By Sumedha Upadhyay:
“We the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all citizens:
JUSTICE – social, economic and political
LIBERTY – of thought, expression, belief, faith and worship
EQUALITY- of status and opportunity
And to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and the integrity of the NATION”
When we hear these familiar words, only one thing comes to our minds ‘the INDIAN constitution’. These are the very first words of the Preamble. The commencement of our constitution marked the beginning of an independent India. Drafted by the Drafting Committee headed by B.R. Ambedkar, this Sovereign document is the largest and the lengthiest constitution in the world with 395 articles and 12 schedules. The Constituent Assembly was believed to be the representation of the will of the people. The words ‘We the people’ signifies that it was a document given by the people, to the people and for the people.
Today, in the 21st century can we say that the real power to govern this country is vested in its people? But the question that often arises is, does the constitution in true terms express the will of the people or is has it just become a tool in the hands of some hungry politicians? Are the people of India in real terms assured of Justice, liberty, equality and fraternity? Is the common man today receiving justice? Does equality really prevail? Is Liberty being exercised by all today?
In the wake of the changing times in the Indian society a constitutional review is highly required. The constitution, though a very impressive piece, has failed in some respects. And in this article, I wish to express my opinion on the need of an overhaul in our constitution.
The preamble says that we are a Democratic Republic. What does democracy mean to all of us? To define it in a layman’s language Democracy means that the power is in the hands of the people to decide how and by whom the country is run. But today does the real power lie in the hands of the people as it was believed when the constitution was applied? It is no more ‘by and for the people’. Now it is more or less a board game and the players are the politicians with personal profits as the winning amount.
I also believe that our constitution is a borrowed constitution. When the drafting committee drafted it, they adopted a major part of it from the Government of India Act 1935 with few modifications here and there. Besides this, we have borrowed many provisions from various other constitutions of the world. The Parliamentary System has been taken from the British Constitution and Judicial Review & federalism from the US Constitution. We cannot say it’s a piece of novelty or originality. Many provisions need to be amended as they were adopted from the 1935 Act and maybe worked for that period; however in today’s time they have become obsolete.
One of the biggest flaws of our constitution is the never-ending length due to the tough language in which it has been drafted. Being the sovereign document of our country it should have been drafted in a language easily comprehendible by the citizens. But unfortunately the legal jargon used can hardly be deciphered by the common man. With that length, the parliament today will never get the time to modify and simplify it but I feel this is something which should have been kept in mind at the time of its commencement.
Securing justice to all – social, economical and political, is one of the chief aims of our constitution. But this has hardly been actually put into action. Our judicial system which is responsible to provide justice to each and every individual is one of our slowest systems. Today we have at least 10,000 cases per day pending for each judge of Tis Hazari court which is at least ten times higher than the prescribed number. Even the fast track courts take 3-4 years to solve cases; the term ‘fast track court’ thus fails the purpose. As we all know it took 63 years for the judiciary to come out with the historical judgment of Ayodhya Babri case. Criminal cases like that of Jessica Lal, Priyadarshini Mattoo, Nitish Katara case are among the many examples of delayed justice. Besides the procedure to approach the courts is so tedious that a poor farmer ends up selling his land, the only source of his livelihood, to pay so that he can get his rights back. The guidelines issued in the landmark judgment of D K Basu v. State of West Bengal in order to bring about prison reforms are rarely followed. Thousands of under-trial prisoners are still in jail, living in inhuman conditions and are being denied basic rights of living.
The fundamental rights under part III of our constitution too need to include many of those rights that have developed over a history of various judicial pronouncements. These rights though not really stated in part III have been recognized as fundamental in nature and are better known as ‘implied fundamental rights’. Right to food, right to privacy, right to livelihood, right to clean potable drinking water, right to fresh and clean environment, right to be silent, right to speedy justice etc. These rights need to be added in chapter III as they are equally important in today’s time for every Indian.
