Between Flexibility and Rigidity: A Comparative Study of Constitutional Amendment Procedures

Introduction

A Constitution is the supreme legal and political document of a nation, establishing the framework of government, distributing power, and enshrining fundamental rights. However, for a constitution to endure and remain relevant across generations, it must possess a mechanism for change. This process of formal revision is known as a constitutional amendment. It represents the deliberate alteration of the fundamental law, distinct from ordinary legislation, which operates within the constitutional framework. Understanding the methods and limitations of constitutional amendments is critical, as it reveals a nation’s core philosophy on balancing stability with adaptability, sovereignty with rights, and popular will with institutional safeguards.[1]

This paper conducts a comparative analysis of the amendment procedures in five major democracies: India, the United States of America, the United Kingdom, Germany, and France. These nations represent a spectrum of constitutional traditions. India has a detailed, written constitution born from a post-colonial struggle. The U.S.A. possesses the world’s oldest surviving written constitution, notable for its brevity and rigidity.[2]

The U.K. stands as a unique example with an uncodified constitution based on statutes and conventions.[3] Germany’s Basic Law is a post-war document designed to prevent the recurrence of past atrocities, and France’s constitution establishes a hybrid semi-presidential system.[4] By examining their amendment processes and, crucially, the limitations thereon, this paper will illuminate how different democracies navigate the perpetual tension between constitutional permanence and evolutionary change.

Constitutional Framework Overview

The constitutional frameworks of the five countries under review establish the context for their amendment processes.

Method of Amendment in India

The process for amending the Indian Constitution is primarily detailed in Article 368. However, the Indian system is unique for its three-tiered procedure, which applies different levels of difficulty to different parts of the constitution.

Three Methods of Amendment

• Simple Majority: Applied to provisions not mentioned in Article 368, such as the admission of new states and the abolition of legislative councils. This follows the same process as ordinary legislation.
• Special Majority: Requires a majority of the total membership of each house and a majority of not less than two-thirds of the members present and voting. This covers most constitutional provisions, including Fundamental Rights and Directive Principles of State Policy.
• Special Majority plus State Ratification: Requires the special majority in Parliament plus ratification by the legislatures of not less than one-half of the states. This applies to matters affecting the federal structure, such as the representation of states in Parliament and the division of legislative powers.[10]

Judicial Limitation: The Basic Structure Doctrine

The most significant limitation on the amending power in India is not found in the text of the constitution but was established by the judiciary: the Basic Structure Doctrine. In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court held that while Parliament has the power to amend any part of the Constitution, it cannot alter its “basic structure.”[11]

This judicially created doctrine acts as a substantive limitation on the power of Parliament. The contours of the basic structure are not exhaustively defined but have been held to include principles such as sovereignty, the democratic and republican form of government, the secular character of the state, the separation of powers, federalism, and the rule of law.[12] This doctrine empowers the judiciary to strike down any constitutional amendment that violates these core principles, making the Indian amendment process de facto more rigid than its textual reading suggests.

Method of Amendment in the U.S.A.

The amendment process for the U.S. Constitution is outlined in Article V. It is famously difficult, reflecting the Framers’ intent to ensure that amendments were the product of sustained and broad consensus, not transient passions.[13]

Amendment Process

• Proposal Stage: Either by a two-thirds vote in both the House of Representatives and the Senate (used for all 27 amendments) or by a national convention called by Congress at the request of two-thirds of the state legislatures (never used).
• Ratification Stage: Either by the legislatures of three-fourths of the states (used for 26 amendments) or by ratifying conventions in three-fourths of the states (used only for the 21st Amendment).

This process ensures that a successful amendment requires agreement of a supermajority at both the national and sub-national levels.

Limitations on Amendment

• Explicit Limitation: Article V provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”—the only permanently unamendable provision.
• Practical Limitation: The supermajority requirements make passing amendments extremely difficult, resulting in a high degree of stability often criticized as rigidity.[14]
• Implicit Debate: Some scholars argue that “implicit” unamendable principles may exist, akin to India’s Basic Structure, though the U.S. Supreme Court has never formally adopted this view.[15]

Method of Amendment in the U.K.

The United Kingdom’s approach to constitutional amendment is fundamentally different from that of countries with written constitutions, due to the doctrine of Parliamentary Sovereignty. As articulated by A.V. Dicey, this principle holds that Parliament is the supreme legal authority and can make or unmake any law whatsoever. No Parliament can bind its successors, and no body, including the courts, can invalidate an Act of Parliament.[16]

Process of Constitutional Change

Consequently, there is no formal, entrenched amendment process. Constitutional change occurs through the same procedure as ordinary legislation:

• Passage by a simple majority in the House of Commons and the House of Lords.
• Followed by Royal Assent.

Major constitutional reforms—such as the Scotland Act 1998, Human Rights Act 1998, and European Union (Withdrawal) Act 2018—were all accomplished through Acts of Parliament. Changes also occur through the evolution of conventions—uncodified rules of constitutional behaviour.

Limitations on Amendment

The limitations in the U.K. system are primarily political, not legal. While a court cannot strike down a statute for being “unconstitutional,” political realities, public opinion, international obligations, and constitutional traditions act as powerful constraints on radical change.[17] The advent of devolution has also created a quasi-federal political reality, making the unilateral repeal of devolution settlements by Westminster politically, if not legally, very difficult.

