Parliamentary Sovereignty in India and UK And Why This Insight Matters

Introduction

For generations of constitutional lawyers, parliamentary sovereignty has been treated as an unquestionable cornerstone of democratic governance—particularly in jurisdictions influenced by the British constitutional tradition. A.V. Dicey’s classical formulation suggested that Parliament could make or unmake any law, that no authority could override its enactments, and that courts were constitutionally bound to obey.

Contemporary constitutional practice, however, tells a far more complex story. A recent Public Law Lecture in the United Kingdom argued persuasively that while Parliament remains the supreme law-making authority, it is not absolutely sovereign—and that this limitation strengthens democracy rather than weakens it. Although the argument was framed in the UK context, it carries profound relevance for India’s constitutional system as well.

Sovereignty vs Legislative Supremacy: A Foundational Distinction

A critical analytical distinction must be drawn between sovereignty and legislative supremacy.

• Sovereignty implies absolute, unlimited authority—an omnipotent power that determines its own scope.
• Legislative supremacy refers to being the highest recognised source of law within a legal system.

This distinction explains how a legislature may enjoy supremacy in law-making while still operating within constitutional, judicial, and political constraints. The United Kingdom increasingly reflects this reality through judicial interpretation and constitutional practice, while India has explicitly embraced this model since independence.

India’s Constitutional Rejection of Parliamentary Sovereignty

India’s Constitution deliberately rejects Diceyan parliamentary sovereignty. Unlike the UK’s uncodified constitution, India adopted a written Constitution that limits legislative authority from the outset.

Article 13(2) of the Constitution prohibits Parliament from enacting laws that violate fundamental rights. Article 245 subjects legislative power to constitutional provisions. Article 368 allows constitutional amendment, but not without substantive limitations.

Parliament, therefore, was never intended to be sovereign in the absolute sense.

The Basic Structure Doctrine: India’s Constitutional Safeguard

The landmark decision in Kesavananda Bharati v State of Kerala¹ firmly established that Parliament’s power to amend the Constitution does not extend to altering its basic structure.

The Supreme Court identified foundational principles—including the rule of law, separation of powers, judicial review, federalism, and democracy—as inviolable. Parliament may legislate and amend, but it cannot redefine the Constitution’s core identity.

Subsequent decisions such as Minerva Mills Ltd v Union of India² and I.R. Coelho v State of Tamil Nadu³ reinforced this doctrine, affirming that constitutional supremacy—not parliamentary sovereignty—is the governing principle in India.

Shared Constitutional Authority: Courts as Co-Guardians

A key insight emerging from comparative constitutional analysis is that constitutional meaning is shaped through institutional interaction. In both India and the UK, courts do not merely apply statutes mechanically; they interpret legislation through constitutional principles.

In India, judicial review is central to constitutional governance. Decisions such as Navtej Singh Johar v Union of India⁴ illustrate how courts protect constitutional morality and individual liberty even in the face of legislative inertia or majoritarian pressure.

This reflects a system of shared constitutional authority, where Parliament legislates and courts safeguard foundational norms.

Judicial Limits on Parliament in the UK

The UK’s constitutional evolution increasingly mirrors this shared model. While Parliament retains legislative supremacy, courts have asserted limits rooted in constitutional principles.

In R (Miller) v Secretary of State for Exiting the European Union⁵, the UK Supreme Court reaffirmed parliamentary control over constitutional change. In R (Privacy International) v Investigatory Powers Tribunal⁶, the Court restricted the scope of ouster clauses to preserve access to justice and the rule of law.

More recently, Allister v Secretary of State for Northern Ireland⁷ clarified that Parliament may legislate inconsistently with constitutional statutes, but only through clear legal mechanisms—demonstrating legislative supremacy rather than absolute sovereignty.

Political Limits and Democratic Reality

Both jurisdictions demonstrate that legislatures are constrained not only by law but by democratic reality. Public opinion, electoral accountability, and civil resistance impose practical limits on legislative action.

India’s experience during the Emergency (1975–77) remains a cautionary reminder of how legal validity can coexist with democratic failure. The subsequent strengthening of judicial review underscores why constitutional limits cannot rely solely on legislative self-restraint.

Why Parliament Should Not Be Sovereign

Absolute parliamentary sovereignty risks short-termism, populism, and erosion of fundamental rights. Legislatures are structurally designed for political contestation, not for safeguarding enduring constitutional values.

Courts, by contrast, reason incrementally, draw upon precedent, and engage with long-term constitutional principles. When courts and legislatures function together, foundational rules evolve through dialogue rather than domination.

Conclusion

The claim that Parliament is not sovereign—but remains legislatively supreme—offers a powerful framework for understanding modern constitutional democracy. India’s constitutional experience confirms that democracy is strengthened, not weakened, when power is shared and constrained.

Unchecked authority, whether legislative or judicial, undermines constitutional governance. A balanced constitutional partnership between Parliament and courts preserves democratic legitimacy, protects rights, and ensures constitutional continuity.

India’s Constitution does not fear limits on Parliament—it depends on them.

Footnotes

1. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
2. Minerva Mills Ltd v Union of India, (1980) 3 SCC 625.
3. I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1.
4. Navtej Singh Johar v Union of India, (2018) 10 SCC 1.
5. R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5.
6. R (Privacy International) v Investigatory Powers Tribunal, [2019] UKSC 22.
7. Allister v Secretary of State for Northern Ireland, [2023] UKSC 5.