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FROM FLEXIBILITY TO ENTRENCHMENT: THE JOURNEY OF CONSTITUTIONAL AMENDMENTS IN INDIA BY:- ADV. SONALI B.KHEDKAR
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FROM FLEXIBILITY TO ENTRENCHMENT:
THE JOURNEY OF CONSTITUTIONAL AMENDMENTS IN INDIA
AUTHORED BY:- ADV. SONALI B.KHEDKAR
Student of LLM, Modern Law College,
Pune
ABSTRACT
Amendments to the Constitution
involve specific actions or measures that facilitate such modifications. These
actions typically involve the removal of existing provisions and the
introduction of new laws. These changes are vital for rejuvenating the text and
enhancing democracy. Over time, constitutions must evolve to address
inefficiencies, adapt to new circumstances or public demands, and reflect
contemporary views on rights. Although constitutions may naturally evolve
through new political standards or judicial interpretations, formal amendments
are necessary to alter the actual wording of the constitutional text.
Consequently, most modern constitutions have established guidelines for when
and how these formal amendments should occur. Generally, constitutions require
a more rigorous process for amendments than for ordinary legislation, such as a
legislative supermajority, direct public approval in a referendum, or a
combination of several stringent methods. In some cases, citizens themselves
can initiate a process leading to a referendum on constitutional change. The
process of amending a constitution raises complex legal issues regarding its
role in safeguarding constitutional democracy, and these issues vary based on
the interpretation of the constitution used.
The Amendability of the Constitution
The amendability of a constitution
distinguishes it as the foundational framework of a nation's governance,
separate from ordinary statutory laws. Embedded within the constitution itself,
the process for amendments serves to uphold the document's integrity and the
stability of the legal system, encapsulating the highest legal principles
governing the country.
Specialized Amendment Process
acknowledges the constitution's elevated status, requiring more rigorous
standards than ordinary laws. This involves obtaining higher thresholds of
approval, such as a two-thirds majority in legislative houses, and may include
steps like ratification by states or public referendums.
Constitutional Entrenchment protects
certain parts of the constitution from amendments without meeting stringent
criteria, safeguarding fundamental rights and the basic structure from
arbitrary changes that could destabilize the nation's legal and governmental
structure.
Specific Provisions in National
Constitutions, like Article V of the U.S. Constitution or Article 368of the
Indian Constitution, illustrate the deliberate complexity and rigor involved in
the amendment process, underscoring the constitution's durability and
steadfastness.
Exceptions to the Amendment Process
exist in some constitutional frameworks, where certain aspects may be amended
through less stringent processes, carefully outlined and subject to rigorous
scrutiny.[1]
In essence, the arduous and complex
process of amending a constitution ensures changes reflect broad consensus and
deep consideration, maintaining the constitution's role as the cornerstone of
national law and governance. This system reinforces the sanctity and stability
of the constitutional order, ensuring that fundamental changes are made
thoughtfully and responsibly, reflecting the collective will and long-term
interests of the nation.
CHINA
China's constitutional framework
stands as a departure from conventional norms, presenting distinctive features
that redefine the relationship between constitutional law and legislative
processes. Unlike in many countries where constitutions are upheld as the
paramount legal authority, subject to stringent amendment procedures, China's
approach diverges significantly.
Centralized within the National
People's Congress (NPC), China's highest legislative body, the power to amend
the constitution is seamlessly integrated with the ordinary legislative
functions. This integration implies that constitutional changes do not undergo
a more intricate or rigorous process compared to ordinary legislation.
Consequently, the absence of special procedures streamlines the amendment
process, potentially enhancing governance agility but also raising concerns
about the safeguarding of fundamental legal principles.
Unlike jurisdictions with explicit
procedures for constitutional amendments, China's constitution lacks such
distinctions, implying a more streamlined but potentially less fortified approach
to constitutional changes. This arrangement has profound implications for
governance and legal stability, as significant alterations to fundamental laws
can be made with relative ease.
