Constituent vs Constituted Powers: Comparing the Origin of the Basic Structure Doctrine with the Colombian Substitution Doctrine
Siddharth Sijoria
The invocation of the theory of Unconstitutional Constitutional Amendment (UCA) is an important mechanism of check on exercise of legislature’s power in Modern Constitutionalism. The theory distinguishes the Constituent power (creator) with the constituted power (created) and holds that the Legislature being a constituted power cannot substitute or replace essential features of the Constitution by an amendment. Such amendments can only be carried out by exercise of constituent powers. Indian Supreme Court is regarded by many scholars as the founder of the theory also called the Basic Structure Doctrine (BSD) in the Kesavananda Bharati Case[1] of 1973.
In this blog, I will draw a comparison between the Colombian Substitution Theory with the origin of the doctrine in India. It would be seen that unlike Colombia, the Indian Parliament exercises constituent power while amending the constitution. Further, the theory in India lacks any doctrinal test for identification of basic features as done under Colombian Constitutional Court Jurisprudence.
Parliament as a Constituent Power
Evolution of the Basic Structure Doctrine in India is directly related to the clash between Fundamental Human Rights[2] and Constitutional commitments of State also known as the Directives Principles of State Policy[3] under the Indian Constitution. Immediately after the Indian Independence in 1947, it fell upon the State to develop infrastructure for public purposes in furtherance of its Constitutional commitment as Socialist State. For this, the legislatures (Parliament as well as the State Legislatures) in India enacted several land ownership and tenancy reformation laws for the development of infrastructures. However these laws were in conflict with Article 13 (2) that proscribes Legislature from making laws that violate any of the Fundamental rights. These laws violated the right to property and consequently were declared unconstitutional. The Parliament saw these decisions as a major setback to its socialist aspiration and in order to circumvent the impasse, the Constituent Assembly, which was also functioning as the interim parliament, enacted first constitutional amendment which added 9th Schedule to the Constitution. According to this, a law placed under 9th Schedule could not be quashed on the ground that it violates any right.
This amendment was challenged in the Shankari Prasad case[4] by invoking the doctrine of implied restriction upon parliament’s power of amendment. It was argued that since law is genus of which amendment is a species, article 13 (2) control article 368[5] and therefore amendments cannot derogate fundamental rights. However, the Court upheld the amendment. It observed that though amendment is a law but there is a difference between legislative and constituent power and the word law within the framework of article 13 did not include an amendment made in exercise of constituent power. Thus, the Court unanimously declared the Parliament as a Constituent power with no implied restriction on its authority.
Later, in Golaknath case [6] the majority overruled the verdict in Sankari Prasad. The majority verdict observed that Article 368 only prescribes a procedure for amendment[7] and the power to amend the Constitution is to be found under ordinary lawmaking power of parliament[8]. Thus, Article 13 controls 368 i.e an amendment. However, it did not reverse the finding that Parliament exercise constituent power.[9]
This decision was seen as a direct attack on Parliament’s sovereignty. Parliament enacted 24th amendment to nullify the effects of Golaknath decision. Interestingly, by this amendment, the Parliament declared its power to amend Constitution as an exercise of its constituent power with no implied restriction.
The challenge to this amendment was made in the famous case of Keshavnandna Bharati v State of Kerala wherein the court formulated the theory of Basic Structure Doctrine. In the majority as well as the dissenting opinions, the Parliament’s authority as Constituent power was accepted. However, the Court observed that the Constitution can only be amended in such a manner that as the result of the amendment, the old one survived without loss of its identity.[10] The Court while limiting the amendment power, upheld Parliament’s unlimited power of amendment.
The decision did not provide any reasons for limiting the authority by invocation of Basic Structure Doctrine. Moreover, while recognizing the basic structure of the constitution, it failed to provide any constitutional test for identifying the basic features. Such an analysis by the Court rendered the basic structure nebulous and subjective to judicial view. For instance the Courts have applied the doctrine against a Statute and even to give a meaning to original constitutional text, against its literal interpretation so that its fits courts understanding of basic structure. Different judges have rendered conflicting views[11] on application of basic structure theory (BSD) in India. However, many scholars, despite their criticism of the case, see BSD as an “important tool to apply brakes on the engine of amendment power, when it threatens to overrun the Constitution. “
The invocation of the doctrine is in stark contrast with the reasoning adopted by Colombian Constitutional Courts for justifying the limitation. The decisions on implied limitation in Colombia reflect that they are founded on proper legal grounds and also offer a test for identifying the basic features to avoid subjecting its application on judicial discretion.
