The article "Implied Limitation on the Power of Amendment: A

Comparative Study of its Invocation in India, Colombia, and Benin" by

Siddharth Sijoria as the name suggests provides a comprehensive analysis
of the application of the Basic Structure Doctrine in the constitutional
contexts of India, Colombia, and Benin. It provides a clear understanding
of how these countries have managed to balance between the
constitutional rigidity and adaptability, by acknowledging limits on what
can be changed through amendments.
This article is divided into three parts. Firstly, it deals with the evolution of
the doctrine of implied limitations on amendment power in India,
Colombia and Benin. Secondly, he discusses the criticism faced by the
theory, its constitutional basis and significance for the theory and thirdly
his views on how the doctrine is legitimate, as a protection against
abusive constitutionalism, and how it is relevant against the misuse of
amending power. The clear and structured presentation of the article
makes it easy for the reader to understand the concept.
By tracing the historical evolution of the Basic Structure Doctrine in India, Colombia, and
Benin, the author provides a comprehensive overview of the jurisprudential developments
that have shaped the discourse on constitutional amendments in these countries. This
comparison shows both the common challenges these countries had to encounter and the
unique ways in which they handled them.
In India the doctrine was evolved as a result of several challenges to land laws that were
enacted for reforming land ownership and tenancy structures, after the Indian
independence in 1947. Constitutionality of land reform enactments was
challenged by the land owners contending they were violative of Art.19(1)
(f) and some courts even held them unconstitutional. The Parliament
viewed these decisions as an obstacle to their socialist aspiration. So, the
Constituent Assembly, which was functioning as interim Parliament,
introduced ninth schedule as a protective umbrella for these enactments,
the constitutionality of which was upheld by the Supreme Court in in
Shankari prasad case stating that constitutional amendments do not come
under the purview of Art 13. It was later overruled in Golak Nath case and
further held that the Art. 368 only dealt with the procedure and not the
power of parliament to amend the constitution. As a response to the
parliament enacted 24th amendment by which instead of procedure, power
was inserted in Art. 368. In 25th, 26th and 29th Amendment Acts the
parliament inserted a new Article 31C to insulate judicial review of the
laws placed under the Ninth Schedule, abolished privy purse and included
few other acts in 9th schedule. These amendments were challenged in
Kesavananda Bharati case and 24th, 26th, and 29 th amendments were
held to be valid, but part of the 25th amendment that insulated judicial review
of legislation was held to be unconstitutional and further held that the
Constitution can be amend
ed but not to alter its basic structure.
In Colombia, Similar to India, the Colombian Constitution does not contain
any express limitation

and an amendment can only be declared unconstitutional if it fails to meet

the procedural requirement spelt out in law. The Constitutional Court
invoked the theory of implied limitation on amendment power in its
decision numbered C-551/2003. The theory was called “Constitutional
Replacement Doctrine” or “Substitution Doctrine”. The Court explained the
Substitution Doctrine by distinguishing between the “original constituent power”, and
the “derivative constituent power”. The Colombian Constitutional Court creates
several layers for amendments. Changes that are mere “amendments”
can be made by any of the mechanisms provided in the Constitution i.e.,
congressional approval, or the referendum. Changes that materially
replace or substitute basic features of the Constitution can only be done
through an extraordinary mechanism of a constituent assembly
In president re-election case, 2005, the court applied seven- tiered test for
proving whether any core element has been replaced. The Congress
enacted a constitutional amendment to establish the possibility of a
presidential re-election to allow the then-President Alvaro Uribe Velez to
run for a subsequent re-election. The challenge involved the violation of
the basic elements of the Constitution because the Colombian
Constitution explicitly put an embargo upon presidential re-election. The
Court held that presidential re-election for a single additional term, subject
to a law that ensures the rights of the opposition and equal opportunities
for all candidates during the presidential campaign, was not an
amendment that substitutes the 1991 Constitution into a new one. The
elements of a democratic and social state of the law were not replaced by
the amendment as the people still retained the right to freely decide who
to choose as president. The institutions with powers of control and review
were not affected. The system of checks and balances and the
independence of constitutional bodies were safeguarded, which according
to the Court form the basic features of the Constitution in Colombia
Again, an amendment was proposed for the re-election of the same
president for the third time, but this time court held it unconstitutional and
was of opinion that allowing a second presidential re-election could
jeopardize checks and balances by consolidating influence over judicial
and agency appointments. The court emphasized that constitutional
reform through a referendum reflects derivative constituent power, not
the primary power needed to alter fundamental aspects of the
constitution. Reiterated Constitution can only be replaced through the
mechanism of the Constituent Assembly which enjoys constitutional
supremacy under the Constitution of 1991. Thus, for the first time, the
Court invoked the Constitutional Replacement Doctrine to invalidate an
amendment against the popular and powerful incumbent.
