Chapter - 3

PARLIAMENTARY VERSUS JUDICIAL SUPREMACY:

THEORETICAL FRAMEWORK

The issue of parliamentary versus judicial supremacy has been a subject of

heated scholarly debate over the last few years. It has exercised the minds of
legislators, jurists, politicians and non-professionals as well through-out the
world. The supporters of absolute independence of judiciary argue that in the
absence of an impartial, independent and sovereign judiciary, democracy
cannot succeed. In contrast to this view, supporters of parliamentary supremacy
pursue the concept that judicial supremacy which is expressed in the form of
judicial review, is incompatible with a democratic government because the
importance of majority rule lags behind by the few unelected judges who are
not directly accountable to people.1

In the United States of America, Australia, United Kingdom, Canada,

Switzerland, India and many other countries, the Supreme Court strikes down a
law if it violates the fundamental rights or the basic structure of the
Constitution. The superior courts are held in high esteem by the legislatures,
governments and the people of these countries for their role in protecting and
guarding the rights of the citizens, advising the government on complex
constitutional issues, dispensing justice to people, awarding, confirming,
reducing or enhancing the punishments awarded. Therefore, with the
introduction of the doctrine of ‘judicial review’ and its recent expansion in the
form of ‘judicial activism’, a debate has been generated among scholars and
analysts on the question of supremacy between the two major branches of
government.

It is generally assumed that in a democratic country like India, with having a

written constitution, both the legislative and judicial organs are supreme for the
proper functioning of the largest democracy of the world. At some point we

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may think that neither legislature nor judiciary can claim supremacy in
isolation. Both should work in co-operation with each other, avoiding conflict
or collision. Both should consider the problems and appreciate the roles played
by each other. Each of them has its assigned role to perform under the
Constitution, which is important for democracy. Both have revised and
amended their stands, rulings, laws and pronouncements several times.
Moreover, all this is unavoidable. Legislature is repealing and amending earlier
laws, introducing new ones frequently. Judiciary is also playing its own role by
declaring some laws or parts there of as unconstitutional. Thus, there is
confusion and instability all the time. A sort of rivalry and competition has
started between the two most important organs of the government.2 For the
success of democracy both should act in co-operation and understanding,
keeping in view the general welfare of the people.

Therefore, the burning issue for scholars of social sciences today is whether the
judiciary should have over-ruling authority over Parliament. If the parliament
passes any law for economic and social uplift of the people and the
establishment of a socialist pattern of society, the judiciary should not strike
down such laws and stand in the way of progress. The Parliament represents
the verdict of the electorate and its members actually reflect the will of the
masses. Therefore, any attempt to throttle parliament would mean suffocating
democracy. But, in a socio-culturally segmented or diversified society like
India where minority rights may be infringed under the majority rule if an
independent, impartial and sovereign judiciary does not have a look over the
activities of the parliament.

In the United Kingdom, the parliament is supreme and the supreme judiciary
still forms a part of the legislature. However, the judges there have liberty to
give decisions without fear or favour on matters coming to them. Not only due
to the constraints of a federal structure, the fathers of the American constitution
also had a very strong faith in the judiciary hence, an independent judiciary was
established in that country. They were convinced that if any fetters are placed

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on the independence of judiciary, the rights and liberties of people might be
endangered. If experience is any guide, the Supreme Court has invariably
shown a high degree of independence in awarding judgements, many of them
going against the government.

Similarly, in many other countries including India the impartial and

independent judiciaries have been playing an important role in securing social
justice by using the power of judicial review over legislative or administrative
actions. This overwhelming power of judicial review to dismantle an act of the
parliament led to some scholarly debates over the problem of supremacy
between the core organs of the government in recent years. Therefore, prior to
looking at the details on the specific jurisdiction, it would be more appropriate
to discuss the theoretical and historical background of the controversy over the
supremacy between the two organs of government.

Theoretical Background

The powers of colonial and early American courts followed the pattern set in
Britain. Theories of parliamentary/legislative sovereignty ensured that courts
remained incapable of limiting the power of the sovereign. Within a modern
legal system, enacted laws remain in force until they are repealed or amended,
unless they are declared when enacted to have a limited life. It is inherent in the
nature of a legislature that it should be free to make new laws.3 The rise of
popular sovereignty, however, brought a new function for the courts; the power
of judicial review. Over time, judicial review metamorphosed into the judicial
supremacy enjoyed by the United States Supreme Court and its state court
counterparts. This tradition has been diffused gradually in many of the political
systems in the world. An attempt has been made in this chapter to understand
the problem by referring to some of the scholarly analyses on the issue of
supremacy.

Scholars of constitutionalism through-out the world continue to grapple with

the question of which institutional balance of courts and legislatures should

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have the ultimate authority to determine the meanings ascribed to the
constitution. The issue of the relative interpretive authority of courts and
legislatures is not a matter of recent concern for constitutional scholars. Even in
a regime defined primarily by the legal doctrine of parliamentary rather than
judicial or constitutional sovereignty, debate over the way in which judges
interpret statutes has significance not unlike that of the contemporary debate
over constitutional ‘dialogue’.4 Dennis Baker has urged constitutional scholars
to confront this central issue of interpretive authority of the court.5

Albert Venn Dicey commented briefly with identifying the approach to

statutory interpretation which he argued was the corollary of the doctrine of the
sovereignty of parliament. Calling the legal doctrine of the sovereignty of
parliament the “dominant characteristic” of British political institutions, he
argued that Parliament—Queen, Lords, and Commons “acting together”—had
the right to “make or unmake any law whatever”, and “no person or body is
recognized by the law of England as having a right to override or set aside the
legislation of Parliament.”6 J. Alex Corry’s views on statutory interpretation
show that although he adopted Dicey’s exposition of the doctrine of
parliamentary sovereignty, he arrived at dramatically different conclusions
regarding the approach to statutory interpretation appropriate to the doctrine.
The point of the comparison is to show that even the legal doctrine of
parliamentary sovereignty does not in and of itself resolve the “central issue” of
the balance of courts and legislatures in resolving legal-interpretive disputes.7
Thus, the confusion arise that either the parliament which is a popular body, is
supreme authority or the court which is composed of some aristocrats sitting on
a highly dignified office and not accountable to masses, is the supreme
authority of the land.

