Why India’s Vice President is Wrong About Parliamentary Sovereignty

Is India’s Parliament Sovereign as claimed by India’s Vice President? Is Parliament’s power to change the Constitution unlimited? Listen to our podcast to find out.

Transcript

In February 1965 Dieter Conrad, a German constitutional scholar, asked his audience at the Law Faculty, Banaras Hindu University a few probing questions. Could the Indian Parliament abolish Article 21, depriving a person of their life or personal liberty without authorisation by the law? Could the ruling party amend Article 368 such that the power to amend the Constitution now rests with the president acting on the advice of the prime minister? Through these hypotheticals, Conrad argued it would be dangerous for parliament to have an unrestricted power to amend the Constitution. 

About three months before Conrad’s speech, the Supreme Court of India in a landmark case (Sajjan Singh v. State of Rajasthan, 1964) held that Parliament could change any part of the Constitution as it pleased. The Court ruled that this power was vested in Article 368 of the Constitution, which gave the Parliament the power to amend the Constitution. The next decade was punctuated with a string of constitutional cases in which the extent of parliament’s power to amend the Constitution were debated.  

This culminated in the Kesavananda Bharati v. State of Kerala, 1973 case, where the Supreme Court ruled that Article 368 of the Indian Constitution did not extend to its basic structure. Dieter Conrad’s arguments featured prominently in this case.   

Since then, the basic structure doctrine—this idea that parliament could not change some parts of the Constitution—has largely been accepted, albeit with some episodic resistance from various quarters. But there never was a serious attack on the doctrine. Until now.   

On 7 December 2022, Vice President of India Jagdeep Dhankar declared that ‘Parliament is the exclusive and ultimate determinative of the architecture of the Constitution’. On a different occasion, he insisted that, ‘the basic structure is primacy of the will of the people’.  

The Vice President invoked the concept of ‘Parliamentary Sovereignty’ to defend his claims. But what does Parliamentary Sovereignty mean, and is it applicable in the case of India? The concept originated and developed gradually in England, through the 17th to 19th centuries. Simply put, it means that Parliament has the right to make or unmake any law. No person or body has the right to override or set aside the legislation made by Parliament, except Parliament itself. 

Contrary to the Vice President’s beliefs, the Indian Parliament is not sovereign. The first indication of this is the existence of the Constitution itself. The Constitution confers sovereignty solely on the Indian people. Parliament is merely one among the many institutions whose powers are defined and constrained by the Constitution. If our Framers believed that Parliament is supreme, then why would they enact a Constitution that limits its powers in the first place?