INTRODUCTION
“Time is not static. Time changes and therefore the life of a nation is not static but dynamic, living and organic; its political, social and economic conditions change continuously. Social norms and ideals change from time to time creating new problems and altering the complexion of the old ones. It is therefore quite possible that a Constitution drafted in one Era and in a particular context maybe found inadequate in another era and another context.”
MP Jain1
Nothing emphasizes/depicts the need for constitutions to evolve alongside societies, acknowledging their dynamic nature and changing needs, more than the statement made by MP Jain.
A constitution is the bedrock of a nation and stands as a testament to its aspirations and principles. Yet, it is not a static monument, which is frozen in time. Like a living organism, it must adapt and evolve to navigate the ever-shifting tides of history. This adaptability hinges on the delicate dance of constitutional amendments – a process that safeguards stability while allowing for necessary change.
“A stable constitution leads to a stable government, and that a stable government is the best bulwark against tyranny and oppression.”2
This delicate balancing act demands a careful consideration of multiple facets such as for maintenance of order in the society, adaptability to change, fulfilling the needs of the society and safeguarding against tyranny.
The Bedrock of Order: A well-defined amendment process fosters stability. It acts as a buffer against impulsive changes, ensuring that the fundamental framework of the nation is not easily manipulated for fulfilling political gains. Unlike ordinary legislation, which can be readily altered by the whims of the majority, a constitution demands a higher threshold, a greater consensus, for its alterations. This deliberate pace protects the core principles from the tides of momentary popularity or the conspiracies of the powerful.
The Embrace of Change: Even though, durability is not synonymous with strength. A constitution that is entirely resistant to change risks becoming obsolete, its provisions ill-equipped to address the challenges of a dynamic world. The amendment process allows for a controlled, measured evolution, enabling the nation to adapt to changing societal needs, technological advancements, and evolving global realities. It is through this flexibility that the constitution remains relevant and responsive, a guiding light rather than a fossilized relic.
The Variety of Needs: However, the ideal amendment process is not a one-size-fits-all solution. A robust democracy like the United States, firmly entrenched in its foundations, requires a more rigorous procedure to maintain order. Conversely, a nation emerging from turmoil, like Germany after World War II, needs a more flexible approach to navigate the whirlwind of rapid change. The context, the stage of development, and the unique circumstances of each nation demand a tailored approach to ensure that the amendment process serves as a catalyst for progress, not a stumbling block.
Aspect of Tyranny: The motivations for change, however, can be as diverse as the stars in the sky. While some amendments aim to adjust the constitution to the evolving landscape, others may be driven by selfish or partisan agendas. History is littered with examples of those in power seeking to manipulate the amendment process to entrench themselves, silence dissent, or curtail fundamental rights. This subversion of the process can erode the very foundations of democracy, transforming a tool for progress into a weapon of oppression.
Therefore constitutional amendments are not meant to be undertaken lightly as they represent a significant change in nation’s foundational law. The process of amending a constitution can be complex and often does require political will and public support, however when done thoroughly and thoughtfully through established procedures, it allows a nation to adapt to change, address new issues, correct flaws, protect rights and ultimately, maintain a stable and just society.
INDIA
India’s amendment procedure of its Constitution is like A Balancing Act between Rigidity and Dynamism. Imagine a magnificent tapestry woven with threads of both vibrant yet delicate hues and sturdy fibers. This tapestry represents India’s Constitution, a document designed to be both adaptable to the nation’s evolving needs and resilient against impulsive changes. Striking this delicate balance between flexibility and rigidity is crucial for any constitution, and India achieves it through a carefully designed amendment process.
Unlike ordinary laws, altering the Constitution isn’t a simple matter. It requires a “special procedure,” demanding ‘a two-thirds majority in both houses of Parliament’ – a significantly higher bar than the usual majority rule. This ensures that amendments undergo rigorous scrutiny and gather broad consensus, reflecting the collective will of the nation.
However, India’s diverse composition adds another layer of complexity. When amendments touch the intricate relationship between the central government and individual states, like federalism, they need an additional step. These changes require ‘the approval of half the state legislatures’, acting as safeguards against alterations that could destabilize the federal structure.
But what prevents Parliament from simply changing everything under the guise of necessary adaptation? This is where the basic structure doctrine, established by the Supreme Court, comes in. The Constitution has its core principles such as democracy, secularism, and federalism. The basic structure doctrine declares these principles are unchangeable, thereby safeguarding them from hasty or unjust alterations.
The path to this intricate system wasn’t without its challenges. Landmark cases like Golak Nath3 and Kesavananda Bharti4 shaped the current understanding of Parliament’s amending power, allowing for necessary adaptations within defined boundaries while protecting the core principles. The constant tussle between the legislature and judiciary has been the bone of contention which finally was answered primarily in Keshvanand’s case and since then the courts have been constantly upholding the idea of limits on the amending power of Parliament. This interplay of flexibility and rigidity ensures stability and predictability, fostering trust in the Constitution’s enduring nature. Yet, the ability to adapt through amendments allows it to stay relevant in the face of changing times, addressing new challenges and opportunities.
