Introduction:
A nation’s constitution lays out its shared beliefs about justice, freedom, and how the country should be run. But an odd situation arises when the very people tasked with updating this Constitution use their authority to undermine its core principles. The idea of “unconstitutional constitutional amendments” addresses this problem directly.
It declares that even amendments to the Constitution must stay within certain limits, which are drawn from the foundational structure of the Constitution itself. This principle helps strike a balance: it allows constitutions to evolve with new realities while also safeguarding their most important values. It ensures that even as a constitution adapts, it never loses its fundamental democratic spirit.
- Underlying Principles:
To understand this concept, we must examine the core philosophical conflict between the supreme authority of the Constitution and the ultimate power of the people. While the Constitution gets its power and legitimacy from the citizens, it simultaneously sets important boundaries for what the government can do. The legislative body (like a parliament or congress), which was created by the Constitution itself, cannot therefore act as if it is more powerful than the document that gave it existence.
Legal thinker Hans Kelsen suggested a “pure theory of law,” explaining that every legal rule gets its validity from a rule above it. This chain of authority eventually leads to a single, fundamental, superior rule, which he called the “grundnorm” (Kelsen, 1967). This means that any power to change the Constitution must operate below and be limited by this foundational principle.
Similarly, Carl Schmitt distinguished between two types of power (Schmitt, 1928). He defined “constituent power” as the original, ultimate authority of the people to create a constitution in the first place. In contrast, “constituted power” is the more limited authority given to specific bodies (like the legislature) to make changes to that constitution. This distinction highlights that those making amendments are not meant to have the same absolute power as the original creators of the Constitution.
These deep-seated theories provide the solid reasoning for courts to examine whether proposed changes to the Constitution are valid. This legal check ensures that the people’s original, supreme power (constituent power) always remains stronger than the delegated, limited power used for making amendments (constituted power).
- The Worldwide Rise of Fixed Rules
3.1 The German Experience:
After World War II, Germany created a crucial protection in its 1949 Constitution (the Basic Law). This rule, Article 79(3), is often called the “eternity clause.”
This clause makes certain that the core parts of the system—basic human rights, the way power is divided, and the federal structure of the country—can never be changed.
This protection was added because of historical events. Adolf Hitler showed everyone how easy it was to use legal procedures under the previous government (the Weimar Republic) to completely destroy democracy from the inside.
By fixing these essential rules now, Germany made sure that future changes to the Constitution could not erase the heart of democracy and legal fairness.
3.2 Global Adoption:
Other nations quickly started using similar ideas, including Turkey, Colombia, South Africa, and several countries in Latin America.
For instance, in 2003, the Colombian Constitutional Court (in Decision C-551/03) cancelled amendments because they tried to change the fundamental substance of the Constitution.
Similarly, the Turkish Constitutional Court (in Anayasa Mahkemesi, 2008) rejected changes that would weaken secularism. This affirmed that the power to amend laws is not unlimited.
These cases show a growing global trend toward actively protecting the content of the constitution. They prove that for a constitution to last and remain strong, the ability to change it must have clear limits.
The Development of Constitutional Limits in India (The ‘Basic Structure’ Doctrine):
India’s extensive legal history provides one of the clearest examples globally of a doctrine—the “Basic Structure”—created through gradual and forceful judicial interpretations aimed at protecting the core identity of the Constitution.
4.1 Initial Period: Parliament Holds Full Power:
In the early years (1950s and early 1960s), the Supreme Court prioritized the authority of the legislature. In cases like Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), the Court affirmed that Parliament held complete, sweeping power under Article 368 to modify the Constitution. This meant that even amendments impacting Fundamental Rights were considered valid acts of legislative will.
4.2 Golaknath v. State of Punjab (1967):
The landmark Golaknath decision in 1967 marked a crucial turning point, reversing the earlier stance. The Court determined that Parliament did not possess the authority to amend Fundamental Rights. The judges reasoned that Article 368 only outlined the procedure for making changes, but did not grant actual, unlimited power to destroy the document’s core principles. This ruling safeguarded Fundamental Rights, viewing them as permanent and untouchable elements of the Constitution, thereby shifting the legal philosophy from parliamentary dominance to constitutional supremacy.
4.3 Kesavananda Bharati v. State of Kerala (1973):
The monumental Kesavananda Bharati case in 1973 was heard by the largest court bench in Indian history (13 judges). This decision successfully achieved a compromise between granting the government flexibility and ensuring the Constitution’s permanence.
