Constituição, identidade e rigidez: limitações materiais ao poder de emenda no Brasil e na Índia

Abstract

This work intends to comprehend how the identity of the constitution is kept fixed in different legal regimes, and what is the democratic justification to limiting the power of constitutional amendment. To that end, the institutes of eternity clauses, in Brazil, and basic strucutre of the constitution, in India, were analyzed. The choice of indian law as comparative element was done, not just because the recognition of “implicit eternity clauses” by decisional construction is a phenomenon that incites curiosity, but specially because India, as Brazil, is a democracy of continental proportions whose guardian is a supreme court with mixed powers. Thus, the author used the bibliography about constitutional rigidity in both countries, as well as references to the decisions of the Indian Supreme Court. Also, in the last part of the work, multiple theories about the concept of democracy were listed, each one with their respective consequences to the jurisdiction of constitutional identity. Among those theories, the most important are those of Gilberto Bercovici, Ingeborg Maus, John Hart Ely and Karl Popper. As a result of the research, it was noted that it is impossible to say that constitutional jurisdiction is not political, because the work of constitutional courts needs a specific political notion about democracy, based in the inclusion or exclusion of certain groups. It was concluded that, each by its own terms, Brazil and India were right about the convenience of the rigidity of constitutional identity; however, the lack of a full comprehension of its function raises the risk of self-reference and the taking over of the courts.