SUPPLEMENTARY EXAMINATION JULY – 2020

SPECIAL ASSIGNMENT OF CRITICAL THINKING – ESSAYS (SACE)

MAJOR POLICTICAL SYSTEMS IN THE WORLD (MAJOR)

SEMESTER – IV

HIMANSHU KUNJAM

BATCH – XIV

ID NO. – 14/2014/1039

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR (C.G)

QUESTION STATEMENT

1. “The British Parliament is so powerful that it can do everything but make a woman a
man and a man a woman.” “The Parliament can pass a law killing all the blue-eyed
babies of British Parents.” In the light of the above statements, critically examine the
Supremacy of the British Parliament.

Answer

The British Constitution is the oldest constitution in the world. It is unwritten constitution and
based upon the conventions. The England has given to the world the idea of the Parliament
and its supremacy. According to the Pollard, 'Parliamentary institutions have, in fact, been
incomparably the greatest gift of the English people to the civilization of the World. Civilized
man has drawn his alphabet from Egypt, his algebra from the Moors, his art and literature
mainly from Greece, and his laws from Rome. But his political organization he owes mostly
to English conceptions, and constitutional systems all over the world are studded with words
and phrases which can only be explained by reference to the medieval English Parliament'
For the British people the Parliament has been the peculiar means through which they
achieved their unity and nationality.

The Parliament of the United Kingdom is the Supreme legislative institution in the U.K. It
includes an Upper House, called the House of Lords, and a Lower House, called the House of
Commons. The Parliament is evolved from the ancient period. The English Constitution is
also the product of evolution. Every institution in the U.K. is an evolution. The growth of the
British Parliament evolved with the British Constitution.

Another important part of this is the rule of law. The parliament emancipation is based on the
rule of law.1 The supremacy of parliament is designated in two main parts which are the
unlimited legislative sovereignty of parliament and second is the deficiency of any competing
power in the state of accomplishing the overriding acts of assembly.

1
https://www.lawteacher.net/free-law-essays/public-law/the-supremacy-of-parliament-law-essays.php?vref=1
 It is been consider that parliament have the ultimate power to make anything possible.
“Parliament can do anything or everything but make a man a woman or vice versa i.e.
can do whatever they like to do which is naturally impossible. It is said “England could
never be ruined but by a Parliament”. This perception of Burleigh is quoted by
Blackstone in his commentaries.2

Concept of Parliamentary Sovereignty

The concept of parliamentary sovereignty is widely considered to be the central concept
for the British constitution. Essentially, parliamentary sovereignty recognizes the idea
that parliament is the supreme law making body within the UK. Unlike other countries
such as the USA or Germany, the UK does not have one single text for its constitution
and is un-codified. This does not, however, reduce its central importance to the UK
constitutional processes.
Parliamentary sovereignty is quite simply the priority that parliament has over other law
making bodies. Critically, parliament cannot make any decisions that would bind future
parliaments. This essentially removes the chance of having a codified constitution as
this would require the removal of parliamentary sovereignty, before a written
constitution could become enshrined into British law. The concept of sovereignty goes
back several centuries; until 1689, it was the monarch who held the ultimate power. This
was changed to give parliament the top political and law making role, although the
monarch is still heavily involved (albeit largely nominally).
This situation of parliamentary sovereignty means that the judiciary cannot block a law
from being passed. Contrast this with the USA where the Supreme Court has the power
to strike down an act with which it does not agree. The idea of parliamentary
sovereignty was laid out by AV Dicey in Law of the Constitution, back in 1885, where
he stated: “In theory Parliament has total power 3. It is sovereign”. This he felt was based
on four factors: first, that parliament has the competence to pass any law on any subject;
second, that the laws established by parliament can control any person in any location;
third; that no laws can bind successive parliaments; and fourth, that the courts do not
have the jurisdiction to challenge the decisions of parliament.

