Category: Constitutional Law

Co-operative Federalism: An Indian Perspective

Posted in Constitutional LawTagged , Leave a comment

What is Co-operative federalism?

Co-operative federalism, in general terms, is a concept wherein the federal government, state government, and local government interact co-operatively and share their responsibilities in the governance. Corwin defines co-operative federalism thus: “The States and National Governments are regarded as mutually complementary parts of a single governmental mechanism all the whose powers are intended to realise the current purposes of government according to their applicability to the problems in hand.”[1]

This concept of federalism has helped in the promotion of federal system, with its divided jurisdiction, to act in unison. This concept puts in a view that the national government and the state governments are partners in their governance. It is also considered as a new form of federalism. This new concept is influenced by the factors which are given as follows:

  • The emergence of the concept of welfare state, which is strongly based on the public opinion, has made the local units more dependent on the national governments for adequate resources.
  • National decisions take precedence over the points of Centre-State division of powers when a war is urgently necessary for national survival.

It is necessary for the governments in a federation to coordinate among themselves with cooperation to promote the public welfare, which is the motto of majority governments nowadays. Capital resources are largely deposited with the Centre, and being in coordination with the Centre is the only way of achieving the motto, thus bringing the two levels of governments closer. Furthermore, it is for that reason in the U.S.A., the essence of the intergovernmental cooperation is mainly seen in the conditional grants, which were sent from the Centre to the State for centrally sponsored schemes[2].

Australia has also developed the concept of cooperative federalism by establishing the Commonwealth Grants Commission and the Australian Loan Council, 1927 to help the various governments in borrowing. Canada has also developed some techniques of this concept by granting funds from the Centre to the provinces and by delegating the power by the Centre and the Province to some subordinates agencies created by the governments. The concept of cooperative federalism has provided the necessary flexibility and resiliency to an otherwise rigid constitutional framework so as to enable it to cope with the newly emerging demands and challenges.[3]

Do we practise Co-operative Federalism?

It is a fact that we practise and promote the concept of cooperative federalism. The framers of our Constitution took a good note of the growing trend of cooperative federalism and understood that there cannot be a line of command drawn from the Centre to the State, and the policies can be promoted not by dictation but by a process of discussion. When we look at our Constitution, several provisions and features have been deliberately designed to promote the concept of Centre-State cooperation.

  • Article 252(1) provides for delegation of powers by two or more states to Parliament so as to enable it to legislate with respect to a matter in the State List in relation to such states. It simply means that if it appears to two or more states that any matter in the State List should be regulated by the Parliament then those states can request the Parliament, and the Parliament can legislate with respect to the matter in the State List concerning that states.
  • The Indian Constitution[4] provides for a scheme of tax sharing between the Centre and the State. This means that the Centre should share some taxes collected with the States. The taxes which are collected by the States are used by them but the taxes levied by the Centre cannot be exclusively used by it. It should share some of the taxes.
  • Apart from the scheme of tax sharing, there is another way of transfer of revenue from the Centre to the State and that is the system of grants-in-aid[5]. Article 282 provides for the making any grants by the Union for any public purpose.
  • To reduce the rigidity, which may arise from the Centre-State division of administrative power, the Indian Constitution makes provisions for the intergovernmental delegation of administrative power.[6]
  • Article 312 introduces an important feature to the Indian Constitution, which provides that besides having separate services for the Centre and State, the Centre can create certain services common to both the Centre and State.[7] If the Rajya Sabha declares, by resolution supported by not less than two-thirds of the members present, and it is necessary or expedient in the national interest so to do, Parliament may be by law provide for the creation of one or more All India Services (including an All-India Judicial Service and regulate recruitment and conditions of service of it.[8]
  • Article 261(1) lays down that full faith and credit should be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State. This is to give them a nation-wide application.
  • Article 263 provides that the President may be by order appoint an Inter-State Council if it appears to him that the public interests would be served by the establishment of a Council.[9] The president may define the organisation, procedure and duties of the Council. The main idea behind this is to create intergovernmental consultation machinery so that the coordination is maintained.
  • Zonal Council have been introduced in India by the State Re-organisation Act, 1956. These Zonal Councils were created to promote the mechanism of intergovernmental consultation and coordination in socio-economic fields.

