Express Limits on Amendment

The Federal Constitutional Court applied it in substance in the Lisbon judgment, 2 BvE 2/08, decided on 30 June 2009, reserving an identity review under article 23(1) read with article 79(3) of whether the Basic Law's constitutional identity, its inviolable core, is respected.

The Indian position by contrast

Article 368 contains no substantive limit. The Twenty Fourth Amendment inserted words asserting an unlimited power, and the Forty Second inserted clauses (4) and (5) asserting it more strongly.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, supplied the limit; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, struck down the clauses that denied it.

The Indian and German positions therefore end in the same place by opposite routes. Germany wrote the limit and a court applies it. India wrote no limit, Parliament asserted that none existed, and a court found one.

A worked example

An amendment proposes to abolish the second chamber of the federal legislature.

Germany. Article 79(3) protects the participation of the Lander in principle in the legislative process. Abolishing the Bundesrat would remove that participation entirely and would be inadmissible; reducing its powers while preserving participation would not be.

United States. Abolishing the Senate would deprive every State of its equal suffrage in it, so Article V's second entrenchment would require the consent of every State.

India. Abolishing the Rajya Sabha would require an amendment under article 368 ratified by half the States, because it changes the representation of States in Parliament, and would face a basic structure challenge on federalism.

Switzerland. An amendment abolishing the Council of States would need the double majority under article 142, and no substantive limit would prevent it.

Ireland. Abolition of the Seanad was proposed and rejected by referendum in 2013; Article 46 imposes no substantive limit.

The cases

Facts. The Lisbon judgment, 2 BvE 2/08 and others, decided on 30 June 2009, concerned the Act approving the Treaty of Lisbon and the accompanying domestic legislation.

Held, by the Second Senate. The Treaty was compatible with the Basic Law, though the accompanying legislation was insufficient as to parliamentary participation rights. Under article 23(1) third sentence read with article 79(3) the Court reviews whether the Basic Law's constitutional identity, its inviolable core, is respected, exercising that jurisdiction in accordance with the Basic Law's openness to European integration.

Why it matters here. It is article 79(3) doing work on a live question, and it shows that an express limit is not merely declaratory.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, concerned the extent of the amending power in a text containing no express limit.

Held, by seven to six. Article 368 confers no power to alter the basic structure.

Why it matters here. It is the implied limit, and the comparison with article 79(3) is what makes the topic comparative rather than merely Indian.

Distinctions

What beginners get wrong

"Article 79(3) makes the Basic Law unamendable." It protects three matters and the Basic Law has been amended more than sixty times.

"India has no limit because its text has none." It has the basic structure doctrine, which is a limit of the same kind reached differently.

"Ireland's courts can strike down an amendment." They have held that they cannot, because Article 6 makes the people the source of the Constitution's authority and an amendment approved at a referendum is the people's own act.

Limits and criticism

An express limit is only as strong as the court applying it, and article 79(3) has never been used to strike down an amendment.

An implied limit is uncertain, because Parliament cannot know in advance what is protected.

Both raise the same objection, that a generation binds its successors permanently, and the answer in both systems is that the alternative is a constitution that can be dismantled by the procedure it provides.

Quick revision

1. United States: Article V, the 1808 clause, now spent, and equal suffrage in the Senate, permanent.
2. Germany: article 79(3), the division into Lander, their participation in principle in legislation, and the principles of articles 1 and 20.
3. Article 1 is human dignity and the binding force of the basic rights; article 20 is the democratic and social federal state, popular sovereignty, separation of powers and the right of resistance.
4. Switzerland: mandatory international law in articles 139(3), 193(4) and 194(2), plus unity of form and subject matter.
5. Ireland: Article 46, one proposal per amendment Bill; no substantive limit and no judicial review of an enacted amendment.
6. India: no express limit; the basic structure doctrine from Kesavananda.
7. Lisbon judgment, 30 June 2009: identity review under article 23(1) read with article 79(3).

Test yourself

1. What does article 79(3) protect, precisely? Amendments affecting the division of the Federation into Lander, the participation of the Lander in principle in the legislative process, or the principles laid down in articles 1 and 20 are inadmissible. It protects the federal structure rather than any particular Land, participation in principle rather than any particular Bundesrat power, and the principles of articles 1 and 20 rather than their exact wording.

2. Compare the German and Indian limits. Both place matters beyond the amending power and both are enforced by a constitutional court. Germany's is textual, specific to three matters, and was written in 1949 in answer to the destruction of the Weimar democracy. India's is judicial, open in content, and was read into article 368 in 1973 in a text that expressly asserts a power to amend any provision. The routes are opposite and the destination is the same.

3. Why can an Irish constitutional amendment not be challenged? Because Article 6 provides that all powers of government derive under God from the people, and an amendment under Articles 46 and 47 is approved by the people at a referendum, so it is the people's own act. The Irish courts have accordingly held that a duly enacted amendment cannot be reviewed for consistency with the rest of the Constitution.

4. What are Switzerland's express limits? Substantively, only the mandatory provisions of international law, protected by article 139(3) for popular initiatives, article 193(4) for total revision and article 194(2) for partial revision. Formally, the unity of subject matter for any partial revision and, additionally, the unity of form for a popular initiative. Article 139(3) requires the Federal Assembly, not a court, to declare a non-complying initiative invalid in whole or in part.