Loopholes in Indian Constitution

 

The Indian constitution is the law of the land. However, even if it is borrowed from different constitutions, and is known as one of the lengthiest constitutions yet it has some loopholes, and challenges which need to be addressed. Indian constitution has worked, but is it as per the requirement of 21^st century?

 

What is Indian Constitution?

The Constitution of India is the supreme law of the land. Indian Constitution is the lengthiest written constitution in the world with 448 Articles, 25 parts, and 12 Schedules.

The constitution was implemented to ensure physical, mental, and spiritual development of citizens.

But from time to time, one question comes on surface, is it really ensuring the all-round well fare of citizens of India?

 

Where does Indian Constitution fail?

Indian Constitution fails because of certain bias towards ethnic, linguist and religious groups. Even if special favours are granted for the development, how is it being evaluated that how many are left to get the privileges and how many should continue to get the privileges?

The Indian Constitution certainly fails in establishing unity in the diversity in a multi- lingual, and socially diverse country.

The Length and the Language

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 comprehensible 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 and this is something that should have been kept in mind at the time of its commencement.

 

There is no check on unbarred exploitation.

As many analysts have analysed the struggle for independence after which the constitution was adapted. All national leaders were anti – British- therefore, the moment was political not economical.

After independence the exploitation continued but by Indians. There is somewhere constitutional failure may be the reason that India still ranks bad in the Corruption Perception Index.

The citizens have to pay the bribes – to police, judges, and even teachers, doctors, and nurses. Every where you walk, the exploitation of money has to be.

Indian Constitution fails at Economical Aspects

The Indian economy is controlled by the a few business monopolies, and the president or prime minister has no constitutional power to check the price level or degree of exploitation. There is no- detailed provision for socio- economic development or clear concept of promoting or legally ensuring the balanced economy.

Psychological Aspect

Psychological aspects of implementing the constitution also have failures for example having a regional language turned into national language while 60 percent of the population do not understand it.

Regional leaders find it very difficult to communicate with the national population.

Leaders must be able to communicate in their regional language, and a translator can help instead of forcing them to communicate in either English or Hindi.

Is Indian Constitution equal for all the citizens?

The simple and straight answer is a – No.

Here citizens faced biased and discrimination due to the gender, and religion etc.

On the basis of religion, there are disparities between Hindu Code and Muslim Code, or Hindu women and Muslim women. There is a reason that a huge population of a particular religion is still backward.

Men and women both are treated unequal in the eyes of laws. There is no provision if sexual assault is faced by the men? If men get raped.

In the progressive time where India seems to accept and getting forward towards LGBTQIA+ Community- what is the right for third gender?

 

Why is there no provision for safeguarding the nature and environment?

We live in a world where the harmony with the nature has to sustain. The UN as sustainable development goals, and climate change is another threat where even entire humanity can extinct but our Indian Constitution fails at addressing these aspects.

There is no provision for protecting the flora and Fauna. Humans and Corporates are destroying the plants and animals for their selfish reasons.

The 21^st century constitution must have a provision to safeguarding our environment.

 

Overlapping powers of President and Governor

 

According to Article 53(1) [3] of the Constitution Executive power of Union is vested in President but the President does not have the real executive power. 

 

If we read Article 53 with Article 74(1) [4] which states that the president will work according to aid & advice of the Council of Ministers.

 

By virtue of Article 74(1), President is bound in every case to act on the advice of the Cabinet. Thus real executive power is in hands of a council of ministers whereas the President has only nominal power. 

 

The President of India enjoys the only ceremonial position and all the treaty & agreements are signed in his name only. If any law is passed by the parliament, for the implementation of that law assent of the president is a must. 

 

President, in this case, has only veto power and can withhold the bill but at last, he must give assent to the bill because of Article 74(1). 

 

Forcing the President to consent

 

Under Article 75 president appoints PM and ministers on the advice of the PM. 75(2) states that ministers shall hold office during the pleasure of the president but by virtue of Article 74 they hold office on their own pleasure. 

 

Similar Weak position of the Governor 

 

Since we know that the governor is appointed by the President through warrant & seal under Article 155, but the executive domain of governor is vast than that of the President. 

 

Under Article 163 governor is the final authority in the state to decide discrepancies whereas the President must adhere with Article 74(1). 

 

The post of governor is not stringent. It depends upon the ruling government. He can be removed at any time. There is no set procedure for removal of the governor, He acts in obedience to the president. 

 

President is indirectly the person of PM & council of ministers. The party who is in power decides who the governor of the state will be. Thus, governor is the only instrument of real executives to regulate affairs in any state.

 

 

Conflict of power between Centre and State 

 

Part XI of the constitution of India defines relations between centre & state. Under Article 245(1) subject to constitution, parliament and state legislature has the power to make laws for the whole or any part of India or state respectively.

 

If we study 245(2) which states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial jurisdiction.