This delicate balance, however, remains a subject of constant debate. While some advocate for greater flexibility, others emphasize the need for strong safeguards. The key takeaway is that India’s Constitution serves as a dynamic framework, guiding the nation’s journey while ensuring its core values remain intact.
USA
Imagine a country built from scratch, not around centuries of tradition, but around a brand new set of rules. That’s the United States, and its foundation is the Constitution, a document unlike any other. And for that reason often the Constitution of the United States is sometimes referred to as a Great Experiment.
Most constitutions are like summaries of a nation’s existing values. For America, the Constitution is the nation, the blueprint for its very existence. This means it holds a special place – it doesn’t just grant rights, “it prevents the government from taking them away and also prevents the government from imposing its will on the people.”5
But changing this powerful document isn’t easy. Unlike editing a book, new rules are added on, never erasing the old. This way, core principles are protected from hasty alterations based on the current political climate.
Article V of the constitution outlines the amendment process: either two-thirds of Congress or two-thirds of states propose an amendment, then three-fourths of states (or special conventions) must approve it. It’s a long, hurdle-filled journey, designed to ensure only truly necessary changes make it through. The U.S. Supreme Court also declared that “the Article V amendment process is the only method of adding or removing language from the constitution”.6
This unique system has its drawbacks. Amending the Constitution can be slow and frustrating, even for seemingly popular ideas. But ultimately, it reflects the Founding Fathers’ faith in a future where reason and debate, not impulsive decisions, shape the nation’s destiny.
So, America’s Constitution is a paradox: both flexible enough to adapt over time and strong enough to resist fleeting fads.
GERMANY
Throughout its history, Germany has endured periods of both greatness and tragedy, reminding its people of the need for a strong legal document to keep its government in check. This led to the creation of the Basic Law, the German constitution, which includes a powerful and unique amendment process.7
Imagine the Basic Law ‘as a fortress protecting important values. To change its rules, an extraordinarily high bar is set. Unlike the US Constitution, amending it requires not just a two-thirds majority in the main parliament (Bundestag) but also an additional two-thirds majority in the upper house (Bundesrat). This “super-majority” makes drastic changes very difficult.’8
However, while this system seems rigid, it’s not entirely inflexible. Unlike the US system, which requires amendment proposals to originate in states or Congress, anyone in Germany can propose a change to the Basic Law.9 This creates a more malleable system, allowing for adaptation to national and international developments.
In the early years, this adaptability was evident. Amendments were made regularly, reflecting the rapidly changing West German nation. Yet, even with this flexibility, a crucial safeguard exists: Article 19.10 This article acts as a shield, protecting fundamental rights from any amendment attempts. In simpler terms, no matter how much things change, core human rights remain untouchable. However The Basic Law of the German Republic contains a forceful provision that, The Basic law can be amended only by a law which expressly amends or supplements the text thereof.11
This balance between rigidity and adaptability is a defining feature of the German constitutional system. It ensures that core values are protected while allowing for necessary evolution. While some may argue for a simpler process, the “super-majority” requirement serves as a strong barrier against impulsive changes, safeguarding Germany’s hard-won stability and fundamental rights.
Article 1912, paragraph 2, bans “any law or governmental action that invades the essential content of any basic right.”13 This ensures the supremacy of righty granted under the German Constitution.
TURKEY
The Turkish constitution establishes a strict procedure for amendments, emphasizing the preservation of its core principles. Articles 1, 2, and 3, defining the republic’s form, characteristics, and unity, are untouchable.14 Proposed amendments require initiation by at least one-third of parliament, followed by two debates and a three-fifths majority vote via secret ballot. 15The President can review and potentially trigger a public referendum depending on the voting outcome.
However, concerns exist regarding transparency and inclusivity. Critics point to instances of absent opposition members and potential secrecy violations during voting. They argue that the process lacks sufficient representation of diverse viewpoints, potentially undermining its legitimacy and public trust.
The Venice Commission, Advocating for transparency and public debate in amendments, highlights the importance of balancing necessary safeguards with open discourse. Timely discussions involving all political forces and civil society can strengthen consensus and build ownership of constitutional changes, even if it takes time and effort. Additionally, ensuring freedom of assembly, expression, and media participation fosters an informed and engaged public.16
While the Turkish amendment process prioritizes stability by setting a high bar for change, addressing concerns about representation and transparency would bolster its democratic credentials and public confidence. Finding a balance between security and openness remains a crucial challenge for ensuring the constitution’s legitimacy and adaptability to future needs.
COMPARISON OF THE AMENDMENT PROCEDURES
India
The procedure of amendment in India has 3 basic divisions:
1. Simple Majority: Minor amendments not affecting fundamental rights or federal structure require ‘a simple majority in both houses of Parliament’.