At the same time I feel that the framers of out constitution gave more importance to fundamental rights than to the fundamental duties. Rights and duties are the two sides of the same coin. A right given to one person prevents another person from violating it thereby imposing a duty on him. Today everyone only wants to enjoy the benefits of the rights and no one lays importance on fulfilling their duties towards the society, country, environment and other human beings.
As far as the directive principles of the state policy are concerned, they too are not satisfactory since no strict implementation is precticed. These are those principles which the state has to keep in mind while making any policies or laws. For example, the equal distribution of material resources is to prevent resources from being concentrated in one or fewer hands. But in reality we have at least 60% of the population still living below the poverty line.
A special provision out to be made regarding population control. In a developing nation like India it is very important to have population control. In the current situation the supply of everything is too low in comparison to the steep increase in demand. Landmass remains the same but the inhabitants are increasing at a very fast pace.
Right to education needs to be given maximum importance. Even though compulsory education has been enforced till the age of 14, majority of Indians remain uneducated. Private schools are too expensive for a poor man to educate his child, and the government schools’ standards are deteriorating year by year. Government schools, the only source of almost-free education to all the children, need to be renovated to provide a healthier environment and teachers with better qualifications so that even a family belonging to the middle class or upper class does not hesitate in sending their children to a government school.
Kelson, a famous jurist said that every piece of legislation derives its validity from the “Grundnorm”. According to him the Grundnorm is that sovereign document from which all other legislations derive their validity. Likewise is the situation in India where our Grundnorm is the constitution of India where all legislation country too derives validity from the constitution. Anything going against a provision can be challenged in the court. But when our Grundnorm itself is flawed then how will any legislation be fit for the needs of the present society.
The section 376 of the Indian Penal Code, which deals with the subject of rape, requires many changes. As per the IPC, “rape” has been categorized into different kinds such as Marital rape, Custodial rape, Gang rape etc. Marital rape refers to a rape where the husband commits a rape on his wife & custodial rape occurs in special circumstances by a public servant. I strongly believe any sexual intercourse without a woman’s consent amounts to rape then why is there a need to categorize it? Rape in itself is most heinous of the crimes whether committed by the husband, a public servant or a stranger. I think instead of having different punishments for different kinds of rape there should be a uniform punishment.
The Evidence Act requires major amendment in the definition clause of “evidence”. Till date the act only mentions two kinds of evidences: oral or documentary. With the advancement of technology today we have lie detector tests, DNA proficiency tests, brain mapping and various other kinds of tests that help in extracting the truth out of the offender. The recent examples of the court relying upon these tests are Kasab’s case and Arushi Murder case. These tests do not have any validity in the court of law as they amount to self incrimination in light of Article 20 of our constitution. If they can help some innocent get justice then why not recognize them as evidence?
The Land Acquisition Act 1894 requires major changes as it still contains portions which are redundant in today’s times. There is a need to redefine the term ‘public purpose’ for which the State can acquire land in return of some compensation. With every judicial pronouncement the court includes something new which falls within the limits of public purpose. There are times when the government acts arbitrary and in the name of ‘public purpose’ acquires the land for profits. Thus in all the judicial pronouncements related to Land Acquisition Act there is a need to include all those purposes which are purely in the interest of public.
The Water (prevention and control) Pollution Act has some major defects. With majority of our rivers drying up and the sorry state of Yamuna shows the incompetence of the Act in the present times. The act still talks about wells and streams as being the sources of water. Wells and streams were the sources of water in ancient times but now we have rivers, lakes, ponds, artificial water bodies which have been totally excluded from the purview of this Act. Shockingly this act does not even define what a ‘water pollutant’ is. Nor does water table levels and potable water etc. find any place in the Act. Whatever amendments have taken place in this act have only been with respect to the Environment Protection Act. Thus the act is a complete failure in itself.
