Parliamentary Sovereignty in India: Scope and Judicial Review

Who holds the final word in a democracy: the elected representatives of the people, or the unelected judges who interpret the law? This question sits at the heart of one of the most fascinating debates in constitutional history. Parliamentary sovereignty means the legislature has the ultimate authority to make and unmake laws. But in India, this principle has never been absolute. Over decades, a series of dramatic confrontations between Parliament and the Supreme Court shaped exactly how far legislative power can stretch and where the courts can step in. Understanding this tug-of-war is essential to understanding how Indian democracy actually works.

What parliamentary sovereignty really means 🔗

The idea of parliamentary sovereignty was borrowed from the British constitutional tradition. In the United Kingdom, Parliament is considered supreme and no other body can review or challenge the laws it passes. The British scholar A.V. Dicey described this as a defining feature of the British system. Parliament can make or unmake any law, and the courts cannot question its validity.

This absolute version of sovereignty does not apply in India. Here, the Constitution is supreme, not Parliament. The framers created a written Constitution that defines and limits the powers of every organ of the state, including the legislature. Parliament can make laws under Article 245 and Article 246, but only within the framework laid down by the Constitution. So while Parliament is powerful, it operates within boundaries.

The power to amend under Article 368 🔗

The most important power Parliament holds is the ability to amend the Constitution. Article 368 grants Parliament the authority to amend the Constitution by adding, changing, or repealing provisions, subject to certain limitations. The framers deliberately included this provision so that future generations could adapt the Constitution to changing needs.

But a difficult question soon arose. If Parliament can amend any provision, can it also amend or even take away the Fundamental Rights guaranteed in Part III? This single question triggered decades of conflict between the legislature and the judiciary.

The early position: Parliament had a free hand 🔗

In the initial years after the Constitution came into force, the courts gave Parliament wide latitude. In the Shankari Prasad case of 1951, the Supreme Court held that the power to amend under Article 368 was broad and that Parliament could amend any part of the Constitution, including Fundamental Rights. This view treated a constitutional amendment as fundamentally different from an ordinary law.

This early position made sense in the context of the time. The government was focused on land reforms, abolishing the zamindari system, and reducing economic inequality. Many of these welfare measures clashed with the right to property, which was then a Fundamental Right. To carry out its social justice agenda, the government needed the freedom to amend rights-related provisions.

The Golaknath case: drawing the first line 🔗

The turning point came in 1967. In I.C. Golaknath v. State of Punjab, decided on 27 February 1967, the Supreme Court reversed its earlier stance. The landlords in this case challenged the validity of certain amendments that affected property rights.

By a narrow majority, the Court held that amendments under Article 368 are subject to Article 13(2), meaning any amendment that violates Fundamental Rights would be void. In simple terms, the Court ruled that Parliament could not abridge or take away the Fundamental Rights of citizens through a constitutional amendment. A constitutional amendment was now treated as a “law” that had to respect the limits set by Part III.

Why Golaknath mattered 🔗

The Golaknath judgment was significant because it placed Fundamental Rights beyond the reach of Parliament’s amending power. For the first time, the judiciary drew a clear line that the legislature could not cross. This directly challenged the traditional understanding of parliamentary supremacy and created tension with a government determined to pursue its reform agenda.

The political response was swift. Parliament passed the 24th Amendment Act in 1971, declaring clearly that it had the power to amend any part of the Constitution, including Fundamental Rights, and that an amendment under Article 368 was not a “law” under Article 13. The stage was set for an even bigger confrontation.

Kesavananda Bharati: the birth of the basic structure doctrine 🔗

The clash reached its climax in 1973 with the case of Kesavananda Bharati v. State of Kerala. This is widely regarded as the most important constitutional case in Indian history. A bench of thirteen judges, the largest ever assembled, heard the matter and delivered a judgment running to roughly 700 pages.

The Court arrived at a creative middle path. It overruled Golaknath and accepted that Parliament could indeed amend any part of the Constitution, including Fundamental Rights. But it added a crucial condition. The Court held that Parliament’s power to amend under Article 368 is not absolute and that certain basic features of the Constitution cannot be altered. This is the famous basic structure doctrine.

What the basic structure includes 🔗

The Court deliberately did not provide a fixed definition of the basic structure. Instead, it left the concept to evolve through future judgments. Over time, courts have identified several features as part of the basic structure. These include the rule of law, judicial review, secularism, separation of powers, and federalism. If an amendment damages or destroys any of these essential principles, the courts can strike it down.

The genius of this doctrine lies in its balance. Parliament retained the flexibility to amend the Constitution to meet changing needs. At the same time, the core identity of the Constitution was protected from being dismantled by any temporary political majority. The Court, in effect, said that you may change the branches of a tree, but you cannot uproot the tree itself.

