CEU Electronic Theses and Dissertations, 2025
| Author | Khan, Suhail Farooq |
|---|---|
| Title | Lions above the Throne: Exploring Subjectivity in Basic Structure Doctrine of India and Constitutional Replacement Doctrine of Colombia |
| Summary | This thesis aims to undertake a comparative analysis of the doctrine of unconstitutional constitutional amendments developed in two divergent legal systems: India, representing the common law tradition, and Colombia, rooted in the civil law tradition. While extensive literature exists on the evolution of the Basic Structure Doctrine in India and the Constitutional Replacement Doctrine in Colombia, a direct comparative study between these two doctrinal frameworks remains absent from current scholarship. This research attempts to address that gap by examining i) how the Courts in their respective jurisdictions have interpreted their constitutional provisions to conclude implied limitations on the amending power, grounded in the distinction between original and derived constituent power, even in case of absence of eternity clauses. It explores how the constitutional provision for convening a constituent assembly has influenced the judicial reasoning in Colombia to a degree, and if there is a potential point of convergence with India. The thesis further evaluates ii) if the seven-step approach under Constitutional Replacement Doctrine offer a more structured and objective alternative to the abstract and subjectivity application of the Basic Structure Doctrine in India. Through detailed doctrinal and case law analysis, the thesis finds that both jurisdictions converge in recognising limits on constitutional amendment based on constituent power theory, although the provision for convening a constituent assembly in Colombia enabled its Court to articulate this distinction more systematically, where in India, its Court had to struggle for decades to make such distinction. On the second question, the analysis reveals that, despite its structured and systematic methodology, the Colombian approach is not immune to subjectivity and faces the same issue of abstraction present in India. Ultimately, the thesis concludes that Colombia’s model does not present a viable constitutional transplant for India. |
| Supervisor | Böckenförde, Markus |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2025/khan_suhail.pdf |
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