Substitution Doctrine in the Colombian Constitutional Court
In Colombia, the limitation upon legislature exist because it is a constituted power. The Colombian Constitution contains provision for exercise of Constituent Power by Constituent Assembly if Congress enacts a law to that effect.[12] Unlike India, the amendment to fundamental rights is more rigorous process as an amendment is required to be submitted to a referendum if a given number of citizens request.[13]
The doctrine of implied limitation originated in Colombian Constitutional Court decision of C-551/2003 when Court invoked the UCA doctrine to hold that power to amend does not include the power to replace the essential features of the Constitution or substitute them with new one. The Court recognized this as “Substitution doctrine”. It declared the power of amendment as a “derivative constituent power” which cannot derogate from original Constitution. The Court explained the scope of amendment observing that “ The power of reform, which is constituted power, is not, therefore, authorized to annul or substitute the Constitution from which its competence is derived. The constituted power cannot … grant itself functions that belong to the constituent power and, therefore, cannot carry out a substitution of the Constitution not only because it would then become an original constituent power, but also because it would undermine the basis of its own competence….”[14].
Thus, in Colombia, changes to the Constitution that are mere amendment can be exercised by the Legislature. But changes which replaces or substitute the basic features of the Constitution can only be done by an extraordinary mechanism of constituent assembly since it exercises constituent power. [15]
Later, the Constitutional Court applied the Substitution Doctrine when President Álvaro Uribe introduced an amendment to allow himself run for a subsequent election against constitutional mandated single term. This amendment was challenged before the Court in C- 1040/2005 as it violated the explicit bar on subsequent reelection. It was argued that the amendment may lead to abuse of power and significantly affect the political pluralism and equal participation of citizens in elections which represent core elements of the Constitution.
The Court upheld the amendment and also developed a test to apply the Substitution doctrine. It said that while reviewing a challenge contesting violation of core elements, the Court has to look into (a) whether the amendment introduces an essential new element in the Constitution; (b) whether it replaces an element originally adopted by the Constituent Assembly, and (c) it compares the new principle with the previous one to confirm, not if they are different, which will always be the case, but if they are different to the point of incompatibility.”[16]
Using the test, the Court validated the Amendment holding that no element was replaced as people right to participate in democratic wasn’t affected by the amendment as many countries with working democratic Constitution allow two Presidential terms.
The Court again used the Substitution Doctrine in case C-141/2010[17] when the President Uribe introduced another amendment to allow himself run for the second Presidential reelection. The Court applied the test and using the Doctrine declared the amendment unconstitutional because it would allow the President to undermine the system of checks as he would have the sole discretion to appoint the authorities required to keep a check upon him . Thus, the amendment would erode basic feature of Separation of powers in Colombia.
In Colombian Jurisprudence the distinction of Constituent and Constituted power was used as a justifiable ground to limit the amending power. The explanation by the Court and the test developed are in consonance with the constitutional design of Colombia and avoids ambiguity in judicial review of the amendments.
Conclusion
The distinction of Basic Structure Doctrine and Substitution Doctrine is based on the Court’s understanding of the nature of amendment power. In Colombian Jurisprudence, the Court formulated the Doctrine by viewing Congress power of reform as an exercise of derivative constituent power based on its constitutional design. However, in India, no doctrinal reasons were provided to while limiting the amendment power when Court itself recognized Parliament as constituent power. However, no doubt that invocation of the implied limitation protects the Constitution against an abuse of constitutional machinery for political ends, Indian Courts must determine and develop a Constitutional test for judicial review of amendment as found in Colombian Jurisprudence to avoid subjecting the doctrine to judicial discretions.
[1] 1973 4 SCC 225
[2] Part 3 of the Indian Constitution
[3] Part 4
[4] 1952 SCR 89
[5] Article dealing with Constitutional Amendments in original text included the word, procedure for amendment in the marginal notes. Section.
[6] AIR 1967 SC 1643
[7] The Original Article 368
[8] Article 245 of the Indian Constitution
[9] One Minority view on bench did declare the Parliament as a constituted body, however this view was not included in the majority verdict.
[10] Para 1437 , 1973 4 SCC 225
[11] For Instance in Indira Gandhi v Raj Narain case, Justice Baig in his opinion wrote that basic structure theory is applicable against a Parliamentary Statute. However, in Kuldeep Nayar v Union of India, (2006 7 SCC 1) did not apply against Ordinary Statute.
[12] Article 376 Colombian Constitution 1991
[13] Article 377 of the Colombian Constitution.
[14] Opinion in C- 551/2003. Please see, Esᴘɪɴᴏsᴀ Cᴇᴘᴇᴅᴀ Jᴏsᴇ Mᴀɴᴜᴇʟ & Dᴀᴠɪᴅ Lᴀɴᴅᴀᴜ,’ Cᴏʟᴏᴍʙɪᴀɴ Cᴏɴsᴛɪᴛᴜᴛɪᴏɴᴀʟ Lᴀᴡ: Lᴇᴀᴅɪɴɢ Cᴀsᴇ’, Oxford University Press 2017 at pg. 341 & 342
[15] Section 374 of the Colombian Constitution 1991. Also, see Yaniv Roznai, Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea, The American Journal of Comparative Law, Vol. 61,2013, 657- 720, at pg. 684
[16] Ibid 345
[17] Carlos Bernal, Unconstitutional Constitutional Amendment: in the case study of Colombia: An analysis and Justification and Meaning of the Constitutional Amendment Doctrine. I. CON 11 (2013), 339–357 at p. 346