Judicial Review of a Constitutional Amendment
Chapter Ninety-Three
Syllabus topic 6, "Comparative Study of Amending Processes of the Constitutions in the USA, India and Switzerland."
Pages 415 to 418 of 676
In one line
India reviews amendments and strikes them down, Germany may under article 79(3), Ireland refuses, Switzerland cannot, and the United States treats the question as political.
In the wording a student can write in an exam: whether a duly enacted constitutional amendment may be reviewed by a court depends on whether the constitution contains limits on the amending power, on whether those limits are justiciable, and on whether the amendment derives its authority from the legislature or from the people.
The five answers
India: yes, and it has happened. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, established that an amendment destroying the basic structure is void. Amendments have been struck down in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, and in the NJAC case.
Germany: yes, in principle. Article 79(3) makes certain amendments inadmissible, and the Federal Constitutional Court has jurisdiction. It has never struck an amendment down, though it has applied the article's principles in the European cases, most notably in the Lisbon judgment, 2 BvE 2/08, decided on 30 June 2009.
Ireland: no. 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. The Irish courts have held that a duly enacted amendment cannot be reviewed for consistency with the rest of the Constitution.
Switzerland: no. Article 190 binds the Federal Supreme Court to apply federal acts and international law, and there is no jurisdiction over a constitutional amendment approved by the People and the Cantons. Validity questions belong to the Federal Assembly under article 139(3).
United States: in effect no. Coleman v. Miller, 307 U.S. 433 (1939), treats questions about the amending process as political, with the ultimate authority in Congress, and the Supreme Court has never invalidated a ratified amendment.
The underlying question
Whether an amendment is reviewable turns on a prior question: from whom does the amendment derive its authority?
Where it derives from the legislature, as in India, the amendment is an exercise of a power conferred by the constitution, and a power conferred is a power limited. That is the reasoning of Kesavananda.
Where it derives from the people, as in Ireland and Switzerland, the amendment is an act of the constituent power itself, and no organ created by the constitution can sit in judgment on it. That is the Irish reasoning.
Germany is the interesting case, because its amendments derive from the legislature and its limit is textual, so the German answer is the same as India's for a different reason: not because a conferred power is limited, but because article 79(3) says so.
Judicial Review of a Constitutional Amendment
That analysis is the best thing an answer on this question can contain, because it explains the pattern rather than listing it.
What is reviewed
Even in a system that reviews amendments, three different things may be examined.
Procedure. Whether the majorities were obtained and the ratifications completed. Reviewable everywhere in principle, though Coleman v. Miller makes it political in the United States.
Competence. Whether the amending body had power to make an amendment of that kind. This is where article 79(3) operates.
Substance. Whether the amendment's content is compatible with the constitution's essential features. This is the Indian basic structure review and the most far-reaching form.
A worked example
A constitutional amendment abolishes judicial review of legislation.
India. Void. Judicial review is a basic feature, and L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, holds that the power vested in the High Courts under article 226 and in the Supreme Court under article 32 is part of the basic structure.
Germany. Article 79(3) protects the principles of article 20, which include the binding of the executive and the judiciary by law and justice and the separation of powers, so the amendment would be inadmissible.
Ireland. Valid, if approved at a referendum, because the courts will not review an enacted amendment.
Switzerland. Valid, if approved by the People and the Cantons; there is nothing to review, and article 190 already limits judicial review of federal acts.
United States. The question would probably be held political on Coleman v. Miller, so the amendment would stand.
The cases
Facts. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, concerned clause (4) of article 329A, inserted by the Thirty Ninth Amendment during the Emergency, which provided that the election of a person holding the office of Prime Minister or Speaker should not be called in question except before a body constituted by Parliament, and that any pending proceeding should abate.
Held, by the Court. Clause (4) was void as destructive of the basic structure. Free and fair elections, judicial review and the rule of law are essential features, and a constitutional amendment which decides a particular dispute rather than laying down a rule is an exercise of judicial power by the legislature.
Why it matters here. It is the first amendment struck down under the doctrine and the clearest illustration of substantive review.
