File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Constitutionalism: A Study of Constitutional Supremacy in Comparison to United Kingdom Practices

If there is a comparison made between the supremacy of the Constitution and the Parliament, then the supremacy of the Constitution will always be kept in the upper hand. Power always comes with accountability; otherwise, unconditional power will lead to arbitrariness. In the United Kingdom, the Constitution is not a codified one, which makes it impossible for the Judiciary to keep a check and balance on the actions of the Parliament.

This research paper aims to portray the fact that even though the United Kingdom does not have any written Constitution still it was bound by the Constitution of the European Union, as they were a part of the European Union. There are some landmark cases as well in the UK which establish the fact that the British judiciary could rely on the EU Constitution to curb arbitrary actions of the Parliament. But recently the United Kingdom, through BREXIT, paved its way out from the European Union. As Britain won’t be a part of the EU, the Courts cannot protect anyone from any capricious will of the Parliament.

The situation is exactly different in India, to portray such difference this paper also targets to compare the constitutional supremacy between India and the United Kingdom.

Introduction
With great power, comes great responsibility, this is one of the most famous lines that can be used in each and spheres of life. In the perspective of a state and its administration, the authorities are entitled to various powers and responsibilities, and they are also accountable for their actions.

The administration must be concerned about their legislative and executive actions; the target is to run a state without violating human rights. But if a government while running a state does something which is against the rights entitled to an individual, then it must be nullified. To maintain this balance a state requires two important things and they are- a constitution and a judiciary. Constitution will lay down the powers of the Parliament along with their limitations and it will be the role of the judiciary to protect the law and uplift the constitution.

To understand the above-mentioned concept in details we need to analyze the three most significant terms related to a state - Constitution, Constitutional Law, and Constitutionalism. A written form of laws and regulations, as well as powers and limitations, will give a judiciary to review the actions of the Parliament based on such written laws. Now what if there is no written constitution, then what will be the situation?

The answer to this is the legal and political scenario of the United Kingdom. All over the world, there are very few countries that do not have a written constitution and still they run a country fluently. But unlike a codified constitution-based country, the judiciary of an un-codified constitution-based country will have less power than that of the parliament. The power to review the actions by the judiciary will not exist, and all the powers will be vested in the parliament.

This also sets a table for debate regarding which country is better in the field of social, legal, and political status- a country having a Parliamentary Sovereignty or a country where the Law is Supreme. This paper deals with the Supremacy Status of Law in the United Kingdom, by setting forward some important concepts and benchmark case laws. The UK has an unwritten constitution that resembles the Parliamentary Sovereignty, where the decision of the Parliament is the ultimate one. But the UK is a member of the European Union made it clear that UK is bound by EU laws and even the constitution of the EU had abiding power over the UK.

So we can indirectly say that even though the UK does not have a codified constitution but still it had the con situation of the EU, which gave the power of review to the Judiciary, in order to maintain a check and balance on the actions of the Parliament. But the UK and its Administration took a huge decision of leaving the European Union, due to some trade-related problems and other obligations they were feeling that they are chained to. So, through BREXIT, they succeeded in coming out of the EU, and in the year 2020, they went into a transition period of twelve months.

And now, the situation is even worse, because the laws of the EU will no longer be valid in the UK and the Parliamentary Sovereignty went a step further, and the judiciary lost its power to review. We cannot say that when UK was a part of EU, Judiciary had stringent powers, but it had a right to take a stand against the ill-actions of the parliament, if the actions were against EU laws and constitution. To portray a state having an un-codified constitution we need to compare it with some other state having a codified constitution, therefore a comparison in relation to constitutional mandate and judiciary between UK and India will be impactful.

What is a Constitution?

Constitution refers to the set of rules and principles that construct a well-established fundamental body, following which the State needs to run. Such a body also provides the rights for the citizens of a particular country. To govern a country and its political matters, it is necessary to have a constitution, whether it be codified like the United States of America and India or un-codified like the United Kingdom.

It can be a compilation of documents, acts and statutes, and old age – practices. In order to understand a concept, we need to gaze at its origin and analyze the reason behind such origin. If we trace back to the works of Aristotle, be it systematic, speculative, and theoretical, we can figure out that the ancient Greeks gave birth to the conceptual idea of constitution. In one of the writings of Aristotle, the constitution was considered as the arrangement of the offices in a polis. He also referred to the constitution as politeia.

The explanatory meaning of such statements and terms implied that the constitution is a body which contains the structure of the government and their functions, along with powers and accountability to run a state. Be it good or bad, the constitution is necessary to run a state. Aristotle’s work explained what can be considered as a good constitution and a bad one. According to him, good constitutions will include monarchy and aristocracy and a mixture of both.