The best example of Centre-state co-operation is the case of Jaora Sugar Mills v Madhya Pradesh[10]. In this case, the Madhya Pradesh Government enacted the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958 which made a sugarcane cess payable as prescribed under the Act. This Act was later on found to be invalid since the legislative competence for the same rests with the Centre under the Union list. And so it was struck down. But the Parliament realized that this Act along with several other state Acts suffered from the same Constitutional inconsistency and infirmity. In order to meet this situation Parliament passed the Sugarcane Cess (Validation) Act 1961. The appellants were asked to pay cess for two years. As the High Court dismissed the petition the appellants challenged the constitutional validity of such an Act arguing that it was a piece of ‘colourable legislation’. The Supreme Court held that the Act was constitutionally valid though the intention behind it can be questioned.

A reference can be made to a recent plan NITI Aayog which was set up mainly to promote the co-operative federalism and giving the State more freedom to design the developmental plans. The Governing Council’s maiden meeting which was conducted in the first week of February 2015 demanded greater freedom for the States to frame their developmental plans.[11] This means that our country focuses much on the promotion on the concept of co-operative federalism and they consider it as form federalism.

Conclusion

It is an undisputed fact that the concept of federalism is not static but dynamic. It has to undergo several processes of evolutionary tests and adjustments from time to time to make it fit for meeting the modern day challenges and demands. It is understood that constant discussions and negotiations between the Centre and the State are necessary in order to remove the frictions and the problems of the intergovernmental cooperation. Our aim should be to sort out these differences and make the Indian Federalism a reliable and an operational system so that India may successfully meet the upcoming challenges on socio-economic development, internal and external security, defence etc.

[1] THE CONSTITUTION OF THE USA., SENATE DOC., 14 (1953)

[2] See People of the State of New York v O’Neill, 359 US 1 (1959)- judicial support to the development of cooperative federalism in the U.S.A.  

[3] Sawyer, Modern Federalism, 70-8, 92, 100, 152 (1969)

[4] In 2003 Article 268A was introduced which provides that taxes on services shall be charged by the Union of India and shall be appropriated between the Union and States. The new Article 270 provides that the net proceeds of all taxes and duties referred to in the Union List levied and collected by the Centre shall be distributed between the Centre and States

[5] Article 270 make provision for the ‘fiscal’ need grants

[6] Article 258(1)- Notwithstanding anything in this Constitution, the President may, with the consent of the Governor of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

[7] Article 312(1)- Notwithstanding anything in Chapter VI of Part VI or Part XI, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services (including an all India judicial service) common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service

[8] See D.S. Garewal v. State of Punjab AIR 1959 SC 512

[9] Generally it may be charged with the duty of

(a) Inquiring into and advising upon disputes which may have arisen between States;

(b) Investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or

(c) making recommendations upon any such subject and, in particular, recommendations for the better coordination of policy and action with respect to that subject, it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.

[10] 1966 AIR 416, 1966 SCR (1) 573

[11] See http://www.thehindu.com/opinion/editorial/for-cooperative-federalism/article6883340.ece

last seen 1.11.2015

ABOUT THE AUTHOR

Aravind Prasanna

IMG_1114

Aravind Prasanna is a fourth-year year Law student pursuing B.A. LL.B (Hons.) at VIT School of Law, Chennai. He is an avid mooter and more, a good researcher. He possesses wide interests in keeping track of the emerging trends in law.