Both Dicey and Corry argued that parliamentary sovereignty prohibits a role
for judges in challenging the validity of properly enacted statutes, and both
accepted that judges were nominally obliged to interpret statutes according to
the “will of parliament.” At the same time, however, Dicey and Corry came to

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different conclusions regarding the implications of this approach to statutory
interpretation. Dicey focused on the importance of judges interpreting merely
the words of the statutes as the source of legislative intent. This approach was,
indeed, consistent with traditional common law canons of statutory
interpretation, but Dicey may have accepted it for other reasons as well. He
appears to have seen that an approach to statutory interpretation which
prescribes a focus on words alone was a means through which judges could
control the meanings ascribed to statutes.

In Dicey’s view, judges should use the 19th century laissez-faire liberal values
which infused the common law to temper the increasingly interventionist
(“collectivist” or “socialist”) policy implications of statutes, particularly those
relating to administrative law.8 Corry too focused on the words of the statutes,
but he did so as an occasion to argue that judges should interpret statutes,
particularly those pertaining to administrative law, by adopting meanings
consistent with the tangible and obvious public-policy purposes of legislatures.
Only this way, Corry believed, would judges purge themselves of their deep
attachments to precisely those laissez-faire liberal common law values which
Dicey had believed should continue to infuse public policy regardless of the
policy-aims of parliamentarians.

Corry urged judges to exchange laissez-faire liberal common law values for the
newer values of parliamentarians which, he believed, were consistent with the
needs of the 20th century administrative state. In Corry’s view, these new
values recognized the necessity of state intervention into the private sphere of
individual liberty, contract, and property in the name of facilitating the
development of individual “personality”. Although Dicey and Corry expected
judges to draw from different values associated with different political
institutions in interpreting the meaning of statutes, each argued that this
approach was consistent with the doctrine of parliamentary sovereignty.9

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However, one lesson to be learned from the examination of Dicey’s and
Corry’s views on the interpretation of statutes is a simple and familiar one.
Even if only implicitly, we put our intellectual support behind the balance of
courts and legislatures which we believe is most likely to produce the policy
outcomes we find it acceptable according to the political, social and economic
values we accept. Within the context of the scholarly examination of
approaches to statutory and constitutional interpretation, we may consider
Geoff Hall’s reminder that any claim that an approach to statutory or
constitutional interpretation is legitimate “must necessarily entail at least an
implicit theory about democracy and the role of the courts in relation to a
democratically elected legislature, as it constitutes the point at which the courts
must confront and ascribe meaning to a product of the legislature whose
meaning is contested.”10 Although Hall directs this comment to the judges
whose task includes the choice of approach to statutory interpretation, it is just
as important to consider its implications for scholarly debate over the balance
of interpretive authority between courts and legislatures in constitutional debate
today.

Jeremy Waldron, a longstanding opponent of judicial review in a recent paper,

titled, ‘The Core of the Case against Judicial Review’, summarises the
arguments that judicial review is incompatible with democratic government.11
Shorn of historical digressions and contentious interpretations of American
constitutional practice.12 Waldron presents the democratic case against judicial
review in the form of two theses:

1. Substantive Thesis that maintains that it is impossible to decide whether or

not judiciaries are better than legislatures at protecting rights, because evidence
on this matter is inconclusive.

2. Procedural Thesis that holds that legislatures are overwhelmingly superior

to courts from a procedural perspective. This is because legislatures are more
legitimate, egalitarian and participatory than courts, (according to Waldron,)

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and so embody crucial democratic rights and values to an extent that is
impossible for the latter to imitate.

Thus, Waldron maintains,

“Judicial review is vulnerable to attack on two fronts. It does not, as is

often claimed, provide a way for society to focus clearly on the real issues
at stake when citizens disagree about rights and it is politically
illegitimate, so far as democratic values are concerned: by privileging
majority voting among a small number of unelected and unaccountable
judges, it disenfranchises ordinary citizens and brushes aside cherished
principles of representation and political equality.”13

Waldron’s arguments find an echo in Richard Bellamy’s Political

Constitutionalism which contrasts a legal constitutionalism, based on the idea
that courts should enforce a substantive set of rights, expressive of democratic
equality, with a political constitutionalism informed by Philip Pettit’s
reinterpretation of republican political thought.14-15 For Bellamy, as for
Waldron, judicial review is undemocratic on procedural grounds, because the
power it gives judges to over-rule legislatures is at odds with democratic
principles. As Bellamy summarises his political constitutionalism:

‘A system of “one person, one vote” provides citizens with roughly equal
political resources; deciding by majority rule treats their views fairly and
impartially; and party competition in elections and parliament
institutionalizes a balance of power that encourages the various sides to
hear and harken to each other, promoting mutual recognition through the
construction of compromises. According to this political conception, the
democratic process is the constitution. It is both constitutional, offering a
due process, and constitutive, able to reform itself.’16