Whereas, a bad constitution may include autocracy, oligarchy, and an autocrat democracy. He also held that the mixed form of the Constitution can provide the best possible mode of government for the state. Slavery can also be traced in such period, about which are discussing. Out of the whole lot, Roman law came out to be the first one who disagreed with slavery, their law believed inequality among the human.

They stated that Natural law governs the whole world and each and every individual is inherited with the natural right of equality by birth and none can take it away. Later on Romans agreed that the laws of nature must also be considered as the skeletal framework while drafting a constitution[2].

To lay down a straightforward meaning of the term Constitution in the current modern age scenario we can state that it is a parent legal document that lays down the basic principle of the state. It contains the fundamental rights of the citizens as well as the structure and functions of the government.

We can derive few characteristics of the constitution, they are:
  • It cannot be altered or modified by and any ordinary amendment
  • It is binding on each and everyone in the state.
  • It lays down the rights of the citizens
  • It is based on extensive civic authenticity
  • It is difficult to alter and modify, can be done only if there is a two-thirds majority or a referendum.
  • It aims at meeting the international set standards to run a democratic country in requisites of representation and human rights.

Constitutional Law

There is no straight jacket definition of the term constitutional law. The concept of constitutional law can be derived from the constitution, it can be stated that constitutional law is that element of domestic law that lays down the connection between a person and the state, and which governs the organization of public authority. Regulation of the structure and the roles of the bodies of the public administration and their connection with each other and with the citizens is the primary meaning of the term constitutional law.

N. Mac Cormack held that:
Constitutional Law presupposes the actual existence of the state.

Each and every state has its own highest court having constitutional validity and jurisdiction, and extra emphasis is put on the interpretations of constitutional laws made by such court. To understand and analyze the connection between the political and legal points of view of the constitution we must follow the principles, rules, and regulations laid down in it. This is what to be considered as the acknowledgment of the constitutional law.

The scope of a legal system in a country is wide, and it must be noted that constitutional law doesn’t cover the whole of it. It only deals with the duties of rights, powers, and duties, as in fundamental rights, directive principles of the state policy, and the fundamental duties. In order to maintain public order, morality, and social security, constitutional law must lay down certain principles surrounding it. It must be noted that constitutional law must not be confused with administrative law.

Constitutional law focuses on the actions of the bodies belonging to the administration while carrying out their services and how they are regulating the behavior of the citizens. On the other side, Administrative law governs various administrative organs and their duties.[3]

Constitutionalism

To understand the concept of constitutionalism we must figure out its origin and its roots. The idea of constitutionalism did not just come out suddenly, it evolved from time to time. One of the sources of the constitution is Magna Carta, 1215. There was a group of wealthy nobles known as the barons, who forced the King John of England to sign a document, such document was the Magna Carta, containing powers of the King as well as certain restrictions to such power.Magna Carta contained certain limitations, to which the King was accountable.

Unconditional power will evolve to tyranny and autocracy and therefore there should not be any unconditional power and it must be restricted to a certain extent. This feeling gave birth to a socio-legal and political theory known as constitutionalism, which means that a government cannot do freely whatever it wants, it will be bound by rules and regulations, and principles.
In order to avoid any arbitrary action of any government, constitutionalism is mandatory to follow. This principle protects the citizens who are forming the government through the voting system.[4]

While going through the social contract theory of the Legal Jurisprudence established by Thomas Hobbes and John Locke we can derive the difference between an unlimited authority or administration and authority limited by certain laws and principles. Austin, through his works, portrayed that all laws are the command of the sovereign, and all such command musty be restricted to a certain extent. A beautiful and well-accepted concept came out as a consequence of such a period that Constitutional law limits the parliament and the judiciary whereas the sovereign i.e., the people stays unlimited.

At this modern juncture, constitutionalism can mean a limited government or put limitations on the government. It can be considered as the medication for the virus of arbitrary exercise of power. With responsibility there comes accountability, which must not be ignored at any cost. Constitutionalism states that we need a government with the power to carry out the functions fluently and efficiently, at the same time it wants that such power must be limited to a certain extent. If a government acts outside those limitations will tend to lose its authority and power. Constitutionalism keeps a check and balance on the exercise of the powers of the topmost authorities of the public administration.

Louis Henkin states that Constitutionalism must contain the following mentioned essentials[5]:
  • A government must always run in accordance to the constitution
  • Proper separation of power.
  • Democracy and Sovereignty.
  • The Judiciary must be independent.
  • Existence of Judicial Review at any cost.
  • Government must not interfere with the fundamental rights of the individuals.

