Isabella Carter
The concept of challenging constitutional amendments in court is not uncommon, with the idea of an unconstitutional constitutional amendment being explored by legal scholars since at least the 1890s. In the context of global judicial aggrandizement, many courts have developed and accepted the unconstitutional constitutional amendments doctrine, with courts in various countries challenging the legitimacy and legality of amendments and often striking down formal changes to the constitutional text. In India, both the Supreme Court and High Courts have the jurisdiction to question the validity of a constitutional amendment or central law. The Supreme Court is the highest court in India, and its decisions are binding across the country. While the 42nd Amendment Act of 1976 curtailed the powers of High Courts to review central laws, the 43rd Amendment Act of 1978 restored their original jurisdiction. In the United States, while no amendment to the Constitution has been ruled unconstitutional by a court, it is theoretically possible to challenge an amendment that has not yet been passed, or the process by which it is being passed, in the Supreme Court.
| Characteristics | Values |
|---|---|
| Can a constitutional amendment be challenged in high court? | Yes, both the Supreme Court and High Courts have the jurisdiction to question the validity of a constitutional amendment or a central law. |
| Can a constitutional amendment be ruled unconstitutional? | No amendment to the Constitution has ever been ruled unconstitutional by a court. However, some legal scholars support the possibility of unconstitutional amendments. |
| Can a Supreme Court block a constitutional amendment? | The Supreme Court cannot block an amendment unless the correct procedure for ratification wasn't followed. |
| Can a joint resolution be challenged? | Yes, if there is a reason to challenge the joint resolution, it can be brought before the Supreme Court. |
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What You'll Learn
Supreme Court's power to block amendments
The Supreme Court is the highest judicial body in many countries, including the United States, India, and Australia. It plays a crucial role in interpreting and safeguarding the Constitution, ensuring that laws and amendments align with the foundational principles of the nation. While the Supreme Court wields significant power, the question arises: can it block amendments to the Constitution?
In the United States, the Supreme Court does not possess the authority to block or overturn a constitutional amendment outright. Its primary role is to interpret the Constitution and ensure that laws passed by Congress adhere to it. The process of amending the US Constitution is explicitly outlined in the Constitution itself, granting Congress and the states the power to propose and ratify amendments. The Supreme Court cannot interfere in this process unless there are contentious issues during the ratification process.
However, the Supreme Court can evaluate whether an amendment has been duly passed according to the established criteria and whether it grants Congress the authority to enact certain laws. Additionally, the Court can interpret the amendment in relation to existing laws and the Constitution, potentially finding it in conflict with established principles. In such cases, the Court may strike down laws or portions of laws deemed unconstitutional.
In India, the Supreme Court has the power to nullify constitutional amendments that contravene the Basic Structure of the Constitution, as established in the 1973 Kesavananda Bharati case. This doctrine holds that amendments violating core principles such as democracy, federalism, and secularism can be invalidated by the Court. In the Indira Nehru Gandhi versus Raj Narain case, the Supreme Court applied the Basic Structure doctrine to strike down a Constitutional Amendment for the first time.
While no amendment to the US Constitution has ever been ruled unconstitutional by the courts, the concept of an "unconstitutional constitutional amendment" exists in legal scholarship. This idea posits that even a properly ratified amendment may be deemed unconstitutional if it conflicts with substantive constitutional norms, values, or principles. For example, an amendment establishing a monarchy or severely violating democratic principles could be considered a revolution rather than an amendment, requiring a new constitution.
In summary, the Supreme Court does not have the explicit power to block amendments before they are passed. However, it plays a crucial role in interpreting and safeguarding the Constitution, ensuring that laws and amendments adhere to its principles. The Court can evaluate the validity of amendments, their compliance with established procedures, and their consistency with existing laws and constitutional norms, potentially striking down laws that conflict with the Constitution's Basic Structure or established doctrines.
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High Courts' jurisdiction to question amendments
The jurisdiction of High Courts (HCs) to question constitutional amendments varies across different countries. In India, both the Supreme Court (SC) and HCs have the jurisdiction to question the validity of a constitutional amendment or a central law. However, the 42nd Amendment Act of 1976 curtailed the judicial review power of HCs and prevented them from evaluating the constitutional validity of central laws. This was later reversed by the 43rd Amendment Act of 1978, which restored the original position of HCs, empowering them to declare central laws as constitutionally invalid.
In the United States, the Supreme Court is the highest court in the federal judiciary, as established by Article III of the Constitution. It has original jurisdiction over certain cases, such as suits between states or cases involving ambassadors. The Supreme Court also has appellate jurisdiction, allowing it to hear cases on appeal that involve constitutional or federal law. While the Supreme Court has the authority to strike down state laws that violate the Constitution, it has never ruled a constitutional amendment as unconstitutional.
In Italy, the Constitutional Court decides on the constitutionality of both ordinary laws and constitutional laws. This court has the final say, and its rulings cannot be appealed. An example of an unconstitutional constitutional amendment in Italy would be a measure to restore the monarchy, as it would conflict with the country's republican form of government, which is explicitly protected by an entrenched clause.