In contrast, Brettschneider and Eisgruber argue that judicial review is

sometimes justified by the democratic outcomes that it secures – and, in

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particular, by the ability of judges to protect core democratic rights.17 Thus,
Brettschneider believes that the US Supreme Court ‘can act democratically by
overriding majoritarian decision making’ when ‘the core values of democracy’
are at stake; and in defence of the right to participate, ‘when this right is more
fundamental than the negative impact of a policy on the core values of
democracy.’18 Likewise, Eisgruber claims that ‘the institution of judicial
review is a sensible way to promote non-majoritarian representative
democracy; not surprisingly, it is becoming increasingly popular in democratic
political systems throughout the world.’19

Judicial supremacy, according to Brettschneider and Eisgruber, is not

democratic simply on substantive grounds or in terms of the democracy-
promoting consequences that it is likely to secure. Rather, they argue, it matters
that judiciaries be constituted so that they reflect democratic values and are
likely to promote them. As Brettschneider describes it, ‘The aim of judicial
review is to ensure democratic outcomes while preserving popular participation
in democratic processes’, and Eisgruber attaches a great deal of weight to the
‘democratic pedigree’ which ensures that judges – at least in America – are
chosen by elected representatives primarily on political, rather than on legal
grounds.20-21 Their defence of judicial review is, therefore, meant to be
democratic, and to distinguish arguments for judicial review from those for
benevolent dictators.22

These are subtle, often attractive views. But their weakness as a response to
Waldron is their claim that judges are more likely to protect fundamental rights
than legislators. Brettschneider believes that judges are not well suited to
implementing welfare rights, and so his arguments for judicial review can be
distinguished from those, such as Cecile Fabre, who believes that we must
constitutionalise all fundamental rights in order to protect them.23 Similarly,
Eisgruber maintains that, ‘There is nothing wrong with the fact that unelected
justices decide questions about (for example) federalism or gay rights or
economic justice on the basis of controversial judgements of moral principle.’24

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Nonetheless, he claims that judges should defer to legislators on questions that
require comprehensive strategic judgement, and restrict themselves to doing
what they do better than legislatures – which is determining what side-
constraints morality and democratic government place on the comprehensive
strategic judgements of others.25

However, it is not easy to ignore the fact laid in Waldron’s skepticism that
judges are evidently better than legislatures at protecting rights. Thus,
substantive thesis given by Jeremy Waldron strikes here as correct, because the
relative merits of judicial, as compared to legislative, protections for rights
inevitably turn on complex counterfactual judgements and interpretations of
events, ideas and arguments. Eisgruber may be right that ‘few observers’ of the
American Supreme Court ‘look at the Court’s track record and claim, with the
benefit of hindsight, that the United States would have been better off during
the last fifty years without judicial review.’26

Thus, judicial review can have a democratic justification even though judges
are not better than legislators at protecting rights. The point of judicial review
is to symbolize and give expression to the authority of citizens over their
governors, not to reflect the relative wisdom, trustworthiness or competence of
judges and legislators.27 Hence the presence or absence of judicial supremacy is
not a proxy for people’s beliefs about the relative virtues and vices of
legislators and judges. Above legitimacy of a threshold level of competence –
which may be impossible to determine a priori – the judicial review does not
turn on the special wisdom, virtue or personal qualities of judges. Instead, it
reflects the importance that democracies properly attach to the ordinary virtues
and competences of individuals in justifying power and authority.

Therefore, there is more scope for lay participation in government and this is as
true of the judicial, as of the legislative, executive and administrative features
of government. Democracies are not indifferent to the wisdom, consistency or
efficacy of their leaders. However, these are not the only properties which they

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seek in government, nor is there much agreement on how these properties
should be identified and institutionalized. That, in part, is why it is hard to
justify judicial review on substantive, or consequential, grounds.

It is misleading, therefore, to imply that a preference for legislative over

judicial politics follows from a democratic commitment to political
participation.28 There are many ways to specify the ideal of democratic
government, even if one values political participation, because there is no
uncontested account of the relative powers of legislatures vis a vis families,
churches, trade unions and business associations, or individuals. Hence,
democratic concerns for accountability, equality, participation and procedural
fairness can all be consistent with judicial review, although judges can be as
disappointing as legislators whatever one’s ideals. 29

Judicial supremacy over parliament can be democratic, without being

mandatory, because there is not enough evidence that it is necessary to protect
rights, though it is sometimes very helpful. However, judicial review can be an
attractive supplement to otherwise democratic institutions because it enables
individuals to vindicate their rights against government in ways that parallel
those they commonly use to vindicate their rights against each other, and
against non-governmental-organisations. This is normatively attractive on
democratic grounds, and is probably quite practical as well.30

The barriers that judicial supremacy raises to the rectification of injustice are
unlikely to be so bad absolutely, or so much worse comparatively than those
created by the regular legislative process. It is equally doubtful that
consideration of the legislative barriers to the rectification of injustice, in
Waldron’s core cases, will show that judicial review is required on democratic
grounds either. Democratic principles support a procedural justification of
judicial review, then, and do not require us to show that judges are especially
good at protecting rights as compared to either voters or legislators. For all
their subtleties, the arguments of Brettschneider and Eisgruber mistake the

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protection of certain canonical rights with the protection of democratic
government. Their account of democracy, therefore, elevates the formal, legal
and rational aspects of government over the spontaneous, competitive and
participatory. Annabelle Lever believes that the procedural justification is not
the only way to justify judicial review in democracies. We can expect
democracies to be characterized by a variety of arguments for and against
judicial review – as with any important matter.31

Judicial review can be justified on democratic grounds, although its appeal may
be largely symbolic. This democratic symbolism, illuminates the attractions of
judicial review even to people who are not especially suspicious of their
government, solicitous of minorities, or confident that laws, lawyers and judges
will impartially protect their rights, or do so better than legislators. Judicial
reviews can instantiate the commitment to citizen judgement, protest, rights,
responsibilities, freedom and equality which characterize democratic arguments
for electoral representation. Therefore, it is no surprise that judicial review can
be justified democratically, even if its benefits are uncertain for the same might
be said of democratic government itself, though we have every reason to
cherish that, and to share in the costs of maintaining it.32