 

Article 35A of the Indian Constitution – A critical overview

Posted in Constitution of India, Constitutional Law, Indian LawTagged , 1 Comment

Debate on article 35A started again when during his visit to Kashmir, the Union Home Minister Rajnath Singh said that the BJP-led government at Centre will not go against the wishes of the people of Jammu and Kashmir on the constitutional provision that guarantees special privileges to the natives. Article 35A of the Indian Constitution provides a special prerogative to the Jammu and Kashmir Legislature to define “permanent” residents of the state and give them certain privileges and rights in the public sector jobs, acquisition of property in the state, scholarships, and other public welfare services.

The Delhi Agreement of 1952 between the then Prime Minister of Kashmir Sheikh Abdullah and Pandit Jawaharlal Nehru granted “Indian citizenship” to the state subjects of Jammu and Kashmir. This was followed by the incorporation of article 35A in 1954 by an order of Dr Rajendra Prasad on the advice of Prime Minister Nehru. Certain provisions in the interest of the “state subjects” of Jammu and Kashmir are allowed under Article 370(1)(d). Article 35A implies that Government of India has given a special status to the “permanent residents” of Jammu and Kashmir.

So, now the conflict is whether the President is empowered to incorporate an article into the Constitution. The article wasn’t put up in the parliament for discussion and was implemented. This again creates a dilemma on the constitutionality and validity of the article. According to article 368(I) of the constitution Parliament solely has the authority and power to amend the Constitution. This would land the article in the labyrinth of its validity. In 1961 the Supreme Court analysed the ambit of Presidential powers and concluded that the President could amend an existing article. But the court was silent on whether or not the President could add an entirely new article to the Constitution.

The NGO ‘We The Citizens’ had challenged the constitutionality of Article 35A and Article 370. It posits that the representatives from Jammu and Kashmir were involved in the framing of the Constitution. Article 370 was just a “temporary addition” in the interest of people from Jammu and Kashmir. Permanent amendments like Article 35A were not the intentions of the constitution-makers. The NGO petition claimed that the Article goes against the “spirit of oneness” creating a hierarchy of classes. It also restricts people from other states from getting employment and buying property within the vicinity of Jammu and Kashmir. This provision infringes rights guaranteed by the Constitution under article 14, 19 and 21.

Charu Wali Khanna had challenged Article 35A on the pretext that it infringes a woman the basic right to marry a man of her choice by not giving her children the right of holding any property if the woman marries someone without a Permanent Resident Certificate. Even if the women a permanent resident of Jammu and Kashmir the children have been debarred from her property. Also, the plea said that the children were not given a Permanent Resident certificate, thus considering them illegitimate.

A three-judge constitutional bench has been set up to hear the pleas challenging the article after Diwali.

ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Right to Privacy – An analysis of the recent developments

Posted in Constitution of India, Constitutional LawTagged , , Leave a comment

The Aadhaar scheme by the Union Government has been the point of friction for quite a few days. It had been under the lens of allegations like breaching individual’s privacy as it involved the collection of biometric data. With the 12-digit Aadhaar becoming the basis of obtaining the benefits of Government programmes, subsidies, tax administration, and online financial transactions, right to privacy comes under threat.

Privacy has been defined as “a state in which one is not observed or disturbed by other people” or “the state of being free from public attention” by the Oxford dictionary. Privacy can also be defined in the realms of body and mind. The three aspects of privacy include bodily integrity, dissemination of personal information, and right to make own choices.

The debate over privacy has come to light after two cases: the first being the Satish Chandra versus M.P. Sharma case whose documents were searched and seized when a First Information Report was lodged against him, and the second being Kharak Singh versus the State of Uttar Pradesh in which the petitioner was subjected to constant surveillance by police authorities which led to infringement of his constitutionally guaranteed rights.