Unlike India and Colombia, the Benin Constitution contains express
limitations i.e., unamendable clauses within its text. The Constitution
under Article 154 prescribes for the procedure to be followed while
enacting an amendment. Article 155 requires a referendum in case the
Parliament cannot garner the four-fifth majority to pass the amendment in
house. Article 156 expressly restricts the amendment power of the
Parliament. The Constitutional Court of Benin in three cases expanded the
meaning and scope of limitation beyond the text of Article 156.
In the first instance Constitutional Court was required to decide if the
Parliament, as a constituted authority, could extend its mandate through a
constitutional amendment in view of Article 80 that restricts the tenure of
Members of Parliament to four years. The Court declared the amendment
as unconstitutional, invoked “national consensus” expressed in the
preamble as an essential constitutional principle to declare the
amendment unconstitutional. The said Judgement faced lots of criticisms.
However, the Constitutional Court in subsequent cases expanded the list
of essential features of the Constitution.
In September 2011, the Parliament adopted a referendum Law No.
2011/27 to regulate the organisation of constitutional referendum in
Benin. In the referendum, the questions pertained to modifying the
minimum and maximum age requirement for the President, removal of the
presidential term limit and modification of the presidential nature of
Benin's political system
. Court held that these questions cannot be subjected to referendum. in
this decision, the Court implicitly added immutable clauses other than
those explicitly mentioned therein Article 156. The Court based its
decision on the preamble and historical context of the Constitution,
highlighting past injustices and the principles adopted during its adoption
in 1990. It emphasized that the Constitution aimed to establish democracy
and prevent the concentration and abuse of power. The Court argued that
term limits on presidential tenure were essential to prevent the
personalization and prolonged consolidation of power by any individual,
which could undermine democratic principles. It declared that term limits
formed part of the constitution's basic structure and were beyond
parliamentary amendment.
Third instance involved a constitutional challenge to the contents of an
open letter written by a minister, Mr. Latifou Daboutou, to the President of
the Republic requesting him to revise the Constitution to allow himself to
run for a third Presidential term. The Court held that the speech of the
minister violated Article 34 which requires every citizen to abide by the
Constitutional Court orders as the open letter provokes for violation of one
of the basic features of the Constitution enshrined in Article 42 i.e.,
presidential term limit as decided in DCC 11-06.
The Court, akin to the Colombian Constitutional Court, highlighted the
difference between the original constituent power and derivative
constituted power. any alteration of the basic structure of the Benin
Constitution requires the formation of an original constituent power like a
constituent assembly and the Parliament being a derived constituent
power cannot violate the basic structure. Through this judgment, the
Constitutional Court declared itself as the final arbiter to decide upon the
question of what constitutes basic structure and established the principle
as developed by the Indian and the Colombian Constitution that any
alteration to the basic structure would require the exercise of original
constituent power.
After discussing in detail about the evolution of the doctrine in the legal
framework of India, Colombia and Benin, the author moves on to deal with
the various criticisms the doctrine had to face. Some were of the opinion that
the doctrine was undemocratic and counter-majoritarian in character, giving unelected
judges vast political powers that are not vested in them by their constitution. Some criticised
it as being undemocratic as its application limits the legislative power of the parliament. The
theory's focus on protecting the original tenets of the constitution is also criticized for
denying the opportunity to the present generation to decide for itself. Some critics argue
that the doctrine's abstract formulation and vagueness have allowed the courts to enjoy
unlimited judicial power making the judiciary “the most powerful organ of the State”. Some
suggest that courts should come up with an exhaustive and concrete list of basic elements of
the constitution. Bernal has argued that, if a referendum concerning any amendment is
answered positively by the people, judicial review must be restricted to procedural
compliance by the legislature. Jeremy Waldron, in his book “Law and Disagreement”, writes
that the decision of what is amendable and what is not is not based on any set of principles
or rationality but on preferences constructed out of a variety of coherent individual choices.
The lack of standard in judicial review results in creation of a “government of judges” which
can render decisions more regressive in recognizing rights as compared to decisions made by
a democratically elected parliament.
Talking in favour of the doctrine the author tries to establish the legitimacy of the doctrine
and its relevance against abusive constitutionalism by citing certain instances of abusive
constitutionalism. The author was of the opinion that in a democracy, certain decisions must
be protected from majority rule. He questions the extent of true representation and public
support in contemporary democracies. He interprets the preamble to the constitution as
reflecting a social contract, empowering people to safeguard certain rights independently.
The concept of constitutional sovereignty inherently restricts legislative authority, implying
inherent limits on what laws can be passed.