Moreover, the absence of formalized
mechanisms for entrenching constitutional provisions further underscores
China's unique approach to governance. While practical or political constraints
may hinder certain amendments, there is no legal mandate necessitating more
rigorous criteria for altering foundational constitutional principles.
In essence, China's constitutional
framework reflects its distinctive political and legal culture, emphasizing
centralized power and party leadership over formal legal processes. This
approach, while fostering responsiveness in governance, also raises questions
about the durability and protection of fundamental legal structures in the face
of political shifts.
USA
Article V of the United States
Constitution stands as a cornerstone in maintaining the equilibrium of the
federal government, particularly concerning the representation of states in the
Senate. It upholds the principle of equal state representation in the Senate,
ensuring that each state, regardless of size or population, holds an equal
voice in the national legislature.[2]
Contextually, the United States
Senate comprises two senators from each state, a result of the Great Compromise
during the Constitutional Convention of 1787. Article V solidifies this
arrangement by stipulating that no state shall lose its equal suffrage in the Senate
without its consent, thus safeguarding state sovereignty and protecting smaller
states from potential domination by larger ones.[3]
The implication of this clause is
significant, as it effectively renders this aspect of the Constitution
unamendable under normal circumstances. Since any change would require the
consent of the affected state, which is highly improbable, this provision
remains a permanent feature of the legislative structure.While the Constitution
generally allows for amendments through a defined process, the provision
regarding state equality in the Senate adds an extra layer of complexity. This
underscores the commitment to federalism, ensuring that federal legislative
power is balanced and that the interests of states as sovereign entities are
preserved.
In essence, Article V's provision
regarding state representation in the Senate underscores the foundational
principles of American governance, highlighting the delicate balance between
state and federal powers and the lengths to which the Constitution goes to
protect these dynamics.
FRANCE
Article 89 of the French Constitution
governs the process of constitutional amendments and includes specific
provisions aimed at protecting the fundamental characteristics of the French
state. This article is crucial in ensuring that certain essential attributes of
the nation—its territorial integrity and its republican form of government—are
preserved from alteration through constitutional amendments.
Protection of Core State
Characteristics: Under Article 89, any constitutional amendment that could
potentially damage the territorial integrity of France is strictly prohibited.
This means that any changes that might lead to the loss of French territories
or alterations in its current borders are not permissible under this article.
This safeguard is designed to maintain the nation’s complete and indivisible
territory.[4]
Similarly, Article 89 also protects
the republican form of government, which is the foundation of France’s
political system. The term "republican" in this context refers to a
system characterized by the absence of a monarchy and a government that is
elected by the people. The article ensures that no amendment can transform
France from a republic to any other form of governance, such as a monarchy or
dictatorship.
Amendment Process: The amendment
process detailed in Article 89 is deliberately rigorous, requiring multiple
steps:
Proposal Stage: An amendment can be
proposed by the President of the Republic on the recommendation of the Prime
Minister or by members of Parliament.
Approval Stage: Once proposed, the
amendment must be approved by both houses of Parliament — the National Assembly
and the Senate. Each must pass the proposed amendment in identical terms.
Ratification Stage: Following parliamentary
approval, the amendment must either be ratified through a referendum or by a
three-fifths majority vote of the Congress, a joint session of both
Parliamentary houses convened at the Palace of Versailles.
Significance and Implications: This
stringent process and the specific prohibitions within Article 89 reflect the
dedication to maintaining the foundational principles of the French state. By
making it difficult to alter critical aspects of the state's structure and
government, Article 89 provides a stable political and legal environment, which
is essential for the functioning of democracy.
Historical and Contemporary
Relevance: Historically, the inclusion of these prohibitions in the French
Constitution is rooted in France’s turbulent history with various forms of
governance, including periods of monarchy, empire, and republic. The current
constitutional framework is designed to avoid the instabilities of the past by
solidifying the republican form of governance and ensuring the territorial
integrity of France.
