Parliamentary Sovereignty Vis-A-Vis Judicial Review - An Analysis

Author: LawSphereX

Category: Administrative & Regulatory Law

Published: 2026-08-23T20:43:00.550106+00:00

Updated: 2026-08-26T17:10:13.648+00:00

PARLIAMENTARY SOVEREIGNTY VIS-A-VIS JUDICIAL

REVIEW: AN ANALYSIS

Adv. Ashutosh Kumar Pandey, LL.M., Amity Law School, Amity University Dr. Aishwarya Pandey, Assistant Professor, Amity Law School, Amity University

ABSTRACT

This paper explores the dynamic interplay between parliamentary sovereignty and judicial review, two foundational doctrines of constitutional law that play a crucial role in shaping democratic governance and the functioning of constitutional states. Parliamentary sovereignty is traditionally understood as the doctrine asserting that the legislature has the supreme legal authority to enact, amend, or repeal any law, and that no other body, including the judiciary, has the power to override or nullify its enactments. On the other hand, judicial review refers to the power of the judiciary to assess the legality and constitutionality of legislative and executive actions and to invalidate those that contravene constitutional norms.

The tension between these doctrines raises significant constitutional questions about the limits of legislative power, the scope of judicial authority, and the proper balance between democratic decision-making and the protection of individual rights. This paper investigates how different constitutional systems have attempted to resolve this tension, with a focus on three major jurisdictions: the United Kingdom, the United States, and India. Each of these countries provides a unique perspective on the interaction between parliamentary authority and judicial oversight, shaped by their distinct constitutional histories, structures, and legal cultures. In the United Kingdom, where the doctrine of parliamentary sovereignty is most prominently expressed, the courts have traditionally refrained from questioning the validity of parliamentary statutes.

However, recent legal developments—such as the incorporation of the European Convention on Human Rights through the Human Rights Act 1998 and the constitutional implications of Brexit—have challenged this orthodoxy and opened the door to more nuanced forms of judicial interpretation and scrutiny. In contrast, the United States operates under a written constitution that is considered the supreme law of the land. Judicial review was established early in its constitutional history through the landmark case of Marbury v. Madison (1803), granting courts the authority to strike down laws inconsistent with

the Constitution. This model places clear limits on congressional power and underscores the judiciary’s role in upholding constitutional supremacy. India, with its own written constitution and an explicitly enshrined power of judicial review, offers a hybrid model that balances parliamentary sovereignty with constitutional supremacy. The Indian judiciary has developed the "basic structure doctrine" to prevent Parliament from amending the Constitution in ways that would alter its fundamental principles, thereby asserting judicial checks on legislative power. This doctrine reflects a deep commitment to constitutionalism and the protection of fundamental rights, even in the face of majoritarian legislative action. By analyzing these three models, this paper aims to highlight the diverse ways in which legal systems can reconcile the principles of democratic governance and the rule of law.

The study also explores contemporary debates surrounding judicial activism, legislative overreach, and the evolving boundaries of constitutional authority. Ultimately, it argues for a balanced constitutional framework that respects the democratic mandate of legislatures while safeguarding the rights and liberties of individuals through meaningful judicial oversight. This equilibrium is essential for the maintenance of constitutional order and the long-term legitimacy of democratic institutions.

INTRODUCTION

Parliamentary sovereignty and judicial review are pivotal concepts in constitutional governance, often viewed as embodying the tension between democratic decision-making and legal accountability. These doctrines lie at the heart of constitutional discourse, especially in democratic systems where a balance must be maintained between the will of the majority and the protection of minority rights. Parliamentary sovereignty denotes the supreme legal authority of a legislative body to enact laws without being overridden by any external authority. It upholds the central idea of representative democracy, where elected lawmakers create laws that reflect the will of the people. Conversely, judicial review empowers the judiciary to interpret constitutional norms and invalidate laws or executive actions that are inconsistent with the constitution.