2. Special Majority: Amendments affecting fundamental rights, judiciary, or federal structure require ‘a two-thirds majority in both houses’.
3. Ratification by States: Certain amendments related to federalism also require ‘ratification by half the state legislatures’.
The constitution has adopted a balanced approach which is neither too rigid nor flexible enough to change any part of the constitution. The doctrine of basic structure highlighted in Kesavnanda Bharti Case restricted the powers of Parliament to amend any part of the Constitution. Thereby, limiting the scope of amendment and reiterating some integral principles beyond the capacity of Parliament to amend.
Justice Matthew17 observed that, “the only limitation on the amending part is that the Constitution cannot be appealed or obligated without substituting a mechanism by which the state is constituted and organized and that limitation flows from the language of the article itself”.
In Kesvananda Bharti v. State of Kerala AIR 1973 SC 146118:
The reason for stringency in amendment procedure under 36819 and the scope of judicial review was required to put a restriction on the supremacy of law making power vested in the Parliament. Absolute power making domain without limitation for the same was tried via amendment wherein it was kept out of the purview of judicial review. But it was stroke down by the Hon’ble SC.
The interpretation given in Bharti case20
After the Golak Nath21 decision, Parliament tried to supersede and invade the very quality of article 368 by inserting 24th amendment22 where in the word law was kept out of the purview of article 13 and the validity of Constitution amendment was kept out of the reach of judicial review.
Some major recommendations were given under the Bharti case23
USA
In USA, the doctrine of implied limitation states that once a constant power is a plenary power which is as wide as that of the people who made the original constitution, it can be limited only with reference to the express provisions in the Constitution and by the theory of implied limitations.
The privacy under US Constitution has been given to the people who are the original ones to visit the Constitution and then in Texas Vs Wide24. It is observed that US is an indestructible union composed of indestructible states but in jury have appointed that it does not mean Article 5 to be out of the purview of amendment it simply means that the amendment is subject to the whim of the people and their desires.
The stringency in the procedure of amendment in the US Constitution, which gives equivalent weightage to the opinion of states in amendment as well as the two-third majority rule clearly portrays the intention behind formulating such a rule so as to go for the amendments in relation to not disturb the federal structure of US.
Thus, USA calls for no distinction in amendment as in comparison to Indian constitution (simple or special majority) on provisions easily amendable, entrenched or unamendable. There is no part under the American Constitution which is regarded as a basic or fundamental beyond the capacity of the authority to amend. Art. V25 thus only describes a tough mode for the amendment which in no case has any effect on distinct provisions to amend. The only reference to unamend ability is from the interpretation of A. V.26
In the words of Judge Posner27:
The federal character of US is also a difference in comparison with India wherein states can initiate amendment as well have a significant role in ratification of amendments.
The situation is different in India where states have no such major role or initiate amendment. Irrespective of having a complex mechanism for amendment, the only problem concerned however lies in time frame which the provision does not specify under which the states need to ratify the amendment. This controversial area has made the court to specify time period in Dillon v. Gloss28. However, in Coleman v. Miller29:
The theory of basic structure on the other side impliedly used finds no place in the US constitution. The concept of a “basic structure doctrine,” which protects the core principles of a written constitution from amendments, doesn’t directly apply to the United States. This is because the US Constitution is, in essence, unwritten. Its foundational principles are gleaned from the original document, its amendments, and interpretations by the Supreme Court.
While there’s no single doctrine explicitly limiting amendments, several mechanisms safeguard the Constitution’s core values:30
Analysis:31
Luther v. Borden (1849) 7 How. (48 U.S.) :32 ‘The Supreme Court declared in dictum that the question of validity of the adoption of an amendment was a political question. This case attracted great attention and was widely cited in the state decisions, so that many came to have the view that the question was political. Last of all, inasmuch as the courts have not assumed to pass on the constitutionality of the Constitution itself, there is some logic in arguing that, since an amendment becomes as much a part of the Constitution as any other part of it (in fact repeals any part inconsistent with it), the legality of an amendment is no more open to attack than that of the Constitution itself.’
In Collier v. Frierson (1854) 24 Ala. 10033
In Smith v. Good34 ‘a federal circuit judge, in passing on a controversy involving the validity of an amendment to a state constitution, held the controversy to be a political one and stated that the case of Luther v. Borden was still controlling in the federal courts, and that it had been followed in White v. Hart.35 Thus the cases arising in the nineteenth century seem to have regarded the question as a political one.’
In 1905, however, a lower federal court ruled that the judgment on the validity of amendment to a state constitution was a judicial issue. In 1910 a lower federal court ruled upon the validity of the fifteen-amendment, apparently having presupposed that the inquiry into the validity of the substance of an amendment was a judicial issue. There was however no right mandate with the same. In Dillon v. Glosss 36[ Dillon v. amended a year later, the court appeared to have a clearer look at the scope of powers of the Congress under Article Five in determining the time on ratification but again the court was not very forthright on powers on its side.
