We adopted parliamentary democracy based on the British model, but how does our model differ from that model? [2021]

We adopted parliamentary democracy based on the British model, but how does our model differ from that model?

As regards legislation, the British Parliament is supreme or sovereign but in India, the power of the Parliament to legislate is limited.
In India, matters related to the constitutionality of the Amendment of an Act of Parliament are referred to the Constitution Bench by the Supreme Court.

Parliamentary sovereignty is a core principle of the UK constitutional system, under which the Parliament of the United Kingdom is the supreme legal authority. It can make or repeal any law, its enactments cannot ordinarily be overridden by courts, and no Parliament can bind future Parliaments. This makes parliamentary sovereignty the central feature of the UK’s unwritten constitution.
In contrast, India does not recognise absolute sovereignty in any institution. The Parliament of India operates within the framework of a written Constitution, which limits its powers. Its authority is constrained by the federal division of powers between the Union and the States, as well as by enforceable Fundamental Rights. Moreover, in the landmark Kesavananda Bharati v. State of Kerala, the Supreme Court of India held that while Parliament can amend the Constitution, it cannot alter or destroy its basic structure.

In India, questions regarding the constitutionality of amendments to Acts of Parliament are referred by the Supreme Court to a Constitution Bench. As per legal provisions, a Constitution Bench comprises at least five judges, and may be expanded to larger odd-numbered benches such as seven, nine, and so on. Article 145(3) mandates that a minimum of five judges must hear cases involving a “substantial question of law” related to the interpretation of the Constitution, as well as any reference made under Article 143, which empowers the President to seek the Supreme Court’s opinion.

Other scenarios in which a Constitution Bench can be constituted are:
- If two or three-judge Benches of the Supreme Court have delivered conflicting judgments on the same point of law.
- If a later three-judge Bench of the SC doubts the correctness of a judgment delivered by a former Bench with as much strength and decides to refer the matter to a larger bench for reconsideration of the previous judgment.
The judiciary hasn’t determined so far what constitute “substantial questions of law” that “involve Constitutional interpretation”. A larger Bench can, however, overrule the pronouncement of a five-judge Constitution Bench. But before that, a five-judge Bench must be convinced that the previous order was incorrect, following which it may refer the matter to a larger Bench of seven judges. Constitution Benches are not a routine affair in the SC as most of the cases are listed before a two or three-judge Bench, called a Division Bench.

The Chief Justice of India, who is also the master of the roster, decides which cases will be heard by a Constitution Bench, the number of judges on the bench and even its composition. While there are no clear guidelines, the CJI has sole discretion. It is not binding on the CJI to be a part of a Constitution Bench. Cases which deal with important constitutional matters or are likely to have a significant impact are usually heard by larger benches. However, there have been instances when smaller benches of two or three judges have been assigned crucial issues with wide impact. For instance, in 2013 a two-judge bench reversed the Delhi HC judgement in Suresh Kumar Koushal vs. Naz Foundation decriminalizing homosexuality, stating that this could only be done by the Parliament. A few years later, a five-judge bench unanimously struck down Section 377.
To date, the largest-ever Constitution Bench was that of 13 judges in the case Kesavananda Bharati v. State of Kerala, headed by the then CJI S. M. Sikri. A ground-breaking judgment was delivered as the SC, by a thin majority of 7:6, holding that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.”