With the help of these landmark case laws, we can establish that even the Judiciary uplifted the concept of constitutionalism and its presence is necessary at any cost.
  • Minerva Mills Ltd v/s Union of India [6]

    While giving the judgment Justice Chandrachud observed that The Constitution is a precious heritage and, therefore, you cannot destroy its identity
     
  • Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr [7]

    In this case it was held that The Constitutionalism or constitutional system of government abhors absolutism – it is premised on the Rule of law in which subjective satisfaction is substituted by objectivity provided by the constitution itself
     
  • I.R. Coelho (Dead). vs. State of Tamil Nadu and Ors [8]

    True democracy can be exercised through the ultimate respect of the fundamental rights of the citizens. One of the main features of constitutionalism is to protect the constitutional rights of the citizens. We follow the concept of separation of power, whereby the bodies of the administration act separately, although connected. Constitutionalism keeps a check and balance on such separation of power.[9]

The Constitution of the United Kingdom

Unlike various other countries, the United Kingdom has an unusual form of constitution. The constitution of Britain is an unwritten one; we can also state that the Britain Constitution is an un-codified one. It implies that there is no physical parent legal document that can be considered as the Constitution of UK. Therefore a legal document that portrays the structure of the state organs and their powers doesn’t exist.

To understand the non-existence of a codified constitution, we must stare at history. If we need to determine from where the United Kingdom derives democracy, we ought to look into various conventions, major work of the authorities, common law, royal prerogatives, historical credentials, case precedents, etc.

The history of the Constitution leads us to the Magna Carta of 1215 when King John was forced to sign and accept Magna Carta, which was also considered the Great Charter of the Liberties of England. It laid down the power of the administration as well restriction to such power, in simple words, King’s power was limited. The origin of two most valuable rights that originated from the Magna Carta that took place was fair trial and protection from illegitimate custody.

This was later acknowledged as the basis of Britain’s common law. Some of the legislations which had a great historical significance and which brought a remarkable influence to the Modern constitution are The Provisions of Oxford, 1258, The Petition of Rights, 1628, Bill of Rights, 1689, the Act of Settlement, 1701, Great Reform Act, 1832, the Representation of the People’s Act, 1928[10].

To summarize the contents and the objectives of all the above-mentioned legislation, we can state that these legislations dealt with:
  • Supervision of England by appointing a particular authority, whereby the UK will be supervised by a parliament and governed by the ruler
  • Rights and Duties of the People living in the state, along with the civil liberties, so that no one can be taken into custody in an autocratic manner.
  • Slowly and gradually powers of the parliament were uplifted, keeping in mind constitutionalism, whereby without the permission of the parliament King or Queen cannot rule.
  • Freedom of Speech and Expression in the Chamber as well as in the State will be respected and the organization of free elections to choose the desired government. Illegal Punishments must be removed and tyranny of any kind by any king or queen will not be tolerated further
  • Right to Vote has been kept in the upper hand and also determination of the age of 21 as the legal age to vote.
  • Determination of the House of Common and House of Lords

We can state that Monarch plays a vital role in the Parliament to enact a law. If the parliament enacts a law with the authority of the Crown then it cannot be challenged by anyone. Supremacy of the parliament is the fundamental concept that exists in the United Kingdom. The backbone of the UK Constitution is parliamentary sovereignty. We all consider the Parliament as the legislature, in other words, the law-making body of the state, thus in UK parliament can enact and abrogate any law at any point in time. And there is no parent legal document to exercise the power of check and balance.

There are various problems that arise due to an uncodified constitution, but according to me two of the major problems are; firstly, the court of law will not be able to cross-check and verify whether the laws that are brought by the parliament whether are in accordance to the fundamental rights and other natural laws; secondly, as there is nothing codified, it becomes flexible, thus can be modified at any given time. Since the British constitution is unwritten, it is extracted from various sources. Now we will discuss the sources of the UK constitution.[11]

Sources of the Constitution of the UK

The constitution of the United Kingdom is unwritten or an un-codified one, therefore no parent legal document. But the country follows a well-maintained political structure as well as the governance of the nation. Not only the governance but also the rights and liberties of the individuals are also laid down. Let’s discuss where does the nation derive such laws without having a written constitution. The sources of the constitution of The United Kingdom are:- Statute law, Conventions, Major Works of Authority, Major Constitutional Documents, Royal Prerogative, Common Law.
  • Statute Law:

    Whenever the parliament enacts an Act, it always comes in the form of a written law. Such written law can be considered as a Statute. Statutes often play a major role in influencing the governed and those who govern. To frame the laws, to frame the structure of the polity and the state, and to govern the state, statute acts as a protagonist in curbing all of them.

