Constitutional replacement doctrine

Abstract

The so called 'constitutional replacement doctrine' is a case-law doctrine of the India Supreme Court and the Colombia Constitutional Court, but also a scholarly one. This doctrine differentiates between constitutional amendment and constitutional replacement in order to protect what are considered the constitution's essential elements (basic structure). This doctrine justifies the power of the courts to review the substance of constitutional amendments and so to prevent constitutional amendment power from changing the constitution's essence, even when there are no expressed substantial limitations upon it and it complies with the constitutional amendment procedure. This paper critically analyses that doctrine, because it is based on a material understanding of the constitution that weakens its normative value.