2
https://www.lawteacher.net/free-law-essays/public-law/the-supremacy-of-parliament-law-essays.php
3
Dicey, Albert Venn, Lectures Introductory to the Study of the Law of the Constitution, Macmillan, 1886
Despite the importance of the doctrine of parliamentary sovereignty, there have been
some important recent limitations on this concept. In 1972, the UK entered the European
Union which many have said substantially limits the current doctrine of sovereignty.
Under the EU constitution, it is now recognized that European law can have direct effect
on the subjects of member states. This was established in the leading case of Van Gend
en Loos, where the direct effect of Article 25 of the EC treaty (as it is now) relating to
the free movement of goods could be directly relied upon by individuals within the
member states. In the court’s judgment, the existence of this new legal order was
recognized, stating categorically that the European law could be seen as supreme to
national parliament.

It was stated that the EC treaty “…constitutes a new legal order of international law for
the benefit of which the states have limited their sovereign rights, albeit within limited
fields and the subjects of which comprise not only member states but also their
nationals. Independently of the legislation of member states, community law therefore
not only imposes obligations on individuals but is also intended to confer upon them
rights which become part of their legal heritage”.

This jurisprudence has shown the clear intention of the EU to be seen as the supreme
law making body and that, where there is conflict, European law will take precedence,
which is a substantial limitation on the ultimate authority of parliament. This was also
expressed in Thoburn v Sunderland City Council. In this case, it was held that the
concept of implied repeal could not be considered to be effective when it came to certain
constitutionally important acts such as the European Communities Act 1972. One of the
primary factors of parliamentary sovereignty is the concept that one parliament cannot
be bound by the previous parliament. Therefore, where there are two acts in conflict, the
latter takes precedence. However, in this case, it was held that the earlier European Act
took precedence, suggesting a further erosion of the principle of parliamentary
sovereignty.

A further seeming limitation of parliamentary supremacy has been established in the

form of the Human Rights Act 1998. One of the key factors of parliamentary
sovereignty has been the division of power between the judiciary and parliament. The
 judiciary does not, under the rules of parliamentary sovereignty, have the power to
challenge the decisions of parliament.
The Human Rights Act 1998 was enacted into British law as a result of the European
Convention on Human Rights. Critically, section 3 of the 1998 act states: “So far as it is
possible to do so, primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights”. Furthermore, section 4
allows the courts to make declarations of incompatibility where domestic legislation is
in conflict with the rights under the ECHR. Although this process is seen as a last resort
and the judiciary has been required, where possible, to read primary legislation in a way
that is compatible with the ECHR, there is still the ultimate power to state that the
primary legislation is incompatible. It should be noted, however, that the incompatible
legislation will remain in force until parliament changes the legislation.

Although this has not fully eroded the principle of parliamentary sovereignty, the true
effect can be seen in the case of A and Others v. Secretary of State for the Home
Department, where the judiciary made a declaration of incompatibility in relation to Part
4 of the Anti-terrorism, Crime and Security Act 2001. Based on this, parliament
changed the legislation in the Prevention of Terrorism Act 2005. Therefore, although the
judiciary does not have the power to change the legislation laid down by parliament, it
can challenge parliament and require it to re-visit its current provisions.

Parliamentary sovereignty has been the vital cornerstone of constitutional law in the UK
for several centuries. Despite this, recent events relating to joining the European Union
have limited the supreme power that parliament had by eroding two of the main factors
referred to by Dicey. Firstly, the judiciary has a much more political role by virtue of the
Human Rights Act 1998, thus allowing it to challenge the decisions of parliament; and
secondly, there is now a higher body of law that has direct effect on the UK. Both of
these factors have acted to limit, but not remove, the traditional concept of
parliamentary sovereignty.4

4
https://www.ukessays.com/assignments/law-parliamentary-sovereignty.php
Supremacy of Parliament in England

In England, Parliament is “legally” omnipotent. “It can do anything and can achieve any
result which can be achieved by manmade laws”. Chief Justice Edward Coke wrote in the
17th century: “The power and jurisdiction of Parliament is to transcendent and absolute that it
cannot be confined either for causes or persons within any bound. It can, in short, do
everything that is not naturally impossible. What Parliament do, no power on earth can
undo”. Diecy in 1885 reiterated the view that: “The sovereignty of Parliament is, from a legal
point of view, the dominant characteristic of our political institutions.

