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Constitutional Supremacy and Parliamentary Sovereignty

Chapter Fifty-Two

Syllabus topic 4, "Comparative Study of the fundamentals of the Constitutions of India, USA, UK, Switzerland, Ireland, Germany and Canada."

Pages 237 to 240 of 676

In one line

In six of the seven systems the constitution is the highest law and an inconsistent statute is void; in the United Kingdom the latest Act of Parliament is the highest law and no court may set it aside.

In the wording a student can write in an exam: constitutional supremacy is the doctrine that the constitution is the highest law and that any law inconsistent with it is void to the extent of the inconsistency; parliamentary sovereignty is the doctrine that the legislature may make or unmake any law whatever, that no person or body has the right to override or set aside its legislation, and that no Parliament may bind its successors.

Constitutional supremacy in the texts

India, article 13. Article 13(1) provides that all laws in force immediately before the commencement, in so far as they are inconsistent with Part III, are void to the extent of the inconsistency. Article 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and that any law made in contravention shall, to the extent of the contravention, be void. Article 13(3)(a) defines law to include an ordinance, order, byelaw, rule, regulation, notification, custom or usage having the force of law.

Article 12 defines the State, for Part III, as including the Government and Parliament of India, the Government and legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. The width of that definition is what makes the supremacy effective in practice.

Canada, section 52(1) of the Constitution Act 1982. The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect.

United States, Article VI. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby.

Germany, Switzerland, Ireland. Article 1(3) of the Basic Law binds all three branches to the basic rights as directly applicable law; article 5 of the Swiss Constitution requires all state activity to be based on and limited by law; Article 34.3.2 of the Irish Constitution gives the High Court jurisdiction to question the validity of a law having regard to the Constitution.

Parliamentary sovereignty, stated accurately

Dicey's formulation has three limbs.

Parliament may make or unmake any law whatever. There is no subject matter it cannot legislate on, and no form it must use.

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