The concept of an unconstitutional constitutional amendment has been explored by legal scholars and adopted by various courts worldwide. Israeli legal academic Yaniv Roznai's book "Unconstitutional Constitutional Amendments: The Limits of Amendment Powers" discusses this concept, and Australian legal scholar Adrienne Stone has critiqued and expanded upon Roznai's arguments. While there is no universal approach to the jurisdiction of HCs in questioning amendments, each country's legal system defines the extent of their powers in interpreting and upholding the Constitution.
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Amendments conflicting with constitutional values
The concept of an unconstitutional constitutional amendment is based on the idea that even a properly passed and ratified amendment can be unconstitutional if it conflicts with a constitutional or extra-constitutional norm, value, or principle. For instance, an amendment that establishes a monarchy or enshrines white supremacy would be deemed unconstitutional as it conflicts with the values of equality and democracy.
In the United States, while no amendment has ever been ruled unconstitutional by a court, legal scholars support the possibility. The Supreme Court interprets the Constitution and decides on conflicts between amendments, with more specific rules taking precedence over general ones. The Supreme Court's rulings are not binding on anyone except the parties to the cases before it, but lower courts seek to rule consistently with Supreme Court precedent.
In India, both the Supreme Court and High Courts have the jurisdiction to question the validity of a constitutional amendment. The Supreme Court, as the guardian of the Constitution, can nullify amendments that go against the Basic Structure of the Constitution, which includes concepts like democracy, federalism, and secularism. However, the validity of a law cannot be challenged for violating this Basic Structure.
The Italian Constitutional Court decides on the constitutionality of laws and amendments, and its rulings are final. An example of an unconstitutional amendment in Italy would be restoring the monarchy, as it goes against the country's republican form of government, which is protected by an entrenched clause.
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Amendments that transform the constitution
The Supreme Court is the guardian of the Constitution in India, and it has the power to nullify any constitutional amendment that goes against the basic structure of the Constitution. This basic structure was derived from the 1973 Keshavananda Bharti case. While the High Courts of India also have the jurisdiction to question the validity of a constitutional amendment, the 42nd Amendment Act of 1976 curtailed their judicial review powers. The 43rd Amendment Act of 1978, however, restored these powers.
In the United States, there have been 27 amendments to the Constitution, with the first 10 amendments forming what is known as the Bill of Rights. No amendment to the US Constitution has ever been ruled unconstitutional by a court. The US Constitution sets high standards for amendments but places few limits on their content. The idea of an "unconstitutional constitutional amendment" has been around since at least the 1890s, with former Michigan Supreme Court Chief Justice Thomas M. Cooley embracing the concept. Cooley argued that amendments must be harmonious with the body of the Constitution and that an amendment that transforms the government into an aristocracy or monarchy would not be valid.
Legal scholar Adrienne Stone has argued that amendments that transform a constitution into something other than a constitution, such as by eliminating the rule of law, would be unconstitutional. She uses Australia as an example, where the constitution-amending process is more democratic and inclusive than the original constitution-making process. In contrast, Italian constitutional amendments are subject to review by the Constitutional Court of Italy, which can strike down amendments that violate inviolable human rights or the country's republican form of government.
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Amendments that violate basic structure
The concept of an "unconstitutional constitutional amendment" has been around since at least the 1890s. Former Michigan Supreme Court Chief Justice Thomas M. Cooley embraced the idea in 1893, insisting that amendments "must be harmonious with the body of the instrument". For instance, an amendment that transforms a democratic government into an aristocracy or monarchy would not be an amendment but a revolution.
In India, the Basic Structure Doctrine, introduced in the 1973 Kesavananda Bharati case, asserts that there are fundamental features of the Constitution that cannot be altered by any amendments made by Parliament. The doctrine has been reinforced by significant judgments from the Supreme Court, which have consistently upheld its importance in protecting the Constitution's integrity. The Supreme Court has used the Basic Structure Doctrine to strike down Constitutional Amendments, such as in the Raj Narain case.
However, in a 2024 case, the Supreme Court held that the validity of a law cannot be challenged for violating the Basic Structure of the Constitution. Chief Justice Chandrachud reasoned that the Basic Structure doctrine was made up of "undefined concepts" such as democracy, federalism, and secularism. He further stated that allowing courts to strike down legislation for violating such concepts would introduce an element of uncertainty in constitutional adjudication.
Despite the Supreme Court's ruling, both the Supreme Court and High Courts in India have the jurisdiction to question the validity of a constitutional amendment or a central law. The High Courts can declare any central law to be constitutionally invalid. As the guardian of the Constitution, the Supreme Court can nullify any constitutional amendment that is against the basic structure of the Constitution.
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Frequently asked questions
Yes, both the Supreme Court and High Courts have the jurisdiction to question the validity of a constitutional amendment. However, the Supreme Court is the highest court in the land and has the final power to interpret the constitution.
No amendment to the US Constitution has ever been ruled unconstitutional by a court. However, the concept of an unconstitutional constitutional amendment has been around since at least the 1890s.
An example would be a measure to restore the monarchy in a country where it has been abolished. This would conflict with the country's republican form of government, which is explicitly protected in an entrenched clause.
A constitutional amendment cannot be blocked by the Supreme Court unless the correct procedure for ratification was not followed. However, a joint resolution that proposes an amendment can be ruled unconstitutional.