    A major example of a Statute that acts as a source of the Constitution of the UK is the Representation of the People Act, 1918. Initially, females were kept out of the voting system, whereby they were not allowed to participate in appointing the Government.

    Later on, with the 1918 Act, females with the age of and above 30 were allowed to vote. Yet they were not kept in equal footing, so to curb the suffrage the Equal Franchise Act Representation of the People Act, 1928), evolved after a decade. The equal age for males and females was lowered to 18 by this legislation. To accumulate all the previous acts and to consolidate all of them the Representation of the People Act, 1983 was brought.
     
  • Conventions:

    This source is considered to be a non-legally binding source yet one of the most influential ones. In order to follow and adopt the long-practiced customs and traditions, a set of rules are prepared from time to time. Such a set of standards can be taken into consideration while exercising the powers of the government. Therefore several modes of observation were kept on the conventions. Being a non-binding source, it is not necessary to follow or abide by them.[12]
     
  • Major Works of Authority:

    The source can be derived from the title itself, significant works of the authorities can have an authoritative value, thus can act as a source of the constitution. Important works of the authorities are often recognized as the governing principle for the state and polity. These are generally the written works, which are often given the same status as that of a constitution.

To refer to such major works we can mention some of the benchmarks ones:
  1. Erskine May, Treatise on the Law, Privileges, Proceedings, and Usage of Parliament (1844), to quote some sentences from this work of the authority which explains the role and functions of the government, and can be considered as a source of the constitution, it is the object of the following pages to describe the various functions and proceedings of Parliament… To advance from the more general to the particular and distinct proceedings of Parliament, to avoid repetition, and to prevent any confusion… first, the rules or principles; secondly, the authorities…and, thirdly, the particular precedents in illustration of the practice.[13]
     
  2. A.V. Dicey, An Introduction to the Study of the Law of the Constitution (1885), this source has been one of the most influential ones, it laid down a huge impact on the Sovereignty and Rule of Law in the United Kingdom, the book is written with the sole object of explaining and illustrating three leading characteristics in the existing constitution of England; they are now generally designated as the Sovereignty of Parliament, the Rule of Law, and the Conventions of the Constitution.

Major Constitutional Documents, this source is established on various important and significant principles which laid down the powers of the Administration as well as limitations to such powers. Structures and Hierarchy of the Authorities were also to be mentioned. Some of the major constitutional documents are: Magna Carta, 1215, Bill of Rights, 1689, Act of Settlement, 1701
  1. Magna Carta, 1215:

    No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, nor will we proceed with force against him, except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.
     
  2. Bill of Rights, 1689:

    There was a period where there was a co-existence between the Monarchy and the Parliament. Due to such co-existence, the King or the Queen used to interfere in the decisions of the Parliament, even the decisions of the Monarchy used to overshadow the Parliament. But after the emergence of the Bill of Rights, 1689, legal and decisive inequalities were swept under the carpet. Some of the major freedoms were freedom from the Royal Interference with the law, freedom from taxation by royal prerogative, freedom to petition the King, freedom to elect members of Parliament without interference from the Sovereign.

Royal Prerogative:

Earlier in the United Kingdom, the Monarch played a very significant role in curbing the polity and the state. They used to enjoy certain rights and privileges and those were only enjoyed by them. They used to play a decisive role too in most of the areas, but later on, such powers were transferred to the ministers and they used to perform or execute such powers on behalf of the Monarch. The Authority is derived from the Crown, not Parliament. Some of the rights exercised by the royal prerogative were; the right to appoint ministers and hand out honors, dissolve parliament, the right to announce war, and formulate treaties, and confer command to the armed forces.

Common-Law:

Case laws act as the script of stage plays of the legal and judicial system wherein the lead roles are always played by the judges. Judges perform the task of creating case laws, and the reason why they are called ‘common’, because, it becomes applicable to one and all. In this case, it is applicable to each and every person in the United Kingdom. We all must be well acquainted with the term precedents, in simple terms precedents are judgments of previous cases. So the when laws are framed based on such precedents, we can name it the common law. The evolution of Civil Rights is one of the prime examples which can establish that common law acts as one of the primary sources of the British Constitution, such as the freedom of movement and free speech.