The Decline of Parliamentary Sovereignty

The idea of the sovereignty of Parliament was long seen as the core of
democratic practice. The superior position of the popularly elected legislature
and its corollary of majority rule have been central principles for democratic
revolutionaries since the notion was appended to the unwritten English
constitution.33 At that time, the threat to liberty was monarchical power, and
the subjugation of monarchical power to popular control was the primary goal.
The resulting doctrine was that Parliament had “the right to make or unmake
any law whatever; and further, that no person or body is recognized by the law
of England as having a right to override or set aside the legislation of
Parliament.”34

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In the continental tradition, the intellectual underpinning of parliamentary
sovereignty was provided by the Rousseauian concept of the general will. The
people were supreme, and their general will as expressed through their
republican representatives could not be challenged. This theory, combined with
the regressive position of the judicial parlements in the French Revolution, led
to a long tradition of distrust of judges in France.35 The government du judges
replaced the crown as the primary threat to popular will in French political
thought.36 It was natural that the early proponents of democracy supported
parliamentary sovereignty. They saw threats to liberty from the traditional
sources: the ancient regime, the monarchy, and the church. Once these
formidable obstacles to popular power had been overcome, theorists could
hardly justify limitations on the people’s will, the sole legitimate source of
power. As democratic practice spread, however, new threats emerged. In
particular, Europe’s experience under democratically elected fascist regimes in
World War II led many new democracies to recognize a new, internal threat to
the demos. No political institution, even a democratically legitimate one, ought
to be able to suppress basic liberties.

Post-war constitutional drafting efforts focused on two concerns: first, the

enunciation of basic rights to delimit a zone of autonomy for individuals, which
the state should not be allowed to abridge; and second, the establishment of
special constitutional courts to safeguard and protect these rights. These courts
were seen as protecting democracy from its own excesses and were adopted
precisely because they could be countermajoritarian, able to protect the
substantive values of democracy from procedurally legitimate elected bodies.
The ideal of limited government, or constitutionalism, is in conflict with the
idea of parliamentary sovereignty.37 This tension is particularly apparent where
constitutionalism is safeguarded through judicial review. One governmental
body, unelected by the people, tells an elected body that its will is incompatible
with fundamental aspirations of the people.

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This is at the root of the “countermajoritarian difficulty,” which has been the
central concern of normative scholarship on judicial review for the past three or
four decades.38 Although the post-war constitutional drafting choices in Europe
dealt parliamentary sovereignty a blow, the idea retained force in terms of
political practice. More often than not, the idea was used by undemocratic
regimes. Marxist theory was naturally compatible with parliamentary
sovereignty and incompatible with notions of constitutional, limited
government. Similarly, new nations in Africa and Asia reacting to colonialism
often dressed their regimes in the clothes of popular sovereignty, though
oligarchy or autocracy was more often the result.

Today, in the wake of a global “wave” of democratization, parliamentary

sovereignty is a waning idea, battered by the legacy of its affiliation with
liberalism. Judicial review has expanded beyond its homeland in the United
States and has made strong inroads in those systems where it was previously
alleged to be an anathema. From France to South Africa to Israel,
parliamentary sovereignty has faded away. We are in the midst of a “global
expansion of judicial power,” and the most visible and important power of
judges is that of judicial review.39

Even in Britain, the homeland of parliamentary sovereignty and the birthplace

of constitutional government, there have been significant incursions into
parliamentary rule. There have been two chief mechanisms, one international
and the other domestic. The first mechanism is the integration of Britain into
the Council of Europe and the European Union (EU), which has meant that
supranational law courts are now regularly reviewing British legislation for
compatibility with international obligations. The domestic subordination of
legislation of the British Parliament to European law was established when the
House of Lords misapplied a parliamentary statute in response to the European
Court of Justice’s (ECJ) Factortame decision of 1991.40 More recently, the
incorporation of the European Convention of Human Rights into United
Kingdom domestic law by the Human Rights Act 1998 has led to greater

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involvement of courts in considering the “constitutionality” of parliamentary
statutes (and administrative actions) under the guise of examining compatibility
with Convention requirements.41 Although as a matter of domestic law the
Human Rights Act attempts to preserve parliamentary sovereignty in that it
allows an explicit parliamentary derogation from the convention, it has not
been wholly successful. The Parliament now tends to scrutinize legislation for
conformity with the convention, and this is a source of constraint; furthermore,
even explicit parliamentary derogations may still lead to a finding by the
European Court of Human Rights that Britain has violated its obligations.
Thus, it cannot really be said that the Parliament is truly sovereign in Dicey’s
sense of being unchecked by other bodies.

The second mechanism is the growth of domestic judicial review as shown by

an expanding body of administrative law. According to many observers, United
Kingdom (UK) courts are exhibiting growing activism in checking the
government, especially since the 1980s.42 This administrative law
jurisprudence has grown in recent years. The practice of international courts
reviewing British legislation, no doubt, played a role in undermining the
primary objection to domestic judicial review. The British objection to
domestic courts exercising judicial review was not that judges were incapable
of it or that the rule of law was a secondary goal. Indeed, it was the assertion
that government was subject to ordinary law applied by ordinary judges that
was at the heart of Dicey’s celebration of the English constitution. Rather, the
traditional objection to judicial review was that the people acting through
Parliament possess complete sovereignty. This argument has now lost force. If
the will of the Queen in Parliament is already being constrained by a group of
European law professors sitting in Strasbourg, then the objection to constraint
by British judges is much less potent.

