Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis

Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis

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Volume 10 Issue 4 ()

Unconstitutional constitutional amendments present an intractable conundrum in constitutional law theory and praxis, not the least because of the literal paradox in the term itself. The age-old tussle between the Parliament and the Judiciary, in delineating the scope of their powers, has had inevitable spill-over effects on determining how far a constitution can be altered and negated. We argue that a conflation of the variegated categories of constituent powers has led to the evolution of misplaced critiques of implied restrictions on the Legislature’s constitution-amending powers, which characterise doctrines such as the Basic Structure Doctrine to be ‘counter-majoritarian’ checks on democracy and effective political change. In order to understand and engage with these criticisms more fully, we embark upon a comparative constitutional inquiry into the developments of the Basic Structure Doctrine in India, Bangladesh and Pakistan. In an effort to seek clarity as to the scope and limitations of these doctrines, we engage with the oft-reiterated criticisms levelled against this doctrine, not simply by evolving a cogent epistemology on constitutional amendments, but rather with a focus on the actual evolution of the doctrine by the courts themselves. Such comprehensive engagement helps to dispel much of the objections and convoluted interpretations of the long-winded jurisprudence in this sphere, and serves to bring out the versatility of the doctrine in different jurisdictions with different socio-political contexts. We also critically examine the development of the Salient Features Doctrine in Pakistan, to determine how far it can be distinguished from the Basic Structure Doctrine, and how far it overcomes the objections to constitutional borrowing and legal transplantation from foreign jurisdictions. We seek to answer questions, both old as well as emerging, that accompany the operation of these doctrines, and to delve into the implications that these answers hold for Constitution-making and Constitution-amending powers.

Cite as: , Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: A Comparative Analysis, 10 NUJS L. Rev. () (Working Citation)

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