Germany
Amending the German constitution is a process designed to be moderately difficult, aiming to balance stability with the need for adaptation.
Carl Schmitt37: A German legal scholar, proposed a unique theory about changing a constitution. He has a special power, called “constituent power,” that exists outside the written constitution. This power belongs to the people and grants them the ultimate authority to decide how their government operates. According to Schmitt, this power is special because it cannot be controlled by laws or regulations. It exists outside the legal system and can only be expressed directly by the people, for example through elections or mass demonstrations.
Schmitt believed the constitution itself could be divided into two parts:
• Essential norms: These are the core principles, like the form of government or fundamental rights. They represent the “real” constitution and can only be changed by the people directly using their constituent power.
• Ordinary norms: These are less important rules and procedures that make up the rest of the constitution. They can be changed through the usual legal process, following rules like supermajorities in parliament.
Schmitt linked this idea to the specific wording of the Weimar Constitution (Germany’s constitution from 1919-1933).38
The Basic Law’s39 history reveals three distinct periods: early adjustments, a lengthy stability phase, and intense activity during reunification. Initially, amendments addressed the Law’s early shortcomings. Once stability took hold, the Constitution remained largely untouched. However, the reunification challenge put the amendment process to the test. Germany’s rigorous approach necessitated adjustments to accommodate this momentous event. Extending the existing Law wouldn’t work. A conundrum arose: reunification seemingly demanded a new constitution, but some saw potential in Article 2340, allowing its extension “to other parts of Germany after their accession.”
Through decisive action, Article 14641 was amended via the Unification Treaty and a federal statute in 199042. This enabled the incorporation of former East German states without creating a whole new constitution. Article 146 was reworked to state that reunification would render the existing Law obsolete only when a “free decision of the German people” produced a new one. Originally, this was interpreted as triggering new elections and a new constitution. The swift amendment process allowed for a quick response to the unfolding realities: public desire for reunification, French opposition, and the East German state’s rapid decline.
Compared to some constitutions, the German amendment process is tougher. However, it allows for necessary changes to respond to major events while protecting core principles. This balance has contributed to the Basic Law’s stability and adaptability in the post-war era.
To specifically compare the amendment process with the Indian Constitution, ‘the doctrine of basic structure’ is said to have been influenced by the works of the German scholar, Dietrich.
• Article 79 of West Germany Constitution states ‘the basic law to be amended only by law which expressly amend or supplement such law’.43
• ‘Such a law requires affirmative of two-third of the members of Bundestag stack and two-third of the votes of Bundesrat’. 44
• ‘An amendment of this basic law affecting the division of the Federation into the participation principle or the basic principles is in admissible’.45
The mode of amendment laid down is that the ordinary legislative process with the prescribed special majority changes in the territories of the states required the express consent of the state. Certain provisions of Constitution have been made unable like the basic rights guaranteed under article one the federal and democratic structure, the federal system and participation of state legislation.
The German constitution is quite rigid in amending the fundamental and the core values enshrined. Under the constitution it is to be seen that the unable part is not the division of related to the German constitution, but is the principle norm which forms the core of the federal structure. The provision article 79(3)46, read with section 81(4)47, which states that the constitution cannot be met or suspended by passing any law.
According to emergency procedure, lay down an article 81 gives a federal executive, the part to obtain the passing of laws with the consent of the upper house of the legislature. In case the lower house is persistently obdurate, in the result, not only the entrenched provisions, but no provision of the Constitution can be limited by resorting to the extraordinary emergency procedure. The limit on power of legislature to amend the basic principles has been expressly stated in article 79(3) to prevent any abuse of power. The provision from 1-20 are basic principles and are unamendable. Thus, forming a similarity with the US Constitution in recognizing all the amendments at par in relation to the amendment procedure. While German Constitution expressly bars certain principles to be amended, Indian Constitution imported a similar structure and interpreted the procedure laid down u/a 368 to r/w A. 13 of the Constitution to exclude certain provisions out of the purview of amendment. The Indian Constitution being a blend of flexibility and rigidity has left a sphere open for categorizing amendments which is absent in the German Constitution making the amendment process rigid.
In India, however impliedly following the doctrine of basic structure and borrowing it from Germany, German Constitution and inspired by the model, Indian system proposed something similar for our own system. This “Basic Structure” would be like a core set of untouchable principles, forming the heart of our democracy. These principles would include:
• The right to life and safety: Everybody deserves to be free from harm and live in peace.
• Equality for all: Everyone deserves to be treated fairly and without discrimination.
• Privacy and respect: Personal information and life of a person needs to be protected and nobody can interfere without good reason.
• The freedom of choice: One should be able to pursue the choices without unfair restrictions.
• Right to property: The right of possession and ownership
The active role in India played by the SC in a wide range of decisions however is not to be observed in Germany as the Constitution itself creates a bar on basic principles which cannot be violated.
