Challenges and Loopholes in Indian Constitution - Seeker's Thoughts

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Challenges and Loopholes in 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 Schedule.

 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. 

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, 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One cannot deny the fact that some of these laws are extremely outdated and need to be amended since they may have worked in that period however in recent time they might have become outdated.
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 which should have been kept in mind at the time of its commencement
Some constitutional crucial issues and challenges in India which raises questions of its working process

Most Recent – Citizenship Amendment Act

The Citizenship Amendment Bill passed in Lok Sabah in January 2019; the bill sought to amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.

Note – The citizenship Act, 1955 prohibits illegal migrants from acquiring Indian citizenship

The bill provided that registration of overseas citizens of India (OCI) cardholders may be canceled if they violate any law. 

It also seeks to reduce the minimum years of residency in India to apply citizenship to be lessened from 12 years to 7 years for such migrants.

The bill will apply to all states and union territories of the country.

What citizenship Act 1955 says?

According to the Citizenship Act (1955), there are categories of – citizens and aliens. Citizens are the people of India, and aliens from a different land. 

However recently there have been various controversies related to illegal migrants, who are not treated as a citizen of India. 

In some states which share a border with other countries have seen a huge influx of migrants, and no denying that there was a regional protest against these migrants in – Assam and Tripura State.

While these migrants and refugees were about to send back, there were issues related to their human rights.

Who is considered as an illegal migrant?

 An illegal immigrant is defined as a person who enters India without a valid passport or stays in the country after the expiry of the visa permit. It also includes the immigrant, who uses fake documents in the process.

In India, the Citizenship Act, 1995 prescribes five ways of acquiring citizenship:

1.      Birth.

2.     Descent.

3.     Registration.

4.     Naturalization.

5.     Incorporation of the territory.

What are the Constitutional Provisions?

The Indian Constitution contains neither any permanent nor any elaborate provisions in this regard. It only identifies the persons who became citizens of India at its commencement (i.e., on January 26, 1950).

It does not deal with the problem of acquisition or loss of citizenship subsequent to its commencement.

It empowers the Parliament to enact a law to provide for such matters and any other matter relating to citizenship.

According to the Constitution, the following four categories of persons became the citizens of India at its commencement i.e., on 26 January 1950:

What are the issues and challenges?

The Bill seemed to be violating the Right to Equality, (Article 14) which seeks to grants citizenship to illegal migrants on the basis of religion.

It failed the test of reason-ability which is contained in Article 14. This is because it does not provide any appropriate reasons for limiting the eligibility of citizenship to 6 minorities of only 3 countries.

For example – Rohingya Muslims from Myanmar, Ahmadiyya and Shia Muslims from Pakistan and Uyghur Muslims from China who face religious prosecution have been overlooked.

Fails on international refugee law

United Nations’ refugee convention 1951, granting refuge based on humanitarian considerations is arguably a norm of customary international law. Though India is not a signatory of the convention. 

The bill considered persecuted minorities as migrants whereas word migration refers to the voluntary movement of people, primarily for better economic prospects. Contrarily, the refuge is an involuntary Act of forced movement.

The bill particularly violates clause 1 of the United Nations declaration on the rights of indigenous peoples which states that indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