The principle of Parliamentary sovereignty means that Parliament has, under the English
Constitution the right to make or unmake any law whatsoever, and further that no person or
body is recognized by the law of England as having, a right to override or set aside the
legislation of Parliament”. It means that authority of Parliament cannot be limited even by its
own legislation. Sovereignty of Parliament means three things. Firstly, Parliament can make,
amend or repeal any statute. In short, it has unlimited law-making power. Secondly,
Parliamentary sovereignty means that Parliament possesses unlimited constituent power.
Thirdly, there is no Judicial Review in Great Britain, no law passed by Parliament, whether
Constitutional or statutory, can be declared ultra vires by the courts.

The supremacy of Parliament is one of the core principles of the British Constitution. The
famous writer of the nineteenth century, Dicey has termed it as “Parliamentary Sovereignty.”
He, while explaining this dominant characteristic of the British constitution in his
book “Law of Constitution”, says

“The principle of Parliamentary Sovereignty means neither more nor less than this,
namely, that Parliament has under the English constitution, the right to make or unmake any
law whatever; and, further, that no person or body is recognized by the law of England as
having a right to override or set aside the legislation of Parliament.”

Parliament supremacy means that the state parliament is supreme to all other
government institutions, executive or judicial bodies. Generally, the courts cannot overrule its
legislation and no Parliament can pass laws that future Parliaments cannot change. It’s very
much clear that parliament is supreme in the United Kingdom. Parliamentary
sovereignty is one of the most important principles of the British constitution.

The doctrine of parliamentary sovereignty of under the British Constitution has been
regarded as the most fundamental element of the British constitution. The supremacy of
parliament can be summarized in the following three points:

a). Parliament has the power to make any law they wish;

b). No parliament can create a law that a future parliament cannot change; and

c). Only parliament can change or reverse a law passed by it.

The doctrine of the Parliamentary Supremacy is so well established and well recognized in
the United Kingdom that it has very rarely been confronted by the British courts. The most
glaring evidence of the supremacy of British parliament is that the courts in the United
Kingdom have no authority to examine and declare any law null and void. Moreover, there
are no fundamental constitutional laws that parliament cannot change. However, we can still
determine, even though subject to much criticism today of parliamentary supremacy, it is still
seen that parliament is supreme. Though there are factors that affect the supremacy of
parliament, those factors have still been undertaken, with the discretion of the parliament.
The parliament accepted to give up a little of its powers and can take it back any time, to keep
all of its supremacy.5

The Doctrine of Parliamentary Sovereignty

The ‘basic principle’ of the English constitution can be summed up simply: A statute, that is,
a piece of legislation produced and passed by the Parliament, is generally regarded as the
highest form of law within the constitutional structure. The Parliament is said to be a
sovereign law-maker. This concept is derived from a legal theory articulated by an Oxford
law professor from the nineteenth century, A.V Dicey in the book, ‘An Introduction to the
Study of the Law of Constitution’.

5
https://www.studocu.com/ph/document/quaid-i-azam-university/equity/lecture-notes/lecture-notes-the-
supremacy-of-parliament/898821/view
The doctrine of parliamentary supremacy can be summarised in three points:

1. The Parliament can make laws concerning anything.

2. No Parliament can bind a future Parliament (it cannot pass a law that cannot be
reversed by a future Parliament)
3. A valid Act of Parliament cannot be questioned by the court.

Here we can see the application of the concept that the Parliament is the supreme lawmaker.
In layman’s (and somewhat cynical) terms: “England is not governed by logic, she is
governed by Parliament” and “Parliament can do anything except make a man a woman and a
woman a man”.

