Indian Vs British Parliament

Supremacy of british parliament

The keystone as well as the dominant characteristic on which the unwritten British Constitution is based, is essentially the doctrine of 'sovereignty' or 'supremacy' of the Parliament. This means that Parliament has the 'right to make or unmake any law whatever and whenever, it chooses to do so; that it can "legally legislate on any topic or subject matter of legislation which, in its own judgment, is a fit subject for legislation. This further boils down to the fact that no person or body in Britain has a right to override or set aside a law that has been validly enacted by the Parliament. Not even the Courts in England can claim to exercise their jurisdiction in this regard so as to declare an Act of Parliament void, ultra vires or 'unconstitutional' other than interpreting the law having been made by the Parliament and applying the same to the factual situations coming before them for adjudication. In short, there is "no power whatsoever, it may be under the English Constitution, which can come into rivalry with the legislative sovereignty of Parliament”. Parliament of Britain is thus not regarded as a delegate of the people as it is so considered under other written Constitutions and as such, it is not legally bound by any mandate. This is because; British Constitution is not a written document rather a Constitution interspersed in various conventions such that there is nothing like a fundamental law of the country which can circumscribe its powers. Therefore, the power of Parliament to legislate is not only legally unrestricted but it can even change a well established Constitutional principle through the same ordinary process as it enacts any other ordinary law of the land.

Politically speaking, Britain does have a responsible government with an elected House of Commons which reflects all democratic attributes such as contemporary public opinion, social morality or consciousness. Parliament does not therefore ordinarily do anything which a large number of people oppose. But from a legal, and of course, not political stand- point, there is no fetter or restraint on the British Parliament to make any law. Whatever Parliament enacts as law is very much a law for all legal and practical purposes and its validity is not subject to any higher principles or morality, national or international law.

As noted above, Britain has no doctrine of unconstitutionality of parliamentary legislation and a law enacted by Parliament cannot be questioned or challenged in a court on any ground whatsoever. The courts are not to scrutinize a law with reference to any fundamental norm, although, in the process of statutory interpretation, the courts do bring in certain concepts of their own and interpret the law accordingly. When the courts are faced with several alternative interpretations of a statutory provision, they would adopt the view which appears to them to be fair and just and it may be that, at times, the judicially-adopted alternative may not accord with what Parliament wanted to enact. While the courts do not enjoy the power to declare an Act of Parliament to be invalid they certainly have the power to interpret the same.

In the context of this Parliamentary sovereignty in Britain, it however may not be out of place to mention that the entry of Britain in the European Common Market since 70’s, has somewhat compromised the traditional concept of sovereignty of Parliament. The British Parliament has enacted the European Communities Act, 1972, making European Community Law automatically applicable in Britain even in the face of any law to the contrary. The general effect of the European Communities Act is to override existing domestic law insofar as it is inconsistent therewith, and to impose a presumption of interpretation that future statute law is to be read subject to Community Law for the time being in force. Under such a state of affairs, the British Parliament is expected to refrain from passing any legislation that would be inconsistent with the European Community Law.

The status of Indian Parliament

The Indian Parliament differs from its British counterpart in a substantial manner. Politically speaking, the Indian and British Parliaments are both subject to similar restraints as both have parliamentary forms of government. But legally speaking whereas the powers of the British Parliament are undefined and that of the Indian Parliament are very much defined, fettered and restrained. The main reason for this distinction is that India has a written Constitution of its own which is not only supreme, but is also the fundamental law of the land. Its provisions are enforced by the Courts and it cannot be changed or altered just through the ordinary legislative process of the parliament, but through a special and cumbersome process as prescribed in the Constitution. The Indian Parliament has therefore to function within the constraints of the Constitution from which all its legislative powers eventually emanate. Say for example,

 Art. 245(1) of the Indian Constitution confers plenary legislative powers on the Parliament, but the exercise of this plenary power has been specifically made 'subject to the provisions of the Constitution'.

This means that the fundamental law of our country (Constitution) contains many such rules and restrictions which Parliament has always to observe in its working. For example, there are restrictions regarding the subjects on which Parliament can legislate, and a law made beyond the assigned subjects is bad and unconstitutional; there are Fundamental Rights guaranteed to the people of India, and a law made in contravention thereof is similarly also unconstitutional.

The doctrine of parliamentary sovereignty as it obtains in England does not therefore prevail in India at all except to the extent and in the fields of legislation that have been provided to it by the Constitution.

Parliament may delegate legislative power up to a point and beyond that limit, delegation will not be valid; constitutional provisions guaranteeing freedom of trade and commerce also impose some restrictions on the parliamentary legislative power. In addition, parliamentary taxing power is subjected to a few more restrictions, e.g., under Art. 289, property and income of a State are exempt from Union taxation.