Issue of cow slaughter and beef ban

§  Except 7 States (Mostly North Easter) and UTs all other remaining States and UTs have already enacted laws to prevent the slaughter of cow and its progeny in one form or another.
§  Item 15 of the State List lays down “Preservation, protection, and improvement of stock and prevention of animal diseases; veterinary training and practice” are within the exclusive powers of the State legislatures.
§  There is no Central law on this subject however certain constitution provisions under Articles 249, 250, 252 and 253 which may allow a Central law on a subject under certain situations.
§  Article 48 of the Constitution lays down a directive principle of state policy which directs that- “The State shall take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”
§  Article 48A– The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.”
§  Under Article 51 A (g) of the constitution it is the duty of every citizen of India to protect the wildlife, and to have compassion for living creatures;
§  Therefore, it should be clear at the outset itself that the Constitution itself requires the State to enact laws to ban cow slaughter and to protect the environment/forests / wild-life of the country.
Constitutional Provisions
§  However there are many variations among state laws for ban on slaughter of calf, bulls and bullocks.
Supreme Court Judgments
§  In 5-judge Constitution bench SC held: A total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male or female, was quite reasonable and valid and is in consonance with the directive principles laid down in Article 48;
§  A total ban on the slaughter of buffaloes, breeding bulls, working bullocks and milch or draught cattle was also reasonable and valid.
§  A total ban on slaughter of buffaloes, bulls, bullocks after they ceased to be capable of yielding milk or of breeding or working as draught animals could not be supported as reasonable in the interests of the general public, and was invalid.
§  Moreover, the challenge to the constitutional validity of the said laws on the basis of the right to equality under Article 14 was also clearly rejected by the Supreme Court.
§  In an important case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) a 7-judge Constitution bench (Under Chief Justice R.C. Lahoti) of the Supreme Court held that cow progeny is needed in the interest of the nation’s economy.
§  Merely because it may cause “inconvenience” or some “dislocation” to the butchers, restriction imposed earlier judgment does not cease to be in the interest of the general public. The former must yield to the latter.”

Minority Institutions
§  In News:  the central government reversed the stand of its predecessor Government and decided not to support minority status for Aligarh Muslim University or Jamia Millia Islamia.
Constitutional Provisions:
§  Article 30(1) recognizes linguistic and religious minorities but not those based on race, ethnicity.

§  The National Commission for Minority Educational Institutions Act (for short the ‘Act’) has been enacted to safeguard the educational rights of the minorities enshrined in Article 30(1) of the Constitution.
§  According to the act “Minority Educational Institution” means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities.
A majority community can also establish administer educational institution but they will not enjoy special right under Article 30 (1) (a)
Supreme Court’s Judgments:
§  T.M.A. Pai Foundation vs. State of Karnataka (11 judge Const. Bench) held that status of minority for a community will be determinable only by demography of the State and not by country as a whole.
§  In Azeez Basha vs. Union of India case SC held that to claim the benefit of article 30(1) such institution must be established and administered by the community (OR replaced by AND).
§  Analysis of Azeez Basha case means that a religious or linguistic minority is debarred from establishing a university.
§In St Stephens vs. Delhi University case, 1992, SC ruled that MEIs can have 50% seats reserved for minorities.
Stand of the government

§  Minority status to AMU or any institution set up by parliament or state is contrary to Article 15 of the Constitution, which prohibits discrimination by state on grounds of religion
§  These institutions are “unconstitutional” and “illegal” as they are discriminating against SC, ST and OBC using the minority tag.

Jallikattu Issue
§  Jallikattu also known as Eruthazuvathal is a bull taming sport played in Tamil Nadu as a part of Pongal celebrations on Mattu Pongal day.
§  During Jallikattu, various cruel means are adopted to scare and anger the bull. It also causes some human casualties.
§  It derived from the words ‘calli’ (coins) and ‘kattu’ (tie). In Jallikattu, the objective is to obtain the ‘Jallikattu’ a pouch which contains the reward coins called ‘Jalli’ tied to the horns of the bulls. 
§  While the players are not allowed to carry weapons bulls are equipped with a pair of sharp horns. Thus it’s actually the bull which has the upper hand in this match.
§  Jallikattu use only native breed of cows and it protected from going extinct which is a huge problem for western cattle industry.
§  What started as a simple act of bravado has become an act of cruelty towards animals.
§  Supreme court in 2014 banned the sport jallikattu as it violates provisions of Prevention of Cruelty to Animals Act (PCA)
§  Article 21 (Right to Life) prohibits any disturbance to the environment, including animals, considered essential for human life.
View of SC
§  Under Article 51 A (g) of the constitution it is the duty of every citizen of India to protect the wild life, and to have compassion for living creatures;

The prevention of cruelty to Animal Act

-       Enacted by parliament to prevent the infliction unnecessary pain or suffering on animals. 

-       As per the provisions of the law the government of India formed the Animal Welfare Board of India.

-       The Act however makes a provision as respects manner of killing prescribed by religion.