European Union Laws and Treaties:

This source has also been mentioned keeping in mind the past and not the present. The United Kingdom used to be a part of the European Union and thus the laws and treaties of the EU were a part of the UK as well. To portray the hierarchy, we can state that the United Kingdom was under the European Union which makes one thing crystal clear that whenever there will be a collision between the EU and UK law then the EU law will always prevail or will be given an upper hand. While framing the legislations these facts used to be kept in mind and implemented accordingly. But now, the current situation is completely different. The European Union was a pack and out of which the UK wanted to step out, due to trade and other related reasons. In the year 2020, they successfully took an exit from the EU, and thus this pointy will not be considered as one of the sources of the UK constitution anymore. The reason why I mentioned this source in the end because from here we are going to discuss the Constitutional Supremacy of the UK Constitution keeping in mind the pre and post scenario of Brexit.

Supremacy of the Law in the United Kingdom

Now we are going to step into the ocean of discussion where we can identify, analyze and portray the supremacy status of the constitution of the United Kingdom. Before stepping forward we need to keep in mind the past and present scenario of Britain because it went through a dynamic change in its political and constitutional status.

Therefore to present the supremacy of the UK Constitution we must cover the entire ocean. Like, the earth revolves around the Sun is a universal truth, similarly that the constitution of the UK is an unwritten one, is also a universal truth. But, through this research paper, I would like to put forward the contrary by planting a seed of a different approach, and i.e., UK did have a written constitution. Although it did not have written constitution of their own, still they had one.

Obviously, the question that comes first in the reader’s mind is that How’s is that possible? the answer to this question is behind the political and constitutional status it had when Britain was under the European Union. In other words, one of the members of the European Union was the United Kingdom, which made the UK abide by the constitution of the European Union. EU has one of the most protected constitutional systems which makes its member countries enjoy such constitutional supremacy too.

To get hold of the mainstream, why do we exactly need the existence of constitutional supremacy, the reason is that the Government or the Parliament must be restricted up to a certain point. Having a constitutional roof prevents or avoids arbitrary actions on behalf of the Administration. Keeping a check and balance on the parliament is very much necessary, and such assurance is granted by the existence of the constitution.

Constitution and Judicial Review are the two sides of the same coin, they are interlinked and interconnected. Judicial Review helps to carry out the task of check and balance in a constitutional manner. Whenever primary legislation is about to be enacted by the parliament, the power of judicial review can be exercised if it is found that such enactment is against the law of the land, i.e., the constitution.

The Courts of the United Kingdom, along with the European Court of Justice can disapply or annul legislation if it proves to be in contravention of the laws of the European Union. Instances are there where National courts and even the European court of justice disapplied the legislation which contravened with the European Charter. In 2009, a similar thing took place, where legislation related to the U.S. Bill of Rights was against the fundamental rights of the EU Charter, and it was struck down.

Supremacy of the Law, UK, and Brexit

The aim of this paper is to portray the supremacy of the law, the constitution, and the mother of all laws. United Kingdom’s un-codified constitution is quite famous, yet controversial, but as I took the pledge to amplify both the past and present scenario of the supremacy status of the Britain’s constitution, we need to visualize the time period when the UK was a member of the European Union. Being a member, United Kingdom was bound by the laws of the EU.

Whenever we discuss the protection of the law, the term that comes to our mind first and foremost is the Judiciary. Court of law, plays a major and very critical role in protecting the laws and upheld their supremacy status. Time and again the British courts of law proved that they can annul anything which is against European Law.

The Judges of the United Kingdom had to disapply and annul any legislation passed by the parliament which proved to be against the laws of the European Union. To support this statement, we can rely on two of the most landmark cases of the United Kingdom which upheld the Supremacy of the Law.
  • R vs. Secretary of State for the Home Department, ex p [14

    Facts:
    The Home Secretary laid down certain directives, to which the applicants of the said case applied for judicial review. The reason behind such an application was a ban, a ban on the broadcasting permission of individuals connected with organizations stated by legislations that deal with anti-terror. The reason for such placement of limits on the mentioned organizations was to prevent these organizations from appearing to be politically legitimate and to prevent them from engaging in intimidation. The claim of the application was that the ban was inconsistent and not justified.

    Issue:
    1. whether proportionality might be invoked as a ground review under UK Law?
    2. Whether the ban was in accordance with the law or not?

    Held:
    The House dismissed the application, it was held that the ban was in accordance with the law and when the Home Secretary took decisions in this relation, it was within the powers. On the issue of proportionality as a ground of review the House laid down certain observations.