It serves as a bulwark against arbitrary governance and protects the fundamental rights of individuals. The inherent tension between these two doctrines raises a fundamental constitutional question: where does the ultimate authority reside—in the legislative decisions of an elected body or in the interpretative rulings of an independent judiciary? This question gains complexity when

examined across different constitutional traditions. In the United Kingdom, where the concept of parliamentary sovereignty originated, Parliament is deemed legally omnipotent, and its statutes are considered supreme. However, the introduction of supranational legal orders and domestic human rights legislation has compelled courts to take a more active interpretative role, thereby softening the edges of absolute parliamentary authority. In contrast, the United States, which operates under a codified constitution, established judicial review as early as 1803 in Marbury v. Madison, asserting that all legislative and executive actions must conform to constitutional principles. The judiciary, therefore, acts as a guardian of the constitution, with the power to strike down laws that contravene its provisions.

India offers yet another model— a written constitution with both parliamentary sovereignty and judicial review firmly embedded. The Indian Supreme Court has evolved a powerful tool of constitutional control through the "basic structure doctrine," limiting Parliament's power to amend the constitution in a manner that alters its core principles. This paper undertakes a comparative analysis of these doctrines in three significant jurisdictions—the United Kingdom, the United States, and India— highlighting the diverse ways in which democracies negotiate the balance of power. It aims to delve into the theoretical foundations, historical evolution, and practical applications of both parliamentary sovereignty and judicial review, identifying the mechanisms by which each system attempts to reconcile democratic legitimacy with constitutional supremacy.

Ultimately, this study argues for a constitutional balance where legislative authority is respected, but not unbridled. Courts must not usurp the role of lawmakers, yet they must remain vigilant protectors of constitutional values. The dynamic interaction between Parliament and the judiciary is not a zero-sum contest but a dialogic process that strengthens constitutional governance. As modern democracies grapple with populism, institutional distrust, and shifting power structures, the need for a well-calibrated balance between these two doctrines becomes even more pressing.

1. THE CONCEPT OF PARLIAMENTARY SOVEREIGNTY

Historical Origins and Development The concept of Parliamentary Sovereignty stands as a cornerstone of constitutional law,

particularly within the United Kingdom's legal system. Its genesis can be located in the transformative political events of the 17th century. The Glorious Revolution of 1688 and the subsequent enactment of the Bill of Rights in 1689 were instrumental in establishing the pre-eminence of Parliament. This historical trajectory provided the foundation for the seminal theoretical exposition of Parliamentary Sovereignty in the 19th century by A. V. Dicey. His framework posited the unqualified authority of Parliament to legislate on any matter, as well as to repeal existing laws, without limitation. Key features of Parliamentary Sovereignty include the doctrine that no Parliament can bind a future Parliament.

This implies that each legislative body possesses the inherent and unrestricted power to enact or amend legislation according to its own judgment, unencumbered by the legislative actions of its predecessors. Moreover, Parliamentary Sovereignty entails that no other institution, including the judiciary, possesses the authority to override or invalidate statutes duly enacted by Parliament. This principle underscores Parliament's position as the ultimate legal authority within the state. The UK’s Constitutional Framework and Parliamentary Sovereignty The United Kingdom operates under an uncodified constitution, a characteristic feature that distinguishes it from many other nations. This framework is shaped not by a single, comprehensive document, but rather through a combination of constitutional conventions, statutes enacted by Parliament, and judicial decisions rendered by the courts.

These various sources interact and evolve over time, forming the bedrock of the UK's governance. While Parliamentary Sovereignty has historically been considered a central tenet, its application has faced increasing scrutiny and challenges. Prior to its departure from the European Union, the UK's membership in the EU subjected Parliamentary Sovereignty to certain limitations, as EU law held primacy in areas of conflict. More recently, human rights law has emerged as another significant factor influencing the exercise of parliamentary power. The enactment of the Human Rights Act in 1998 has played a crucial role in this regard. This legislation requires UK courts to interpret statutes in a manner compatible with the European Convention on Human Rights and provides a mechanism for

individuals to challenge legislation that is deemed to be incompatible with these rights. Consequently, while Parliament remains legally sovereign, its legislative power is, in practice, constrained by the imperative to uphold human rights obligations