In contemporary terms, this article
acts as a safeguard against fleeting political trends or populist movements
that might seek to alter these fundamental aspects of the French state. It
ensures that any change to critical state characteristics must undergo a
thorough scrutiny and broad consensus, thereby reinforcing the resilience of
the French constitutional structure.
WEST GERMANY
Article 79(3) of the German
Constitution, known as the Basic Law, embodies a crucial safeguard termed the
"eternity clause," which preserves the foundational structure and
core principles of the German state. This clause ensures that specific essential
aspects of the constitution remain inviolable and unchanged, irrespective of
legal or political developments. [5]
The scope of the eternity clause
encompasses several key provisions:
1.
Division
of the Federation into States: This safeguards the federal structure of
Germany, maintaining the political and territorial integrity of the states
within the federal system.
2.
Participation
of the States in Legislation: It ensures that the states retain significant
roles in federal legislation, crucial for cooperative federalism.
3.
Basic
Principles Laid Down in Articles 1-20: These include fundamental rights and
democratic principles, securing the core values of modern German democracy.
Implications of the eternity clause
include:
Stability and Continuity: It
contributes to the stability of the German constitutional order by ensuring
that any changes respect entrenched principles.
Protection Against Authoritarianism:
By preventing legal amendments that undermine democracy or the rule of law, it
acts as a bulwark against authoritarian tendencies.
The amendment process outside the
eternity clause entails a two-thirds majority in both the Bundestag and the
Bundesrat, ensuring broad consensus across the political spectrum.
The inclusion of the eternity clause
in the German Basic Law is rooted in historical context, particularly the
experiences of the Weimar Republic and the Third Reich. It serves as a
preventive measure against totalitarianism, reflecting a commitment to
democracy and human dignity.
In contrast, India utilizes the Basic
Structure Doctrine, a judicially developed concept that protects inherent
features of the constitution, like secularism and fundamental rights. This
doctrine introduces a dynamic element of judicial review, ensuring that
constitutional amendments comply with the fundamental ethos of the
constitution.[6]
Both approaches face challenges and
criticisms; while the German model may restrict necessary evolutionary changes,
the Indian approach can lead to uncertainties and debates over the scope of the
basic structure.
In essence, the eternity clause in
the German Constitution and the Basic Structure Doctrine in India exemplify
distinct mechanisms for safeguarding fundamental principles within [7]constitutional
frameworks, reflecting each nation's unique historical context and approach to
governance.
CANADA
Article 91(1) of the Canadian
Constitution, established in 1949, stands as a pivotal component in delineating
the boundaries of legislative authority between the federal Parliament and
provincial governments, crucial for upholding Canada's federal structure.
Key aspects of Article 91(1) include
its division of powers, where it delineates areas exclusively under federal
control while also limiting the federal government's ability to amend the
Constitution regarding matters within provincial jurisdiction. This provision
safeguards provincial autonomy by requiring a different process for amendments
involving matters reserved for provincial governance, thus fostering a balance
of power between federal and provincial authorities.
The significance of Article 91(1)
lies in its foundational role in Canadian federalism, preventing federal
overreach into provincial jurisdictions vital for regional administration and
responsiveness to local needs. Moreover, it dictates the complex constitutional
amendment procedures in Canada, emphasizing broader consensus-building
mechanisms like the "7/50 formula" to ensure provincial input and
consent.
This provision also promotes
intergovernmental relations, necessitating a cooperative approach to
constitutional changes involving jurisdictional powers. By fostering
negotiation and consensus-building between federal and provincial governments,
Article 91(1) maintains harmony within the federal system.[8]
In a broader context, Article 91(1)
reflects Canada's evolving respect for provincial rights within its federal
structure, adapting to societal changes while protecting diverse provincial
interests. By upholding the delicate balance of power, this constitutional
safeguard promotes stability and cooperation across different levels of
government, ensuring that the federal government respects provincial
authorities and engages in collaborative governance processes for any
constitutional amendments.