    Difference of opinions existed between the Lords; such as Lord Bridge and Lord Roskill stated that incorporation of the concept of proportionality can be included as a ground for review but the present case in hand is not the suitable one to do so. Whereas Lord Ackner differed and stated that if the concept of proportionality has been included then the substantive merits of the decisions are questioned, and also mentioned that the existence of this principle in UK law will not be an appropriate idea.[15]

    For the first time in the history of the UK, the House of Lords disapplied a portion of a statute passed by the British parliament, i.e., the Merchant Shipping Act, 1988. The Law Lords disapplied such portion because it was in contradiction.
     
  • Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs[16]:

    The question, in this case, was whether the the state is immune as respects proceedings concerning the employment of members of a diplomatic mission, including its administrative, technical and domestic staff.

    The issue that arose, arose out of employment, as in the claims were based on employment issues. The claimants belonged to the UK embassies in London of Libya and Sudan. The claimants were the domestic workers in the embassies. Their application was based on State Immunity, which was granted by two separate European Treaties. The grievance that was there on the appeal was that the plea of immunity didn’t respect their right to employment. The applicants relied on two of the precedents which were passed in the European Court of Human Rights; they were Cudak vs. Lithuania and Sabeh el Leil vs. France, in order to prove that such denial is a breach of Article 6 of the European Charter of Human Rights. The appeal was allowed by the European Appellate Tribunal, later on, the ECHR upheld the decision of the EAT.

    Due to which the Secretary of State appealed in the Supreme Court.
    The Supreme Court dismissed the appeal and upheld the EAT’s decision
    To derive the supremacy of the law, in the year 2017, the Supreme Court disapplied a portion of the Westminster Statute, the State Immunity Act, 1978, the reason being it was contradictory to the human rights laid down in the ECHR.
The fundamental principle or ideology that the United Kingdom follows is the Supremacy of the Parliament, unlike India where there exists Supremacy of the Law. The Legal and political condition of Britain is an insecure one, without any protection. The reason behind this is that the Parliament can pass any legislation which it wishes to enforce, and neither a court can intervene in such a decision nor any court can announce such law to be invalid, even if it is against the natural laws.

It just changed the authority but the power remained, like in earlier years there was the notion that whatever the queen wants to be enacted can do so without any interruption, the same thing exists now also. The meaning of the concept of Parliamentary Sovereignty is that the powers and the rights are completely vested in the parliament, but not in the courts.

In 21st January 2020, the United Kingdom has successfully taken an exit through BREXIT; the situation has worsened a lot. When UK was a member of the EU, it had certain constitutional validity, although not completely, it had the constitution of the EU, to check the accountability. The utmost that could be done, if a statute passed by the parliament is against human laws, is that all the courts can issue a declaration of inaptness if the legislation.

But that too doesn’t carry any legal validity because the final decision ought to be on the parliament, whether to keep it or amend or modify it. Since EU laws will have no binding effect on the UK; the Parliamentary Sovereignty again went a step forward. Supremacy of the parliament is again the slogan of Britain and there won’t be any accountability check further on their actions.

Currently, UK is on a transition period which will end on 21st December 2020, following which it will be established that whether UK can stand strong without the EU or not. Unfortunately, the world is going through a Pandemic and UK had to stand strong and had to face the Pandemic all by them. The whole world waits whether UK will exist like this as a non-member of the EU or will they embrace the European Union, which may bring back the constitutional mandate.

Comparison between the UK and Indian Constitution
The nation which has an identical political and legislative structure in India, so in order to understand the constitutional status of the United Kingdom, we must compare its validity and Supremacy status with India. The following points lay down the comparison between India and the UK under the umbrella of the Constitution:
  • Codification:
    the Indian Constitution is a written one or a codified one, whereas the constitution of the United Kingdom is a non-codified or an unwritten one. To measure the validity and gravity, we can clearly identify which one fulfills the requirements. Yes, a written constitution carries more weight, the reason being the written principles, laws, rights and structures, organs, and their respective powers. Therefore Judiciary gets an upper hand and can check the accountability of the Parliament.
     
  • Form of Government:
    India has a Federal form of government, whereas the UK has a unitary form of government. In simple words, this point deals with the concentration of power. In India, the powers are divided between the Centre and the States, and with the help of Constitutional Provisions Centre and The state can take their respective decisions which come under the ambit of their powers. The Union list, State list, and Concurrent list, as per the Indian The constitution helps to identify the powers and the jurisdiction. Unlike India, The United Kingdom believes in the concentration of the power on the center. No powers are granted to the states, the center has the power to make laws and take decisions in relation to it. The concentration of power is on the Centre, and this establishes the concept of the Sovereignty of the parliament.
     