Even if one believes that Parliament is still sovereign in the United Kingdom,
the adaptability of the always-anomalous British unwritten constitution as a
model is clearly declining. In Britain itself, academics widely agree that there is

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a crisis of constitutional legitimacy.43 Furthermore, several countries that were
historically recipients of the British model have recently departed from it. In
the Caribbean, several former British colonies have joined together to establish
a new supranational court of final appeal, the Caribbean Court of Justice,
discontinuing the practice of appeal to the Privy Council in London. Other
former colonies have adopted constitutional acts or amendments entrenching
new rights in the constitution.44 In some countries, such as New Zealand and
Israel, these acts are amendable by ordinary majorities and not entrenched as in
other polities. Nevertheless, they maintain great normative power as
constitutional legislation and, politically speaking, are more difficult to amend
than legislation concerning routine matters of governance, even if not
institutionally protected. There has even been a step in this direction in Saudi
Arabia, although the Saudi government continues to take the formal position
that it has neither a constitution nor legislation other than the law of Islam.45

The major bastions resistant to judicial involvement in constitutional

adjudication have lowered their resistance in recent years. The concept of
expanded judicial power has even crept surreptitiously into the international
system, where there has been recent consideration as to whether there is a sort
of inherent power of judicial review in international law. The issue under
consideration concerns whether the United Nations Security Council’s findings
that it is acting to defend peace and security under Chapter VII of the United
Nations Charter (UN Charter) are reviewable by the International Court of
Justice. There is no explicit provision for judicial review in the UN Charter,
and a Belgian proposal to establish it during the drafting of the UN Charter was
rejected. The International Court of Justice has, however, considered the issue
in dicta.

The court has thus far carefully avoided making an express finding that the
security council has acted outside of the scope of its powers, but it refused to
explicitly deny that the court has the power to review the Security Council’s
actions.46 The United Nations, of course, is not a democratic system, nor one

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wherein majority rule has ever been unconstrained, by virtue of the institutional
entrenchment of particular founding nations through the veto power in the
Security Council. It is nevertheless interesting that some of the same questions
that confront new democracies are being asked at the international level as
well. Is there any action by supreme organs in a legal system that is ultra vires?
If so, who has the power to decide whether an action crosses the line? And if
the answer is a judicial body, who guards the guardians of legality? As the
“third wave” of democracy has proceeded around the globe, it has been
accompanied by a general expansion in the power of judges in both established
and new democracies. Virtually every post-Soviet constitution has at least a
paper provision for a constitutional court with the power of judicial review.47
New constitutional courts have been established in many new democracies.

Observing the situation, a Joint Colloquium on “Parliamentary Supremacy and

Judicial Independence...towards a Commonwealth Model” was held at Latimer
House in the United Kingdom, from 15 - 19 June 1998. Over 60 participants
attended representing 20 Commonwealth countries and 3 overseas territories.
The Colloquium was sponsored by the Commonwealth Lawyers’ Association,
the Commonwealth Legal Education Association, the Commonwealth
Magistrates' and Judges' Association and the Commonwealth Parliamentary
Association with the generous support of the Commonwealth Foundation, the
Commonwealth Secretariat and the United Kingdom Foreign and
Commonwealth Office. The seminar passed the guidelines on good practice
governing relations between the Executive, Parliament and the Judiciary in the
promotion of good governance, the rule of law and human rights to ensure the
effective implementation of the Harare Principles. 48

The successful implementation of these guidelines calls for a commitment,

made in the utmost good faith, of the relevant national institutions, in particular
the executive, parliament and the judiciary, to the essential principles of good
governance, fundamental human rights and the rule of law, including the
independence of the judiciary, so that the legitimate aspirations of all the

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peoples of the Commonwealth should be met. Each institution must exercise
responsibility and restraint in the exercise of power within its own
constitutional sphere so as not to encroach on the legitimate discharge of
constitutional functions by the other institutions. Representatives have resolved
to adopt the following principles and guidelines and propose them for
consideration by the Commonwealth Heads of Government meeting and for
effective implementation by member countries of the Commonwealth.

1. The legislative function is the primary responsibility of parliament as

the elected body representing the people. Judges may be constructive and
purposive in the interpretation of legislation, but must not usurp
parliament’s legislative function. Courts should have the power to declare
legislation to be unconstitutional and of no legal effect. However, there
may be circumstances where the appropriate remedy would be for the
court to declare the incompatibility of a statute with the constitution,
leaving it to the legislature to take remedial legislative measures.

2. Commonwealth parliaments should take speedy and effective steps to

implement their countries' international human rights obligations by
enacting appropriate human rights legislations. Special legislation (such
as equal opportunity laws) is required to extend the protection of
fundamental rights to the private sphere. Where domestic incorporation
has not occurred, international instruments should be applied to aid
interpretation.

3. Judges should adopt a generous and purposive approach in interpreting

a bill of rights or fundamental rights. This is particularly important in
countries which are in the process of building democratic traditions.
Judges have a vital part to play in developing and maintaining a vibrant
human rights environment throughout the Commonwealth.

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 4. International law and, in particular, human rights jurisprudence can
greatly assist domestic courts in interpreting a bill of rights. It also can
help expand the scope of a bill of rights or fundamental rights making it
more meaningful and effective.

5. While dialogue between the judiciary and the government may be

desirable or appropriate, in no circumstances should such dialogue
compromise judicial independence.

6. People should have easy and unhindered access to courts, particularly

to enforce their fundamental rights. Any existing procedural obstacles to
access to justice should be removed.

7. People should also be made aware of, and have access to, other
important fora for human rights dispute resolution, particularly Human
Rights Commissions, Offices of the Ombudsman and mechanisms for
alternative dispute resolution.

