Indian Constitution: A Comprehensive Analysis, Loopholes and More

Posted on November 15, 2010 in Specials

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.