Supremacy of Constitution Over Parliament – Explain in Details

The constitution of India was adopted on the 29th November 1949 and signed by then-President Rajendra Prasad. But it came into force with effect from 26th January 1950.

Salient Features of Indian Constitution:

1. The Lengthiest Constitution:

The Constitution of India is the lengthiest constitution of all the written Constitution in the world. It is Five Times bigger than the Constitution of USA and seven times bigger than the constitution of France. Our Constitution had a total of 1,17,369 words in the English Language as on 26th Jan 1950. In its original form as on 26th Jan 1950, it consisted of 395 articles and 8 Schedules.

2. Preamble:

According to the Preamble, the constitution of India has been adopted by the people themselves. WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC  and to secure to all its citizens-

JUSTICE, Social, Economic, and Politics

LIBERTY, of thought, expression, belief, faith and worship

EQUALITY  of status and opportunity, and to promote them to all

FRATERNITY  assuring the dignity of individual and the unity and integrity of the Nation.

3. The Fundamental Rights:

The Fundamental rights are guaranteed to every citizen of India, in Part III – (Articles 12-35) of the constitution and are deemed to be a Distinguishing Feature of a Democratic State. These rights are prohibitions against the state and available to every citizen. These rights are enforceable by the judicial system as of a Fundamental Right. Whenever these rights are violated, the aggrieved person can approach the Supreme Court, under article 32, which is itself is a fundamental right.

4. Directive Principles of State Policy:

The Directive Principles of State Policy contained in Part IV (Acts 36-51) of the constitution set out the aims and objectives to be taken by the State in the governance of the country.

However, the Directive Principles are Politically Enforceable. If the state is not able to implement these provisions, no action can be taken against the state in the court of law.

5. A Welfare State:

India is the largest democratic country in the world. The Fundamental Rights and the Directive Principles of Social Policy embody a scheme to make India a truly welfare state. The essence of these provisions is the attainment of happiness and good of the people in every walk of the human life.

6. The Parliamentary form of Government:

The Constitution of India has established a Parliamentary form of Government both at the Centre and the States. In this respect the Draft Man of the Constitution have followed the British model completely. The Government is responsible to the legislature. The President is the Constitutional Head of the State. The real executive power is vested in the Council of Ministers, whose head is the Prime Minister. The Council of Ministers is collectively responsible to the Lower House (Lok Sabha).

7. Unique Blend of Rigidity and Flexibility:

A written constitution is generally said to be rigid. The Indian Constitution, though written, is sufficiently flexible. There are only a few provisions, which can be amended by a special majority of the Parliament. That is why the Indian Constitution is amended 108 times so far.

8. A Federation with Strong Centralizing Tendency:

The Indian constitution is a Federal Constitution. But it acquires a “Unitary Character” during the time of emergency. The combination of the Federal and Unitary Character is a unique feature of our constitution. Article -1 of the Constitution declares that the Sovereign Democratic Republic of India ‘the union of states’.

9. Adult Suffrage:

Under the Indian constitution, every man and woman above the age of eighteen years has been given the right to elect representatives of the legislature. The adoption of the Universal Adult Suffrage without any qualification either of sex, property, taxation or the like, is a bold experiment in India, having regard to the vast extent of the country and its population, with overwhelming illiteracy.

10. An Independent Judiciary:

An independent judiciary and impartial judiciary with a power of judicial review has been established under the Constitution of India. The Judiciary is the custodian of the Fundamental Rights of citizens.

11. A Secular State:

A secular state has no religion of its own as recognized religion of State. It treats all religions equally.

12. The Fundamental duties:

The Fundamental Duties are incorporated in Article – 51 – A of part IV A of the constitution, which has been inserted in the Constitution by the Constitution (Forty Second Amendment) Act 1976. They are intended to serve as a constant reminder to every citizen. According to them, citizens are required to observe certain basic norms of democratic conduct and democratic behavior.

The Independence Of Judiciary

Article 50 directs the State for Separation of Judiciary from Executive. It means independence to judiciary in decision making. It also means that the Executive should not interfere with the function of the Judiciary.

Organs of Government:

There are three organs of the Government.

