Resolving the ‘Paradox of Constituent Power and Constitutional Form’ from a Schmittian Account of Sovereignty: Its Relevance to the Understanding of ‘Constituent Power’ and ‘Amending Power’
Kumarjit Banerjee & Bulbul Khaitan*
Volume 1 Issue 4 (2008)
Power to amend the constitution is distinct from the power to amend any other legislative instrument in view of the fact that the former is a power to alter the most significant instrument in the polity. The apex court of the country has also recognized this distinction while equating the power to amend the constitution with constituent power. In our opinion, this position needs to be reviewed since there is significant difference between the concept of constituent power and the power to amend the constitution. For a clear exposition of the nature and limits of the power to amend the constitution, a proper understanding of it’s distinction from the concept of constituent power is imperative and providing that is the intended objective of the present paper.We conclude that the power to amend the constitution is an aspect of governmental power, distinct from sovereign power, which is fettered by the constitutional form. The constituent power, on the other hand, is an attribute of the sovereign unfettered by any constitutional limits.