Article 20 of the Constitution of Germany expressly reserved certain principles as basic which are invaluable even by the amendment in the Constitution. The term amendment in the case of Horatio P. Livermore v. EG48 Waite refereed to such changes which implied improvement, or carry out the purpose for which it was framed.
In comparison to Indian constitution these principles were highlighted in case of Kesavanada Bharti by the theory of implied reference to some basic features or structure which cannot be snatch away and be replaced under the Constitution. As a matter of fact, these basic features have been referred and have been regarded to be borrowed from the Constitution.
The Southwest State Case 1 BVerfGE 14 (1951),
‘the constitutionality of the First Reorganisation Law, which sought to extend the term of state legislatures pursuant to Article 118 of the Basic Law, was challenged. The Court held that this violated both democratic government (from Articles 20 and 28 of the Basic Law) as well as Federalism (Articles 20, 19 and 28); consequently, it read Article 118 in a manner that did not extend to the extension of state legislative terms.’
The Court stated:
‘An individual constitutional provision cannot be considered as an isolated clause and interpreted alone. A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions. Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate’. Article 79 (3) [the Eternity Clause] makes it clear that the Basic Law makes this assumption. Thus, this Court agrees with the statement of the Bavarian Constitutional Court: “That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.’
Turkey
The Turkish Constitution amendment process falls within a grey area on the spectrum of rigidity and flexibility. It’s neither as stringent as some European models, nor as readily amendable as certain others. In similarity to the Indian model of amendment, the Turkish constitution is a combination of both the flexible and rigid models. Article 17549 sets out: The Turkish Constitution. Unlike the US, no special procedures are required for initiating or ratifying amendments. Many provisions beyond the core principles are amendable, potentially leading to significant changes. However, Supermajority is required similar to Germany that is qualified majority of two-thirds in both the Grand National Assembly (Parliament) and the National Security Council. Certain core principles cannot be amended, including the indivisibility of the Turkish state, its republican character, and the secular order.
Though the amendment provision is not stringent yet it requires a detailed procedure for initiation and ratification while amendments are introduced. This makes it altogether complex for initiating amendments and getting approval for the same. A unique requirement of referendum is embodied in the Turkish Constitution which places reliance on public opinion in making any changes to the supreme law.
In similarity with the entrenched provisions recognized by the basic structure doctrine in India, the Turkish Constitution goes beyond the usual limitations on amendments. It has a broad list of things which can’t be changed, making it harder to modify than many other constitutions.
• Republic as the only form of government (Article 1)50
• Nationalism based on Atatürk’s principles (Article 2)51
• Basic values like democracy, secularism, human rights, and the rule of law (Preamble and other articles)52
• Country’s structure like its territory, official language, and symbols (national anthem, flag, capital)53
By stating a detailed process of:54
The tedious process though not impossible to introduce amendments yet involves a lengthy task to achieve. The Indian constitution in similar manner involves impossibility of core principles but does not involve such cumbersome task to achieve.
Thus, Turkish constitution employs a procedure difficult to amend to preserve and limit the amending power of legislature impliedly. This procedure though alike USA pertains to similarity in amendments of any provision in equivalence yet unlike US constitution does not require ratification and consent by states differentiating the federal structure. However, then theory of basic structure and the intervention of SC in India considered as an active safeguard if compared from Turkey presents a distinct picture:
Judicial review for constitutional amendments was expressly provided for in the 1961 Turkish Constitution.55 In theory, only one that acknowledges the existence of supra constitutional norms could allow for such a review. The Turkish Constitutional Court has a long and inconsistent history of reviewing constitutional amendments:
The unamendable clauses have expanded over time, while the Court’s formal review power has remained limited. The Court however has found ways to perform substantive review (“content”) despite limitations on its formal (“form”) authority.
Three Eras of Review
1961-1971: Only the republican form was unamendable, and the Court implied review power.
1971-1980: Review limited to form, but the Court linked form to upholding unamendable principles.