SPECIAL PROCEDURE BUT NO ENTRENCHMENT :INDIA
The evolution of constitutional
amendment processes and the interpretation of fundamental rights in India
provide a rich case study in constitutional law, particularly illustrating the
dynamic between judicial interpretation and legislative actions. Here’s an
elaboration on how these developments unfolded, showcasing the complexities and
nuances of constitutional amendments in India.
1. Initial Understanding and Judicial
Interpretation
Initially, the Constitution of India
did not explicitly protect any part of it from amendments. As long as the
amendment followed the special procedure outlined in Article 368, it was
considered valid. This understanding was unanimously supported by the Supreme
Court as early as 1951[9].
Under this interpretation, the entire constitution, including the provisions
related to fundamental rights, was amendable
2. Shift in Judicial Perspective:
Golak Nath Case (1967)
The Golak Nath case marked a
significant turning point. In this case, the Supreme Court declared that an
amendment to the Constitution was still a "law" under the meaning of
Article 13(2), which states that the state shall not make any law which takes
away or abridges the rights conferred by Part III (the Fundamental Rights) and
any law made in contravention of this clause shall be void. Based on this
interpretation, the Supreme Court held that a constitutional amendment that
sought to alter or remove any fundamental rights would be void. This
effectively rendered Part III of the Constitution unamendable, despite no such
express reservation in Article 368 itself.
3. Reversal and Establishment of the
Basic Structure Doctrine: Kesavananda Bharati Case (1973)
The Supreme Court revisited and
overturned the Golak Nath decision in the landmark Kesavananda Bharati case.
This decision was pivotal in defining the scope of Parliament’s power to amend
the Constitution. The court held that Article 13(2) referred to ordinary laws
made by Parliament and not to constitutional amendments enacted under
Parliament's constituent power. Thus, the court concluded that constitutional
amendments were not laws under Article 13(2) and could, therefore, modify or
abrogate fundamental rights.
However, the Kesavananda Bharati[10]
case went further to establish the "Basic Structure Doctrine." This
doctrine posits that while the Constitution could be amended, certain
foundational features or the 'basic structure' of the Constitution could not be
destroyed or altered by amendments. These foundational features include the
supremacy of the Constitution, the democratic republican form of government,
the separation of powers, and the secular and federal character of the state.
4. Legislative Response: 24th
Amendment Act (1971)In response to the Golak Nath decision, Parliament passed
the 24th Amendment Act in 1971, which amended Article 13 and Article 368. This
amendment explicitly excluded constitutional amendments from being considered
as "laws" under Article 13(2) and clarified the amending power under
Article 368, ensuring that amendments to the Constitution, including those
affecting fundamental rights, could not be challenged as infringing the rights
protected by Part III of the Constitution.
DOCTRINE OF BASIC FEATURES
Despite the Full Bench in the
Kesavananda case allowing the amendment of Fundamental Rights under the power
of Article 368, it also introduced a broad and somewhat nebulous sphere of
entrenchment through judicial interpretation by formulating the doctrine of
'basic features.' This doctrine posits that there are implicit limitations to
the amending power conferred by Article 368, which doesn't expressly protect
any part of the Constitution. While the method of 'necessary implication' is a
legitimate way to interpret the text of a constitution, as with any ordinary
statute, the idea of 'implied limitations' has not been widely accepted in
judicial opinions both globally and in India. However, proponents of the 'basic
features' doctrine in the Kesavananda case relied on this concept to establish
this new doctrine. The questionable nature of this stance was notably
articulated by Chief Justice Beg in the Karnataka case, where he observed:
"We cannot overlook that in Kesavananda
Bharati's [11]case the
very majority of nine learned judges of this Court, which rejected the theory
of 'implied limitations' on express plenary legislative powers of
constitutional amendment, accepted, we say so with the utmost respect,
limitations which appeared not easily distinguishable from implied limitations
on plenary legislative powers, even though they were classified as parts of the
'basic structure of the Constitution'."