8. Everyone, especially judges, parliamentarians and lawyers, should have

access to human rights education.49

Controversy over Supremacy in Specific Jurisdiction

In the United States of America, the tension between judicial review and
judicial restraint has been present since the foundation of the republic and the
creation of the Supreme Court. The history of the Supreme Court of the United
States teaches that judicial activism is not confined to a particular ideological
or social viewpoint. It may be liberal. But it may also be quite conservative. In
the early years of this century the ‘judicial activists’ on the Supreme Court of
the United States impeded legislation enacted by the Congress, or the
legislatures of the States, dealing with social or economic affairs. Thus,
legislation governing child labour, workers' hours and workers' rights were
consistently struck down as being violations of the commerce clause of the US
Constitution or the judicially created doctrine of "liberty of contract" under the
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due process clause of the 14th Amendment. A well known example of this kind
of judicial activism is the decision of the Supreme Court in Lochner v. New
York.50 In that decision, the Court invalidated legislation of the State of New
York regulating the hours that bakers could work. The Court held that this was
a violation of “liberty of contract.” These doctrines extended well into the
1930s. At one point they even threatened the New Deal programme of
President F. D. Roosevelt. The President threatened to enlarge the Court to
overcome their unpopular doctrines.51

In the United States, a water-tight type of separation of the judiciary from the
political arena does not occur. The American judiciary enjoys a greater scope
of functions that they undertake as compared with the most of the other
judiciaries in the world. This enlarged role, in part, stems from the presence of
a written constitution with a separate Bill of Rights. The constitution of the
United States incorporates a written Bill of Rights. It places great symbolic
weight on human rights. It elevates the basic rights of man to supreme
constitutional status.

The structure in the United States imposes the judicial branch, in some sense,
as the protector of these essential human rights, while limiting the actions of
other branches against those rights.52 Analyzing the American judicial function,
Ruggero J. Aldisert concludes, “Early in our tradition, the judicial branch
declared itself the overseer of the executive and legislative branches.”53 Courts
in the United States, as the guardians of the individual rights, are able to make
fundamental changes in the law especially through judicial review. For two
centuries American judges have ruled both national and state legislation invalid
because it invaded the rights of freedom of speech or religion or of the due
process of law or of the equal protection of law that the United States
Constitution recognizes.54 Priest states “our civil courts have become the most
powerful regulatory institution of the modern state.”55 American judges are
more political than their counterparts in the world due to the differences in
power allocation between the judiciary and the legislative branches.56 Many

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American judges at the state level are elected contributing to the politicized
nature of the American judiciary. The American system allows lawyers to
specialize in a variety of areas of the law. The extensive specialization of
lawyers may be one of the main reasons for the over-litigious tendencies in the
United States.57 The American system lacks a political organ with the
legislative authority that is as domineering and far-reaching as the English
Parliament. Therefore, in the U.S., the judicial branch naturally extends its
power into legislations.

Moreover, the American public expects the legal system to intervene and right
the wrongs when they feel that their rights are trampled. Tetley asserts that
“Americans look primarily to the courts, rather than to legislatures, to
compensate the victims of tortuous behaviour in U.S. society.”58 Viscusi
argues “the allocation of responsibilities for policy becomes blurred, as
litigation increasingly becomes the mechanism for forcing regulatory
changes.”59 Lord Irvine of Lairg observes, ‘The U.S. system, through its
constitutional texts, articulates a positive approach to human rights: They are
marked out, from the very beginning, as sacrosanct.’60

Thus, implications of the institutional setting on government action and

behaviour in the U.S. can be explained surrounding two key arguments. First
the American institutional setting assigns significant amount of political power
to the legal system whereby in many cases the authority to regulate safety
reverts back to the courts. As a result, society is left with legal liability as
deterrence and compensatory mechanism.61 Second, the American
constitutional setting with protected fundamental rights at its core pre-disposes
the legal system to operate in a way that avoids punishing the innocent.

In the Indian Context

The contradiction between the principles of parliamentary sovereignty and

judicial review that is embedded in India's constitution has been a source of
major controversy over the years. After the courts overturned state laws

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redistributing land from zamindar estates on the grounds that the laws violated
the zamindars' Fundamental Rights, Parliament passed the first (1951), fourth
(1955), and seventeenth amendments (1964) to protect its authority to
implement land redistribution. The Supreme Court countered these
amendments in 1967 when it ruled in the Golakhnath v. State of Punjab case
that Parliament did not have the power to abrogate the Fundamental Rights,
including the provisions on private property. On February 1, 1970, the Supreme
Court invalidated the government-sponsored Bank Nationalization Bill that had
been passed by Parliament in August 1969. The Supreme Court also rejected as
unconstitutional a presidential order of September 7, 1970, that abolished the
titles, privileges, and privy purses of the former rulers of India's old princely
states.62

In reaction to Supreme Court decisions, in 1971, Parliament passed the

Twenty-fourth Amendment empowering it to amend any provision of the
constitution, including the Fundamental Rights; the twenty-fifth Amendment,
making legislative decisions concerning proper land compensation non-
justifiable, and the twenty-sixth Amendment, which added a constitutional
article abolishing princely privileges and privy purses. On April 24, 1973, the
Supreme Court responded to the parliamentary offensive by ruling in the
Kesavananda Bharati v. the State of Kerala case that, although these
amendments were constitutional, the court still reserved for itself the discretion
to reject any constitutional amendments passed by Parliament by declaring that
the amendments cannot change the constitution's “basic structure.” 63

During the 1975-77 Emergency, Parliament passed the forty-second

Amendment in January 1977, which essentially abrogated the Keshavananda
ruling by preventing the Supreme Court from reviewing any constitutional
amendment with the exception of procedural issues concerning ratification. The
forty-second Amendment's fifty-nine clauses stripped the Supreme Court of
many of its powers and moved the political system toward parliamentary
sovereignty. However, the forty-third and forty-fourth amendments, passed by

