REVIEW OF INDIAN CONSTITUTION
Authored by - Nikhil Saini
& Abhishek Khangarot
It is crucial to understand that the Constitution is a sovereign, not the government, and that it is the entity that safeguards citizens from the tyranny of a government. The constitution of India is the largest written constitution in the world, with 150,000 words and being written in the legal language rather than English. Constitution being .71 years old as well is Kind of outdated. The circumstance was different back then, as it is today.
“The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives “ is what said by Dr. B.R. Ambedkar in his last constituent assembly speech
But where are we and how far we moved towards achieving the goals of constitution and writing any of the rights in the frame book guarantees the things written or it’s just a illusion a beautiful illusion
We will analyse
Before coming to the Indian scenario we can refer to the global levels and the countries with beautiful and the most liberal constitution . Imagine a constitution we all think to be best many of us will start with the one that celebrates and promote democratic rights , one which promise equality and non discrimination , one which allow free speech , right to education , right to health care and all and this sound like a beautiful constitution a state where we all love to reside and that’s how illusion works.Many regime promise all this in their constitution even North Korea one of the most repressive regime of present promise all this in their constitution. Or in case of Bolivia article 16 promise the right to food and then in UN report we found 20% of their population under nourished . Constitution of Syria promise more rights than France but Syria ranks above France in human rights violators. Ecuador ranks 22 in 2008 in environmental health then they added right to nature in 2020 they are at 56th position Constitution of Ecuador protect 99 rights highest in the world followed by Mexico Angola and so on. But the harsh reality is The countries that ranks among top 10 in total rights does not fall in top 10 for the most democratic nations none of the 10. These are few examples of how the states throughout the world delivered their constitutional goals and the list of such examples is never ending throughout the world .
Now in case of India where we are going to celebrate 75th year of independence and of sovereign state it is of demand to review if we achieved the goals set up by us only or even if we are moving in the right direction to achieve the same . As Dr. Ambedkar said that the first thing in his judgement we must do is to hold fast to constitutional methods of achieving social and economic objectives mentioned in the document. But after 75 year of independence India ranks at 144 out of 194 countries in terms of PER CAPITA (2021) , unemployment rate is at 7.8% and on social front According to 2010 report of NHRC on the Prevention of Atrocities against SCs, a crime is committed against a Dalit every eighteen minutes. Every day, on average, three Dalit women are raped, two Dalit murdered, and two Dalit houses burnt. Article 15 says to protect the socially and economically backward section by the way of reservation under the concept of reservation but the figures mentioned above clearly States that it failed and because of a mere reason that system to promote socially backward and economically weaker sections has turned out to be a matter based on caste system only which eventually made the situation from bad to worse . After 75 years forward the discrimination has completely shifted to class based rather than caste based . Article 16 says about the equal opportunity which means equal representation and in reality 37% Dalit lives below poverty line , 57% of them are undernourished and 83 out of 1000 child dies before celebrating their 1st birthday because the system of equal representation is brutally misused by only a particular section from their generation to generation & the ones who are in real need are still craving for that “equal opportunity “ . Article 19 which guarantee freedom of speech and expression to every citizen of India is hardly exist on the ground when there exist things like sedition and the misuse of sedition charge where mere criticism of government subjects to get charged under sedition. Article 21 which says about the right to live life with “dignity” seems to be a illusion and nothing else when about 53 millions of Indian are unemployed, and according to U.N. report about 224.3 million are undernourished and about 966.6 million of people can’t have health diet and most number of illiterate adults in the world resides in India . And where the constitution mentions the right to religion and article 27 says about the non-payment of taxes for preaching any religion Religious organisations are not taxed in India. But there is a caveat. If the resources of a temple become sufficiently large, it would be usurped by the government in the name of impartial management. All the revenue and assets of the temple become part of the government exchequer. External audits that are compulsory for any privately owned temples, would suddenly not needed. Even internal audits are stopped once it goes under government control. What the government authorities do with the wealth and assets of the temple falls behind an iron curtain. But this is not the case with Churches and Mosques. They are managed by their respective religious authorities of the denomination.
