A Tussle between the Constitutional Amendability and the Basic Structure Doctrine: A Comparative Study of India, South Africa, and Germany

Abstract

This research article investigates the tension between constitutional amendability and the judicial limits on the amendability of the Constitution, such as the Basic Structure Doctrine (BSD), through a comparative study of India, South Africa, and Germany. Most modern nations have their written constitutions that impose certain limitations on their governments. However, if the government can authoritatively amend the constitution, then the credibility and stability of constitutionalism may be endangered. It situates amendment power within the classic distinction between constituent and amending power, tests whether formal amendment rules are adequate to protect a constitution’s core identity, and assesses the democratic legitimacy of judicially enforced unamendability principles. India represents a robust, judge-made Basic Structure Doctrine (BSD) that constrains amending power of Parliament; Germany embodies explicit textual unamendability via the Basic Law’s Ewigkeitsklausel (eternity clause) and a constitutional court that regulates it; South Africa sits between these poles, employing certification jurisprudence, justiciable procedural and structural limits, and rights-sensitive judicial review without an explicit eternity clause, such as Germany. The article argues that carefully cabined judicially enforced limits are normatively defensible where an amendment threatens to collapse the separation of powers or annihilate constitutional identity, which very commonly happens under conditions of dominant or majoritarian-party rule. Nevertheless, there should be sufficient caution against an excessive emphasis on the Basic Structure Doctrine (BSD) that stagnates constitutional politics and the evolving ethos of society.