumed to be valid without which, no human act could be interpreted as legal, especially as a norm- creating act.[3] The opening and closing sentence of the preamble; “We, the people... adopt, enact and give ourselves this Constitution” signifies the power is ultimately vested in the hands of the people of India[4].
The Constitution of India apportions its powers into three organs namely- Legislature, Executive and Judiciary. The Legislature otherwise known as the Parliament (and State assemblies), makes the laws; the Executive which consists of the Prime Minister and his council of ministers, Attorney General, the civil service and other enforcement agencies, make government policies and implements them to govern the country; and finally the Judiciary who has the responsibility to apply laws to specific cases and settle disputes as well as check the constitutionality of the laws made by the Legislature. Under Article 49(1) of the Constitution, it is declared that the Indian Constitution is only the supreme law of the land and that the Constitution has the power to limit the Parliament from passing a law. Further, since it is the supreme law of the land, all the organs of State mentioned above are bound by it. They cannot act beyond the limits that are laid out by the Constitution. This is the Doctrine of Constitutional Supremacy which is an integral feature of the Indian Constitution.
THE BRITISH CONTEXT
In comparison, the United Kingdom does not have a codified Constitution. It does have a Constitution, but it exists in abstract form which comprises the Acts of Parliament, court judgements and conventions that have evolved over a long period of time. The United Kingdom is one of the only five countries in the entire world that has uncodified Constitutions. The two documents which are pertinent to the Constitution of United Kingdom are – Magna Carta, adopted in 1215, for the first time established in principle[5] that everybody including the Monarch was subjected to the law; and the Bill of Rights, which was established to clarify supremacy of Parliament over the Crown in the Glorious Revolution (1688).[6] The Constitution has evolved over time in response to economic and socio-political changes.[7]
Most of the Acts and legislatures derive its power from the two documents mentioned above. Therefore, it can be stated that the Magna Carta and the Bill of Rights are the grundnorms validating the laws in the United Kingdom. Kelson’s theory states that the authority that validates official acts is determined by the original Constitution of the State. Since Constitutions have not been expressly framed on Kelson’s theory as grundnorm, it is widely used as most countries have written Constitution, unlike the United Kingdom.[8] In the United Kingdom, the doctrine that has been followed through the years is the doctrine of Parliamentary Sovereignty which states that the legislative body is omnipotent and has absolute power over all governmental institutions, including the executive and judiciary.
CHANGES IN THE UNITED KINGDOM CONSTITUTION
The concept of Parliamentary sovereignty has undergone multiple changes and has evolved through the years but the fact remains that in the United Kingdom, it is still the matter of law. The definition of Parliamentary sovereignty as given by Dicey has lost its effect mainly due to two factors-
1. The membership into the European Union and enactment of European Communities Act 1972[9]
Article 2(1) of the Act which states: “...all such rights, powers, liabilities, obligations and restrictions from time to time arising by or under the Treaties ... are without further enactment to be given effect ... in the United Kingdom.” It can be noticed that there was an opposition as well as restriction to the parliamentary sovereignty of the United Kingdom Parliament and therefore can be said that there is predominance of the European Union law as given in European Communities Act, 1972.
2. Human Rights Act, 1988
There was an incorporation of the European Convention on Human Rights into domestic law when the United Kingdom accepted the Human Rights Act which resulted in a debate whether or not it has precedence over the UK law.
CONCLUSION:
The principle of parliamentary sovereignty initially came into picture to put an end to the conventional forms of power like the monarchical rule in the United Kingdom. When the idea of democracy spread through globalisation, the threat of democratically elected fascist regimes came with it. The idea that even if the Parliament is democratically elected by the people, they cannot nudge fundamental rights became popular in the United Kingdom.
As mentioned earlier, constitutional supremacy is the most important feature of the Indian Constitution. The Indian Constitution has all the powers and limitations of the Parliament and all other organs and authorities mentioned very clearly and no one can go against it. In the landmark Keshavananda Bharati case[10], it was held that the Parliament has the power to amend any part of the Constitution including Part 3 (Fundamental Rights), to cater to the changing society but it cannot affect the basic structure of the Constitution.
Therefore, it can be said that the doctrine of constitutional supremacy provides more reliability and transparency to the administrative system as compared to the doctrine of parliamentary sovereignty.
-- [1] A.V. DICEY, INTRODUCTION TO THE STUDY OF LAW OF THE CONSTITUTION (8th edition, 1915, Indianapolis: Liberty Fund, 1932) [2] HANS KELSON, PURE THEORY OF LAW: LEGALITY AND LEGITIMACY (Harvard, 18th ed.) [3] FREEMAN MICHAEL FBA, LLOYD’S INTRODUCTION TO JURISPRUDENCE, 280 (9th edition, 2014) [4] Sumant Batra, Constitution of India ‘Of the people, for the people and by the people’, THE INDIAN PANORAMA, (Jan 22, 2016, 12:01 am), https://www.theindianpanorama.news/featured/constitution-of-india-of-the-people-for-the-people-and-by-the-people [5] Claire Breay, Julian Harrison, Magna Carta: an introduction, THE BRITISH LIBRARY, (28th July, 2014), https://www.bl.uk/magna-carta/articles/magna-carta-an-introduction [6] Robert Blackburn, Britain’s Unwritten Constitution, THE BRITISH LIBRARY, (13 March, 2015), https://www.bl.uk/magna-carta/articles/britains-unwritten-constitution [7] UK Constitutional Law, GEORGETOWN LAW LIBRARY, (26th Aug, 2019 10:41 AM), http://guides.ll.georgetown.edu/c.php?g=365741&p=2471214 [8] Edwin W. Patterson, Hans Kelsen and His Pure Theory of Law, 40 CALIFORNIA L.R.5, 8 (1952) [9] Even though UK left the European Union officially on 31st Jan 2020 and significant changes have been to be European Communities Act, the of EU rules will have a strong and dominant effect on the UK Constitution as it has been part of EU for 47 years [10] Keshavananda Bharti v. State of Kerala (1973) 4 SCC 225: AIR 1973 SC 1461
This article is written by Neha Navaneeth of School of Law, CHRIST Deemed to be University.
Comments