The above quotes illustrate the power bestowed upon the Parliament upon the state (or
sovereign state) and its omnipotence in its ability to make or unmake a law concerning
anything whatsoever. If two Acts of Parliament cover the same subject, the earlier Act will be
repealed by the later Act in what is known as ‘the doctrine of implied repeal’. On the fact that
the courts may not question an Act of Parliament, Art 9 of the Bill of Rights states that a Bill
is to be treated as an Act when it appears on the Parliamentary Roll.

To conclude

 A.V Dicey’s doctrine of Parliamentary Sovereignty, though still intact, pure and absolute in
terms of the Parliament’s legal sovereignty, is otherwise limited in terms of political
sovereignty. This, perhaps, is the reason that the traditional doctrine has been said to be ‘out
of place’ in the modern United Kingdom.

The Supremacy of the Parliament has some of the limitations which courts are not able to
transfer the responsibilities which considered to be upheld and analyse it. The Parliament
Sovereignty has many drawbacks and the confinements which are not be inalienable. Thus
the supremacy of the rule of law calls forth exertion of the Parliament Sovereignty and leads
to its being exercised in a spirit of legality.
QUESTION STATEMENT

2. While the system of presidential election in USA boasts itself of the exemplary inner
party democracy in the selection of presidential nominees, in reality, it’s a very complex
and confusing system. Often raising questions about the legitimacy of the system of
election, sometimes it has led to the intervention of American Supreme Court in deciding
the fate of the Presidential Candidates so much so that an Indian Journalist once
remarked, “Americans have had it enough. It’s high time they outsource their presidential
election to India and we can conduct a fair election and give them a perfect President
elect”. In the light of the above, critically examine the system Presidential Election in
USA.

Answer
Presidential Election

Every four years people in the US vote for who they want to be their president. The
president makes decisions about how the US is run and how it will work with other
countries. The person that is chosen is in charge of the world's biggest superpower. Some
people say that the American president is the most powerful person on Earth.
Traditionally, candidates make their intention to run for President Public in the year
before the election takes place. Since there is no national authority which conducts the
elections, local authorities organize the election with the help of thousands of
administrators. 

Article 2, Section 1 of The Constitution of the United States of America provides for the
executive power shall be vested in a President of the United States of America. He shall hold
his office during the term of four years, and, together with the Vice President, chosen for the
same term, is elected.
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of
electors, equal to the whole number of Senators and Representatives to which the State may
be entitled in the Congress: but no Senator or Representative, or person holding an office of
trust or profit under the United States, shall be appointed an elector.

The president and vice president of the United States are formally elected through an
electoral college. Members (“electors”) of this electoral college are chosen through the
popular vote in each state, and to be elected president a candidate must receive a majority of
the electoral votes. If no candidate receives a majority, the president is elected by the House
of Representatives, which may choose among the three candidates with the most electoral
votes.6

Presidential Election in USA (How is the president chosen?)

First, both of the main political parties - Republicans and Democrats - have to pick one
candidate each who they want to run for president. The parties choose their candidate by
holding primaries or caucuses in each American state, which are held between January until
about June.

Who can become the President of the United States of America

(qualifications)?

The U.S. Constitution’s Requirements for a Presidential Candidate are:

1. A natural-born citizen of the United States.

2. A resident of the United States for 14 years.

3. At least 35 years old.

6
https://www.britannica.com/topic/United-States-Presidential-Election-Results-1788863.
Note: A Natural Born Citizen is someone born with U.S. citizenship. This includes any child
born “in” the United States, the children of United States citizens born abroad, and those born
abroad of one citizen parent.7

The Election Process of the US President

The US President and Vice President are not elected directly by the people. Instead, they are
chosen by “electors” through a process called the “Electoral College”.

The election process of US President can be consolidated into five steps –

Step 1: Primaries and Caucuses,

Step 2: National Conventions,

Step 3: Election Campaigning,

Step 4: General Election,

Step 5: Electoral College.