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the Janta government after the defeat of Indira Gandhi in March 1977, reversed
these changes. In the Minerva Mills case of 1980, the Supreme Court
reaffirmed its authority to protect the basic structure of the constitution.
However, in the Judges Transfer case on December 31, 1981, the Supreme
Court upheld the government's authority to dismiss temporary judges and
transfer high court justices without the consent of the chief justice.64

The Supreme Court continued to be embroiled in controversy in 1989, when its

US$470 million judgement against Union Carbide for the Bhopal catastrophe
resulted in public demonstrations protesting the inadequacy of the settlement.
In 1991 the first-ever impeachment motion against a Supreme Court judge was
signed by 108 members of Parliament. A year later, a high-profile inquiry
found Associate Justice V. Ramaswamy “guilty of wilful and gross misuses of
office and moral turpitude by using public funds for private purposes and
reckless disregard of statutory rules” while serving as chief justice of Punjab
and Haryana High Court.65 Despite this strong indictment, Ramaswamy
survived parliamentary impeachment proceedings and remained on the
Supreme Court after only 196 members of Parliament, less than the required
two-thirds majority, voted for his ouster.

During 1993 and 1994, the Supreme Court took measures to bolster the
integrity of the courts and protect civil liberties in the face of state coercion. In
an effort to avoid the appearance of conflict of interest in the judiciary, Chief
Justice Manepalli Narayanrao Venkatachaliah initiated a controversial model
code of conduct for judges that required the transfer of high court judges
having children practicing as attorneys in their courts. Since 1993, the Supreme
Court has implemented a policy to compensate the victims of violence while in
police custody. On April 27, 1994, the Supreme Court issued a ruling that
enhanced the rights of individuals placed under arrest by stipulating elaborate
guidelines for arrest, detention, and interrogation. 66

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Moreover, Parliament and the Supreme Court of India are poised for a
confrontation over the issue of expulsion of 11 members of parliament (MPs)
involved in cash-for-question scam.67 The legal-constitutional question pertains
to the exclusive jurisdiction of Parliament over its authority to define its
privileges and manner to protect and maintain it. The phenomenon of the
legislature versus the judiciary is not new to Indian democracy. Indira Gandhi
made a series of attempts through 24th, 25th and 42nd constitutional
amendments to establish supremacy of parliament over the judiciary. She even
tried to demoralise the highest judiciary by appointing a junior judge as the
chief justice superseding senior judges. The matter could be settled with the
enunciation of the 'basic feature doctrine' in the Kesavananda Bharati case of
1973. The kernel of this judgement is that the Indian constitution has certain
basic features, which hold a transcendental position and which cannot be
altered by either Parliament or Supreme Court.68 This judgement was able to
establish supremacy of the constitution but only with respect to its ‘basic
features.’

The other vibrant and dynamic democracies of the world have also gone
through the process of confrontation between the legislature and the judiciary.
However, they have settled it in the process of constitutional development.
Britain, a classic case of a parliamentary system, easily established legislative
supremacy. Parliament is not only supreme vis-à-vis other organs of
government but it is supreme vis-à-vis constitution as well. In the British
model, the legislative supremacy is also established by the fact that the
constitution is unwritten and the one chamber of the legislature, House of
Lords, acts as the highest judiciary of the land. The federal constitution of the
United States is organised on the principle of supremacy of the constitution. Its
supreme court, therefore, enjoys absolute and extensive power of judicial
review. No law of the land is beyond judicial scrutiny.69

But the case of the Indian constitution is typical because of the adoption of
parliamentary and federal features simultaneously. Parliamentary form of

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government hints at legislative supremacy. But the federal nature of the
constitution makes it imperative that the highest judiciary is able to exercise the
power of judicial review. The roots of the present problem also lie in the design
of the Indian constitution.

On December 12, 2005, eleven MPs, ten from the Lok Sabha and one from the
Rajya Sabha belonging to mainstream political parties (six from the Bharatiya
Janata Party (BJP), three from the Bahujan Samaj Party (BSP), and one each
from the Congress and the Rashtriya Janata Dal) were shown in a sting
operation on a private TV channel (Aaj Tak) being paid for raising a question
in parliament.

Parliament responded quickly by expelling all the eleven MPs who figured in
the sting operation. The Lok Sabha constituted a special (enquiry) committee
and the Rajya Sabha referred the matter to the ethics committee of the house.
On the report of the special committee of the Lok Sabha and ethics committee
of the Rajya Sabha, both the houses expelled the tainted members and
terminated their membership by a motion of each house. The motion was
passed on the last day of the winter session, December 23, 2005, amidst a
walkout by the BJP, the main opposition party in the Lok Sabha. The BJP
already in trouble because of leadership crisis, factional fighting, ideological
vacillation, and its vitiating relations with the Rashtriya Swayamsevak Sangh
was deeply disturbed. Six out of eleven MPs belonged to the BJP and two of
them were ministers in the erstwhile BJP-led national democratic government
at the centre.

One expelled member from the BSP, Raja Ram Pal challenged the decision of
the Lok Sabha speaker in the Supreme Court on two grounds: procedural and
legal. His expulsion resolution was not carried on the report of the Privileges
Committee of the Lok Sabha. His expulsion was not based on any of the
grounds of disqualification specifically mentioned in Article 102 of the
constitution and section 8 of the representation of the People's Act 1951. The

129
Supreme Court served a notice on the Lok Sabha speaker on January 16, 2006.
The court also referred the matter to a constitutional bench of five judges.