1982-Present: Review limited to specific formal criteria, yet the Court still finds ways to consider substance.56
The Turkish Constitutional Court’s power to review amendments has been a point of tension. While reforms in 1971 and 1982 aimed to limit its review to formalities, the Court found clever ways to engage in substantive review despite restrictions. Initially, the Court acknowledged its limited formal review power after the 1971 reform. However, it introduced a “propos ability test” stating that amendments violating unamendable principles could not even be proposed, thus indirectly applying substantive review through a formal lens. In essence, the Court used legalistic tactics to achieve substantive review even when limited to solely reviewing procedural aspects of amendments. This highlights the ongoing struggle between the Court’s desires for broader influence and attempts to restrict its scope.57
The 1982 Turkish Constitution further restricted the Constitutional Court’s power to review amendments, limiting it to formal checks rather than substantive ones. It explicitly listed only three areas for formal review: proposed majority, voting majority, and legislative procedure. Importantly, it excluded the “unamendable rule” and “propos ability test” developed by the Court earlier. However, in 2008, the Court disregarded these limitations and exercised substantive review in its headscarf judgment, marking a significant deviation from its previously constrained role.58
The amendment that lifted the headscarf ban in universities presented a challenge for the Court, bound by stricter limitations on reviewing amendments. They devised a “proposability test” under the procedural requirement of majority support for proposing amendments. This test allowed the Court to engage in substantive review again by deeming amendments violating unamendable rules as “not proposable” and thus unconstitutional. This interpretation essentially bypassed the intended purpose of the amendment rules – to prevent such substantive review. In other words, the Court stretched the formal rules to achieve a substantive outcome of upholding secularism and rejecting the headscarf amendment. The Turkish Constitutional Court has taken a sharp turn in a recent case, abandoning its controversial “proposability test” and returning to its pre-2008 stance of strictly formal review of constitutional amendments.59
This means the Court can only assess whether procedural requirements like voting majorities and legislative debates were followed, not the substance of the proposed amendments. This decision came in response to a challenge against an amendment lifting parliamentary immunity, where the Court reaffirmed its limited role and dismissed the challenge based on procedural adherence. This significant shift signifies a more restrained approach to judicial review and aligns with the intention of stricter amendment rules implemented after 2008.60
Thus, to compare the process of courts evolved in upholding the integral principles enshrined in the Constitution courts in Turkey have been upright in holding the principles and playing a pro-active role as Indian judiciary wherein the tussle between the Legislature and Power of courts subsisted mainly till 1973. However, the limitation set later on restricted the scope of judicial review. Thus, the interplay of legislature and judiciary is similar in connection to India and the procedure of amendment though being tough yet requires a check which judicial review provides for.
Features of amendment unique to the respective countries:
INDIA
Basic structure doctrine: This doctrine holds that even with the amendment power, certain core and essential features like Federalism and Democratic values cannot be fundamentally altered.
Multiple modes of amendment: Different articles have varying amendment requirements, ranging from simple to special majorities for different categories.
USA
Super majority requirement: most amendment models around the world require a two-third vote in both the houses of congress and ratification by at least three-fourth of the states which inherently makes the process difficult.
No judicial review: Unlike other countries, the US Supreme Court doesn’t have the power to directly review the constitutionality of amendments. However, they can indirectly affect them through interpreting existing provisions.
GERMANY
Eternity clause i.e., unamediablilty of certain provisions
Constructive vote of no confidence: To amend the Constitution, the Bundestag (parliament) must first elect a successor Chancellor with a positive majority, ensuring continuity and stability during the process.
International treaties take precedence: Provisions violating international treaties Germany has ratified are invalid, promoting adherence to international law
TURKEY
Supermajority and referendum: Most amendments require a two-thirds vote in Parliament followed by a national referendum with a simple majority, allowing direct public participation.
Presidential veto: The President can veto constitutional amendments before they go to a referendum, adding another layer of control.
CONCLUSION
Our governing document, the Constitution, defines who we are. But like any living entity, it must change to survive. The challenge lies in finding the sweet spot: allowing necessary evolution and progress while safeguarding core values
Amending the constitution must enable crucial changes, driven by broad consensus and careful deliberation. Yet, it must stand firm against impulsive alterations driven by fleeting trends or individual agendas. Understanding the political landscape, the nation’s needs, and the dangers of unfettered change is essential for this delicate balancing act.
In diverse nations or federations, the complexity increases. The constitution becomes a tapestry woven from the threads of distinct communities and regions, each with unique aspirations and concerns. Amending such a document requires their consent, ensuring their voices are heard and their rights protected. This participatory approach fosters a sense of shared ownership, strengthening the national fabric.
Ultimately, the amendment process is a testament to the dynamic nature of governance. It acknowledges that the future isn’t predetermined, but a canvas awaiting adaptation and progress.
*****
Footnotes
1. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 15439 (9th ed. 2014).
2. David Landau, Abusive Constitutionalism, 47 U.C. DAVIS L. REV. 189 (2013).
3. Golak Nath v. State of Punjab, 1967 AIR 1643.
4. Kesavananda Bharati v. State Of Kerala And Anr, AIR 1973 SC 1461.
5. Mark S. Kende, Why the South African Constitution is Better than United State’s Constitution, RACE, RACISM AND THE LAW (Apr. 1, 2012), http://racism.org/articles/world-exam/south-africa/141-south-african-constitution/1269-southafrica01.
6. Ullmann v. United States, 350 U.S. 422, 428 (1956).
7. Thomas Henry Elkins et al., Germany, ENCYCLOPÆDIA BRITANNICA (Nov. 10, 2023), https://www.britannica.com/place/Germany.