The Government had reverberatingly stated that “privacy” was never a fundamental right. The government said that “privacy is an elitist concept” and has no benefit for the common masses. It also asserted that privacy is not explicitly mentioned as a right in the Indian Constitution. The increasing number of petitions coerced the Supreme Court to decide on this highly contested issue. Hence a separate nine-judge constitutional bench was formed. This constitutional bench on 24th August overturned the previous decisions of the 1950s and 1960s which held that “Right to Privacy” is not a fundamental right.

Although it was clear that “Right to Privacy” was not absolute in all aspects, the court needs to establish a balance between the rights of the state and citizens on one side and rights of citizens and non-state actors on other.

Four states, West Bengal, Karnataka, Punjab, Himachal Pradesh, and one Union Territory, Puducherry, have argued in the SC that they support a constitutional right to privacy.

The apex court said that although Right to privacy is not mentioned anywhere in the Constitution but can be easily interpreted if we look through Article 21 and thus forms an integral part of this fundamental right. Privacy forms the heart and soul of Constitution as it embedded in both dignity and liberty which is Article 21. It was a historical unanimous decision though there were six judgements given.

There were 5 different judgements of 5 judges while a common judgement of four judges, including Chief Justice J S Khehar. The common verdict in the words of the court is “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

“Right to Privacy” is not absolute in the sense that it has to withstand the threshold of restrictions imposed on other fundamental rights. These aberrations must be a fair, just, and reasonable in the context of Article 21.

The ambit and the contentious areas of the right to privacy will soon be defined with the course of time. Other highly disputed areas include the various social networking sites and applications like the Facebook, WhatsApp, and other messaging services which breach Privacy by selling personal information to private companies.

The bench concluded that “Privacy” is the core of human dignity. This judgment has also wobbled the fate of Section 377 of the Indian Penal Code and the recent beef ban by the Maharashtra Government. Privacy also covers the aspect of personal intimacies, sexual orientation, marriage and food.

This mammoth decision has a galore of impacts and consequences. Now, Aadhaar enrollment would be voluntary and not mandatory, thus not depriving anyone of the welfare benefits if one opts not to enrol. The government is entrusted to advertise that Aadhaar is a voluntary scheme.

This verdict will have an impact on the collection of data by the government and even private companies. This could also lead to the formulation of a legal framework to safeguard individual data as well.

ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full- fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

 

Indian Constitution and its Contractual nature

Posted in Constitution of India, Constitutional LawTagged , , Leave a comment

The Indian preamble, an ideal manifestation of the objective sought to be imbibed in the Indian culture, not only in theory but in practice as well; starts with this magnanimous terminology of ‘We the people of India’; therefore, bestowing the ultimate power to the Indian citizens; so it is the Indian citizens, who under the umbrella of ‘Collective force’ have bestowed the Indian Constitution[1] with the power and not the Indian Constitution who has bestowed the power on the Citizens of India.[2]And all the powers of the Constitution, and that of the Constituent Assembly is been derived from the people of the India.[3]It is this declaration which makes preamble a sublime one as compared to others, it is draft not forced upon the unwilling hands of the bearer, in fact, it has been given to themselves by the people of the country through their ‘Constituent Assembly.’[4] Further, it was observed in the case of Union of India v. Madangopal[5]–

“Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.”

Additionally, it establishes a contractual nature of the Indian Constitution; which is a result of the consent of the Indian Citizens underlying it.[6] The very concept that Indian Constitution is a Contract, needs much convincing to be believed in. The Idea of the contractual nature of the Constitution was first given by Lysander Spooner; who quotes

“The Constitution has no inherent authority or obligation at all, unless as a contract between man and man.”[7]

On this principle he works out a contour, where he concocts that if a Constitution is a contract, similarly it shall be applicable to the persons who were present then when the contract was being made e.g., when the American Constitution was being framed in the 1776, this contract shall be applicable only to the citizens of America present at that time. Similarly, the Indian constitution which was drafted in 1950 is applicable to the citizens living at that time.