These are only a few glaring examples of some of our legislations that lack competency and are ineffective in today’s fast moving world. There are many many more. But what is important is that these reforms should start immediately. Running away from these problems will only make them pile on one another and make them even bigger. India is still a developing nation and if we have to shift from the agrarian economy we are today then it is time that we adopt the reformative approach and make the legislations more dynamic in nature. We need more participation of the citizens in bringing about these changes instead of leaving the change to the selfish politicians, some of whom can barely claim to be educated. All this is necessary because we need a clearer picture of our future.
I would like to end by saying-
“In today already walks tomorrow. Because the future is much like the present, only longer”
The writer is a Law Student at the Amity Law School, IP University.
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Nice points you mentioned here. But I wish you could suggest ways to fill these holes. Is a constitutional review the only way? But even if the constitution is reviewed, I least expect sweeping changes. But to synchronize the constitution with the current time, it needs large-scale changes.
Amar your question is a very valid and an often asked question. in my opinion constitutional review is not the only tool to bring about changes but yes a very important one. The problem that lies with contitutional review is that its a slower process it will take years to bring about a change in the society. As you are aware we have a never ending number of legislations in our country, the problem lies that major number of enactements were passed long time backbefore or after the commencement of the constitution and were suitable for that time which have now become redundant in light of today’s times. Now the legislature and the judiciary are already overburduned thus they have no time to look into the required amendments. The changes needed in the constitution cannot be brought about so easily as our amednment procedure is not so flexible. In my view all the redundant enactments which have been a failiure for instance the water act, the delhi rent control act etc should be done away with. And as far as the future is concerned, a process of filteration should be brought about int he judiciary and legislature. Politicians who do not have any knowledge about laws or specialised subjects are sitting int he legislatures making laws. Thus higher eligibility standards should be laid down. Anti corruption laws should be strengthened further.More number of fas track courts should be made to ease out the pressure of the pending cases. Lastly and most imporatanly gudelines laid down in various landmark judgments should be followed rather than being treated as mere reccommendations.Once all this is done things wi fal into place on their own. Other than this there are many other ways to bring about changes in our society. Wel i hope i answered your question though not convincing enough but this is my current view point. thanks n regards
as mentioned by many reader’s – That it is not Constitution has failed but it is we failed the Constitution.. u have mentioned that – I strongly believe any sexual intercourse without a woman’s consent amounts to rape,,, id a women has sex with a man then later she changes her mind that oh did not wanted to have sex with this person,,, i was drunk,, i was out of mind ,, so and so,,, then according to your analysis that person should go to jail, right. The kind of suggestions your have proposed,, would only lead us to anarchy and nothing else. Your seem to be gender biased only thinking from female perspective. and secondly if the constitution has borrowed the good facts from the same of other countries then what is wrong in that. By mentioning this point you just want to imply that you are more intelligent then Mr. Ambedkar you can write a better constitution than him,, Then I challenge you,, If your father is politician you really believe in your cause than draft a better constitution than current version and propose with the help your father. If you are correct then it will be implemented and we will start saying you as creator or our constitution. On one side you are saying its borrowed, but first think what has been borrowed. the best things around the world. But still we are not best. If parents tells us to walk on right path and gives us moral teachings, and if we are not following that then whom you will blame , parent or the child?
ya…i totally agree on the point that constitution is not a failure…………as the writer of this article said that the Constitution of India starts from” WE THE PEOPLE “,then my friends we the people only failed ,and not the constitution.secondly,the politicians on whom allegations made are absolutely justified,but criticizing them is not the solution,rather we should think for a while that WHO EXACTLY ARE THE POLITICIANS???????………answer to this is that .they are among them itself which comprises of the term ” WE THE PEOPLE”.So friends I strongly at the same time humbly request and suggest all of of you who commented and also who wrote this eye opening article ,to please to make our team so that we can prepare a article which includes some really practical suggestions which we can pass on to our LAW COMMISSION ,so that we all can become a part of what we call-WE THE PEOPLE to help in making our constitution a great success even if it is a failure, Because it is always said that “BETTER BE LATE THAN NEVER” …….I hope friends that i can get your help in this,please contact if you really want.I AM sorry if my comment hurt any one!!!!!
