Parliamentary Sovereignty vs Judicial Supremacy in India: A Constitutional Tug-of-War

Introduction

The Indian Constitution establishes a delicate balance between Parliament’s law-making power and the Judiciary’s authority to review laws. This dynamic has led to an ongoing debate: Who has the final say—Parliament or the Supreme Court?

Recent controversies, from demonetization to electoral bonds, have reignited this debate. This blog explores:

✔ Concept of Parliamentary Sovereignty

✔ Doctrine of Judicial Supremacy

✔ Basic Structure Doctrine – The Ultimate Check

✔ Recent Clashes & Landmark Cases

✔ Global Comparisons (UK vs US vs India)

1. Parliamentary Sovereignty: Can Parliament Make Any Law?

What It Means

• Parliament (Lok Sabha + Rajya Sabha) can enact, amend, or repeal laws under Article 245.

• No law is beyond Parliament’s reach—except the Basic Structure of the Constitution (as per Kesavananda Bharati Case).

Limitations

• Fundamental Rights (Part III) – Laws cannot violate them (e.g., Right to Equality, Free Speech).

• Judicial Review (Articles 32, 226) – Courts can strike down unconstitutional laws.

• Federalism – States have exclusive powers in the State List.

2. Judicial Supremacy: The Power to Strike Down Laws

Key Powers of the Judiciary

1. Judicial Review (Article 13) – Courts can invalidate laws violating the Constitution.

2. Basic Structure Doctrine (1973) – Parliament cannot alter the Constitution’s core framework.

3. Public Interest Litigation (PIL) – Judiciary can intervene in governance issues.

Landmark Cases Establishing Judicial Supremacy

• Kesavananda Bharati Case (1973) – SC ruled that Parliament cannot amend the Basic Structure.

• Minerva Mills Case (1980) – Struck down parts of the 42nd Amendment, reinforcing judicial review.

• NJAC Judgment (2015) – SC struck down the National Judicial Appointments Commission, upholding judicial independence.

3. Recent Controversies: Where Parliament & Judiciary Clashed

A. Electoral Bonds Scheme (2024)

• Parliament’s Move: Introduced electoral bonds in 2017 to anonymize political funding.

• Judiciary’s Verdict: SC struck it down (Feb 2024) for violating Right to Information (Article 19(1)(a)) and promoting opacity.

• Impact: Showed judicial supremacy over financial legislation.

B. Demonetization (2016)

• Parliament’s Move: Govt demonetized ₹500 & ₹1000 notes via executive order.

• Judiciary’s Role: SC upheld it (2023 verdict) but criticized lack of planning.

• Debate: Did the judiciary defer too much to Parliament?

C. Farm Laws Repeal (2021)

• Parliament’s Move: Passed farm laws without enough consultation.

• Judiciary’s Role: SC stayed implementation, forcing govt to repeal them.

• Question: Was this judicial overreach or necessary intervention?

D. Same-Sex Marriage (2023)

• Parliament’s Stand: Refused to legalize same-sex marriage.

• Judiciary’s Verdict: SC declined to legalize it, saying it’s Parliament’s job.

• Contradiction? Judiciary sometimes steps in (e.g., decriminalizing homosexuality in Navtej Johar, 2018) but avoids "legislating" in other cases.

4. Global Comparisons: Who Wins Elsewhere?

Country	System	Key Feature
UK	Parliamentary Sovereignty	No written constitution; Parliament is supreme.
USA	Judicial Supremacy	SC can strike down laws (Marbury v Madison, 1803).
India	Hybrid Model	Parliament makes laws, but SC guards the Constitution.

5. The Future: Who Should Have the Last Word?

• Pro-Parliament View: Elected representatives best reflect people’s will.

• Pro-Judiciary View: Courts must protect minorities & constitutional values.

• Middle Path? Checks and balances ensure neither becomes too powerful.

Conclusion

India’s system is neither fully parliamentary nor fully judicial—it’s a dynamic balance. While Parliament represents democracy, the Judiciary safeguards constitutional morality. Recent clashes show this tension is healthy but must stay within limits.

The Basic Structure Doctrine remains the ultimate referee—ensuring neither side can "win" entirely.