Step 1: Primaries and Caucuses (Party level elections in States)

The election process starts with the primaries and caucuses in January or February of the
election year. Primaries are organized by state and local authorities using a secret ballot to
cast votes for hopeful presidential candidates from each of the major parties. Caucuses are
private events organized by political parties themselves. Here, voters decide publicly which
candidate they prefer. Afterwards, organizers count the votes and calculate how many
delegates each candidate receives.8

There may be many people who want to be the president of the United States of America.
Each of these people may have their own ideas about how the US government should work.
People with similar ideas usually align behind the same political party. But they need to win

7
According to Article 2 clause 5 of The Constitution Of The United States Of America.
8
https://www.polyas.com/election-glossary/presidential-election
the favour of their party members first. Candidates from each political party campaign
throughout the country to win the favour of their party members. Primaries and caucuses are
methods that political parties use to select candidates for a general election.

Primary: A primary is a state-level election where party members vote for the best candidate
that will represent them in the general election. Party candidates selected in a primary then
run against each other in a general election. U.S. states conduct primary elections.

There are several types of primaries in the U.S. system like closed primary, Semi-closed
primary, Open primary and Semi-open primary.

Caucus: A caucus is a local meeting where registered members of a political party in a city,
town or county gather to vote for their preferred party candidate and conduct other party
business. A caucus is a substitute for a primary election to select delegates to the national
party convention. 16 states hold caucuses to determine political party candidates.

The election process begins with primary elections and caucuses. These are two methods that
states use to select a potential presidential nominee tooltip. In general, primaries use secret
ballots for voting. Caucuses are local gatherings of voters who vote at the end of the meeting
for a particular candidate. Then it moves to nominating conventions, during which political
parties each select a nominee to unite behind. During a political party convention, each
presidential nominee also announces a vice presidential running mate. The candidates then
campaign across the country to explain their views and plans to voters. They may also
participate in debates with candidates from other parties.9

Step 2: National Conventions of Each Party

Once the primaries and caucuses are completed in each state, a national convention is held in
which a party’s nomination for president is formally announced to the public. During the
convention, the elected delegates cast their vote for a party candidate and the candidate with
the most delegates gets the party’s nomination. The end of the convention marks the
beginning of the general election process.

9
https://www.usa.gov/election
Each party holds a national convention to finalize the selection of one presidential
nominee. At each convention, the presidential candidate chooses a running-mate (vice-
presidential candidate).

Step 3: General Election Campaigning

After the nominee for each political party have been chosen, the presidential candidates go
head-to-head campaigning throughout the country. They go on rallies and take part in debates
to win the support of voters across the nation. Moreover, they explain their plans and views to
society.10

 General election campaigning begins after a single nominee is chosen from each political
party, via primaries, caucuses, and national conventions.
 These candidates travel the country, explaining their views and plans to the general
population and trying to win the support of potential voters. Rallies, debates, and
advertising are a big part of general election campaigning.

Step 4: General Election (Popular Vote)

 Many modern voters might be surprised to learn that when they step into a ballot box to
select their candidate for president, they actually are casting a vote for fellow Americans
called electors.
 People in every state across the country vote for one president and one vice president.
When people cast their vote, they are actually voting for a group of people known
as electors.
 The voters of each state, and the District of Columbia, vote for electors to be the
authorized constitutional members in a presidential election. These voters form
the Electoral College.
 An elector is a member of the electoral college. These electors, appointed by the states,
are pledged to support the presidential candidate the voters have supported.
 Even though the majority of people of the USA vote for a candidate that does not mean
that he/she will win the Presidential election. There are instances where a candidate who
won the popular vote lost the election.

10
https://www.polyas.com/election-glossary/presidential-election
 To win the election, a candidate needs to secure more than 270 electoral votes.