[...] Indian Constitution: A Comprehensive Analysis, Loopholes and More: [...]
I am of the opinion that..firstly if politicians are playing their board game
its we the people of India who r giving them a chance again n again to make
us puppets in their hands..how many of us do go to the polling booths to exercise our right to vote or how many of us think our careers in politics??? everyone
is busy in making hay while the sunshines….we who call ourselves “educated “are all sitting at one side at making comments bt no ones wants to jump into it..Secondly, you have mentioned about the fact that our constitution is borrowed. Yes, there aint any doubt that our Constitution is borrowed bt my friend have you thought why did the framers have to put in so much effort??
If u wud hv read legal history u wudnt hv put such a point..anyways the framers
had referred the Constitution of so many countries so that they could collect the best from all…I fail to understand on one side u are saying that the prob with our Constitution is that its the lengthiest and on the other side u r talking about adding the “implied fundamental rights..” wouldn’t they increase the length??Our government has already passed RTE.Coming to the Evidence Act amendments have been made incorporating electronic information too.We have incorporated fair trial that is why nobody can be compelled to give evidence against himself.
I feel that instead of cribbing about sorry state of affairs and generating discontentment among the youth one should act mention points where one can give remedies to cover up the flaws in the present scenario…Information regarding Right to information Act,PIL,legal aid etc should be given..Everyone should be informed about the latest judgments and legal developments…We all should take steps to make a better India tomorrow…I would conclude by saying..
“Hum chalte gaye aur carvan banta gaya..”
Gitanjali hi, every one has a right to have their own opinions and there is nothing wrong about it. I definitely respect your opinion and view points however would like to reply to a certain number of doubts raised by you in the comment. Firstly I think you haven’t understood the meaning of the title of my article, my article is solely about the loopholes in our constitution and the need of an over haul which in today’s time is the immediate need. Being a law student I do know the positives of our constitution and it is one of the best sovereign documents that have been written till now in the history. But in my article I was dealing with the loopholes and the necessary changes that have to brought about it is a mere opinion. So please give consideration to that.
Secondly about the politicians playing the board game. Indeed they are playing it, and I don think I need to give you instances or proves of it. I’d infact say it has become a fact of our political structure in today’s time. Now as far as the people of this country are concerned. Yes we are the ones who choose our own politicians..but tell me something, the people can only choose out of the choices available to them, do they have a choice of boycotting themselves from voting absolutely? No, finally in the end they have to choose ultimately from someone or the other. The procedure of selecting the candidates itself is so corrupted that people contesting as candidates are themselves sitting in the parliamentary boards. The selection process is in the hands of the parties, not the citizens. So people just try to choose the better out of the already worse. Someone has to come to power. This is not the US federal system where the major power directly vests in the hands of the citizens. Whereas in India on the face of it appears that it vests in our hands but in reality the truth is something else. I know it because I belong to a political family, my father is a politician and personally I don’t like the current state of political structure but I have gone and voted every time even if I didn’t like the candidate why? Because someone has to come to power to govern the state.
No as far as voting is concerned. You are right in saying that a very little portion of our population goes to the polling booths. Basically it’s the youth which has to infuse this zest in the present as well as the future generations to go to vote. They have lost their trust in the political system because they do not connect with them. We need dynamic leaders who are educated or atleast know how sing the national anthem of their country. So they choose to stay out of it and they don’t feel that they possess a duty on their part to carry out decision making in our country. And it is only in the metropolitan cities where people differ from voting , in the rural areas people are still very active. They are happier staying away from it. I assure you I vote and I encourage everyone around me to vote. And though not a major chunk but there are people who want to make their careers in politics, I myself would not mind it and I have seen youthful people around me who sincerely want to become a part of it. But you see, our political society has reached that level where the corruption is irreparable. Hence many hesitate.
