Lecture Note of Dr Bipin Adhikari, National Law College, LL.M First Year, May 17, 2013.)
(Student notes /not to be quoted/cited for any purpose other than at classrooms)
The provision on amendment of the Constitution allows every constitution to keep with the requirements of change. This change may be necessary to adapting the constitution from time to time to new circumstances.
A Constitution is amended by informal as well as formal means. While the formal means is explained by the constitution itself, the informal amendment of the constitution occurs because of the power of the constitutional interpretation exercised by the judiciary, especially the Supreme Court. It is a slow and gradual process. It is haphazard also – because courts do not take initiatives themselves. Its contours are not pre-determined. Similarly, even where no judiciary is involved, it is possible for any provision of the constitution to be modified by the growth of conventions, practices and observances. It is also a slow process. The change comes about gradually affecting the written provisions of the constitution without visible modification on the face.
Article 148 of the Interim Constitution of Nepal states:
148. Amendment of the Constitution
(1) A Bill regarding amendment or repeal of any Article of the Constitution may be presented in the Legislature-Parliament.
(2) The Bill shall be deemed passed if the Bill so presented is approved by at least two-thirds majority of the total number of existing members.
Article 148 has the following features:
Article 116 of the 1990 Constitution had somewhat different arrangements:
116. Amendment of the Constitution
Article 116 had the following important features:
Doctrine of Implied Limitations
The doctrine of implied limitations on the amending power of the legislature is an established proposition in many jurisdictions which demands that although in principle a sovereign people always has the right to revise, reform or change its constitution, as one generation cannot subject future generation to its own laws, the original constituent power limits its own ability to exercise constitutional amendments in the future. [D. Conrad, Constituent Power, Amendment and Basic structure of the Constitution: A Critical Reconsideration, 6 & 7 Delhi Law Review 1, 14-15, 1977 & 78)
Amending power vested in a legislature, however, cannot be said to be merely another form of constituent power. The reason is that legislature does not have a special mandate for constitution making. The special mandate is not just one of the trappings, but has from the very beginning been held the essential criterion for an exercise of constituent power by representatives, and this for very practical reasons.
Direct transmission of the people's constitution making will can only be ensured if neither in the election of disputes, nor in the work of the assemblies the longer range issues of constitutional plan are mixed with short term interests of power politics and government. Only this separation and clear identification of its constitution making function can justify the extraordinary powers conceded to a constituent assembly, e.g. the customary rule that it may settle the constitution by simple majority.
The accumulation of government and constituent function on the other hand, has always been feared to lead, and has led in history, to tyrannical results. In short, the concept of constituent power is part of the doctrine of separation of powers, and has historically been derived from a combination of Rousseau's democratic radicalism with the liberal precepts of Montesquieu.
No confusion here with the Doctrine of Implied Powers, which in the US, are those powers which, while not stated in the Constitution, seem to be implied by powers expressly stated.
The classic statement of Hamilton that the "general welfare clause" and the "necessary and proper clause" gave elasticity to the constitution must be noted. Hamilton won the argument with Washington, who signed his Bank Bill into law. Later, directly borrowing from Hamilton, Chief Justice John Marshall invoked the implied powers of government in the court decision of McCulloch v. Maryland (1819).
In this case, the state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the court's opinion as having specifically targeted the U.S. Bank.
The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution's list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution. This case established two important principles in constitutional law. First, the Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. Second, state action may not impede valid constitutional exercises of power by the Federal government.
Indian Supreme Court - Basic Structure Doctrine
The Supreme Court of India maintains that the Constitution has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these "basic features", are the fundamental rights granted to individuals by the Constitution. The doctrine thus forms the basis of a limited power of the Indian Supreme Court to review and strike down constitutional amendments enacted by the parliament which conflict with or seek to alter this "basic structure" of the constitution.
The "basic features" principle was first expounded by Justice J.R. Mudholkar in his dissent in the case of Sajjan Singh v. State of Rajasthan (1965 AIR 845, 1965 SCR (1) 933). "It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ?"
By 1973, the basic structure doctrine triumphed in Justice HR Khanna's judgment in the landmark decision of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461). Previously, the Supreme Court had held that the power of parliament to amend the constitution was unfettered. However, in this landmark ruling, the court adjudicated that while parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures proved that in fact such apprehension was well-founded. In Indira Nehru Gandhi v. Raj Narain, a Constitutional Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy.
The basic structure doctrine applies only to constitutional amendments. It does not apply to ordinary acts of parliament, which must conform to the entirety of the constitution; not just to its "basic structure".
The basic structure doctrine was further clarified in Minerva Mills v. Union of India (AIR 1980 SC 1789). The Constitution (Forty-Second Amendment) Act had been enacted by the government of Indira Gandhi in response to the Kesavananda judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, Nani Palkhivala successfully moved the Supreme Court to declare sections 4 & 55 of the 42nd amendment as unconstitutional.
Chief Justice Yeshwant Vishnu Chandrachud explained in the Minerva Mills judgment that since the power of Parliament to amend the constitution was limited, as had been previously held through the basic structure doctrine in the Kesavananda case, the parliament could not by amending the constitution convert this limited power into an unlimited power (as it had purported to do by the 42nd amendment).
In addition, the court also ruled that the parliament's "power to amend is not a power to destroy." Thus the parliament did not have the power emasculate the fundamental rights of individuals, such as the right to liberty and equality. This latter view of Article 31C was questioned, but not overturned, in Sanjeev Coke Manufacturing Co v Bharat Cooking Coal Ltd (AIR 1983 SC 239).
Constitutional Amendment without Prejudicing the Preamble
Article 116 of the 1990 Constitution and its link with the Preamble was one step forward in the basic structure doctrine. While principles remain the same, the spirit of the Constitution must be discovered from the Preamble, and not outside it. While the 'preamble' was made not amendable, making sure that it is never trampled with, any article of the Constitution except this enable Article was subject to amendment. Some people criticized this provision because it also protected the institution of monarchy (which was explicitly mentioned in the Preamble as one of the features of the constitutional system).
Article 148 of the Interim Constitution of Nepal
Article 148 does not put any express limitation on the power of constitutional amendment. There is a clear and deliberate effort by the Interim Constitution to depart from the jurisprudence of Article116, or the amendment without prejudicing the spirit of the preamble. However, the jurisprudence of difference between constituent power and power to amend the constitution, which has now evolved, remains a fact of Nepal's constitutional law.