 

Thus Article 245(2) restricts courts to strike down the law on the ground of extraterritorial applicability of the law.  In a true federation, there should be a clear division of power between center & state. But Indian Quasi-federal structure gives more power to the parliament and in case of any inconsistency or conflict between laws made by parliament and the state legislature, the laws made by parliament will prevail.

 

There is a bias of power in favour of the Union. Residuary legislative & residuary executive power is exercised by the Union of India. There is an encroachment of union in the state.

Weak and Lazy judiciary

The Indian justice system is one of the most important pillars of the Indian democracy. However, the truth stands very dark, the courts are under-staffed, and the cases pending are in hundred of thousands and millions and over all the delivery of justice takes years to be served.  

It is a well-acknowledged fact that although the Indian courts are able to deliver justice, but it is in the sluggish manner and the system leaves a person with diminishing trust and hopelessness.

 

On average, any case takes three years and nine months to get disposed.

One reason for this is the inadequacy of staff. There is an outcry in the country for the appointment of judges. Apart from this, one even has to take into consideration the fact that irrelevant cases must not come to the court. 

Not Having a clear policy about fines and irrelevant matters

 

To avoid this there should be strict deterrent policy imposing fines for approaching the court with irrelevant matters.

There should also be strict scrutiny of delaying tactics, wasting time of judges, preventing effective case management and impoverish litigants.

 

These blockheads deter many who are in dire need of justice to avoid the whole process in fear of prolonged procedure.

It is important to take different measures to avoid such delays. One may even wonder how this problem has arisen in the first place. While the court in other countries like in America is bottom-heavy meaning more cases in the lower judiciary and the system seems to be working fine then why is there a reverse policy in India with it being top-heavy. There is a general mistrust among the masses about the lower judiciary.

 One may wonder the reasoning behind this depiction by the apex court in presenting themselves as the sole messiah of justice beckoning the masses.

 

It is not entirely true that if our court were a bit more transparent and bit more efficient then the case might have been different.  There is an imminent need to make our court more efficient and transparent to develop the lower courts.

 

Further, the Apex court should not take more than its capacity that is to say that only cases with the relevant ground should be allowed in an appeal. 

 Apex court should also refrain from encroaching on other domains of the system and stop acting as a legislative body since it is apparent that the legislative body is hiding in the shadows of the judiciary to make the tough call which is in actuality their job.

 

There is a great demand for more fast track courts but it should also be ensured that they are not overburdened and there should be proper scrutiny before admitting any case in any court.

 

Although the need for fast track court seems necessary one and should also keep in mind that not enough time is dedicated for appreciation of evidence which runs against the principle of natural justice. A proper system should be enacted to avoid the same.

More to know about Indian Constitution:

When was Indian Constitution Implemented?

 

 It was adopted by the Constituent Assembly of India on 26 November 1949 and came into effect on 26 January 1950. It strives towards constitutional supremacy rather than parliamentary supremacy because it was made by the constituent assembly, not by the parliament. 

Three organs of the government Executive, Legislative and Judiciary derives power from the constitution to run the nation.

Some of the basic features of the Indian Constitution are bicameralism, secularism, an independent judiciary, Fundamental Rights & duties, Directive principles, emergency powers, etc.  But despite having these features there are many loopholes in the Indian Constitution. 

The formation of Indian Constitution: The History 

 

It is common knowledge that the Indian constitution is a borrowed constitution. The drafting committee adopted a major chunk of it from the Government of India Act, of 1935 with few alterations. Apart from this most of the provisions are inducted from various other constitutions of the world. 

From the British Constitution, we have taken the Parliamentary System whereas the Judicial Review & federalism system from the US Constitution. 

One cannot deny the fact that some of these laws are extremely outdated and need to be amended since they may have worked in that period however in recent times they might have become outdated.

Some constitutional crucial issues and challenges in India raise questions about its working process.

 

Conclusion

 

Indian constitution is the lengthiest constitution in the world and still it fails to deliver the details and precise mechanisms to be followed in different situations.

 

Moreover, the length and elaborate mechanisms has only added to the ambiguity to the system.

 

But India is the largest democracy in the world and the most complex one too and still has able to work out the same old constitution for over 70 years with over 100 amendments whereas many other counterparts with even better written constitution has failed, all because there is a common will on the part of the legislators, judiciary and general public to keep the system intact and alive. 

Therefore, to keep such a system up and working in a dynamic system, it is must that the system evolves with the people, with the situations and with the changing scenarios.

 

The duty to keep updating the laws and discarding the redundant ones is primarily of the parliament which evidently has failed to do so and the same duty with time was taken over by the higher judiciary therefore even now the people expect the same from judiciary therefore the judiciary has taken the limelight in the scenario replacing the legislators therefore its now the judiciary’s duty to serve what it has promise to the people but to do that it first has to clean its own system  and has to revolutionize its own mechanism by introducing new and innovative tools and ideas.