2. THE CONCEPT OF JUDICIAL REVIEW

The concept of Judicial Review represents a significant mechanism within constitutional law, granting the judiciary the authority to scrutinize the actions of the legislature and the executive. A foundational example of this principle's establishment is found in the United States with the

landmark case of Marbury v. Madison (1803). In this pivotal decision, Chief Justice John Marshall articulated the doctrine of judicial review, asserting the judiciary's fundamental role in interpreting the Constitution and determining the constitutionality of legislative acts. This case laid the groundwork for the judiciary to act as a check on the other branches of government, ensuring adherence to the supreme law of the land. Following its inception in the United States, the practice of judicial review has witnessed a global expansion, with numerous countries adopting and adapting the principle to their own constitutional frameworks. Nations such as India, Canada, and Australia have integrated judicial review into their systems of governance, albeit with variations that reflect their unique constitutional histories and structures.

In these contexts, the judiciary plays a crucial role in upholding constitutional principles, safeguarding fundamental rights, and ensuring that governmental actions remain within the bounds of the constitution. The specific scope and application of judicial review can differ across these jurisdictions, reflecting the diverse ways in which this concept has been localized and implemented.

JUDICIAL REVIEW IN THE CONTEXT OF PARLIAMENTARY SOVEREIGNTY

In constitutional democracies, the principle of Judicial Review serves as a vital mechanism for ensuring the adherence of legislative and executive actions to constitutional norms. Courts are empowered to scrutinize laws and executive decisions, and where these are found to be in contravention of constitutional provisions, they may be deemed invalid. The scope and intensity of judicial review can vary across different legal systems, reflecting the specific constitutional arrangements and historical developments of each jurisdiction. Judicial Review plays a crucial role in upholding constitutionalism, safeguarding human rights, and reinforcing the rule of law. This is particularly pertinent in instances where national legislation may come into conflict with international legal obligations or fundamental rights enshrined in

constitutional documents or international conventions. In such cases, judicial review provides a means to ensure that the state acts in accordance with its broader legal commitments. Several key case studies illustrate the significance and application of judicial review. The U. S. case of Marbury v. Madison (1803) established the foundational principle of judicial review, empowering the judiciary to interpret the constitutionality of laws. In India, the Kesavananda Bharati v. State of Kerala (1973) case is a landmark example where the Supreme Court asserted its authority to strike down constitutional amendments that violated the basic structure of the Constitution, demonstrating a robust application of judicial review. Furthermore, the UK case of R v.

Secretary of State for the Home Department (2004) highlights the judiciary's role in reviewing the legality of executive actions, ensuring that they remain within the bounds of the law. These cases collectively underscore the diverse ways in which judicial review operates as a check on governmental power and a guardian of constitutional principles.

3. COMPARATIVE ANALSYS : PARLIAMENTARY SOVERIGNTY VS.

JUDICIAL REVIEW

United Kingdom: The Persistence of Parliamentary Sovereignty In the United Kingdom, the doctrine of Parliamentary Sovereignty remains a fundamental pillar of its constitutional framework. This principle traditionally asserts the supreme legal authority of Parliament to make or unmake any law, without being subject to challenge by any other body, including the courts. However, the enactment of the Human Rights Act (1998), which incorporated the European Convention on Human Rights (ECHR) into UK law, has introduced a significant layer of judicial oversight that necessitates a nuanced understanding of contemporary Parliamentary Sovereignty.

While UK courts do not possess the power to directly overturn primary legislation passed by Parliament, the Human Rights Act empowers them to issue a "declaration of incompatibility" if they find a law to be in violation of the rights protected under the ECHR. This declaration does not render the legislation void; rather, it signals to Parliament that a particular law is inconsistent with the UK's human rights obligations. This mechanism creates a political and moral imperative for Parliament to reconsider and potentially amend the legislation in question, thereby introducing a notable challenge to the traditional notion of absolute legislative supremacy. The power to issue declarations of incompatibility represents a significant form of

judicial influence over parliamentary action, highlighting the evolving relationship between the legislature and the judiciary in the UK's constitutional landscape. United States: Judicial Review as a Constitutional Check In contrast to the United Kingdom's emphasis on Parliamentary Sovereignty, the United States constitutional framework is characterized by a robust system of Judicial Review. This principle was firmly established in the seminal case of Marbury v. Madison (1803), where Chief Justice John Marshall articulated the judiciary's power to examine legislation and declare any law that conflicts with the Constitution to be unconstitutional. This landmark ruling positioned the judiciary as a critical check and balance on both the legislative and executive branches of the U. S. government, particularly in safeguarding the fundamental principles enshrined in the Constitution.

