Introduction
Unlike the United Kingdom, where the doctrine of absolute Parliamentary Sovereignty prevails, India operates under Constitutional Supremacy. The power of the Indian Parliament is neither absolute nor unbridled; rather, it is circumscribed by a written Constitution that balances legislative competence with institutional checks and balances.
Checks on Parliamentary Sovereignty in India
- Written Constitution and Federal Demarcation: Parliament's legislative authority is strictly demarcated by the Seventh Schedule under Article 246. Parliament cannot encroach upon State List subjects under ordinary circumstances, and federal amendments mandate ratification by half of the state legislatures.
- Judicial Review (Articles 13, 32, and 226): Article 13 makes laws void to the extent of their inconsistency with Fundamental Rights. The Supreme Court and High Courts act as guarantors of the Constitution through their power to invalidate ultra vires legislation.
- The Basic Structure Doctrine: Established in the landmark Kesavananda Bharati case (1973), this doctrine acts as an ultimate substantive limit on Parliament's constituent amending power under Article 368. Any amendment violating core principles—such as democracy, secularism, or judicial independence (as seen in the invalidation of the NJAC Act)—is declared void.
- Presidential Assent and Veto Powers: Under Article 111, the President can withhold assent or return ordinary bills for reconsideration (suspensive veto), serving as an institutional pause on hasty legislation.
Judicial Activism: A Threat to Parliament's Free Working?
Judicial activism occurs when the judiciary departs from mere legal interpretation to formulate policy directives or intervene proactively. Its impact on parliamentary functioning presents two contrasting facets:
- Constitutional Necessity, Not a Threat: Judicial activism serves as a vital safeguard when legislative inertia or executive vacuum harms citizen rights. Landmark interventions such as the Vishaka guidelines for workplace sexual harassment filled glaring policy voids until Parliament enacted statutory protections.
- Judicial Overreach as a Democratic Threat: Activism degrades into overreach when the judiciary transgresses the constitutional principle of Separation of Powers under Article 50. Measures such as imposing liquor bans along highways or supervising sports administration bodies (e.g., BCCI) encroach upon executive and legislative domains, risking transforming the apex court into a non-elected "third chamber" of Parliament.
Conclusion
While judicial activism remains indispensable for remedying executive inaction and protecting fundamental rights, the judiciary must exercise institutional self-restraint. Upholding democratic legitimacy requires both organs to maintain constitutional balance, where the judiciary functions effectively as a democratic alarm clock rather than an unelected policymaker.