And to get protect from all this policy and stands of the government when we move to the court we can find that the judiciary and their approach has been changed and with all due respect it seems like that the change is not in the direction the average and common people of India would want . How can it be claimed that judicial approach is different from the approach of the kingsmen ship when without naming anyone last number of CJI had their Direct relative at the highest position . And in 2010 the controversy over the fact that one-third of 33 senior advocates recommended for judgeship in India’s largest high court — the Allahabad high court — are blood relatives of sitting or former Supreme Court judges or judges of the Allahabad high court. And along with all this the way continuous creation of post retirement post for the judges by themselves affects the power and application of judgement at the very base. Access to justice which is identified as fundamental right under article 14&21 seems to be just a illusion when over 4.5 crore cases are pending in the various courts of India.
During 70+ years the country has been grown from 10 states to 28 , 36 million to 136 millions, nuclear power Inspite of this progress, country's track record to fight against poverty, illiteracy and corruption are shockingly by below the poverty line. The largest democracy has been moved towards instability and crisis of governability. Despite all those shortcomings, the residents of India have reposed their faith in the democratic process, they contained the democratic system. When major rules of the government are opposed in such a large volume on the streets that it seems that legislature holds no value and the actual legislative works by blocking the street is what seems to be a danger to me . Balance of power which was aimed by the makers of constitution got breached and brutally attacked by all the branches of the system. The ordinance route to pass bill was used 61 times from 2004 to 2014 and from 2014 to present 76+ bill has been passed using the ordinance route which was originally aimed to be used only in the case of emergency and urgent situation .
Even within the constitution it gives power to amend the constitution states how , when they can amend … in India constitution states we can amend anything no prohibition no limitation … and then here comes the illusion part … the Indian Supreme court interpreted to amend the constitution but without changing the basic structure of the constitution. Irony is court itself rejected the basic structure of flexibility of Indian constitution while passing this statement LOL. Constitution of India does not identify basic structure but it is the court who do even though its not written in the constitution anywhere and cherry on the cake is supreme court says some amendments are unconstitutional as they violates basic structure of constitution while destroying the basic structure by themselves. It leaves us with many questions like has the written constitution lived up to its expectations , its promises . has it delivered the public good that we imagined , has the written constitution managed to protects humans rights civil rights aspirational rights as it states or I would say is even the constitution itself is safe and right when it says itself as the highest in nation. The need for the review of constitution is of now alarming .
Politics played a hand in delaying National Commission to Review the Working of the Constitution (NCRWC)’s final study of the Constitution’s operation starting from the beginning. The Commission provided critical assessments and extensive recommendations, although its report was ignored. Early on during the Constituent Assembly, Nehru had stated, “I can declare that the Constitution we have drafted is not an aim in itself. But merely as a starting point for additional work. Additionally, Patel proclaimed clearly that “this constitution is limited for ten years.” India has amended its founding document (The Indian constitution) over a hundred times. But we object to a thorough evaluation of its accomplishments.
*A bad precedent was created by the 1st Amendment.
In the first year after the constitution’s promulgation, the fragmentary assessments began. Prime Minister Jawaharlal Nehru met with his own Cabinet Committee for a meeting on the Constitution in 1951. The goal of that meeting was to find a solution to avoid the court’s decision to reject his government’s program on Zamindari abolition. The outcome was the First Amendment, which placed a new article into the Constitution to shield future laws from judicial review in addition to setting a flawed convention. Mr. Syama Prasad Mookerjee said in Parliament that constitution was being handled like a “trash paper.”
*4th Amendment: A further Poor Review
Second, a poor review of the similar nature wasn’t far away. A subcommittee was established by the Congress Working Committee in 1954 to study the Constitution,under the leadership of Jawahar lal Nehru . And This time, a political group was attempting to stop the court from challenging the amount of compensation that the government was providing for the acquisition of private land. Pandit Nehru stated when introducing the 4th Amendment that its purpose was to “eliminate the inconsistency and put Fundamental Rights within the Directive Principles.” “We are resurrecting the Constitution, not interfering with it,” said by Minister of home and affairs thereafter.