The decision in Marbury v. Madison set a lasting precedent for judicial review in American constitutional law. It underscored the judiciary's role not merely as an interpreter of laws, but as the ultimate arbiter of their constitutionality. This power allows the courts to invalidate laws that exceed the powers granted to the federal government or that infringe upon the rights and liberties protected by the Constitution. However, the practice of judicial review in the United States inherently generates a tension with the principle of popular sovereignty. The power vested in unelected judges to overturn laws passed by elected representatives raises questions about democratic legitimacy. This tension is particularly pronounced in cases involving significant social or political implications, where judicial decisions can have far-reaching consequences.

Finding the appropriate equilibrium between the judiciary's role in upholding constitutional principles and respecting the democratic will expressed through legislative decisions remains a persistent challenge in the American legal and political landscape. India: Judicial Review and the Basic Structure Doctrine In India, the relationship between Parliamentary Sovereignty and Judicial Review presents a dynamic and often debated aspect of its constitutional framework. While the Indian Constitution grants Parliament extensive legislative powers, the Supreme Court has consistently asserted its authority to review these legislative acts, establishing a significant role

for judicial oversight. Unlike the United Kingdom, where judicial review of primary legislation is limited to declarations of incompatibility, the Indian judiciary adopts a more proactive stance, and the scope of its review powers has broadened considerably since the Constitution's inception. A critical element in understanding this balance in India is the evolution of the Basic Structure

Doctrine. This doctrine, established through a series of landmark judicial pronouncements, most notably in the Kesavananda Bharati v. State of Kerala case (1973), posits that while Parliament possesses the power to amend the Constitution, this power is not unlimited. Parliament cannot exercise its amending powers in a manner that alters the fundamental or essential structure of the Constitution. The Basic Structure Doctrine thus acts as a substantive constraint on Parliamentary sovereignty, empowering the judiciary to strike down constitutional amendments that are deemed to violate these core principles.

This unique doctrine underscores the Indian judiciary's assertive role in safeguarding the foundational tenets of the Constitution against even the legislative will of Parliament Judicial Review in the Indian Constitution: The Indian Constitution vests judicial review in the Supreme Court (Article 32) and High Courts (Article 226), enabling them to examine the constitutionality of laws. While judicial review was not explicitly mentioned in the Constitution, the courts have interpreted the Constitution to include the power of judicial review as an essential feature of the rule of law.

LANDMARK CASES IN THE JUDICIAL REVIEW

1. Kesavananda Bharati v. State of Kerala (1973):

This landmark case established the Basic Structure Doctrine, where the Supreme Court ruled that Parliament could not alter the "basic structure" of the Constitution. The case involved the scope of Parliament's power to amend the Constitution under Article 368. The Court held that while Parliament could amend the Constitution, such amendments could not destroy its basic structure, which includes principles such as democracy, federalism, and the rule of law. This decision marked a turning point in India's constitutional jurisprudence, asserting judicial review as a check on Parliament's power to amend the Constitution. This case illustrates how the Indian judiciary plays a critical role in limiting the powers of Parliament, asserting that even legislative

bodies cannot alter the foundational principles of the Constitution. Thus, judicial review can curtail the legislative sovereignty of Parliament when it comes to constitutional amendments.

2. Minerva Mills Ltd. v. Union of India (1980):

The Minerva Mills case further affirmed the Basic Structure Doctrine and underscored the role of the judiciary in protecting the essential features of the Constitution. In this case, the Supreme Court held that any law or constitutional amendment that violates the basic structure, such as compromising the balance between fundamental rights and directive principles, could be struck down.