Step 5: Electoral College (Electors vote for the US President)

 Usually in December.
 The US the president is elected by the institution called the Electoral College.
 The Constitution only states that the candidate who receives a majority of votes in the
Electoral College becomes president. It says nothing about the popular vote.
 The intent of the framers was to filter public opinion through a body composed of wiser,
more experienced people; the framers did not want the president to be chosen directly by
the people.
 Each state gets a certain number of electors, based on each state’s total number of
representation in Congress.
 Each of the 50 US states and the capital Washington DC (a district which does not belong
to any state) have a set number of electors which reflects their size. California is the most
populated (over 38 million people) and has 55 electoral votes – more than any other. On
the other hand, a state such as Montana, which is geographically large but has a relatively
small population (just over one million people) – only has three electors.
 Aside from Maine and Nebraska, if a candidate gets the most votes within a state they
receive that state’s full quota of Electoral College votes.
 Each elector casts one electoral vote following the general election.
 There are a total of 538 electoral votes.
 The candidate that gets more than half (270) wins the election.

Electoral College

On Election Day, voters go to the polling place11 and cast their vote for their preferred
candidate. The voters elect their President and Vice President indirectly. Both are chosen by
electors through the Electoral College process. States are allocated electors based on the
number of seats they have in the House of Representatives and Senate. Washington D.C. gets

11
Location in which you caste your votes.
three electors but other US territories don't get any. In total there are 538 electors (435 House
of Representatives seats + 100 Senate seats + 3 for Washington D.C.).

After ballots have been cast, all votes go to a state-wide tally. Washington D.C. and 48 states
use the winner-takes-all procedure where the election winner receives all the electors in that
state. Maine and Nebraska are the exceptions because they have a proportional system. A
candidate has to "win" at least 270 electors in order to become President. Voting at the
Electoral College takes place in the weeks after Election Day the winner is usually
always announced on the night of the election. 

During the general election12, Americans go to their polling place to cast their vote for
president. But the tally of those votes—the popular vote—does not determine the winner.
Instead, presidential elections use the Electoral College. To win the election, a candidate
must receive a majority of electoral votes. In the event no candidate receives a majority,
the House of Representatives chooses the president and the Senate chooses the vice
president.

In other U.S. elections, candidates are elected directly by popular vote. But the president and
vice president are not elected directly by citizens. Instead, they’re chosen by “electors”
through a process called the Electoral College.

The process of using electors comes from the Constitution. It was a compromise between a
popular vote by citizens and a vote in Congress.     

Why does the U.S. have an Electoral College?

The short answer is the framers of the Constitution didn’t trust direct democracy and
provided an extra layer to ensure, as James Madison put it, that “factions” of citizens with a
common interest don’t harm the nation as a whole. However, the Electoral College has
become a mere formality.

The Constitution doesn’t require electors to vote according to the popular vote of the people
they represent. But it’s rare for an elector not to follow the people’s and their party’s
choice. Although the actual vote of the Electoral College takes place in each state between

12
A final election for a political office with a limited list of candidates.
mid-November and mid-December, in most cases, a projected winner can be announced on
election night.

Inauguration Day

Inauguration Day takes place on January 20 at the U.S. Capitol building in Washington D.C.
First, the Vice President is sworn in, followed by the President. Both officially become
President and Vice President after reciting the oath of office which has been used since the
late 18th century. 

The president-elect and vice president-elect take the oath of office and are inaugurated in
January. Once president has chosen, the rules state he can only be in the job for a maximum
of eight years.

What happens if no-one wins the Electoral College?

If no single candidate receives the majority of electoral votes, then the House of
Representatives will select the president from the top three candidates. The Senate will
choose the vice-president from the remaining two candidates. It's a rare situation, but it's
happened once before: John Quincy Adams won the White House this way in 1824.

What happens after a winner is announced?

There will be a brief transition period following the election, allowing a new president to
select cabinet members and make plans. In January, the new president (or returning
incumbent) is sworn in at an event called the inauguration. The 20th Amendment to the
Constitution - ratified in 1933 - mandates inauguration take place on 20 January. After a
ceremony at Congress, the president makes his way back to the White House in a parade to
begin their four year term.

To conclude
The system Presidential Election in USA is the most complex one and Presidential system in
U.S.A. is mainly based on the principle of separation of powers; The American President is
elected by members who are specifically elected to choose the President, whereas the Indian
President is elected by members of the national and state legislatures who are initially elected
as legislators and not to elect the President.