-       Nothing contained in this Act shall render it an offense to kill any animal in a manner required by the religion of any community.
Uniform civil court and Triple Talaq
§  In News: The brave fight put up by Muslim women against the practice of triple talaq has once again brought into focus the lack of a uniform civil code in India.
§   The Supreme Court held that only “incitement” to violence could be prohibited under the public order ground, and even advocacy (of revolution, etc.) was permitted. Under a standard as strict as that of “incitement”, it is difficult to see how the language of Section 295A, which was upheld in the Modi case on the basis of a broad and vague “tendency” test, remains within the scope of Article 19(2).
§  It means a set of common personal laws for all citizens. Currently, for example, there are different personal laws for Hindus and Muslims.
§  Personal law covers property, marriage and divorce, inheritance and succession.
§  Accommodation of various ideas/beliefs and consensus building should be the key rather than legal enforcement of a uniform set of norms.
§  The society must be slowed reformed and no manner of coercion must be exercised.
§  The fears among the minority community of majority domination must be adequately allayed and all apprehensions addressed.
§  The idea of uniform civil code is against secularism ideals as it involves the state interfering in religious matters.
Views against UCC:
§  Inconsistency in personal laws runs contrary to Right to Equality.
§  Article 25 empowers state to regulate “secular activity which may be associated with religious practices.

§  It is true spirit of secularism as religion is a personal matter so laws should be common for all religions.
§  Needed to protect vulnerable sections of the society from abuses of the personal laws; for e.g. Triple Talaq, Prohibition of entry of Women Inside the place of worship,
Argument for Uniform Civil Court

§  Right to worship or to practice religion should not be confused with individual rights relating to inheritance, marriage or divorce.
§  Uniform Civil code is enshrined as article 44, as part of the Directive Principles of States policy, in the Indian Constitution.
§  It makes the implementation of the Uniform Civil Code as a duty of the state.

Issue of Sedition 124 A
§  The Constitution of India does not define the word sedition.
§  Drafted by Thomas Macaulay, it was introduced in the 1870s, originally to deal with “increasing Wahabi activities between 1863 and 1870 that posed a challenge to the colonial government”.
§  According to Section 124-A of the IPC: “Whoever, by any means of presentation brings or attempts to bring into hatred, contempt or excites disaffection towards the Government established by law in India will consider as offence of sedition.
§  The word disaffection’ in this section includes disloyalty and feelings of enmity.
§  In the Ram Nandan vs. State case the Allahabad High Court held section 124-A to be unconstitutional citing that the section restricts freedom of speech (Article 19).
§  However decision of the Allahabad High Court was overruled by Supreme Court in the (1962).
Argument against section 124A
§  Supreme Court in Kedarnath Singh v State of Bihar has warned against the arbitrary use of sedition law.
§  It ruled that criticism against the government policies and decisions within a reasonable limit that does not incite people to rebel is consistent with freedom of speech and expression.
§  It has been used arbitrarily to curb dissent particularly by the independent intellectual thinkers.
§  The draconian nature of this law—non-bailable, non-cognisable and punishment that can extend for life— has a strong deterrent effect on dissent even if it is not used.
Criminal Defamation
§  It is defined under sec 499 and Sec 500.
§  They key arguments against sections 499 and 500 IPC are that they are not reasonable restriction on speech.
§  For example, if a person speaks truth, then truth will only be a defence if the statement was made for the public good. Otherwise, a person can be prosecuted for defamation even for speaking truth
There are two types of defamation: Civil and Criminal
§  In criminal defamation there is physical punishment. Whereas in civlidifamation
§  Criminal defamation restricts freedom of expression especially in political matters.
§  Hence various political parties filed a petition to decriminalize defamation.
§  But SC rejected the viewpoint of decriminalizing Criminal defamation law because of two reasons:
§  (a) It will affect the fraternity word in the preamble. Right to reputation is integral part of Right to life.
§  (b) The socio economic condition of India is not fit for civil defamation as everybody cannot afford financial penalties.
§  Section 499 of IPC- Defamation. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

§  Section 500 IPC. Punishment for defamation — whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
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.
He 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 has to give assent to the bill because of Article 74(1). 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.
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 has to 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 Center and State
Part XI of the constitution of India defines relations between center & 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 lakhs and crores 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 have to take into consideration the fact that irrelevant cases must not come to the court. 

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.

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 impliedly 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.

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