  • Monarchy Status:
    With the end of the British Raj, India became independent and the ruling of Monarch all over India came to an end. The status of King/Queen vanished from India and the Parliamentary form of government was established. Whereas the United Kingdom still has the King or the Queen on the top of the administration. Even today, the Crown plays a few of the roles as a part of the parliament. As a law-making body, the Crown can make any law with the parliament that they wish for, and no court can intervene, due to an unwritten constitution.

Comparison between the Indian and British Judiciary
The Indian and the British Judiciary are similar to a certain extent, but the differences are major ones. Independence of the judiciary is a must, which assures the accountability of the parliament. Having a separate judiciary will always keep a check and balance on the actions of the government. Therefore a comparison between the judiciary of India and the United Kingdom will simplify the concepts clearly.

We will be dealing with the differences first then the similarities.

Differences
  • In the case of India, the concept of Basic Structure has molded the Judiciary to a certain extent; the Basic Structure Principle has stood as a pillar for the Indian Judiciary. It gives the power to the Judiciary to curb any action of the Legislature and the Executive if found contradictory. Any action of the the government that tends to be against the fundamental rights will be declared null and void by the Judiciary. Whereas the Judicial system of the United Kingdom does not believe in the principle of Basic Structure, this constructs the concept of Parliamentary Sovereignty. The powers of the Parliament are much more than that of the Judiciary.
     
  •  Judges play a major responsibility in building the laws of the land. Their observations, judgments, orders, play the role of sources for the construction of the laws. Not only while framing the laws, but also while adjudicating a case, precedents had a very significant function. Therefore the judicial developments/pronouncements are referred to as the common law. The Indian Judicial System believes in the incorporation of statutory laws along with the common law system, in the simple sense, it follows both. But in contrast, British Judiciary strictly follows the common law system, rather than enactment.
     
Similarities
  • In both the instances, Judiciary is treated as the highest interpreter of the Constitution.
  • If the executive takes any decision which turns out to be outside their power, then the Judiciary of both the countries can declare them ultra vires.

Case Laws that prove the Supremacy of Law in India

  • I.C Golaknath and Ors vs. the State of Punjab and anr[17]

    One of the landmark cases that upheld the supremacy of the law and not the law-making body. In this case, it was held that the Parliament cannot amend Fundamental rights. The judgment provided for the prospective overruling of the law.
     
  • Keshavananda Bharti Sripadagalvaru vs. State of Kerala[18]

    The concept of doctrine of basic structure evolved from this case. In this case, it was held that the laws enacted to give effect to the DPSP under Part IV are open to Judicial Review. The laws included in the ninth schedule can be challenged in the court of law on the ground that they abrogate the basic elements of the Constitutional Structure.
     
  • Minerva Mills Ltd vs. Union of India[19]

    In the landmark case of Minerva Mills, it was held that the harmony and balance between Fundamental Rights and DPSP is an essential feature of the basic structure of the constitution. This case restored the power of the court to review any amendment to the constitution.
     
  • I. Chandra Kumar vs. Union of India[20]

    The Supreme Court reiterated the power of Judicial Review given to the Supreme Court and High Courts under Article 32 and 226 is the Basic Structure of the COI and it cannot be terminated by statutory amendment under Article 368
     
  • Lily Thomas vs. Union of India and ors[21]

    Lily Thomas Judgment was aimed at freeing the political setup from the criminal elements. The Supreme Court held that sub-section (4) of Section 8 of the Representation of Peoples, Act is ultra vires to the Constitution.

Conclusion
The conclusion that we can derive from this lecture is that now we are aware of the practices of the UK Constitution and what is its current status, the the actual point of concern is that when the UK was under the European Union Community Laws, there was a certain amount of constitutional supremacy that prevailed, as UK was bound by the EU Charter, it is also evident from the cases that I have put forward, but after BREXIT, it is the actual point of discussion that arises , i.e., whether the UK needs a Written Constitution or The Supremacy of the Parliament will continue to prevail in the time to come.

Indian Judiciary, particularly the Supreme Court of India, has been instrumental in shaping India, changing India, transforming India. It is quite interesting to learn how the Supreme Court Judgments protected the essence of the Indian Constitution, strengthened democracy, and transformed the lives of ordinary citizens of India. The way democracy now functions in India; owe a lot to many of the landmark Supreme Court Judgments.