*The 42nd Amendment the height of centralisation
The third reappraisal was significant and quite harmful. In order to propose Constitutional reforms, Indira Gandhi established a party committee in 1976, with Swaran Singh as its chairman. A highly centralised structure had been proposed by certain insiders in the Congress in a pamphlet titled “A Fresh Look at Our Constitution,” and Indira Gandhi really wanted to evaluate its desirability. Swaran Singh’s suggestions led to the creation of the controversial 42nd Amendment. It gave the Prime Minister total authority. Additionally, the President was also not given any flexibility. Additionally, the judiciary’s ability to be reviewed was severely limited.
*NDA-1 made an effort to enact reforms.
India’s problems have only gotten worse as a result of this informal attempt to rewrite our Constitution. The 1980s anti-defection amendment is one instance. Our MLAs and MPs have become puppets for party leaders as a result. This went against Parliament’s main goal.
The Indian Constitution urgently requires comprehensive reforms, according to a number of studies on the Indian system, including those conducted by
The Election Reform Cabinet Subcommittees in 1977 and 1982
The National Commission to Review the Working of the Constitution (NCRWC) launched its first comprehensive and public reform initiative in 2000. The commission was a part of the NDA’s election platform and was established by the Atal Bihari Vajpayee administration under the leadership of former Hon’ble Chief Justice MN Venkatachaliah.
The appointment of the commission sparked outrage among the opposition parties. It was a “hidden agenda,” he claimed. The Ambedkar constitution is being bypassed, parliamentary democracy is being ended, secularism is being abandoned, reservations are being eliminated, etc.
As a result, the Vajpayee government was forced to limit the scope of the commission. The commission’s terms restricted it to “remaining within the structure of a parliamentary democracy without disturbing its basic structure or features” and recommending changes to the constitution.
*Report of the constitutional panel is disregarded
The NCRWC analysis had harsh criticism: “It is a sad reality that the poor have been sidelined by a government that has been unduly harsh, insulting, misguided, and indifferent. India’s population is more separated now than it was when the nation gained its freedom. If remedies are not found and used right away, there might not be much left to preserve. In the nation, there is a pervasive and gloomy notion that nothing will ever improve.”
Two hundred fifty suggestions were made by the NCRWC committee, however the report was never presented to the Parliament.
On balance, constitutions that endure should be more likely to promote equitable, effective, and stable democracy. But How durable are constitutions and what factors lead to their demise? Our concern is whether aspects of the design of constitutions have any type of effect on durability of the document.
The results of the research by Chicago University are quite shocking and opposite to the general understanding by the common man as the research finds out that the constitution is not very long lasting nature and life span around the globe from 1789 is 17 years only , the estimate shows that one half of the constitution is dead by age of 18 and only 19% survives till 50 year of age
So what we can do to protect the integrity of written constitution Is constant review of the Target , goals mentioned and are we actually heading in the right direction to achieve them or it become just a document which is just a matter of glory like the current one of longest .
The alternative model that I think better for the integrity of written constitution and that model is pragmatic bill of rights it recognise states at the crucial role for making a better life of its people it protect rights but it also recognise that state may not always have resource to fulfil this mandate … many not always have capacity to achieve all but it requires their response to achieve things under their capacity and to move forward progressively toward delivering rights . and to my opinion I think we Indians have the same upto some context or more . It is better because it has high ambitions to deliver rights rather than just writing .It inspires hope among citizens that state is trying to do better and one day they will reach the goal . And the most important is it keeps those high ambitions and hopes in sphere of reality and possibility . And this kind of bill promotes political actor to achieve things which are possible and not to overpromise or under perform is what the country like India which is of very high aspiring nature needs . And when more than 50% of the population of a country is youth we need to make the target achievable or to target things which is achievable so the trust and belief of the Indian youth stands in the constitution and the authorities .