The 42nd Amendment: Parliament strikes back 🔗

The basic structure doctrine did not sit well with the government of the day. During the Emergency period, Parliament passed the 42nd Amendment Act in 1976, often called a “mini-Constitution” because of the sweeping changes it introduced. One of its key aims was to reassert parliamentary supremacy and shut the door on judicial interference.

The amendment inserted clauses (4) and (5) into Article 368. Clause (4) declared that no constitutional amendment could be questioned in any court, and clause (5) declared that there was no limitation on Parliament’s constituent power to amend the Constitution. Together, these clauses attempted to make constitutional amendments completely immune from judicial review and to give Parliament unlimited amending power.

The 42nd Amendment also altered Article 31C to give all Directive Principles of State Policy primacy over the Fundamental Rights contained in Articles 14, 19, and 31. This effectively tried to subordinate individual rights to the state’s policy goals.

Minerva Mills: restoring the balance 🔗

This bold assertion of parliamentary power was challenged in the case of Minerva Mills Ltd. v. Union of India. The dispute originated from the nationalisation of a private textile company, but it raised the much larger question of whether Parliament could remove all limits on its own power.

On 31 July 1980, a Constitution Bench headed by Chief Justice Y.V. Chandrachud delivered its verdict. The Court struck down clauses (4) and (5) of Article 368, holding that limited amending power and judicial review are themselves integral parts of the basic structure that cannot be destroyed. The Court reasoned with a memorable logic: a limited power cannot be used to grant itself unlimited power, because the power to destroy is not a power to amend.

The significance of the judgment 🔗

Minerva Mills firmly reaffirmed and strengthened the basic structure doctrine. The Court ruled that Parliament’s amending power is limited and cannot be used to destroy the Constitution’s basic structure. It restored the supremacy of the Constitution and confirmed that judicial review of constitutional amendments could not be taken away.

The Court also struck down the change to Article 31C, ruling that the harmony and balance between Fundamental Rights and Directive Principles is itself a basic feature. Neither could be allowed to completely override the other. This judgment effectively settled the long battle by establishing that India follows constitutional supremacy rather than absolute parliamentary sovereignty.

The Indian model: a balanced sovereignty 🔗

What emerged from these confrontations is a uniquely Indian arrangement. The country adopted neither the British model of absolute parliamentary sovereignty nor a system where Parliament is powerless. Instead, India balances parliamentary authority with constitutional supremacy, judicial review, the basic structure doctrine, federal division of powers, and the protection of fundamental rights.

Several constitutional limits keep Parliament in check. It cannot violate Fundamental Rights, it cannot unilaterally legislate on subjects reserved for the states, and it cannot alter the basic structure of the Constitution. Within these boundaries, however, Parliament remains the powerful voice of the people, exercising real legislative authority through elected representatives.

An ongoing conversation 🔗

This debate is far from over. The basic structure doctrine continues to attract both praise and criticism. Some argue that it is a judge-made principle that allows unelected judges to impose their philosophy over a democratically elected government, a concern that senior political figures have voiced repeatedly. Others believe the doctrine carries deep moral value because it limits the ability of a majoritarian government to undermine the Constitution’s core ideals.

Recent tensions, such as the Supreme Court striking down the National Judicial Appointments Commission, show that the relationship between Parliament and the judiciary keeps evolving. Each generation revisits the same fundamental question of where legislative will ends and constitutional principle begins. The Constitution remains a living document, and the dialogue between power and principle continues.

What do you think? Should the final authority in a democracy rest with elected representatives who can claim a popular mandate, or with an independent judiciary that guards the Constitution’s core values? And is the basic structure doctrine a necessary safeguard against the abuse of power, or does it give too much authority to unelected judges?

References

1. https://www.lloydlawcollege.edu.in/blog/judicial-supremacy-v-parliamentary-supremacy.html
2. https://www.drishtiias.com/sambhav-daily-answer-writing-practice/papers/sambhav-2025/examine-the-concept-of-parliamentary-sovereignty-in-india
3. https://lawfoyer.in/doctrine-of-parliamentary-sovereignty/
4. https://en.wikipedia.org/wiki/I._C._Golaknath_and_Others_v._State_of_Punjab_and_Anothers
5. https://vajiramandravi.com/upsc-exam/golaknath-case/
6. https://www.barristery.in/2025/07/golaknath-v-state-of-punjab-1967.html
7. https://blog.ipleaders.in/kbharatikerala/
8. https://chahalacademy.com/keshvananda-bharti-case
9. https://www.apnilaw.com/upsc/indian-constitution/sovereignty-of-indian-parliament-limitations-and-scope/
10. https://unacademy.com/content/upsc/study-material/polity/minerva-mills-case/
11. https://www.drishtijudiciary.com/constitution-of-india/minerva-mills-ltd-&-ors-v-union-of-india-&-ors-1980
12. https://legalfly.in/case-summary-minerva-mills-ltd-v-union-of-india/
13. https://www.sanskritiias.com/current-affairs/parliamentary-sovereignty-and-the-basic-structure