Regarding the interpretation of the
term 'amend' in Article 368, the majority in Kesavananda recognized that while
'amend' could imply various degrees of change, it does not extend to a total
'repeal' or complete revision of the Constitution. An 'amendment' implies that
despite any changes, the identity of the original Constitution must remain
intact, meaning the 'basic structure' or essential framework of the
Constitution cannot be altered through the amending power. This interpretation
was necessitated partly due to the realization of the inadequacy of 'implied
limitations.' The interpretation of 'amend' has varied, as seen in some state
constitutions in the USA, where the term has been broadly interpreted by
American courts. However, the 24th Amendment Act of 1971 clarified that 'amend'
includes the power to 'repeal' provisions within the Constitution, reinforcing
the breadth of Parliament's amending power but also specifying that this does
not extend to altering the Constitution’s core essence.
The doctrinal shift seen in
Kesavananda and subsequent interpretations emphasize the complex interplay
between constitutional text, judicial interpretation, and legislative
amendment, reflecting the dynamic nature of constitutional law in maintaining
the balance between flexibility and the preservation of foundational
principles.
Justice Mathew acknowledged that even
if we accept the proposition that amendments can fundamentally alter the
Constitution, it does not necessarily mean that the 'basic features' of the
existing Constitution cannot be amended under Article 368:[12]
"An amendment that introduces a
significant shift, such as replacing a parliamentary system with a presidential
system of government or a republic with a monarchy, does not equate to an
abrogation or repeal of the Constitution. No matter how substantial the change,
there must still be a framework through which the state is constituted and
organized".
Following Justice Mathew's reasoning,
it could logically be argued that under the powers granted by Article 368, it
is possible to repeal all provisions of the Constitution, except for one,
leaving no basis for assuming the immutability of any so-called 'basic
features' in the face of amendment.
The weakest argument put forth in
support of the doctrine of basic features, as observed with due respect, is the
analogy drawn from civil procedure law concerning the amendment of pleadings.
This analogy was initially suggested in Kesavananda[13],
yet Justice Khanna firmly rejected it:
"A Constitution cannot be
treated merely as a legal document, akin to a plaint or a written
statement."
Justice Khanna's perspective was
later endorsed by Chief Justice Beg in the Karnataka case, where he provided
reasons for this view. Regrettably, despite these insights from two larger
Benches, Chief Justice Chandrachud, in Waman's case, noted:
"The extent to which an
amendment of a pleading is permissible depends on its consistency with the
original: one cannot amend it to the extent of transforming the original into
its opposite. For this reason, comparisons between the original and the amended
versions are made. Such comparisons, although challenging, can be meaningful
even in the complex arena of constitutional law. What were the fundamental
assumptions of the Indian Constitution at its inception? And does the...
Amendment violate these foundational assumptions?"
As previously mentioned, the term
'amend' carries different implications depending on the document in question.
For instance, a plaint is a pleading in a dispute between parties, where the
defendant must respond to the claims made by the plaintiff. Consequently, the
principles of civil procedure stipulate that a plaintiff should not be allowed
to amend their pleading in a way that introduces conflicting claims or
surprises the defendant.
ANALOGY OF AMENDMENT OF PLEADING NOT APPLICABLE
With respect, one of the weaker
arguments put forward to support the doctrine of basic features is the analogy
to amending legal pleadings, borrowed from civil procedure law. This analogy,
first suggested in the Kesavananda case, was strongly rejected by Justice
Khanna who stated:
"A Constitution cannot be seen
as just another legal document like a plaint or written statement."