3. Indira Gandhi v. Raj Narain (1975):

This case involved the famous dispute regarding the validity of Indira Gandhi’s election. The Supreme Court used its judicial review powers to declare parts of the 39th Amendment Act unconstitutional, asserting the independence of the judiciary even when confronted with political pressure. The Court's assertion of judicial review in this case solidified its role as a counter-majoritarian institution capable of curbing the excesses of Parliament.

4. Maneka Gandhi v. Union of India (1978):

This case is important in understanding how judicial review protects individual rights in India. The Supreme Court expanded the interpretation of Article 21 (right to life and personal liberty) to include various freedoms and protections not explicitly mentioned in the Constitution. This was a landmark decision that reinforced judicial review as a mechanism for safeguarding fundamental rights against Parliament’s legislation.

4. JUDICIAL REVIEW AND FUNDAMENTAL RIGHTS

The Role of Judicial Review in Protecting Fundamental Rights: India’s judiciary has a well-established practice of using judicial review to protect fundamental rights, often striking down laws that violate these rights. This has created an ongoing tension with Parliamentary Sovereignty, as the courts often intervene in areas traditionally reserved for the legislature.

Case Study: Golaknath v. State of Punjab (1967): In this case, the Supreme Court ruled that Parliament could not amend the Constitution to alter fundamental rights, further asserting judicial review over constitutional amendments. This case laid down the principle that fundamental rights form the core of the Constitution and cannot be amended by the legislature at will. Other Jurisdictions: Australia and Canada Beyond the United Kingdom, the United States, and India, other jurisdictions offer valuable insights into the varying dynamics between Parliamentary Sovereignty and Judicial Review. • Australia: In Australia, the interplay between these principles is significantly shaped by the country's federal structure.

While the Commonwealth Parliament holds the position of the supreme lawmaking body at the federal level, the High Court of Australia exercises a crucial function through judicial review. The High Court has the authority to review federal laws and ensure their compliance with the Australian Constitution. This includes interpreting the division of powers between the federal government and the states, as well as safeguarding the limited number of express and implied rights found within the Constitution. • Canada: Canada presents a distinct model where judicial review is firmly embedded within the constitutional framework through the Canadian Charter of Rights and Freedoms, enacted in 1982.

The Charter guarantees a comprehensive set of fundamental rights and freedoms, and the Canadian courts, including the Supreme Court of Canada, possess the power to invalidate laws enacted by either the federal or provincial parliaments if they are found to infringe upon these Charter rights. However, Canada's system also incorporates a unique balancing mechanism in the form of the Notwithstanding Clause (Section 33 of the Charter). This clause allows Parliament or a provincial legislature to explicitly declare that a particular law will operate notwithstanding certain Charter rights. This provision offers a mechanism for the legislature to override judicial decisions on Charter grounds, albeit with the requirement of a clear and express declaration and a five-year sunset clause, reflecting a nuanced approach to the relationship between parliamentary will and judicial oversight.

5. TENSION AND CHALLENGES

The Rise of Human Rights Law The ascendance of international human rights law in the latter half of the 20th century has introduced significant new dimensions to the understanding and application of Parliamentary Sovereignty. Treaties and conventions such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) have established a framework of universal rights and freedoms that increasingly informs and potentially constrains the lawmaking powers of national parliaments. These international legal instruments create external benchmarks against which domestic legislation can be evaluated, effectively drawing new boundaries for what constitutes permissible parliamentary action. The judiciary plays a crucial role in ensuring that laws passed by national legislatures adhere to these international human rights obligations.

Courts are increasingly called upon to interpret domestic legislation in a manner that is compatible with human rights standards and to scrutinize laws that may potentially infringe upon fundamental rights such as the right to a fair trial, the right to freedom of expression, and the prohibition of discrimination. This judicial oversight serves as a mechanism to prevent national laws from falling below internationally recognized standards of human rights protection, thereby acting as a de facto limitation on the absolute power traditionally associated with Parliamentary Sovereignty. Judicial Activism and the Expansion of Judicial Review Concurrently with the growing influence of human rights law, the concept of judicial activism and the perceived expansion of judicial review have become prominent topics of discussion in many constitutional democracies.

