A Response to “An Unconstitutional Constitution?

A Comparative Perspective” – Gary

Introduction

The paper reflects upon whether the Constitutional Amendment be declared Unconstitutional,
To analyze it the author has made a comparative analysis of India & Ireland. The author has
specifically chosen India & Ireland because these two countries have a contrast in
understanding the implied limits on the power of the Parliament to amend the law. In Ireland,
the Supreme Court categorically stated the Parliamentary Sovereignty, later, popular will of
the people & that the Court should not interfere at all in the political questions of the
Parliament, on the other hand, the Supreme Court of India in 1973 has recognized the implied
limits of the Constitution & that the amending procedure of the Parliament cannot take away
the Constitutional identity. With this context, the authors will try to understand Edmund
Burke’s argument of the Prescriptive Constitution & how it is implemented in India &
Ireland.

The author through this piece has highlighted the 2 models of Governance that is the British
Model of Governance which works upon the Parliamentary Supremacy, whereas, the
American Model of Governance mentions the supremacy of the Constitution yet the US
Supreme Court has largely ignored the extent of judicial intervention in cases involving
whether there should be substantive limits on the constitutional amendments.

Amending Power of the Parliament in Ireland

In 1934, Special Tribunal was formed to perform the Summary Trial of the detainees who
were detained in Arbour Hill Military Detention Barrack, the members of the Tribunal who
were appointed were not the judicial officers rather they were political persons who were
performing the judicial functions. The tribunal was given immense power & it could even
sentence people to death without following a due process of law. When the law was
challenged before the Irish Court in the case of State (Lemmon) v. Ryan1, it upheld the
validity of the legislation by stating the “Parliamentary Supremacy” & the Parliament has the
freedom to amend the Constitution in whatever manner they like. The Court upheld the law
made by the Parliament through Parliamentary Sovereignty.

1
[1935] 170 I.R 197.
  Judicial Intervention in the Amending Power of Parliament in England

The judges found themselves incapable of determining what are the basic features of the
Constitution, the Court only has the jurisdiction to see whether the amendment which is
proposed by the Parliament is within the scope of the power granted by the Constitution.

The rationale behind the unwillingness of the Court to determine the basic features of the
Constitution is that it is not specifically mentioned in the Irish Constitution & further the
difference between what is essential features & what is non-essential features of the
Constitution is difficult to maintain.

In the Contrast, the Supreme Court of India, not being the strong supporter of Parliamentary
Supremacy, recognized the essentials of the religion test to understand what is the integral
part of the religion from what is not, this was done so that the Government can achieve the
constitutional goal of doing the social reform along with giving the due regard to not touch
upon the essential religious practices. This Balancing of what remains as Permanent, that is,
the Constitutional Identity, as prescribed in the Preamble of the Constitution, that is, liberty,
belief, faith & worship and the Change to achieve the Social Reform, is what has been argued
by Edmund Burke as the “Prescription” which was categorically rejected by Ireland. The
comparison of India & Ireland in the case of the passing of the Amendment by the Parliament
shows that through the help of judicial intervention the State could be saved from becoming a
totalitarian State.

There are other instances in Ireland where the Court has given due weightage to the popular
will of the people. The Irish Constitution required the popular referendum as the last step in
the amendment process of the Irish Constitution. In 1995, the fourteenth amendment was
adopted which provides information relating to abortion services outside the State for
termination of pregnancy2, the amendment was in direct conflict with the eighth amendment
which acknowledges the right of an unborn child3. The question that arose was “Is it
permissible for the people to amend the provisions of the Constitution with the popular
referendum even if such an amendment is against the existing provisions of the
Constitution?” The court held that supremacy is given to the popular will of the people, hence
whatever the popular will of the people decides even if it is against the provisions of the
Constitution, it must survive, hence the amendment was upheld.
2
Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill 1995
3
Gary Jacobsohn, “An Unconstitutional Constitution? A Comparative perspective”, Int’l Con Law, Vol 4, No 3
(Jul 2006), pp 467-468
Application of Edmund Burke’s idea of “Constitutional Identity” with respect to
Ireland

Edmund Burke states “While there are preconditions for the Constitutional identity to exist,
the nation as an ‘idea of continuity’ meant that constitutions had to be viewed as
embodiments of unique histories and circumstances4”, here Edmund Burke is referring to the
identity which every Constitution carries, that is, a nation is not the idea of local extent rather
it is an idea of continuity which extends from time to time. The Constitution is made up of
unique histories and circumstances which according to the time & circumstances should
change but in the context of the historical backdrop the basic ideals of the Constitution, which
the Constitutional makers expressed should not be changed.

If we look upon the ideals of the Constitution makers of the Irish Constitution, the Preamble
of the Irish Constitution mentions Christian virtue of prudence, justice, and charity along with
the freedom of the individual, the Christ as a divine lord is at a forefront of the document 5.
Though the articles of the Constitution are not directly invoking God, it suggests that the
natural law in some cases should be superior to the positive law. Any communication of
information that is assisting the destruction of the life of an unborn child should be declared
as contrary to the natural right of the Right to life 6, the argument of the natural law stands
above the Constitution is justified because the Constitution through its Preamble, as it
mentions that the laws which owe their validity from the Constitution are derived under God
if a judicial decision rejects the divine law then it is not a law 7, hence the Constitution itself is
the subject to the natural law.

The fourteenth amendment of the Irish Constitution which provides for the information
relating to Abortion services outside is in direct conflict with the natural laws, which has been
recognized by the Irish Constitution if we look upon it from the lens of Edmund Burke’s
theory, the amendment does change the basic character of the Constitution.

Amending Power of the Parliament in India

Pre-Kesavananda era: Indira Gandhi misuse of power, 38th , 39th amendment (Pg 475)

4
Gary Jacobsohn, “An Unconstitutional Constitution? A Comparative Constitution”, ICON, Vol 4, 2006, pp
483
5
Dr. David Kenny, “God in the Irish Constitution”, International Centre for Law and Religion Studies.
6

7
Seamus Henchy, Precedent in the Irish Supreme Court, 25 MOD. L. REV. 545, 549-50 (1962).
  Judicial Intervention in the Amending Power of the Parliament in India (Post-
Kesavananda era: BSD)

Judicial Overreach

Conclusion

The power to amend the Constitution absolutely should not be given to the Parliament as it
might jeopardize the rule of law, as was the case in Lemon v. Ryan in Ireland & during the
regime of Indira Gandhi in India, whereas blind faith in the courts could have the devastating
effects (mentioned above), it should be on the people to see that such amendments which
either give excessive power to the Parliament or vitiate the basic features of the Constitution,
should not be passed by the Parliament, hence the popular will, if knowing why there are
limits on the powers of the Parliament and why it matters, there could be no Unconstitutional
Constitution.
The only dissent by Justice Kennedy wherein he mentioned that any amendment which is
repugnant to the natural law should be declared unconstitutional.