This perspective was supported by
Chief Justice Beg in the Karnataka case, providing further reasoning. Despite
these earlier opinions, Chief Justice Chandrachud in Waman's case observed:
"The extent to which a pleading
may be amended depends on its consistency with the original; you cannot amend
it to become the opposite of what it was. Comparing the original with the
amendment can be useful, even in the complex area of constitutional law. What
were the fundamental principles of the Indian Constitution at its inception? And
does the amendment violate these principles?"[14]
As I have mentioned before, the term
'amend' varies in meaning depending on the document. In a court case, a plaint
outlines the plaintiff's arguments, and the defendant must respond accordingly.
Civil procedure rules generally prohibit plaintiffs from amending their
pleading in a way that introduces conflicting arguments or surprises the
defendant at a late stage. Such a scenario does not apply to a Constitution,
which is a framework for governing a country and should be interpreted
liberally unless explicitly made unamendable by its framers.
This very nature of a Constitution
also makes the analogy of the scope of 'amendment' in relation to ordinary
statutes inappropriate. For ordinary statutes, 'amend' and 'repeal' signify
different actions with different outcomes. While repeal means completely
removing a statute as if it never existed, amendment involves modifying a part
of the statute—sometimes removing parts and possibly adding new ones—to better
achieve its original intent or a new purpose.
"A statute is amended when it is
partially or wholly retained, and something is added to or removed from it, or
it is altered in some way to enhance its completeness or effectiveness in
achieving its intended or a new purpose."[15]
In contrast:
"The effect of repealing a
statute is to erase it entirely from the records of Parliament as though it had
never been passed, except for dealing with actions that were initiated and
completed under its jurisdiction while it was still in force."
Thus, when the term 'amend' is used
concerning an ordinary statute, it implies that some part of that statute
remains post-amendment.
Indeed, some constitutions
differentiate between 'amendment' and 'revision' for various types of changes,
establishing different procedures for each.
Switzerland : A notable example is
the Constitution of Switzerland, which has distinct processes for partial
amendments and total revisions. Articles 119-120 outline the procedure for a
'total revision' of the Constitution, while Article 121 addresses the process
for a 'partial revision' or amendment.
Some American State Constitution :
Therefore, if the amendment process outlined in Article 121 is utilized, it
does not permit a total revision or repeal of the Constitution. This approach
is mirrored in some U.S. state constitutions, which also delineate two distinct
procedures for 'amendment' and 'revision,'
West Germany :The Constitution of
West Germany similarly achieves this distinction between amendment types, albeit
indirectly. Article 79 allows for the amendment of constitutional provisions,
except for certain protected or entrenched sections. However, Article 146
states, "This Basic Law shall cease to be in force on the day on which a
Constitution adopted by a free decision of the German people comes into
force."
This means that if the entire
existing Constitution from 1949 is to be repealed or replaced, it must be done
through a plebiscite involving the German people. Meanwhile, the process for
partial amendments is managed by the Federal Legislature, which requires a
two-thirds majority in each house.
U.S.A.,Japan ,France :
Most constitutions, including those
of the USA, Japan, and France, typically adopt a model similar to the U.S.
Constitution, which allows for the 'amendment' of the Constitution as outlined
in Article V, without providing any means for its repeal or complete revision.
Similarly, Article 96 of Japan's 1946 Constitution and Article 89 of the Fifth
French Republic's Constitution of 1958 follow this pattern. Section 128 of the
Australian Constitution Act of 1900 uses the term 'alteration' of the
Constitution, a broad term that encompasses any type of change, except for
those provisions that are specifically protected or entrenched.
India
The doctrine of basic features and
the concept of amending the constitution have spurred considerable legal debate
in India, especially post the landmark Kesavananda Bharati case. Here's a
simplified rephrasing of the intricate discussion on these topics:
India's Constitution allows for
amendments through Article 368, which permits changes by way of variation,
addition, or repeal. Initially, Article 368 didn’t include specific clauses
addressing the scope of amendments, but this was changed with the Constitution
(24th Amendment) Act, 1971.