  1. Legislature
  2. Executive; and
  3. Judiciary

The framers of the constitution carved several constitutional provisions very cautiously for the maintenance of independence of judiciary and for this purpose they distributed functions between the three organs of the Government.

Doctrine of Separation of Powers:

The framers of the constitution tried their best to secure independence of judiciary from the hands of Legislature and Executives. They followed the Doctrine of Separation of Powers. The legislative powers are given to the parliament and state legislatures. The administrative powers are given to the executives.

Above all, the Judiciary is given interpreting powers, by which the Supreme Court can squash a legal provision or an Act, if it is against the provisions of the constitution. Of course, the parliament is given the legislative powers, relating to the Supreme Court, but such powers do not effect on the independence of the Supreme Court. They have provided several guards to protect the judiciary from the politicians and executives. Independence of Judiciary is one of the basic features of our constitution.

In a democratic polity, the supreme power of the state is shared among the three principal organs – constitutional functionaries – namely, the Legislature, the Executive and the Judiciary. Each of the functionaries is independent and supreme within the allotted sphere and none is superior to the other. Justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice as stipulated in the preamble of constitution and the judiciary, therefore, becomes the most prominent and outstanding wing of the constitutional system for fulfilling the mandate of the constitution. The Judiciary has to take up a positive and creative function in securing socio-economic justice to the people.

The Constitutional Provisions For The Maintenance Of Independence Of Judiciary

1. Restriction of Discussion:

Article 121 and 211 provides that no discussion shall take place in the parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties in the Parliament or the State legislature concerned. However, the parliament is empowered to bring a motion against a Judge on the allegation of corruption, infirmity to hold the post as the judge of the Supreme Court, and also for the removal of judge after an address to the president.

2. Appointment of the Judges:

Article 124 provides the appointment of the Judges of the Court and High Court. Their appointment is not left to the whims of the executives. The President shall appoint them after the consultation of the Chief Justice of the Supreme Court. The Chief justice plays an important and key role in the appointment of Judges.

3. Impeachment/Removal of Judges:

Ordinarily when one judge is appointed, he shall not be removed until he attains the age of 65 years. There is an elaborate procedure to remove a Judge of the Supreme Court or of a High Court. Article 124 (Clause 4) lays down a lengthy and standard procedure to remove a judge. Article 124 (4) provides that a Judge of the Supreme court or High court shall not be removed from his office except by an order of President passed after an address by each House of Parliament supported by a majority of the total membership of that house and by a majority of not less than two-thirds of the Members of that House present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior or incapacity.

The lengthy unusual motion was brought first time in the history of Supreme Court of India in the case of Ramaswamy Justice. Thereafter, Ramaswamy Justice resigned to his post voluntarily.

4. Salaries:

The salaries, allowances, and pensions of the Judges of the Supreme Court are charged from the Consolidated Fund of India, vide article 146 (3). Similarly, the salaries, allowances and pensions of the Judges of the High Courts are charged on the consolidated fund of the State concerned via Article 229 (3). Therefore, the Supreme Court and High Court are kept outside of the political controversy and influence.

5. Separation of Judiciary from Executive:

Article 60 of Part IV (Directive Principles of State Policy) explains that the state shall take steps to separate the judiciary from the executive in the public services of the state. The below case laws are some of the examples of the Supremacy of the Constitution over Parliament.

INDIRA GANDHI VS RAJ NARAYAN (ELECTION CASE) Yashpal Kapoor, Guezetted officer on special duty in PM’s office. Raj Narayan contended that Indira Gandhi obtained the assistance of Gazetted officers of Rae Bareli, with the help of Yashpal Kapoor. She got the assistance of armed forces for arranging her flights by Air Force’s airplanes and helicopters, she made appeal to the religious symbol of cow and calf, she and her agents incurred unauthorized expenditures in election campaign.

During the pendency of the petition in Allahabad court, the president issued an Ordinance, exempting jurisdiction of the High Court from inquiring the election petitions with retrospective effect. Thus Indira Gandhi was exempted from election cases before the Allahabad court.

Rajanarayan filed a writ petition challenging the act. The Allahabad High Court gave judgment in favor of Rajanarayan.