The Lok Sabha speaker, Somnath Chatterjee called an all-party meeting on

January 20, 2006. It was unanimously decided in the meeting that it was the
privilege of the house to take disciplinary action against its own members. The
expulsion from the house was very much within that disciplinary action. It was
further held that the Speaker of the Lok Sabha was the sole custodian of the
rights and privileges of the house and, hence, not answerable to the judiciary
for his role in that capacity. The BJP in the meeting favoured that the Speaker
should not appear personally before the Court but should send his
representative to present his views before the highest court. The then speaker,
Chatterjee, later on briefed the media, ‘Even if I go there, that cannot lead to
the honourable court to assume or to exercise the power in respect of those
matters exclusively conferred on Parliament.’70 He also clarified that ‘the
Constitution was clear on the jurisdictions of the pillars of democracy’ and
suggested, ‘Let us keep within our lakshman rekha.’

The Supreme Court seems in a mood to interpret the powers, privileges and
immunities of parliament that remain un-codified so far. On the other hand,
Parliament insists that it being the sole custodian of its rights and privileges it is
within its right to define its privileges and immunities. The whole episode has
certainly triggered a new kind of situation that has serious implications of
which two are legal-constitutional. First pertains to immunities of the
legislature from judicial intervention in its proceedings. Second relates to
defining powers and privileges of the legislature and its members. Is Parliament
the sole interpreter of its powers and privileges? Or, is this power of parliament
subject to judicial scrutiny?

Articles 105 and 122 of the Indian constitution clearly restrict the judiciary
from intervention in the business of the legislature. Article 122 (1) states, ‘The
validity of any proceedings in Parliament shall not be called in question on the

130
ground of any alleged irregularity of procedure.’ Article 122 (2) explains, ‘No
officer or member of Parliament in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for
maintaining order, in Parliament shall be subject to the jurisdiction of any court
in respect of the exercise by him of those powers.’

Article 105 (2) gives judicial immunities to the conduct and behaviour of any
member of Parliament: ‘No member of Parliament shall be liable to any
proceedings in any court in respect of anything said or any vote given by him
in Parliament or any committee therefore, and no person shall be so liable in
respect of the publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.’ Article 194(2) grants the
same immunities to the members of the state legislative assemblies.

The second issue pertains to the powers and privileges of the legislature and its
members. Article 105 explains the powers and privileges of Parliament and its
members; and Article 194 replicates the same provision for the legislative
assembly and its members. Article 105 (1) gives freedom of speech in
Parliament and Article 105 (2) gives immunity to freedom of speech and
freedom to vote in the house and its committees from judicial proceedings. But
other rights and privileges of the house and its members are left un-codified.
Article 105 (3) reads ‘In other respects, the powers, privileges and immunities
of each House, shall be such as may from time to time be defined by
Parliament by law, and, until, so defined, shall be those of that House and of its
members and committees immediately before the coming into force of section
15 of the Constitution Forty-fourth Amendment Act 1978.’ Before this
amendment, it was provided that powers, privileges, and immunities of
Parliament and its member shall be those of the House of Commons as it was
before the commencement of the Indian constitution.

The root of the present controversy lies in the above two issues and related
provisions of the Constitution. The BSP MP has challenged in the Supreme

131
Court the power of the house to terminate his membership on the grounds other
than that provided in Article 102 and section 8 of the representation of the
People's Act 1951. The Lok Sabha insists that its disciplinary jurisdiction over
its member has constitutional immunities from judicial intervention as
explained in the Articles 105 (2) and 122 of the Indian constitution. Judicial
precedents on the issue of parliamentary privileges and judicial immunities to
proceedings of the legislature suggest divided opinion.

In PV Narasimha Rao v. State (CBI), the Supreme Court took the position as
per Article 105 (2), ‘The bribe-taker MPs who have voted in Parliament against
the no-confidence motion are entitled to protection of Article 105(2) and are
not answerable in a court of law for alleged conspiracy and agreement.’71
However, ‘The bribe-takers could be proceeded against by Parliament itself.’
This judgement clearly established that parliament is the sole arbitrator of its
business and proceedings and the judiciary cannot come in this matter. This
judgement has not been superseded by another judgement reversing the
position.

The judicial interpretation of powers and privileges of the legislature and its
members has not been consistent. In a special reference no. (1) 1964, the
Supreme Court observed that the legislature in India unlike the House of
Commons does not enjoy the power to regulate its own constitution. Hence, the
Indian legislature does not have the same powers and privileges as enjoyed by
the House of Commons.72

Conclusion:

An analysis of above issue of controversial relationships between the two

major organs of government has, led us to conclude that there is an ardent need
for establishing proper checks and balances in the governmental system so that
no organ can supersede other. The legislative function is the primary
responsibility of parliament as the elected body representing the people. Judges
may be constructive and purposive in the interpretation of legislation, but must

132
not usurp Parliament's legislative function. Courts should have the power to
declare legislation to be unconstitutional and of no legal effect. Judges should
adopt a generous and purposive approach in interpreting a Bill of Rights or
Fundamental Rights.

In order to restore good governance in any political system it is inevitable to

maintain coordinative relationships between the two pivotal branches of the
government. However, there may be circumstances where the appropriate
remedy would be for the court to declare the incompatibility of a statute with
the Constitution, leaving it to the legislature to take remedial legislative
measures. This again warrants the system of checks and balance to be put in
place so that no single institution gets to dominate the power structure at the
cost of others. Therefore, instead of getting bogged down in such meaningless
rhetoric as clash amongst institutions, it is necessary to give every state organ
what is its due as defined in their respective constitutions. After judiciary has
won its independence, it is now for the legislature to follow suit. In order to
attain the goal of good governance, everyone, especially judges,
parliamentarians, lawyers as well as entire society should have access to human
rights education and value for it.

133
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