Method of Amendment in Germany

The German Basic Law (Grundgesetz) provides a clear and rigid amendment process in Article 79. It reflects the lessons learned from the Weimar Republic’s instability and the Nazi era, aiming to create a “militant democracy” (wehrhafte Demokratie) that can defend itself.

A law amending the Basic Law must be passed by a two-thirds majority of the members of the Bundestag (the federal parliament) and a two-thirds majority of the votes of the Bundesrat (the federal council representing the states). This high threshold ensures that amendments have broad consensus across the political spectrum and between the federal and state levels of government.

The most profound feature of the German amendment process is the Eternity Clause (Ewigkeitsklausel) found in Article 79(3). This clause explicitly states that amendments affecting certain fundamental principles are inadmissible. It declares unamendable:

“The division of the Federation into Länder [states], their participation on principle in the legislative process, and the principles laid down in Articles 1 and 20.”

Article 1 guarantees human dignity and the inviolability of human rights. Article 20 establishes Germany as a democratic, social, and federal state, based on the rule of law, with all state authority emanating from the people. This is one of the world’s strongest textual limitations on constitutional amendment, legally entrenching the core identity of the German state beyond the reach of any parliamentary majority.

Method of Amendment in France

The procedure for amending the French Constitution of the Fifth Republic is detailed in Article 89. It offers two primary pathways, both initiated by the President, and incorporates a direct democratic element.

Procedure of Amendment

• The standard procedure begins with a bill that can be introduced by either the President (on the proposal of the Prime Minister) or members of Parliament.
• The bill must then be passed by both the National Assembly and the Senate in identical terms.
• After parliamentary approval, the amendment must be ratified through one of two methods:
  • By referendum, or
  • By a three-fifths majority vote of the Parliament convened in Congress (a joint session of both houses).

The referendum route gives a direct voice to the citizenry, while the Congressional vote relies on elected representatives.

Limitations on Amendment

A key limitation is found in Article 89(5), which states that “the republican form of government shall not be the object of any amendment.” Furthermore, the process itself contains political limitations. The choice of ratification method is a strategic decision for the President. If the government is confident of public support, it may opt for a referendum. If not, it will seek a supermajority in Congress, which requires building a broad coalition.

This was demonstrated in 2008 when President Sarkozy opted for the Congressional vote to pass a significant set of amendments.

Comparative Analysis of Limitations

A comparative analysis of the limitations on constitutional amendments across these five countries reveals a spectrum of rigidity and diverse philosophical approaches to protecting fundamental values.

The most striking contrast is between the U.K.’s political flexibility and Germany’s legal rigidity. The U.K. trusts the political process to guard against undesirable changes, whereas Germany, scarred by history, places its core principles entirely outside the political arena.

India and the U.S. occupy middle ground but in different ways. The U.S. relies on the extreme difficulty of its procedural hurdles, while India uses a judicially enforced substantive limitation (the Basic Structure Doctrine) to achieve a similar end. France’s system is a hybrid, with an explicit textual limitation (republicanism) and a dual-track ratification process that blends elite and popular approval.

A common theme is the protection of the foundational state structure—be it federalism (India, U.S., Germany) or the republican form (France)—and the commitment to democratic principles.

Conclusion

This comparative analysis demonstrates that the methods and limitations of constitutional amendment are not merely technical legal rules but are profound reflections of a nation’s history, political culture, and core values. India’s Basic Structure Doctrine showcases a powerful judiciary acting as the guardian of constitutional morality. The U.S. process, with its multiple supermajority requirements, embodies a deep-seated fear of concentrated power and a commitment to federalism. The U.K.’s reliance on Parliamentary Sovereignty underscores a tradition of political, rather than judicial, resolution of fundamental issues.

Germany’s Eternity Clause stands as the most robust example of constitutional self-defence, legally entrenching the lessons of a dark past. France’s process reflects a desire for strong leadership tempered by direct democracy. Ultimately, each system represents a different answer to the same fundamental question: how can a constitution be designed to evolve with the times while ensuring that its very soul remains inviolable?

The diversity of approaches examined here underscores that there is no single “correct” model, only different pathways in the perpetual endeavour to build a more perfect union.

References

• Albert, R. (2019). Constitutional Amendments: Making, Breaking, and Changing Constitutions. Oxford University Press. p. 3.
• Levinson, S. (Ed.). (1995). Responding to Imperfection: The Theory and Practice of Constitutional Amendment. Princeton University Press. p. 15.
• Tushnet, M. (2009). The Constitution of the United Kingdom: A Contextual Analysis. Hart Publishing. p. 25.
• Ginsburg, T., & Huq, A. Z. (Eds.). (2021). The Law and Politics of Constitutional Amendment. Oxford University Press. p. 45.
• Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
• U. S. Constitution art. V.
• Dicey, A. V. (1982). Introduction to the Study of the Law of the Constitution. Liberty Fund. (Original work published 1885). p. 39.
• Kommers, D. P., & Miller, R. A. (2012). The Constitutional Jurisprudence of the Federal Republic of Germany (3rd ed.). Duke University Press. p. 58.
• French Constitution, art. 89.
• Constitution of India, 1950. art. 368.
• Supra n. 5.
• Ibid.
• Supra n. 2, p. 27.
• Supra n. 1, p. 112.
• Supra n. 4, p. 201.
• Supra n. 7, p. 39.
• Supra n. 3, p. 40.
• Supra n. 8, p. 60.
• German Basic Law, art. 79(3).
• Supra n. 1, p. 145.
• Supra n. 8, p. 145.
• Supra n. 4, p. 178.