To escape from this, the parliament passed the Election Laws Amendment Act. The new section empowered the president to decide where a person found guilty of corrupt practices shall be disqualified and if so, for what period. To veil this constitutional validity, the Congress Government brought the constitution 39th Amendment, incorporating two articles, these articles ousted the jurisdiction of the courts.

And then, Indira Gandhi appealed to the Supreme Court against the judgment of Allahabad High Court and contended that the court had no jurisdiction in purview of the above acts passed by the parliament.

The Supreme Court struck down clause 4 of Art 329 A introduced by the 39th amendment act.

Bennet Coleman & Co. vs Union of India (Freedom of Press – Newsprint case)

Bennet Coleman & Co. was the company managing the newspaper. The Central Government passed an order known as “the News Print Control Order, 1972” which affected the distribution of newsprint to the Petitioner Company. Due to that order, the company was put to great loss, consequently, it had to close the magazine. The Company challenged the said order before the Supreme Court under Articles 19 (1) (a) and 14. The writ petitions were filed by several readers, newspaper editors and shareholders of several other newspapers simultaneously.

Judgment: The Supreme Court held that the fundamental rights of the readers, newspaper, editors, and shareholders were badly affected by the said order. If their fundamental right has not been recognized and if the unreasonable restrictions are not removed, the freedom of the press would be destroyed in the country. Therefore, the Supreme Court admitted the petitions of the newspaper companies, readers, and editors, and squashed clauses against the freedom of press in “the News Print control Act, 1972.

Indian Express Newspaper Pvt. Ltd. (Bombay) vs Union of India

Newspapers are part and parcel of freedom of speech and expression. They educate the people on the current issues and bring political awareness. Any restriction imposed on the freedom of speech and press is a restriction on the media. Under the Finance Act 1981 and certain notification issued under the customs Tariff Act 1975, the Central Government imposed 40% ad valorem plus Rs. 1000 per MT and as customs duty on newsprint. The main contention was that 60% of the expenses of a newspaper could cover the newsprint. If the customs duty was imposed, the management could not run the newspaper, and the result was to violation of their fundamental right of freedom of speech and press.

Judgment: The Supreme Court admitted the writ and the arguments of the petitioners and set aside the notification, and squashed the imposition of customs duty in news print.

Bijoe Emmanuel vs State of Kerala

The Director of Public School, Kerala issued a circular, according to which the students of all the schools should sing the national anthem at their respective schools.  Three children belonging to Jehovah religion stood in the line, while the national anthem was sung at their school but they did not sing. The Head Mistress of the School asked them to give in writing that they will respect the National Anthem, and instructed them until such assurance was not received; she would not allow them to the class.

The writ was filed by Bijoe Emmanuel on behalf of the three children, before the Kerala High Court questioning the validity of the school management’s expulsion order and also the circular of the Director of Public Institutions. The petitioner contended that three children stood in line when the national anthem was sung as respect, and they did not sing it because of their religious belief which did not permit them to join in any rituals except if be in prayer to Jehovah, their God.  The Kerala High Court dismissed the writ petition, and upheld the expulsion. It held that it is every citizen’s fundamental duty to respect the national integrity and to sing the national anthem. The appellant approached the Supreme Court.

Judgment: The Supreme Court reversed the Judgment of the Kerala High Court. It gave judgment in favor of the appellant. It held that the children did not commit any offence under the National Honor Act, 1971, because they stood up respectively when the national anthem was being sung.

The freedom of speech and expression under Article 19 (1) (a) also includes “Freedom of Silence”.  Hence no person can be compelled to sing the National Anthem, “if he has genuine, conscientious religions objection”. The school management’s act would violate Article 25 which gives freedom of religion.

The above-mentioned judgments clearly show the supremacy of the Constitution over the Parliament.

This article has been written by Ahammed Kutty C.M., LLB Final Year student at PES College, Karnataka State Law University.

Also Read – Distribution Of Powers in the Indian Constitution

Note - The information contained in this post is for general information purposes only. We try our level best to avoid any misinformation or abusive content. If you found any of such content on this website, please report us at [email protected]

Interested to publish an article at Law Corner? Click Here to submit your article.

Law Corner

Leave a Comment