But the point of difference between a Contract and a Constitution comes in due to the compulsory nature of the latter as compared to the voluntary nature of the former. This is what John Locke called it as tacit consent to the citizenship.[8]As it is a pre-requisite for the formation of  the Contract, that both the parties must have given their voluntary consent to the agreement; the same is not case with the Indian Constitution, as explained by John Locke in his “two treatise of Civil Government.”

Tacit Consent to the Contract

The very idea behind the concept of tacit consent to the Constitution was first evolved by John Locke, where he has styled that by taking birth in a particular country and by using its amenities we are impliedly agreeing to its suzerainty. The traces of which can be found in section 8 of the Indian Contract Act 1872; which specifically provides that a contract can be entered either by performing the condition or by receiving the consideration, therefore, our taking birth on the Indian soil and using its amenities has qualified us to be a party to this Contract we call Constitution.

The trespasser Obligation

Another theory which compels us to the obligatory nature of the Constitution is the concept of Trespasser obligation, under which the person trespassing the land of the owner is liable to follow his orders or else he shall be liable for trespassing, similarly by taking birth on the land of India, we are somewhere trespassing on the land of Indian Government, therefore are suzerainty is subject to Indian Sovereignty.

[1]  Sauvik. Chakraverti, The Essentials Frederic Bastiat, Liberty Institute, 2007, Bastiat was a great supporter of human liberty and was of the view that it was the collective force of the human society which gives the Law its force.

[2]  Keshavanada Bharti v. State of Kerala (1973) 4 SCC 225, see also Behram Khurshid v. The State of Bombay AIR 1955 SC 123

[3]  Constituent Assembly Debates, Vol. 1, 13th Dec. 1946, The resolution moved by Jawahar Lal Nehru on the the aims and object of the Indian Constitution.

[4]  A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88 per MAHAJAN, J.

[5]  Union of India v. Madan Gopal, (1954) SCR 541 (655).

[6]  Lysander Spooner, No Treason: The Constitution of no authority, Free Patriot press, U.S.A, 1867, the philosopher put forward the idea; that the constitution is only enforceable on the people who were living at the time when (Spooner, 1867)the constitution was made; he was an absolute believer on the contractual nature of the contract

[7]   Id. Pg 3

[8]   John Locke, Two treatise of the Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764). John Locke said by living under the suzerainty of a particular nation, we have given them our tacit consent to be their citizenship. See also Thomas Hobbes’ ‘Social Contract’ 1651, where he regarded as a single contract whih led to the offspring of state and devolution of the power by the people in the Levithian ruler whereas, John Locke in his Social Contract of 1689 was of the view that there were two contract, first by which the people organized themselves and by the second contract they surrendered their right to the sovereign King.

ABOUT THE AUTHOR

WIN_20170811_15_09_48_Pro

ASHIT KUMAR SRIVASTAVA

Ashit Kumar Srivastava (AKS) is currently working as an Assistant Professor at Amity University, Lucknow. His main area of interest is Constitution and Jurisprudence. However, he mostly inter-relates various socio-legal topics together.

And now, who will defend us?

Posted in Constitutional Law, Now happeningTagged , , Leave a comment

Laws were created to regulate the coexistence of man within a society. Each country has a Supreme law, usually called Carta Magna or Constitution that establishes the foundations and principles by which it will be governed. It set down the main rights and obligations, as well as the guarantees that serve as a limit, to avoid abuse of power.

These constitutions were created by man, and modified by man as well, generally preceded by events that impact the country and the society to which they belong. This indicates that there is some degree of vulnerability because of the endowment. Mechanisms for their modification are also established.

In Paraguay, there are two ways: the Reformation and the Amendment. The first has a more demanding process, in which once the need for reform it´s declared, it should be called to elections for the conventional constituents who will be in charge of modifying the constitution without any limits regarding the modifications that can be made.