 He points out how Sudhir Krishnaswamy defends the legitimacy of the theory by
arguing that “legal norms which guide judicial decision making include those
 norms which are written into the constitution as well as those norms developed
by the court interpreting the constitutional text (intrinsic values)”. In support, he
opined that the nature of the legislature as constituted power as opposed to
constituent power offers legitimacy to the theory of implied limitation. The
constituted power cannot act against the power which formed it or alter its own
foundation.
He further opined that the invocation of the theory by the judiciary should be seen as a facet
of check and balance and an important tool in the performance of the court's role as the
guardian of the constitution to protect it from loss of its identity and basic elements. Most of
the fundamental rights and challenges to the violation of the basic structure of the
constitution are claimed against the parliament representing the majority. Therefore,
allowing the parliament to be the final arbiter on questions of violation of basic features of
the constitution will amount to it judging its own cause in matters in which it has a close and
intimate interest. The invocation of the theory by the judiciary cannot be described as
judicial overreach but must be seen as an important tool to perform its role as guardian of
the constitution to protect the foundational elements of the constitution. Judicial review of
amendments, should be viewed as a facet of separation of power that allows the court to
keep a check upon legislative powers.
Further, he talks about abusive constitutionalism and how the doctrine of implied limitation
on amending power is relevant as against abusive constitutionalism. In many jurisdictions,
powerful incumbents with a majority voting share in the legislature employ the mechanism
of constitutional amendment as a means to undermine democracy. David Landau calls this
phenomenon “Abusive Constitutionalism”. Hitler's abuse of constitutional emergency power
to overthrow the Weimar Republic and install an authoritarian regime, Putin's latest
constitutional amendment to allow himself to stand for Presidential election for four terms
in a row against strict mandate provided in the Russian Constitution are some incidents that
can be referred to as examples of this phenomenon. In a dominant party democracy system,
imposition of substantive constraint on the amending power serves as a hedge against the
polity's uncertain commitment to rule of law. However, despite the existence of this
restraint, political parties enact amendments that tend to violate these features. In these
situations, the constitutional courts use the basic structure theory as a remedy, like it did in
India and Colombia, for such odious constitutional amendments.
The author also provides certain instances of abusive constitutionalism took place in India,
Colombia and Benin as well. IN INDIA 39TH AMENDMENT ACT CHALLENGED IN INDIRA
GANDHI V RAJ NARAIN, LATER DECLARED AS UNCONSTITIONAL was an instance of abusive
constitutionalism. The Court applied the basic structure theory and declared that rule of law,
free and fair election, equality of citizens are some of the basic features that the proposed
amendment destroyed. Another instance was the enactment of the Forty-Second
Amendment which amended the Article 368 and Article 31C of the Indian Constitution that
were aimed at removing all limits upon the constituent power to amend the Constitution by
insulating judicial review of constitutional amendments. In the Bommai case, the Supreme
Court was asked to review the decision of the then Central Government to dismiss six state
governments ruled by the Bharatiya Janata Party by invoking emergency power under Article
356 of the Indian Constitution. the Court was asked to review the validity of the President's
political decision. The Court ruled that the basic structure had application beyond
constitutional amendment and held that the President's exercise of discretion must comply
with the Constitution's mandate. Recognizing secularism as an essential feature, the Court
upheld the dismissal of state governments as complying with the basic features.
In presidential systems like in Colombia and Benin, the application of the theory to declare
removal of term limits has raised several questions against implied limitation on amendment
granting the presidential re-election. the Constitutional Court decision holding the
amendment granting a third presidential term unconstitutional was crucial to prevent the
principle of check and balance as one more term would allow the President to appoint
public officers responsible for checking him and therefore it would become impossible to
achieve constitutionalism. Thus, in this case, the Court did prevent a significant erosion of
democracy by preventing a strong president from holding onto power indefinitely. no one
individual has a monopoly on the skills needed to govern.
While concluding the author talks about how the doctrine can be adapted into the changing
times and changing trends of constitutional abuse, how Its flexibility allows judges to defend
the constitutional order without being constrained by the limits of the constitutional text. He
appreciated the fact that the political entities both in India and Colombia have both
respected the invocation of the doctrine and respected the decisions of the courts.
The authors discussion of the practical implications of the Basic Structure
Doctrine is particularly insightful. By examining specific cases and
controversies where the doctrine has been invoked, the article sheds light
on the real-world impact of recognizing implied limitations on the power of
amendment. His analysis of the role of the judiciary in upholding
constitutional principles and safeguarding against executive overreach
adds depth to the comparative study and underscores the importance of
judicial review in preserving the integrity of constitutional democracies.
However, one area where the article could be further strengthened is in
providing more detailed comparative analysis of the specific legal
frameworks and constitutional provisions in India, Colombia, and Benin.
However, the article "Implied Limitation on the Power of Amendment" by
Sidhharth Sijoria is a thought-provoking and insightful contribution to the
field of comparative constitutional law.