By a narrow 7:6 majority, the Court held that while Parliament maintains broad amending powers, it is prohibited from altering or demolishing the basic structure or essential features of the document.
Chief Justice S.M. Sikri identified core components of this “basic structure,” including the supremacy of the Constitution, the democratic framework, secularism, the separation of powers, and federalism. Critically, Justice Khanna’s concurring opinion—which asserted that the amending power was inherently restricted—became the foundational principle of the entire doctrine.
This judgment fundamentally redefined India’s constitutional landscape, establishing the immutable rule that only the Constitution is supreme—no branch of the state can claim ultimate power.
4.4 Indira Nehru Gandhi v. Raj Narain (1975):
Following the declaration of the Emergency, the 39th Amendment was passed, attempting to shield the Prime Minister’s election from judicial review by the courts. The Supreme Court swiftly struck down this amendment. The ruling affirmed that judicial review (the power of the courts to examine laws) and the rule of law were inseparable parts of the constitution’s basic structure. This act preserved democratic accountability and confirmed that even amendments are subject to the courts’ inspection.
4.5 Minerva Mills v. Union of India (1980):
In the Minerva Mills case, the Court invalidated specific sections of the 42nd Amendment, which had attempted to grant Parliament unrestricted power to amend any part of the Constitution. The Court emphasized that the power to amend must itself be limited—this very limitation is a basic feature. Furthermore, the decision stressed the required balance between Fundamental Rights (individual liberties) and Directive Principles (state policy goals), reinforcing that the Constitution serves as a charter of values, not just a governmental instruction manual.
- The Basic Structure – Elements and Scope:
Although the Supreme Court has refrained from issuing an exhaustive list, judicial precedents have identified the following as part of the basic structure (De, 2018):
- Supremacy of the Constitution
- Rule of Law
- Separation of Powers
- Judicial Review
- Federalism
- Secularism
- Fundamental Rights
- Free and Fair Elections
- Parliamentary Democracy
- Independence of the Judiciary
- Unity and Integrity of the Nation
These principles together preserve the identity and continuity of the constitutional order.
- Why This Key Legal Concept Is Important:
6.1 Keeping the Constitution’s Core Identity Intact: This fundamental legal idea stops strong political groups from destroying the basic framework of the Constitution. It makes sure that the nation’s core values and how its government operates stay steady and connected through time.
6.2 Courts Checking Lawmakers’ Power: By allowing judges to review any changes to the Constitution, this principle creates a balance. It makes sure that even though lawmakers (like a parliament) have power, the Constitution itself is the highest law. This balance is crucial for a just legal system.
6.3 Protecting People’s Basic Rights: Fundamental Rights are not just temporary benefits; they are firm promises deeply embedded in the law. This principle guarantees that these rights cannot be weakened or removed, even when the Constitution is being reformed or updated.
6.4 Upholding the Spirit of the Constitution: Dr. B.R. Ambedkar stressed that a successful democracy depends on “constitutional morality.” This means respecting the underlying spirit and intentions of the Constitution, rather than just its written text. This doctrine helps to put that idea into action, ensuring that any legal changes still align with the Constitution’s core moral principles.
- Critique and Defense of the Doctrine:
Although this constitutional rule is highly regarded, it has drawn serious objections from scholars and experts.
- The Main Criticisms:
- Judicial Overreach (Judges Making Laws): Experts argue that the court system has taken on too much authority. Judges, who are not elected by the public, are acting like a “super-legislature” (a lawmaker above the main Parliament). This practice weakens democratic accountability—the idea that the government must answer to the people.
- Vague Definition (Lack of Clarity): A major problem is that there is no official, written list explaining exactly what the “basic features” are. This means that judges have a lot of freedom to decide for themselves, introducing confusion and personal opinion into the legal system.
- Blocking Needed Reforms: Some analysts suggest the rule ties the hands of the government (Parliament). They worry that it prevents lawmakers from carrying out important, positive changes for the socio-economic development of the nation.
- The Defense:
Despite these challenges, supporters of the rule strongly disagree with the criticisms.
They argue that in a nation deeply divided by politics and social differences, having the courts impose limits on power is absolutely necessary. They believe this judicial control is the only way to stop politicians from making extreme changes that would destroy the core of the Constitution itself leading to social anarchy.
- Global Impact – Protecting Core Principles:
The Unchangeable Core Principle (often called the Basic Structure Doctrine) originated with the Indian Supreme Court’s decisive ruling in Kesavananda Bharati v. State of Kerala (1973). This principle dictates that a constitution has fundamental elements that cannot be eliminated or damaged, even when the lawmaking body uses its power to amend the text. This crucial idea has spread, strengthening constitutional protections across the globe.