The second way, called Amendment, has a more simplified procedure, in which once it´s approved by both chambers of the congress, a referendum is carried out. By having a simpler procedure, there are some limitations. This can´t be used for changing …the provisions affecting the mode of election, composition, duration of mandates or attributions of any of the powers of the state…[1], among other rights relating to life, liberty, environment, etc.

This controversy already a decade long, but more latent in these last months, next to the internal party elections that precede the presidential elections of 2018, is the one referring to the re-election. At this moment it is prohibited in the country by the article 229 of the National Constitution that establishes that the presidents “… may not be reelected in any case …” The article mentioned is under the title of “Duration of the mandate” So if it is intended to modify the constitution to allow re-election, this can´t be done with the amendment procedure, as is established in the article mentioned in the previous paragraph.

Opinions about the interpretation of these articles are divided. In one side, there are jurists and politicians who claims that “re-election doesn´t affect the duration of mandate. It doesn´t change the five years of duration that indicate the constitutions. It only establishes the possibility of having one more period”. Following this interpretation, attempts have been made to amend this provision, by being the fastest route.

In the other side, and according to the interpretation of some jurists, they affirm that “the purpose of the norm by prohibiting the re-election is that the duration of the mandate can be only for 5 years, without the possibility of its extension through a new election“[2] Also taking into account the historical moment in which the present constitution was written, that was after the fall of the dictatorship of Stroessner[3], that lasted in the power 35 years. The purpose was to enable current presidents to perpetuate themselves in power througha legal dictatorship, establishing a more complex procedure to deal with the modifications of such delicate issues.

Not in vain Montesquieu said “Power ought to serve as a check to power”. The Constitution sets limits to power. The Judicial Power is the custodian of the Constitution. It interprets, fulfills and enforces the Constitution.[4] However, the members of the Supreme Court of Justice are appointed by the Senate Chamber with the agreement of the President. This makes the “judicial independence” guaranteed in the Constitution[5] vulnerable. In that way, there is a certain mistrust of what the Supreme Court of Justice can determine. So, the question now is, who will defend us?

It is worrying that the interpretations are made according to particular political interests, without taking into account the general interest[6]. Although re-election is a figure that is used in several developed countries of the world, to include it in our law, we must use the legal way, respecting the Supreme Law. Because the violation of the constitution would imply the breaking of the rule of law.

[1] Article 290 of the National Constitution of Paraguay.

[2] Ramirez Candia, Manuel Dejesús; “Constitutional Law of Paraguay, Volume II”, Pag. 528, Intercolor S.R.L. editor, 2011”

[3] Alfredo Stroessner was a paraguayan military, politician and dictator. He was the 48th president of the Republic of Paraguay between August 15, 1954 and February 3, 1989, where he exercised a dictatorship that lasted 35 years.

[4]Article 247 of the National Constitutions of Paraguay.

[5] Article 248 of the National Constitutions of Paraguay.

[6] Article 128 of the National Constitutions of Paraguay.

ABOUT THE AUTHOR

14568028_1189801191081500_887991889626262476_n

ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

A Need to Define Limits to Constitutional Change

Posted in Constitution of India, Constitutional LawTagged , , Leave a comment

Constitutional reform, progressively known as constitutional change[1] in recent times, is an act of the state that results in a change in the constitutional text of the nation. Undoubtedly, there is a dire need of regular changes to a constitution keeping in view the ever-dynamic nature of the law as well as society. Also, almost all the constitutions[2] across the globe realise the necessity of a carefully designed well-defined process[3] therefor.

However, the debate arises when the question concerns the limit to which such changes can be made. The Constitution of a country undoubtedly provides the basic foundations for the building of political, economic, and legal systems thereof; and changes to the constitution may have serious effects on those, sometimes a detrimental one.

There arises a proposition that apart from providing a carefully crafted process for such constitutional changes, there must be some underlying rule or principle governing the limit to such changes. And, since the limits cannot be set by statutory means,[4] there must be underlying doctrines to serve the same.