Thirdly, about the borrowing nature of our constitution, yes we have taken many features from other countries to make it the best document. But I would like you to go into the legal history and with special emphasis on the government of india act 1935. You would realize that almost all provisions are more or less the same which were relevant for that period of time but requires change. So I would advise you to please go through the 1935 act and the constitutional provisions. It should have been a piece of novelty keeping in mind the future developments of the society rather than incorporation older provisions.
As far as the length is considered, those implied on one hand should be included and on the other hand the redundant portions should be deleted which would balance it out. These implied fundamental rights need recognition and you cant have another enactment for that person.
Regarding the evidence act, there has been only inclusion of evidences such as electronic diaries and nothing in relation to forensic sciences such as DNA profiling, DNA testing, brain mapping or lie detector tests have been included which are greatly relied upon in all criminal cases thus position remains vague.. If they have been please enlighten me regarding those provisions I ‘d be glad.
We need to over come the flaws in order to have a better legislation and so that we do not add futher flaws.
Thank you.
We are a Society called Godimages Good Governance Society registered in 2006.
We are launching people’s club for good governance to be placed in all people’s constituencies like the MLA constituency in every State.
We have published a book titled : ‘The Constitution of India: A Design for Good Governance & Successful Living.
Please visit our site and get back to us if you are interested in pursuing your vision.
I was impressed by your analysis but there is more to it than what you have perceived to be the reason for the chaos in this country.
You have to take the Preamble as the Mission Statements of the Republic of India
and then make a performance audit.
Our book will give a whole new vista of area to be covered.
With best wishes to your law pursuit,
G.v.
President, Godimages Good Governance Society
Delhi 28.6.2011
I also have a question, why no nay directive or rules and regulations for politicians in Indian constitution, while there are lots about officers, bureaucrats, judges and others, even soldiers and civilians.
the article is showing height of immaturity of knowledge on Constitution, being a law student it does not guarantee that you are have an expertise on Constitution of India, as you said it is borrowed it is derogatory a remark, Indian Constitution is case of “sui generis”(thing of its own kind) was the remark given by Professor Alexandrowicz, as you are suggesting a constitution review so madame i want tell you that when the Constitution of India was passed on 24th November 1949,Dr. B.R Ambedkar gave a historical speech(refer http://youtu.be/qxvQjAJYrVg) which said that no constitution is in itself good or bad it more depends on the people who will implement the constitution so it is not the constitution has failed but it is we who have not obeyed it properly how many of us obey the Preamble to the Constitution in real life, so we ourselves are wrong and do not want to change from old age social orders so we make remarks on Constitution that it needs review, as holy book Geeta does not guarantee that every person who will read it will follow true path, so than you can ask for review of Geeta also, why it is considers as absolute, so madame have faith in constitution it is as strong that when attempts were made by Indira Gandhi during emergency to change it for her personal benefit it was resilient and Indira Gandhi faced the results in next election of 1977 a major loss, so every time Constitution is able to hold itself and our nation from breaking into anarchy or monarchy, it is first our responsibility to follow it, but by not following it and asking for a change then u cannot land anywhere, and once a great attempt was made to review a constitution in 2001 by BJP led NDA government, but thanks to the President K.R. Narayanan who saved this blunderto happen and a gave a great remark “That it is not Constitution has failed but it is we failed the Constitution” ( refer, http://www.hindu.com/fline/fl1803/18031200.htm, http://www.mail-archive.com/national-forum-of-india@yahoogroups.co.in/msg02637.html), fascist RSS are always against Constitution because of sick Hindutava ideology and i doubt not doubt that you are also the victim of same ideology, so please i request you not to publish these type of articles to make a sense of chaos on Constitution because most of the youth today is busy with engg. and medical field and they do not have much knowledge on Constitution, to give a comment on your caste which represents your thoughts which have created this type of notion it is nothing new for me, so trying to keep this type of article in your notebook only
I really like to thank Mr Shailesh for such a great counter reply to immature article by Upadhyay.
its not the constitution which has failed us, but we have failed the constitution.
