Constitutional amendment and the final say in Ireland and India

Abstract Irish and Indian approaches to constitutional amendment would appear to be chalk and cheese: Irish courts insist that the people have an unfettered right to amend the Constitution through referendum in any way they wish; Indian courts have held since 1973 that Parliament cannot amend the Constitution’s “basic structure.” They thus occupy opposite poles in the form, scope, and judicial oversight of constitutional amendment powers. However, this article argues that, when the historical context of each amendment regime is understood, a functional equivalence can be observed between the finality of referendum results in Ireland and the Indian basic structure doctrine. Before these arrangements, “final say sovereignty”—the position of unaccountability or finality within a constitution—was held by each country’s Parliament and often used for authoritarian ends. The finality of the referendum in Ireland and the Indian judiciary’s basic structure review power both deny Parliament final say sovereignty by holding this power themselves; in both cases, the transference of this kind of sovereignty proved decisive for consolidating law-bound government. However, the essential differences between a referendum process and a judicial power to review amendments cannot be overlooked, and these create distinct approaches to constitutional identity. The effects of final say sovereignty for a constitution will be different depending on who wields it.