- India:
- Pioneering the Defense: In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court ruled that Parliament is limited; it can modify the Constitution, but it cannot remove its deepest foundations, which include democracy, the rule of law, and judicial review.
- Reaffirmation: Later judgments, such as Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills v. Union of India (1980), solidified these limits on the power to change the governing document.
- Bangladesh:
- Adopting the Model: Bangladesh followed India’s lead. In the 1989 case, Anwar Hossain Chowdhury v. Bangladesh, the court declared that no amendment could erase the Constitution’s essential character, such as judicial independence and democracy.
- Pakistan:
- Protecting Key Features: In Sindh High Court Bar Association v. Federation of Pakistan (2009), the Supreme Court affirmed that the legislature cannot modify the “salient features” of the founding document, specifically naming the separation of powers and the federal structure.
- Nepal:
- Striking Down Conflicts: The Supreme Court of Nepal, in Rajendra Prasad Dhakal v. Government of Nepal (2015), cancelled constitutional clauses that went against core national values, thereby protecting equality and democratic values.
- Germany:
- The Permanent Lock: Germany uses another method to achieve permanence. The German Basic Law (Article 79(3)) contains the “Eternity Clause,” a permanent lock that explicitly forbids the removal of rights concerning human dignity, the democratic state, and federalism.
- This specific clause influenced many other constitutional systems seeking similar safeguards.
- Colombia:
- Safeguarding Identity: The Constitutional Court of Colombia confirmed that constitutional amendments cannot abolish the fundamental spirit of the state, protecting the nation’s “constitutional identity.”
- Decision C-551/03 is an example where the court emphasized that democracy and human rights are unalterable.
- United States:
- Implicit Protection: While the U.S. does not have a formal “basic structure” rule, courts guard the Constitution’s core through judicial review.
- Marbury v. Madison (1803) established judicial review, ensuring that no law violates the Constitution.
- U.S. v. Carolene Products Co. (1938) (Footnote 4) stressed the need to specially protect fundamental rights and the democratic process.
- Many legal experts believe that the inherent framework of the U.S. Constitution—including federalism, judicial independence, and the separation of powers—forms an implicit unchangeable structure.
- United Kingdom:
- Unwritten Limits: Since the U.K. operates with an unwritten constitution, it relies on recognized foundational rules.
- In R (Jackson) v. Attorney General (2005), senior judges indicated that even the supreme authority of Parliament has limits if it attempts to destroy the rule of law or judicial independence. This position suggests that certain principles are beyond the reach of legislative change.
The widespread adoption of the Unchangeable Core Principle demonstrates its necessity for constitutional security. Whether through Germany’s explicit Eternity Clause or India’s innovative judicial interpretation, nations have accepted that no governing body can be permitted to erase the foundational identity of the Constitution.
This concept remains a critical global safeguard against constitutional misuse, ensuring that fundamental ideals of justice, liberty, and lawful governance endure for every citizen.
- Contemporary Relevance:
In today’s world, with populist leaders and strong executive power challenging the system of checks and balances, this legal principle is still very important. It helps stop important government bodies from being used for political purposes and makes sure that the Constitution is more important than temporary political goals. The Supreme Court, in a case called Justice K.S. Puttaswamy v. Union of India (2017), reinforced the idea that the Constitution is the highest law by declaring privacy a basic right, which is connected to this core legal idea. The Court stated that the main goals of the Constitution, like human dignity and freedom, can’t be ignored just because a majority in government wants to. As technology, how we govern, and politics change, this principle helps ensure that changes to the Constitution happen gradually and naturally, rather than through sudden, drastic shifts.
- Conclusion:
India’s legal framework has gifted the world a groundbreaking concept: the ability to declare even seemingly constitutional amendments as unconstitutional. This unique principle strikes a delicate balance, allowing the nation’s foundational document to evolve and improve while safeguarding its fundamental character and stability. By giving courts the authority to review such changes, it acts as a critical check against any attempt to abuse the power of amendment to dismantle the Constitution itself, aligning with Dr. B. R. Ambedkar’s belief that national objectives must always be pursued through constitutional avenues. In an era where democratic systems globally face immense pressure, this idea provides a powerful defense, reinforcing ethical governance, the integrity of state institutions, and the supreme authority of law. It powerfully underscores that the Constitution is far more than a mere legal text; it is the vibrant embodiment of the nation’s soul and its highest ideals.