Considering various constitutional
frameworks, like those of the USA where no clear distinction is made between
'amendment' and 'total revision', the Indian Supreme Court has had to determine
what 'amend' truly encompasses when no provisions for a complete revision
exist. In Kesavananda, some justices looked to U.S. state court decisions for
guidance, where interpretations varied significantly based on whether state
constitutions allowed separate procedures for 'amendment' versus 'revision'.[16]
Some state constitutions in the USA
permit distinct processes for 'revision', which often involves comprehensive
changes akin to introducing a new constitution. This is generally reserved for
a special body directly elected by the people, reflecting the view that
replacing a constitution is a significant action that shouldn't be handled by
the usual legislative process.
On the flip side, in systems without
specific 'revision' provisions, like the national U.S. Constitution,
'amendment' can encompass any change, including fundamental alterations. This
broad interpretation has also been upheld by the U.S. Supreme Court, which has
resisted placing limitations on amendments, irrespective of the nature of the
changes proposed.
In India, this discussion has evolved
into the 'basic features' doctrine established by the Kesavananda case, which
suggests that while the constitution can be amended, such amendments shouldn't
alter the core principles or 'basic structure' of the document. This theory has
since been both refined and expanded in various rulings, making the scope of
what constitutes a 'basic feature' somewhat fluid and subject to judicial
interpretation.[17]
Moreover, the Indian judiciary has
taken a stance that while fundamental rights can be amended, such changes
shouldn't eradicate essential elements of these rights. This nuanced approach
suggests a balance between allowing constitutional evolution and preserving its
foundational principles. However, the lack of a clear, definitive list of what
constitutes these 'basic features' leaves much to judicial discretion, adding a
layer of unpredictability to constitutional amendments.
As the doctrine of basic features
continues to evolve, it poses both challenges and opportunities for
interpreting the flexibility and rigidity of the Indian Constitution. This
complexity underscores the ongoing dialogue between legal theory and practical
governance in maintaining the relevance and sanctity of the constitution in
changing times.
CONCLUSION
The discussion surrounding the
amendment of constitutions, particularly in the context of India, underscores
the delicate balance between constitutional flexibility and stability. The
evolution of India's doctrine of basic features, as established in the
Kesavananda Bharati case, illustrates a significant jurisprudential shift
towards protecting the core principles of the Constitution while still allowing
for necessary adaptations.
The Indian Supreme Court's nuanced
approach—distinguishing between amendments that alter the constitutional
structure and those that preserve the 'basic structure'—has created a unique
safeguard against the erosion of fundamental constitutional principles. This
has been achieved by establishing that while amendments are permissible, they
should not destroy the constitution's identity or its essential features, which
include the supremacy of the constitution, the rule of law, and fundamental
rights among others.
However, the application of the basic
features doctrine has also introduced complexities into the legal process. The
lack of a clear and definitive list of what constitutes these 'basic features'
leaves much to judicial discretion, which can lead to unpredictability in
constitutional amendments. This ambiguity requires the judiciary to continuously
interpret and define the scope of these features, making constitutional law a
dynamic and ever-evolving field.
In conclusion, the development of the
basic features doctrine in India serves as a critical tool for maintaining the
integrity of the constitution against potential misuse of the amending powers.
It ensures that while the constitution remains a living document, adaptable to
the needs of changing times, it does not compromise on the fundamental
principles that form the foundation of the nation's democratic ethos. This
balance is crucial for the ongoing development of constitutional governance and
legal jurisprudence in India, ensuring that amendments enhance rather than
undermine the document that lies at the heart of the world's largest democracy.
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1967 SC 1643
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Federal Republic of Germany[18]
[1] Dr.Durga Das Basu’s Comparative
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ed.2014)
[2] Navisha
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[3] Ullman v. United States, 350 U.S.
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Article Information
FROM FLEXIBILITY TO ENTRENCHMENT: THE JOURNEY OF CONSTITUTIONAL AMENDMENTS IN INDIA BY:- ADV. SONALI B.KHEDKAR
Authors: ADV. SONALI B.KHEDKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/27
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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