8. BASU, supra note 2, at 15431.
9. BASU, supra note 2, at 15457.
10. GRUNDGESETZ [GG] [BASIC LAW], art. 19 (Ger.).
11. GRUNDGESETZ [GG] [BASIC LAW], art. 79 (Ger.).
12. GRUNDGESETZ [GG] [BASIC LAW], art. 19 (Ger.).
13. Donald P. Kommers, ‘German Constitutionalism: A Prolegomenon’(1991) 40 Emory Law Journal 837.
14. GRUNDGESETZ [GG] [BASIC LAW], art. 1-3 (Ger.).
15. GRUNDGESETZ [GG] [BASIC LAW], art. 175 (Ger.).
16. European Commission for Democracy Through Law, OSCE (Feb. 5, 2024), www.osce.org/files/f/documents/7/0/521821.pdf.
17. BASU, supra note 2, at 15457.
18. “The pre-eminent object in framing a constitution is orderly government. Knowing that no constitution, however good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments. The Framers wisely provided for alteration of the Constitution in the interest of orderly change between these two coordinates, namely, the need for orderly government and the demands for orderly change both in accordance with the Constitution. The makers of the Constitution provide for its amendment to the wider possible extent.”
19. INDIA CONST. art. 368.
20. stated that since there are no express limitations in article 368, no provisions of the Constitution is excluded from the amending part by article 368, but it is subject to implied limitation arising from the connotation of the very word amend, which means that an exercise of the amending power contained under article 368 and Parliament cannot abrogate the identity or the basic feature of the Constitution. Thus, it become clear from affair interpretation that the Constitution would be subject to amendments which do not harm or change the identity in a way to depreciate or less the goals with which it was made by the Constitution makers or in any manner demean the identity or division of the Constitution makers.
21. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
22. BASU, supra note 2, at 15474.
23. , which stated article 368 contains both the bar and the procedure forming the Constitution. The procedure of amendment is legislative but it is not ordinary legislation to which article 13. Close to applies article 13, close to does not apply to constitution law and to an amendment of the Constitution itself. Not an amendment of the Constitution made an exercise of the legislative part which is ordinarily considered and wasted under article 245 of the Constitution, since article 13(2) is not attracted. Fundamental rights do not constitute any limitation on the amending power. Thus, in India a difference is created and is a settle law between an ordinary amendment and a constitutional amendment which requires the procedure under 368 to be exhausted before initiating any amendment. It was done to keep the core principles intact and beyond the domain of Parliament to amend any provision based on its whims and fancies. The model of limited federalism followed in India wherein ratification of States is required in connection to laws affecting such state follows the idea enshrined under US Constitution. However, as US Constitution strict federalism is not followed which leaves a room for flexibility. The entrenched or unamendable part is recognized under the doctrine of basic structure developed by judicial opinions and it is this part which makes the constitution rigid.
24. Texas v. White, 74 U.S. (7 Wall.) 700 (1868).
25. U.S. CONST. art. V.
26. “No Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article. No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Thus, if requirements stated above are fulfilled the amendment to any provision is possible without any impediment. The acumen of the drafters in making the process tough and giving equal representation for the states to consent has avoided confusion in giving any new doctrines or way for varied interpretations. The procedure is not a simple way of editing the constitution according to whims and fancies of the authority. This radical high bar set is set is enough to estimate the vision of constitution makers is not infringed.
27. David P. Currie, ‘Positive and Negative Constitutional Rights’ (1986) 53 University of Chicago Law Review 864 “Our Constitution is a charter of negative rights rather than positive liberties…The men who wrote the Bill of Rights were not concerned that government might do too little to the people but that it might do too much to them.”
28. Dillon v. Gloss, 256 U.S. 510 (1921).
29. Coleman v. Miller, 307 U.S. 433 (1939). the justice refused to review “reasonable” time period leaving it for political authority to determine. Coleman stands as an “authority for the proposition that at least some decisions with respect to the proposal and ratification of constitutional amendments are exclusively within the purview of Congress, either because they are textually committed to Congress or because the courts lack adequate criteria of determination to pass on them. But to what extent the political question doctrine encompasses the amendment process and what the standards may be to resolve that particular issue remain elusive.”
30. ‘1. Rigorous Amendment Process: Changing the US Constitution is not easy. Amendments require approval by two-thirds of both houses of Congress and ratification by three-fourths of the states. This hurdle makes drastically altering core principles unlikely. 2. Judicial Review: The Supreme Court holds the power to review laws and actions against the Constitution. This includes the ability to strike down amendments deemed incompatible with its core principles. However, this power has limitations, and controversial amendments might still pass judicial review. The implied theory of basic structure on which the Indian Courts have significantly highlighted the importance. The difference lies in US Constitution’s strict division of powers which specifically regards Constitution as the will of the people.’