By going through those landmark Judgments, one can clearly understand not only the evolution and transformation of the Indian Constitution but also the emergence of the Indian Judiciary as one of the most powerful among its tribe globally. The constitutional court was bold enough to invent the Basic Structure Doctrine in the case "Kesavananda Bharati Sripadagalvaru v State of Kerala (1973) and to make a paradigm shift to due process of law in Maneka Gandhi vs. Union of India (1978) case. Yes, as the Custodian of the Indian Constitution, The Supreme Court of India has been assertive on the constitutional values and creative in its interpretations to resolve legal issues, and deliver justice.

References
  1. Herbert John Spiro, Constitution: Politics and Law, Britannica, https://www.britannica.com/topic/constitution-politics-and-law
  2. Professor Nicholas Sunday, Constitutional Law, Constitutionalism and Democracy, V213984, ISBN 9783656424420, GRIN, 2013
  3. Alida D., What is Constitutionalism?- Definition, History and Concept, Study.com, https://study.com/academy/lesson/what-is-constitutionalism-definition-history-concept.html#:~:text=Constitutionalism%20is%20a%20political%20philosophy,can%20and%20can't%20do.
  4. Kiruthika D, Constitutionalism, ISBN No.- 978-81-928510-1-3, Legal Service India.com
  5. Kiruthika D, Constitutionalism, ISBN No: 978-81-928510-1-3, Legal Service India, http://www.legalservicesindia.com/article/1699/Constitutionalism.html
  6. Ellen Castelow, The Constitution of the United Kingdom, HISTORIC UK, https://www.historic-uk.com/HistoryUK/HistoryofBritain/British-Constitution/
  7. What is the UK Constitution?, The Constitution Unit, UCL, https://www.ucl.ac.uk/constitution-unit/what-uk-constitution/what-uk-constitution
  8. Sources of the British Constitution." lawteacher.net. 11 2018. All Answers Ltd. 11 2020, https://www.lawteacher.net/free-law-essays/constitutional-law/sources-of-the-british-constitution-constitutional-law-essay.php?vref=1.
  9. Sources of the UK constitution, Aug 21, 2015, https://www.slideshare.net/PhilosophicalInvestigations/sources-of-the-uk-constitution
  10. R v Brind 1991 | Case Summary." lawteacher.net. 11 2018. All Answers Ltd. 11 2020

End-Notes:
  1. *
  2. Herbert John Spiro, Constitution: Politics and Law, Britannica, https://www.britannica.com/topic/constitution-politics-and-law
  3. Professor Nicholas Sunday, Constitutional Law, Constitutionalism and Democracy, V213984, ISBN 9783656424420, GRIN, 2013
  4. Alida D., What is Constitutionalism? - Definition, History and Concept, Study.com, https://study.com/academy/lesson/what-is-constitutionalism-definition-history-concept.html#:~:text=Constitutionalism%20is%20a%20political%20philosophy,can%20and%20can't%20do.
  5. Kiruthika D, Constitutionalism, ISBN No.- 978-81-928510-1-3, Legal Service India.com
  6. AIR 1980 SC 1789
  7. AIR 2006 SC 980
  8. AIR 2007 SC 861
  9. Kiruthika D, Constitutionalism, ISBN No: 978-81-928510-1-3, Legal Service India, http://www.legalservicesindia.com/article/1699/Constitutionalism.html
  10. Ellen Castelow, The Constitution of the United Kingdom, HISTORIC UK, https://www.historic-uk.com/HistoryUK/HistoryofBritain/British-Constitution/
  11. What is the UK Constitution?, The Constitution Unit, UCL, https://www.ucl.ac.uk/constitution-unit/what-uk-constitution/what-uk-constitution
  12. "Sources of the British Constitution." lawteacher.net. 11 2018. All Answers Ltd. 11 2020, https://www.lawteacher.net/free-law-essays/constitutional-law/sources-of-the-british-constitution-constitutional-law-essay.php?vref=1.
  13. Sources of the UK constitution, Aug 21, 2015, https://www.slideshare.net/PhilosophicalInvestigations/sources-of-the-uk-constitution
  14. Brind (1991) 1 AC 696
  15. R v Brind 1991, Case Summary." lawteacher.net. 2018.
  16. [2017] UKSC 62
  17. AIR 1967 SCR (2) 762
  18. AIR 1973 SC 1461
  19. AIR 1980 SC 1789
  20. AIR 1997 SC 1125
  21. (2000) 6 SCC 224

Award Winning Article Is Written By: Mr.Bhaskar Mukherjee - 2nd Semester, LL. M (IP) 2020-21, Amity University Uttar Pradesh, Noida,
Ph no: 8240121726, [email protected]
Awarded certificate of Excellence
Authentication No: MA113299662370-12-0521

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly