Informal Unamendability
In contrast to the codification of a formally unamendable rule, informal substantive unamendability results from an authoritative judicial interpretation by the national court of last resort.
Where the power to invalidate a constitutional amendment rests with a court, the act of reversing a popular or legislative judgment to amend the constitution raises a foundational question: on what democratic basis may a court rule that a duly passed constitutional amendment is unconstitutional?[66] The Supreme Court of India wrestled with this question in a series of important judgments from 1967 to 1981. Faced with the threat of the legislature abusing its textually unlimited power of formal amendment, the Court was compelled to consider whether the amendment power was indeed unlimited. The Court ultimately ruled that the amendment power was limited. The Court in turn created the “basic structure doctrine” to invalidate amendments that, in its view, are not consistent with the Constitution’s framework. At the time and with a handful of exceptions, the Indian Constitution authorized the national legislature to pass amendments with a bare majority vote in each house, provided two-thirds of all members are pre- sent.[67] By comparison of other constitutional democracies, this is a relatively low threshold for constitutional amendments.[68] And since the Indian Constitution did not then, nor does it today, formally entrench anything against amendment, all constitutional provisions are susceptible to legislative change, often by simple legislative vote. This constitutional design raises the risk that political actors will treat the Constitution like a statute, making it just as easily amendable.[69]The Court’s first major pronouncement on the national legislature’s implicitly limited powers of formal amendment was in fact a reversal of its prior holding nearly 20 years before that the amendment power was unlimited.[70] The Court laid the foundation for invalidating a constitutional amendment at some point in the future, holding that the amendment power could not be used to abolish or violate fundamental constitutional rights.[71] Surely sensing, however, that actually invalidating a constitutional amendment could be too bold a move too soon, the Court held that the rule applied only prospectively, not retrospectively, and that only henceforth would the national legislature’s textually plenary but now actually limited power of amendment be subject to judicial review.
This case was a prelude to unveiling the basic structure doctrine.In Kesavananda Bharati Sripadagalvaru v. Kerala, the Court held that the amendment power could be used only as long as it did not do violence to the Constitution’s basic structure.[72] The concept of the basic structure was said to include the supremacy of the constitution, the republican and democratic forms of government, the secular character of the state, and the separation of powers and federalism.[73] In asserting these elements of the basic structure doctrine, the Chief Justice wrote that “every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.”[74] It is important to stress here that the Constitution’s text itself did not then, nor does it now, identify expressly what is “basic,” as in foundational, to its own structure.[75] That judgment of constitutional priority finds its origin in judicial interpretation, not in popular consent-driven constitutional design.
Some years later in Minerva Mills Ltd. v. Union of India, the Court invoked the basic structure doctrine to invalidate amendments to India’s formal amendment rules.[76] The amendments had proposed to limit the Court’s power to review constitutional amendments. The amendments declared that “no amendment of this Constitution.. shall be called in question in any court on any ground”[77] and that “for the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”[78] These amendments were a direct response to the Court’s assertion of supremacy and just the latest move in the battle for constitutional primacy between the national legislature and the Court.
The question for the Court was not whether the legislature’s amendment power was subject to implicit limits. That question had been resolved in Kesavananda. The question was instead whether the legislature could overrule the Court using its amendment power. The Chief Justice began from the proposition that although “Parliament is given the power to amend the Constitution,” it is clear for the Court that this “power cannot be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure.”[79] This cornerstone of the basic structure doctrine—that the amendment power is constrained by implication of its limited nature even where the constitutional text does not entrench any limitation on its use—has since migrated beyond India to many other countries since its articulation around half a century ago.[80]
6