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What is the Best System of Constitutional Amendments: A Comparative Analysis

Samvit Ganesh
L.L.M., (1st Year)
O.P. Jindal Global University, Sonipat, Haryana, India

Volume II, Issue I, 2019

This essay seeks to embark on a brief comparative analysis of amendments of constitutions amongst common law legal systems of the world. In the millennial generation, recognition of personal rights and liberties has reached a high and in this nexus, it is imperative to study and understand the rights and liabilities afforded to individuals and the power of polity to amend these rights. This essay aims to reconcile efforts of various constitutions of upholding or disregarding rights that are often argued to be inalienable through the ideals of natural law. The essay will examine the constitution of the United Kingdom, United States, Canada and New Zealand amongst references to other states.

Indian courts have recognized that amendments to the Indian constitution are subject only to the doctrine of ‘basic structure’, this essay aims to examine comparatively ‘to what extent are governments limited in their power to amend the constitution?’. Judicial construction of constitutional amendments has also been extremely controversial in India, exemplified in the cases of Keshavananda Bharti and Minerva Mills. This essay also aims to analyse the extent of judicial intervention in constitutional amendments and differing status of judicial power in amendments.

 In India, it has been noticed that the Judiciary plays an extremely vital role in its interpretation of amendments, and has created constitutional law in this sense. However, in the British constitutional mandate, such power is not afforded to the judiciary. This essay will aim to explore the effect of the lack of judicial intervention in constitutional amendments.

Yet another pressing issue of controversy which may arise in the course of this research is the question of ‘what is the role of fundamental rights in the amendment of constitution?’. In India, there has been no judicial authority which has stated that fundamental rights are part of the ‘basic structure’ doctrine, and therefore amendments are not expected to adhere to the fundamental rights of citizens and persons. However in world polity this may differ, and such comparison is crucial to the understanding of the 21st century world.

This essay hopes to understand infirmities and advantages of amending laws in amongst common law constitutions and to reconcile an ideal structure of balance between Legislative and Judicial power in respect of constitutional amendments. It hopes to conclude in anti-Austinian fashion that the lack of judicial understanding of amendments may be largely detrimental to general polity despite questioning the supremacy of the sovereign. The role of fundamental rights has been seen as inessential to the Indian constitution, however this essay aims to compare and understand the relative importance of fundamental rights and its infallibility with respect to amendments.

This essay will rely largely on analytical papers on world constitutions, specific case law analysis and statutory interpretation to understand and reflect upon the proposed research questions. The sources will be largely secondary. The sources of initial research are cited below.

It is sincerely hoped that this essay may provide a fruitful and in-depth understanding to comparative constitutional law, and deal with pressing ideals of liberalism and the constitution in the 21st century.

 

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