Time and again various supreme courts have observed the necessity to define limits to constitutional change and have manifested their observations by laying down doctrines.[5] Also, sometimes the doctrines have been created out of the court rooms.[6] And in both the cases, there lies a belief at the root of this that there must be a limit to the constitutional change.

Putting limits to constitutional change seems of utmost importance when we look at the case of Turkey’s Constitutional Reform recently. Last December, Turkey’s ruling Justice and Development Party (AKP) unveiled a raft of proposed constitutional changes that may consequentially change the parliamentarian form of governance into a presidential one. Although it may seem that it has chances of ensuring stability in the governance, the chance of a one-man rule also cannot be denied.

In an ideal democracy, an unfettered power to change the constitution may be a thing of unanimous acceptance; but the case is different when there’s constantly a dark power play between parties and persons. Lack of limits to constitutional change always instils a fear of tyranny of the majority.

Noted Indian judge Hidyatullah J. observed the same when deciding for a case of similar nature in the Supreme Court of India.[7] Fundamental provisions like Fundamental Rights and Personal liberty, in his words, cannot be a plaything of the majority. Lack of any limit to constitutional changes may create occasions where the basic ideologies and fundamental provisions are treated as the plaything of the majority party in the parliament.

Apart from practical theories like the abovementioned, there also exists theoretical doctrines necessitating for limits to the constitutional change. Some doctrines, exploring the nature of the constitutional amendment power, conclude the same to be a sui generis power that rests within a spectrum between the constituent power and the ordinary legislative power. Drawing on the French Doctrine distinguishing pouvoir constituant originaire and pouvoir constituent derive, a further conclusion is drawn that the amendment power is a delegated ‘secondary constituent power’, authorised by ‘the people’s primary constituent power’.[8]

There are a number of similar arguments on the need and inherency of limits to constitutional change. The foundational structuralism argument contends that there are basic features of every constitution that make up a specific constitutional identity and a hierarchy of constitutional values beyond the reach of the delegated amendment power.[9] The basic structure doctrine developed by the Indian Supreme Court holds a somewhat similar view regarding unamendability of certain provisions.

Every power must come with its own set of limits, for limitless power opens door to tyranny, dictatorship, and corruption. Be it the foundational structuralism, the constitutional essentialism, or the basic structure doctrine, there must be set well-defined limits to constitutional change so as to prevent the constitution from being a plaything of the majority.

[1] The UK parliament has expressed the view that the term ‘constitutional change’ is to be used rather than the term ‘constitutional reform’ as the latter necessitates a positive stroke in the change. Read the full text here: https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17704.htm

[2] Constitutions of various countries contain provisions as to how the constitutional changes will take place. For example, Article V of the American Constitution, Article 368 of the Indian Constitution etc.

[3] A well-defined process is of utmost importance as observed by many scholars and cited in many reports. See Constitution Committee, 8th Report (2010-2011): Fixed term parliament bills (HL Paper 69), para 160, UK

[4] Constitution being the supreme law, must lay down the limits and principles for itself. However, providing specific rules regarding the same will be practically of no use as they too are vulnerable of being amended/changed. Alternatively, extra-strict or rigid provisions regarding the limit also seems unreasonable owing to the constant factor of change in the national as well as global scenario.

[5] For example, the Indian Supreme Court has laid down the ‘Basic Structure Doctrine’ in the case of Kesavananda Bharati v. State of Kerala.

[6] The doctrine of Constitutional Essentialism by John Rawls is a burning example of such cases. Although the doctrine of Constitutional Essentialism has not been approved yet by the US Supreme Court, still the effect of the same on the American Constitutional Law cannot be denied.

[7] Sajjan Singh v. State of Rajastan, 1965 AIR 845, IN

[8] Yaniv Roznai, Chapter 4, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017

[9] Ibid.

ABOUT THE AUTHOR

040b09ee-6206-4c48-a095-a1bd58f6d815

ANSHUMAN SAHOO

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.in.