31. ‘Generally Courts cannot declare parts of an existing constitution (excluding amendments) invalid. This principle holds especially strong for the US Constitution. States can create new constitutions following procedures outlined in their existing one. In such cases, courts may have the authority to review the new constitution’s validity. However, the US Constitution itself wasn’t adopted following the procedures set out in the Articles of Confederation. This raises questions about who can review its validity. Judicial review of existing constitutions is generally limited. States have more flexibility in adopting new constitutions and allowing court review. The unique adoption process of the US Constitution creates ambiguity about potential review.’
32. The Supreme Court declared in dictum that the question of validity of the adoption of an amendment was a political question. This case attracted great attention and was widely cited in the state decisions, so that many came to have the view that the question was political. Last of all, in as much as the courts have not assumed to pass on the constitutionality of the Constitution itself, there is some logic in arguing that, since an amendment becomes as much a part of the Constitution as any other part of it (in fact repeals any part inconsistent with it), the legality of an amendment is no more open to attack than that of the Constitution itself.
33. Asserted that it was a justiciable question and held an amendment invalid. The case is notable for the fact that it is the first and only case before I88o holding an amendment unconstitutional. In 1856 the Mississippi Supreme Court held the question a judicial one.
34. Smith v. Good, 34 F. 204 (C.C.D.R.I. 1888).
35. White v. Hart, 80 U.S. (13 Wall.) 646 (1871).
36. Dillon v. Gloss, 256 U.S. 510 (1921).
37. Monika Polzin, The Basic Structure Doctrine and its German and French Origins: A Tale of Migration, Integration, Invention and Forgetting—Summary, LAW & OTHER THINGS (Feb. 3, 2022), https://lawandotherthings.com/2022/02/the-basic-structure-doctrine-and-its-german-and-french-origins-a-tale-of-migration-integration-invention-and-forgetting-summary/.
38. Id. He argued that only the ordinary norms could be changed using the amendment process outlined in the constitution. Any attempt to change the essential norms, he believed, would require direct action by the people, bypassing the legal system. Germany’s turbulent past in this reference, from the Kaiser Reich to the Third Reich and finally the Federal Republic, highlighted the need for a strong legal framework to keep its government in check. The country’s Basic Law, its constitution, reflects this by requiring an explicit law to amend it. Similar to the US, a two-thirds supermajority in both houses of parliament is needed, though in Germany, a simple majority in the upper house suffices. While more flexible than the US system, the German model avoids complete laxity.
39. Constitutional History of Germany, CONSTITUTIONNET (Feb. 8, 2024), https://constitutionnet.org/country/germany.
40. GRUNDGESETZ [GG] [BASIC LAW], art. 23 (Ger.).
41. GRUNDGESETZ [GG] [BASIC LAW], art. 146 (Ger.).
42. BASU, supra note 2, at 15457.
43. BASU, supra note 2, at 15431.
44. Id.
45. Id.
46. BASU, supra note 2, at 15457.
47. Id.
48. Livermore v. Waite, 102 Cal. 113 (1894).
49. TÜRKİYE CUMHURİYETİ ANAYASASI [CONSTITUTION OF THE REPUBLIC OF TURKEY] 1982, art. 175. “the procedure of its own revision and amendment by either referendum or a qualified majority vote of 2/3 in the National Assembly. It does not recognize the right to popular initiatives. Only the members of Parliament can propose modifications to the Constitution”.
50. TÜRKİYE CUMHURİYETİ ANAYASASI [CONSTITUTION OF THE REPUBLIC OF TURKEY] 1982, art. 1.
51. Id. at 1, 2.
52. TÜRKİYE CUMHURİYETİ ANAYASASI [CONST ITUTION OF THE REPUBLIC OF TURKEY] 1982.
53. Id. at 3.
54. Id. at 175. ‘1/3 of Parliament Members being agreed for initiating amendment; rounds of debate and 3/5th majority for the approval, the amendment will be passed. However, in case President sends for review, 2/3rd Majority of Parliament is needed along with public vote(referendum). It is now the president’s say to either approve the law or in case 2/3rd majority is not received the public votes for the same.’
55. TÜRKİYE CUMHURİYETİ ANAYASASI [CONSTITUTION OF THE REPUBLIC OF TURKEY] 1982, art. 125.
56. Ergun Özbudun, Judicial Review of Constitutional Amendments in Turkey, EUROPEAN PUBLIC LAW, http://www.bilkent.edu.tr/~ozbudun/Judicial%20Review.pdf (last visited Feb. 8, 2024).
57. Richard Albert, Tarik Olcay & Malkhaz Nakashidze, The Formalist Resistance to Unconstitutional Constitutional Amendments, 70 HASTINGS L.J. 3 (2019).
58. Id.
59. Anayasa Mahkemesi [AYM] [Constitutional Court] June 5, 2008, E. 2008/16, K. 2008/116, 45 AYMKD 1195 (Turk.).
60. Richard Albert, Tarik Olcay & Malkhaz Nakashidze, The Formalist Resistance to Unconstitutional Constitutional Amendments, 70 HASTINGS L.J. 3 (2019).