We have to remember always the implementation of constitution was in the
hands of upper caste Hindu beurocrats and political leaders from its
inception who is initially against the principles of Equality and Democracy,
they will be very happy if some one says ” Constitutions is failed to remove
poverty and illetaracy in this country ” and on that basis they will try to
Amend it according to their theory of Akhand bharath to hinduise this
country. BJP tried for it and and failed by the opposition from many
democratic groups.
“The question is, can we presume such a diffusion of constitutional morality? Constitutional morality
is not a natural sentiment. It has to be cultivated. We must realise that
our people have yet to learn it. Democracy in India is only a top dressing
on an Indian soil which is essentially undemocratic.”
You said borrowed constitution is derogatory a remark, Indian Constitution is case of “sui generis” then what do you make of following similarities…
British Constitution
Parliamentary form of government
The idea of single citizenship
The idea of the Rule of law
Institution of Speaker and his role
Lawmaking procedure
Procedure established by Law u/a 13
United States Constitution
Charter of Fundamental Rights, which is similar to the
United States Bill of Rights
Federal structure of government
Power of Judicial Review and independence of the judiciary
President as supreme commander of armed forces u/a 52
Due process of law u/a 13
Irish Constitution
Constitutional enunciation of the directive principles of
state policy
French Constitution
Ideals of Liberty, Equality and Fraternity
Canadian Constitution
A quasi-federal form of government (a federal system with a
strong central government)
The idea of Residual Powers
Australian Constitution
Freedom of trade and commerce within the country and between
the states
Power of the national legislature to make laws for
implementing treaties, even on matters outside normal Federal jurisdiction
Japanese Constitution
Fundamental Duties u/a 51-A
Weimar Constitution
Emergency Provision u/a 356
I mean have you even looked up the constitution…
a well written article
The very good article sharing important provision in land acqisition act, IPC etc ,I think in case of land acquisition act,it was framed with the thougt that the govt always takes decision in public interest and it was almost saw for some years after framing constitution and its enforcement.But at present moment the condition is exactly opposite as govt ignore sufficient compensation then it is fault of govt and not of constitution as many govt takes important decision and made good work even though stay in same provisions so you must remember the historical speech of B.R. Ambedkar during acceptance that no every costitution is good or bad,it depends on people who implementing it.How many people follows each and every provision in preamble?So blaming to great indian constitution which is most detailed written constitution in the world and accepted by many countries who turns into democratic nation to hiding mistakes made by ourselves in order to enforce it is not fair and rational.
only ignorant idiots can write such articles……….
The only answer for the article is :
In India constitution is civilized but not the people who are suppose to implement it.
Our constitution is not rig veda which cannot be changed but its crafted so well by Dr. Ambedkar that amendments could be made based on the requirement of the nation, however changing the constitution out of frustration that this has not worked so we would do that is totally imbecile………To even blame the constitution lets first try to implement it properly which has not been done…….its not been done because we are still struck with 2000 year old constitution called manusmriti which has deprived people of their human thinking on how to live together under liberty, equality and fraternity……..
Hi sumedha……….i commented on the article plzzzz,n try to contact if u like my suggestions.
friends i need your support if you all desire or wish to write your suggestions to our law commissions in order to make such changes which our supreme lex require.If anybody is interested contact me.
MR. Sailesh is adamant with our constitution so he is comparing it with the holy book GEETA .. I just wana ask MR. Sailesh if he has gone through the constitution? n if YES .. Can he recall those 395 articles? if “yes:” then m sure he is a super human n if “no” than my question is how MR. Sailesh can expect a common citizen can abide by those rules which one cant remember … The American Constitution contains only 7 Articles … easy for every Americans to recall those n also to abide by those .. so tht canot be expected from the Indians to abide by the World’s largest constitution ….
“Old wine in a new bottle” this theory does not apply to all ..
we need to review our constitution and make it in accordance wid the current situation n fast track solutions to today’s economic,social n democratic problems ..
we need the youth to rise up n form a new constituent assembly to draft a new constitution for our country ,, a indigenous built CONSTITUTION of INDIA ….. rather than a bags of borrowings …