Judicial activism often refers to instances where courts are seen as going beyond their traditional role of interpreting and applying the law to instead making policy or venturing into areas traditionally considered the domain of the legislature or the executive. This can lead to perceptions of judicial overreach, particularly in cases that involve contentious social or political issues where judicial decisions can have significant societal impact. Examples of judicial activism can be observed in various jurisdictions. In the United States, landmark Supreme Court decisions on issues such as abortion rights, education, and affirmative

action have often been cited as instances where the judiciary has played a significant role in shaping social policy. Similarly, in India, the Supreme Court's proactive approach to public interest litigation and its pronouncements on a wide range of social and economic rights have been viewed by some as examples of judicial activism that have expanded the scope of judicial review beyond traditional boundaries. These case studies highlight the ongoing debate surrounding the appropriate limits of judicial power and the extent to which courts should intervene in matters with significant social and political implications.

6. FUTURE OF PARLIAMENTARY SOVEREIGNTY AND JUDICIAL REVIEW

The future trajectory of both Parliamentary Sovereignty and Judicial Review is subject to ongoing debate and potential reforms across various jurisdictions. In the United Kingdom, there have been recent proposals aimed at re-evaluating the scope of judicial review, with some advocating for measures that would potentially reduce judicial intervention in legislative and executive decisionmaking. Similarly, in the United States, discussions surrounding the appropriate role and extent of judicial review frequently arise, particularly in relation to the balance of power between the judiciary and the elected branches of government. A central theme in these discussions is the question of whether judicial review should be further

strengthened to enhance the protection of rights and constitutional principles, or whether its scope should be curtailed to preserve the authority and democratic legitimacy of the legislature. This debate reflects a fundamental tension inherent in constitutional democracies: how to effectively balance the will of the people, as expressed through their elected representatives, with the need for an independent judiciary to safeguard fundamental rights and uphold the rule of law. Looking ahead into the 21st century, the evolving global legal environment is likely to significantly influence the interaction between parliamentary sovereignty and judicial review. The increasing interconnectedness of nations through globalization, the growing emphasis on international human rights norms, and the rise of political polarization all present new challenges and opportunities for both concepts.

The judiciary's role in navigating these complex issues, interpreting laws in a rapidly changing world, and ensuring the continued relevance and effectiveness of constitutional principles will be crucial in shaping the future of governance and the protection of rights in democratic societies.

7. CONCLUSION, SUMMARY AND FINDINGS

In conclusion, this paper has explored the intricate relationship between Parliamentary Sovereignty and Judicial Review across different constitutional systems. While Parliamentary Sovereignty has historically served as a foundational principle in many nations, the rise and evolution of Judicial Review have introduced a critical counterbalance. This mechanism has become increasingly vital in ensuring that legislative actions remain consistent with fundamental constitutional principles and evolving international human rights standards. The comparative analysis of the United Kingdom, the United States, and India reveals diverse approaches to this balance, reflecting unique constitutional histories and legal traditions. Final Thoughts: Looking to the future, the tension between Parliamentary Sovereignty and Judicial Review is likely to persist.

However, the observed evolution of judicial oversight, driven by the increasing recognition of human rights and the need to address complex political and legal challenges, suggests a potential move towards a more integrated constitutional approach. This evolving landscape aims to maintain the democratic integrity of both the legislature, as the primary lawmaking body, and the judiciary, as the guardian of constitutional norms and fundamental rights. The ongoing dialogue and adjustments in the interplay between these two principles will continue to shape the contours of constitutional law in the 21st century and beyond.

REFERENCES

A.V. Dicey, Introduction to the Study of the Law of the Constitution. • Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) • Kesavananda Bharati v. State of Kerala (1973), • Minerva Mills Ltd. v. Union of India (1980) • Indira Gandhi v. Raj Narain (1975) • Maneka Gandhi v. Union of India (1978) • Golaknath v. State of Punjab (1967)