At this transitional juncture, a constitution cannot be labelled merely as a legal document. It is, above all, a record of struggle, drafted to stabilise hard-won principles being undone by the arrogance of a passing majority’s vote. Nepal is no exception.

This idea is being tested, quietly but persistently, wherever nations weigh how far they may go in altering their own founding charters/constitution. It may sound technical, but it addresses the most profound paradox in constitutional law: A constitution confers the authority to alter it. To what extent, then, can that power go before it subverts the authority that gave it? Unfettered discretion of amendment allows those whose power is supposed to be limited to set the limits themselves.

To the profound paradox raised, constitutional theory draws a sharp line between two forms of authority. One is constituent power—the original power of a sovereign people to found a constitution. The other is constituted power—the ordinary powers the constitution itself creates, including the one to amend it. They are not identical. A power to amend is always a delegated one, subordinate to the delegating power. A delegate can amend, elaborate and refine, but they cannot do so to change the founding settlement.

In 1803, John Marshall, one of the most influential Chief Justices in American legal history, expressed that the people’s right to establish their own government is a right more fundamental than any ordinary legal right, and one not to be lightly or often interfered with. A constitution, on this understanding, is not a document meant to be revised at will; it is a settlement meant to endure the very majorities that might wish to unmake it.

This idea is clearly reiterated in Nepal’s Constitution. The provision of Article 274 bars any modification which may prejudice the popular sovereignty or territorial integrity, independence and sovereignty of Nepal. There will never be a majority in the Parliament to take down the shield and get to what is behind the shield. The remaining matters are subject to amendment upon the occurrence of the procedural conditions. The substance is the line not to be encroached. However, before the amendment is sought, the legislative intent is subjected to rigorous testing by procedure. Emphatically arguing, legislative intent cannot subvert constitutional sanctity. The prime validity in any course of constitution, either to its adoptability or amendment, is national consensus and public acceptance. Ownership of the public is, above all, for its long journey where the general public can walk together. But failure of the constitution in almost each decade raises questions from all sides.

However, a technically able amendment does not necessarily go far enough. Where a change infringes upon the fundamental principles of a Constitution, it is no longer an amendment but the enacting of a new Constitution; and this can be done only by the original Constitutional Power, not by the delegate. But the Supreme Court of India had no hesitation saying that Parliament could not, using its amending powers, abate or set aside given those elements of the constitution, such as democracy, the rule of law and independence of the judiciary, even though they were not explicitly stated anywhere in the text of the constitution. The Supreme Court of Nepal found the same reasoning that the basic structures of the constitutional order imposed actual restrictions on the scope of an amendment.

The most contested question, then, is this: If an amendment can fail even when it is procedurally flawless, who decides when that line has been crossed? In most constitutional democracies, the courts provide the answer. This is not judicial supremacy over the people; it is closer to the opposite. The judiciary is most able to do so. The court will not create the limit. It imposes on itself a prerequisite that is inherent in delegation. However, judicial review is not sufficient as the solution. Finally, the authority for determining what can be amended rests with the sovereign citizen who exercises it by having a meaningful voice in the decision, and by consulting others in the decision-making process. It is up to the government to decide how that participation will happen, but the question of the legitimacy of any amendment is not one of parliamentary majorities, but of the citizen in whose name the constitution was created.

Article 274 protects sovereignty, territorial integrity, independence and popular sovereignty by name. It does not name federalism or inclusiveness—both hard-won achievements of Nepal’s post-2006 settlement. That unwritten boundaries that fall within constitutional silence were recognised by Nepali courts previously makes the matter more than just academic. Would federalism, inclusiveness or other fundamental elements of the Constitution enjoy the same protection if they were not specifically textually protected? To leave this unanswered is not so much a problem as an invitation; it is a reminder that amending the Constitution is not just a legal issue, it's a matter of ethical perseverance.