Facts. The Lisbon judgment, 2 BvE 2/08 and others, decided on 30 June 2009, concerned the approval of the Treaty of Lisbon and the accompanying domestic legislation.
Held, by the Second Senate. The Treaty was compatible with the Basic Law, the accompanying legislation being insufficient as to parliamentary participation; and 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.
Judicial Review of a Constitutional Amendment
Why it matters here. It shows article 79(3) being used as a standard of review rather than as a declaration, which is the German answer to the same question India answered in Kesavananda.
Distinctions
| System | Reviewable | Basis | Ever struck down |
|---|---|---|---|
| India | Yes | The basic structure doctrine | Yes, several times |
| Germany | Yes | Article 79(3) | No, but applied in the European cases |
| Ireland | No | Article 6, the people as the source | Not applicable |
| Switzerland | No | Article 190 and article 139(3) | Not applicable |
| United States | Political question | Coleman v. Miller | No |
| Canada | Not decided | Part V distinguishes procedures | No |
What beginners get wrong
"Every constitution allows review of amendments." Only two of the seven clearly do.
"Germany has struck down amendments under article 79(3)." It has not. It has applied the article's principles, most importantly in the European integration cases.
"India reviews amendments for procedure only." It reviews substance, which is the whole point of the basic structure doctrine.
Limits and criticism
Substantive review of an amendment is the strongest judicial power there is, because it sets aside the constituent act of a legislature acting on a special majority.
A system that reviews amendments must accept an open-ended standard, since no list of essential features can be exhaustive.
A system that does not review them must accept that a majority may dismantle the constitution by its own procedure, which is exactly what happened in Germany between 1930 and 1933 and what article 79(3) was written to prevent.
Quick revision
- India: yes, and amendments have been struck down in 1975, 1980 and the NJAC case.
- Germany: yes in principle, under article 79(3); applied in the Lisbon judgment.
- Ireland: no, because Article 6 makes the people the source and Articles 46 and 47 require a referendum.
- Switzerland: no; article 190 and article 139(3) leave validity to the Federal Assembly.
- United States: political question, on Coleman v. Miller, 307 U.S. 433 (1939).
- The prior question is from whom the amendment derives its authority: a legislature, or the people.
- Three things may be reviewed: procedure, competence and substance.
Test yourself
1. Which systems review constitutional amendments, and on what basis? India, on the basis of the basic structure doctrine established in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, and it has struck several down. Germany, on the basis of article 79(3), which makes certain amendments inadmissible, though it has never struck one down. Ireland, Switzerland and the United States do not: Ireland because Article 6 makes the people the source of the Constitution's authority and every amendment is approved by referendum; Switzerland because article 190 binds the Federal Supreme Court and article 139(3) leaves validity to the Federal Assembly; and the United States because Coleman v. Miller treats the questions as political.
Judicial Review of a Constitutional Amendment
2. What is the prior question that explains the pattern? From whom the amendment derives its authority. Where it derives from a legislature exercising a power conferred by the constitution, as in India, the power is a conferred power and therefore a limited one, which is the reasoning of Kesavananda. Where it derives from the people directly, as in Ireland and Switzerland, it is an act of the constituent power itself and no organ created by the constitution can sit in judgment on it.
3. What three things may be reviewed even in a system that permits review? Procedure, whether the required majorities and ratifications were obtained; competence, whether the amending body had power to make an amendment of that kind, which is what article 79(3) addresses; and substance, whether the content is compatible with the constitution's essential features, which is what the Indian basic structure review examines and which is the most far-reaching form.
4. What did Indira Nehru Gandhi v. Raj Narain decide, and why is it significant? It struck down clause (4) of article 329A, inserted by the Thirty Ninth Amendment, which had placed the election of a person holding the office of Prime Minister or Speaker beyond the jurisdiction of any court and abated pending proceedings. The Court held it destructive of the basic structure, free and fair elections, judicial review and the rule of law being essential features, and observed that an amendment deciding a particular dispute rather than laying down a rule is an exercise of judicial power by the legislature. It is the first application of the doctrine to strike an amendment down.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.