UPSC Prelims 2021 Q77: Indian vs British Parliamentary Model Explained
We adopted parliamentary democracy based on the British model, but how does our model differ from that model?
1. As regards legislation, the British Parliament is supreme or sovereign but in India, the power of the Parliament to legislate is limited.
2. In India, matters related to the constitutionality of the Amendment of an Act of the Parliament are referred to the Constitution Bench by the Supreme Court.
Select the correct answer using the code given below.
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Answer: (c) Both 1 and 2
Statement-wise explanation
- 1: correct — The UK has no codified constitution, so an Act of Parliament is the highest law and no British court can strike it down. Under the Human Rights Act 1998 a court can only issue a 'declaration of incompatibility', which leaves the Act in force. In India the Constitution is supreme: Article 13(2) makes any law that takes away or abridges Fundamental Rights void to the extent of the conflict, and Article 245 makes Parliament's power 'subject to the provisions of this Constitution'. Parliament is also bound by the federal division of subjects in the Seventh Schedule and, after Kesavananda Bharati (1973), cannot amend the basic structure.
- 2: correct — Article 145(3) says that at least five judges must sit to decide any case 'involving a substantial question of law as to the interpretation of this Constitution'. A bench of five or more judges is called a Constitution Bench. Under the proviso to Article 145(3), if a smaller bench finds that such a question arises, it must refer that question to a five-judge bench. Challenges to the constitutionality of an Act or a constitutional amendment usually raise such a question, which is why they go to Constitution Benches. Nothing like this exists in Britain, where courts cannot rule on whether an Act is valid.
How to eliminate
Statement 1 can be solved from basic knowledge. Everyone studies judicial review and the basic structure doctrine, and both rest on the idea that the Indian Parliament's law-making power has limits. The British Parliament has no such limits. Once you accept Statement 1, the answer must include it, so only two codes remain. Statement 2 needs one fact: Article 145(3) requires at least five judges for a substantial question of constitutional interpretation, and this is what makes a 'Constitution Bench'. Its wording is loose. 'Amendment of an Act of the Parliament' probably means a constitutional amendment or an Act, and not every challenge goes to a Constitution Bench automatically. Still, the statement describes a real Indian practice that has no British equivalent, and the official key accepts it. Remember this: a substantial question of constitutional interpretation needs a bench of five or more judges.
Know more
Parliamentary sovereignty vs constitutional supremacy
India took the form of the Westminster system from Britain: a nominal head of state, a Cabinet responsible to the lower house, and a PM who leads the majority. It did not take the British idea of parliamentary sovereignty. In A.V. Dicey's classic statement, the UK Parliament can make or unmake any law, and no body can set its Acts aside. In India, the Constitution is supreme. Parliament, the executive and the courts all draw their powers from it.
| Feature | United Kingdom | India |
|---|---|---|
| Supreme authority | Parliament | Written Constitution |
| Courts strike down Acts? | No (only a declaration of incompatibility under HRA 1998) | Yes: Art. 13, 32, 226 |
| Federal limits on legislature | None (unitary state) | Seventh Schedule lists, Art. 245–246 |
| Amending the constitution | Ordinary Act | Art. 368 procedure; basic structure cannot be altered |
| Review of constitutional amendments | Not applicable | Yes (Kesavananda Bharati, 1973) |
The Indian synthesis. India balances two ideas: the British principle of parliamentary sovereignty and the American principle of judicial supremacy. Parliament can amend almost any part of the Constitution, including Fundamental Rights. Courts can review laws and amendments, but the Constitution itself says how wide their power is.
Key milestones
- Golaknath (1967): Parliament cannot amend Fundamental Rights.
- Kesavananda Bharati (1973, 13 judges, 7:6): Parliament can amend any part, but not the basic structure.
- Indira Gandhi v. Raj Narain (1975): this case applied the basic structure doctrine to strike down part of a constitutional amendment for the first time.
- Minerva Mills (1980): limited amending power and judicial review are themselves part of the basic structure.
- I.R. Coelho (2007): laws placed in the Ninth Schedule after 24 April 1973 can be tested against the basic structure.
Constitution Benches. Under Art. 145(3), a case raising a substantial question of constitutional interpretation, or a presidential reference under Art. 143, needs a bench of at least five judges.
NCERT Concepts to Revise
- Parliamentary sovereignty: Statement 1 compares India with the British doctrine that Parliament can make or unmake any law.
- Synthesis of parliamentary sovereignty and judicial supremacy: This is the standard textbook description of how India mixes the British model with American-style judicial review.
- Judicial review: Both statements depend on whether courts can test Acts and amendments against a written constitution.
- Basic structure doctrine: This doctrine is the main limit on Parliament's power to amend the Constitution, which Statement 1 is testing.