The bottom line of the nature of the Indian Parliament is that it is the creature of the Constitution and thus, can never claim to be sovereign. Therefore, a parliamentary law to be valid must conform in all respects with the Constitution. It is for the courts to decide whether an enactment is constitutional or not and they have the power to declare a parliamentary enactment void if it is inconsistent with any provision of the Constitution. The courts would refuse to give effect to any unconstitutional law.

Contrasting the British Parliament with a legislature like the Indian Parliament, DICEY called the former as "sovereign" and the latter as "subordinate" or non-sovereign.'" These terms are misleading as they create a false impression that the Indian Parliament is subordinate to some external authority or that India is not yet an independent country. A much better way to characterize the constitutional position of the Indian Parliament is to say that it is "sovereign within its powers". Though its freedom of action is controlled by the Constitution, yet within the sphere and limits allowed to it, its powers are plenary, and it may pass laws of any sort.

 This does not in any way give the impression that the Indian Parliament does not carry that much significance in the Indian body politic as it is not as sovereign as the British Parliament. In short, the Indian Parliament has been assigned a place of great importance in the governmental structure of the country. It is the source of all central legislation because legislative power of the Union has been assigned to it. If parliamentary legislation does not infringe any constitutional limit, then the function of the courts is only to interpret and apply the law enacted by it; Courts cannot then go into the policy or wisdom of legislation. The courts cannot declare a statute unconstitutional simply on the ground of unjust or harsh provisions, or because it is supposed to violate natural, social or political rights of citizens unless, it can be shown that such injustice is prohibited, or such rights are  protected, by the Constitution.

It is difficult on any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition except in so far as the Constitution gives that authority. It will thus be correct to say that within the permissible limits, the Indian Parliament is as omni-competent as the British Parliament. If no fetter is to be found in the Constitution itself, Parliament is competent to make a law even if it is contrary to the guarantee given, or obligation undertaken, by the government.'"

Article 245(2) specifically provides that no law made by Parliament is to be invalid on the ground of its extra-territorial operation. Nor is there any restriction on its power to amend, delete or obliterate a statute, or to give it prospective or retrospective effect, or even to levy a tax retrospectively, except in so far as it is banned by Fundamental Rights like Arts. 20(1), 14 or 19(1) (g).A tax law not contravening a constitutional prohibition, such as, Art. 14 cannot be declared invalid merely because it imposes double taxation, or that it is confiscatory or expropriatory in nature, as such a power is "incidental to the power to levy the tax."

A law passed by Parliament can neither be invalidated on the ground of non-application of mind nor that of mala- fides. Mala fides or ulterior motives attributed to Parliament, in making a law within its competence can never make such law unconstitutional. The Supreme Court has observed: "The legislature, as a body, cannot be accused of having passed a law for extraneous purpose... Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law maid fide. This kind of 'transferred malice' is unknown in the field of legislation."

India and US

Comparison of Indian parliament with American congress

In this respect, the Indian Parliament corresponds substantially with the American Congress. Each country has a written Constitution which is the fundamental law of the land. Each is a federation and in each, Fundamental Rights have been guaranteed to the people. Thus, the American Congress, like the Indian Parliament, cannot enact a law which is against the Bill of Rights or which contravenes the scheme of distribution of powers or other constitutional provisions. The written Constitution is supreme and, therefore, a law made by the Congress or for that matter, by the Indian Parliament for being valid, must be in conformity with the very provisions of the Constitution. If it is not so, the Courts will intervene and declare the law to be unconstitutional and null and void although, in actual practice, it has been rarely that the Courts in India or the U.S.A. would hold a statutory provision to be unconstitutional.

Indian v. U.S. forms of government

Although, the functionary at the head of the Indian Union like that of the U.S.A., is called the President yet, India's form of government is very much different from that of the U.S.A. Since, India has parliamentary and not presidential form of government exactly on the British model or as it obtains in countries like Australia and Canada which in the main, is founded on the bedrock principle of a responsible system of government having the real executive to owe a responsibility to the lower house of the legislature. Therefore, beyond the identity of names between the Indian and the American Presidents, there is of course not much in common between them.

As such, the position of the President of India is more akin to the British monarch rather than the American President. He is the head of the state, but only formally and thus does not constitute the effective head of the Executive which in legal parlance referred to as de-jure head of the executive. The effective repository of the executive power for all practical purposes is the Council of Ministers headed by the PM who is thus designated as the de-facto head of the executive.

 On the other hand, in any country say, in the USA, wherein, the U.S. President is both the head of the state as well as the effective head of the Executive, the system of the government that forms is known as the Presidential form of government because, here the President acts as the Chief executive of the country and the entire administration of the country in de-facto sense, remains vested in him.

Accordingly, the U.S. Constitution as per Article II of the Constitution not only vests the entire executive power in the hands of the President, but also makes him responsible for ensuring that the laws of the country are faithfully executed. He alone is vested with the power to appoint and remove executive officers and thus, can effectively control the government departments.

The President has under him Secretaries of State in charge of different executive departments who are appointed by him and who are his personal advisers. He is not bound to accept the ad-vice tendered by them; he enjoys ultimate power of decision and therefore, has complete political responsibility for all executive action. The President dominates the Cabinet completely as the Secretaries of State hold their offices entirely at his pleasure and are accountable to him. They are merely the instruments through whom the President's policy is carried out. As has been aptly said, "The cabinet is not a device for sharing responsibility among a group; it is a necessary result of the President's inability to supervise all affairs directly."

The Indian President, on the other hand, acts generally on the advice of the Ministers except in very marginal situations say, when the CoM has lost its confidence in the popular house of the legislature. The U.S. President is free to dismiss any of his Secretaries as and when he likes. The President of India has a formal power to that effect only but then again, he exercises the same on the advice of the Prime Minister, or when the Cabinet has forfeited the confidence of the LokSabha. The Secretaries of State in the U.S.A., on the other hand, are neither responsible to Congress, nor are its members, nor do they function on the basis of collective responsibility. This is very different from the underlying principles on which the Executive functions in India owing to the presence of a Parliamentary system.

The truth of the matter is that America hardly has a Cabinet corresponding to the classical idea of a Cabinet in the parliamentary form of government. "Because of his unfettered power of removal over them and the fact that his tenure of office is not in any way dependent upon the effect which his dismissal of the Cabinet members may have upon the Congress, the President is able to dominate his Cabinet to an extent which would be almost impossible in the case of a Prime Minister in case of India or for that matter, England as such."

The presidential form of government as it obtains in USA or in any other country where it prevails, is based on the principle of Separation of Powers between the executive and the legislative organs. The doctrine of Separation of Powers, ascribed to Montesquieu, a Frenchman, exercised a potent influence on the public mind in the 18^th century when the American Constitution was drafted and hence, it finds an ample reflection in the US Constitution and has been given a Constitutional status. It envisaged that the legislative, executive and judicial functions in a state ought to be kept separate and distinct from each other which in its implication means that there ought to be separate organs for each, working together, but none of them should be dependent on and discharge the function belonging to the other organ of the government say, for example, the Executive should have no legislative or judicial powers.

The thesis underlying the doctrine is that the merger of all powers in one body will lead to autocracy and negation of individual liberty.

 Basing itself on this doctrine, the American Constitution vests the executive power in the President who is elected for a fixed term of four years; legislative power is vested in the Congress and the judicial power is vested in a system of courts with the Supreme Court at the top.

While basically the U.S. Constitution is designed on the basis of the principle of Separation of Powers, the framers of the U.S. Constitution also introduced, to some extent, the principle of checks and balances. The framers adopted both these strategies with a view to ensure a weak government so that the government may not act in an arbitrary manner. The doctrine of Separation weakens the government by dividing its powers, for a divided government is intrinsically weaker than a government having all powers concentrated therein and this principle of checks and balances further limits the government powers.

The parliamentary system as it is practiced in India on the other hand is based on an intimate contact, a close liaison, or co-ordination, between the Executive and the Legislative wings. India recognizes no doctrine of Separation between them. As the Supreme Court has very well stated in this context, there may be in India a differentiation and demarcation of functions between the Legislature and the Executive and, generally speaking, the Constitution does not contemplate that one organ should assume the functions belonging essentially to the other organ, yet, nevertheless, there is no separation between them in its absolute rigidity.

Therefore, there being no separation of powers among the three organs of the government, there is instead, to a large extent, a parallelism of power, with hierarchies between the three organs in particular fields. It is this balance of hierarchies which must be maintained by each organ subject to checks by the other two. To illustrate this is the requirement for the executive (e.g. Article 73) to fill in the legislative vacuum by executive orders. Where there is inaction even by the executive for whatever reason, the judiciary can step in and in exercise of its obligations to implement the Constitution provide a solution till such time as the legislature or the executive act to perform their roles either by enacting appropriate legislation or issuing executive orders to cover the field. Similarly while the legislature and executive may reject a judicial decision by amending the law, the judiciary may in turn test the validity of that law against the touchstone of the Constitution.

The U.S. Executive (President) does not depend for its survival on the majority support in the Congress as the President has a fixed tenure of four years. He cannot be dismissed before the expiry of his term by any adverse vote in the Congress, as it is the other way round in a Parliamentary system in India. As such, the US President can be removed only by the rare process of impeachment. Correspondingly, the President has no power to dissolve the Congress. The House of Representatives has a fixed term of two years. Owing to these few merits of the Presidential system, the American system produces a stable government having a fixed tenure because it is independent of the legislative whim. It has happened often that the President may belong to one political party, but the majority in either House or both Houses, may belong to another political party.

At the same time, the members of the Congress enjoy a good deal of freedom to oppose or support the programme and policies proposed by the President even when the majority in the Houses of Congress may belong to the same party as the President. On the other hand, the distinctive feature of the parliamentary system is that the Cabinet depends on the majority in the LokSabha. and holds office so long as it enjoys the confidence of the majority in the House which can depose the Cabinet at its pleasure, but the Cabinet has the corresponding right to dissolve the House. In a parliamentary system, the government has no fixed tenure as it may have to go out any moment the majority in Parliament withdraws its support and this factor probably, introduces a kind of demerit in the Parliamentary system by creeping in the vice of an unstable government to which India has been exposed quite a number of times in the past.

The American Executive not being directly accountable to the Legislature tends to become less responsible to it than the parliamentary government which has constantly to seek the majority support. In America, the responsibility of the Executive is assessed by the electorate once in four years when election is held for the Presidential office. In India, on the other hand, the responsibility of the Executive is assessed daily by the Legislature through resolutions, questions, debates, etc., and periodically by the electorate through general elections.

But then on the whole, the legislative control over the Executive and vice versa is undoubtedly, much weaker in the U.S.A’s presidential system than it is in India where the Legislature and the Executive can dissolve each other. This legislative- executive relationship of coordination and cooperation in a parliamentary system is nevertheless a winning point of the parliamentary system insofar as the avoidance of disputes and conflict on any given point or agenda is concerned. Because, in any situation of dispute or conflict between the two, the result is inevitable in the sense that in any case, either the House will go or the Cabinet. Owing to this countercheck, the Executive invariably remains in a strong position to carry the Legislature along with it in its programmes and policies.

The position in the U.S.A.under the Presidential system is entirely different where due to the doctrine of Separation of Powers, formal means of co-ordination between the Executive and the Legislature are lacking. No member of the Executive participates immediately in the legislative process in the Congress. Party discipline in Congress is loose and members enjoy considerable freedom to oppose or support any proposal even though it may be a part of the President's programme. President's leadership of the Congress is much looser than that of the Prime Minister in a parliamentary system mainly because the President has no power to dissolve the Congress or to participate in legislative deliberations. He rarely has at his disposal the almost automatic legislative majority which is available to the government in a parliamentary system. In short, the President under the Presidential system does not have the means available to the Prime Minister to enforce disciplined voting along party lines.

The President, unlike the Prime Minister, cannot directly ensure that the measures which he desires will be enacted by the Congress. This may happen even when the President and the majority in the Congress belong to the same political party. But lack of co-ordination between the Executive and the Legislature in the U.S.A. may be heightened if the President and the majority in the Houses belong to different political parties as happens quite often. Sometimes the impasse between the President and the Congress can be resolved only when fresh elections are held in due course of time.

Why did India adopt Parliamentary system on British lines?

 In the Constituent Assembly some members advocated presidential form of government for India. Their hypothesis was that the presidential form of government leads to a strong and stable government while a parliamentary government constitutes a weak, unstable and vacillating government, the reason being that the Ministers depend on their party members for support. Ultimately, however, the choice was made in favour of the parliamentary form mainly because Indians were somewhat familiar with the system as in some form or the other; such a system had been in operation in the country during pre-Constitution era.

Further, as Dr. BR Ambedkar emphasized, in combining stability with responsibility, the Constitution-makers preferred the system of daily assessment of responsibility to the other system of periodic assessment in Presidential system. They also wanted to avoid the Legislative-Executive conflicts and friction such as arise in the presidential system. The framers of the Constitution thought that an infant democracy that India be after independence could not afford to take the "risk of a perpetual cleavage, feud or conflict or threatened conflict" between the Executive-or Legislative organs. They preferred a, system where the Executive being a part of the Legislature is in a position to give guidance to it and where both co-operate with each other.

As, it was noted with due care in the constituent Assembly that there is 'confusion of responsibility' and not necessarily a clear direction of policy' in the U.S.A kind of Presidential system, but this is not so in a parliamentary system…