Review of Indian Constitution: The Need & Extent

Article By: Amit Abhyankar

“Constitution is for a real union of the Indian people, built on the basic concept of sovereignty of the people, to ensure them Justice. That is the real spirit of the Constitution.”

– Sardar Vallabh Bhai Patel

Dream, just a hollow dream. Isn’t it? Ask yourself. Are people of India ‘really united’ as one nation? Or are we seeing with the very naked eyes the abrasive reality of politics based on region & religion? Are the people ‘the real sovereigns’? Or is the power a game of money & muscle for few elites? Is common man at the receiving end of the justice? Or does the figure of one judicial proceeding behind every 25 persons of India demystify the reality that Justice is being chased, on & on for months, years, decades? A horde of question marks, in a vain pursuit of few full stops!

Need for Constitutional review has always been a topic of raging debate across the country. The founding fathers of the Indian constitution who granted more rights to the people without balancing them with their duties, perhaps did not foresee the emergence of present political environment, wherein the political players of various segments in the country are more interested in fulfilling their individual aspirations than the aspirations of the people.

In some respects, the constitution, impressive though it is, has failed to translate noble principles into tangible, practical instruments. This glaring inadequacy is seen in dispensation of justice, protection of basic liberties, enforcement of bureaucratic accountability and appointments and accountability of constitutional functionaries. The Constitution of India, despite its evocative Preamble and lofty Directive Principles of State Policy, has essentially depended upon the old Government of India Act of 1935, with a sprinkling of other ideas borrowed from the Irish, Australian and other constitutions. That is not surprising, considering that the Constituent Assembly which drafted and adopted the Constitution was, in the words of Granville Austin, “a one-party body in an essentially one-party country. The Assembly was the Congress and the Congress was India”.

Securing to all citizens justice — social, economic and political is one of the avowed goals of the constitution. However, there is glaring failure to translate this into practical action. The failure of justice system, our incapacity to ensure at least a few years of school education to all children, the continuing shame of child labour and a highly centralized polity negated this constitutional promise of justice for all. Unnecessary litigation, needless appeals, dilatory procedures have actually denied justice to the people. The facts are incontrovertible. There is no time limit for adjudication of cases. The plight of tens of thousands of juvenile undertrials languishing for years in inhuman conditions is an extreme example of the failure of justice system. Anarchy, rise in crime, break down of public order and criminalization of society and polity are some of the glaring consequences of this failure of justice system.

A constitution cannot operate in a vacuum. Even otherwise sound constitutional design might fail if it does not take into account the specific nature and requirements of a society. Over the past fifty-five years several distortions have crept into our state structure. As the domination of a single party has become a thing of the past, the working of the bicameral parliament has been distorted. As the Rajya Sabha is a permanent body with a one third of the members indirectly elected by State legislatures every two years, it ceased to reflect the will of the people at any point of time. Even governments with a clear mandate in the Lok Sabha have found it difficult to get legislation through the Rajya Sabha.

Ambedkar rightly said that the constitution is only as good as the men and women who operate it. Each generation has the benefit of experience of the past and should have the capacity and the right to build upon the foundations of this experience. If certain portions of the constitution have become redundant or dysfunctional over the years or if new problems arise and new instruments and rules are needed to face those challenges, then constitution must be revised. Our constitution is a fundamentally sound document, and its preamble, fundamental rights and most of the directive principles are as relevant today as even before. However, the detailed working of the state structure requires a careful review and reform in keeping with these basic constitutional principles. A wise Constitutional review could be the answer to many problems.

So what kind of amendments we are envisaging? The National Commission to Review the working of the Constitution was set up, which has come up with its final report in the year 2002. The commission has made multitude of recommendations. Starting from the fundamental rights- the definition of ‘State’ as included under Article 12 is inclusive & not exhaustive. The connotation of expression ‘other authorities’ has always been obscure. The issue that whether the BCCI (Board of Cricket Control India) is ‘State’ or not is recent example of surrounding controversy. Hence the Article needs an explanation that “the expression ‘other authorities’ shall include any person in relation to such of its functions which are of a public nature”. The right of freedom of speech & expression should expressly include freedom of press & media. Similarly, right of privacy needs to be part of Article 21. It also needs to include right to work in limited sense. E.g. to make it obligatory on the State to bring suitable legislation for ensuring the right to rural wage employment for a minimum of eighty days in a year. Right to education for children upto age limit of 14 years should be enlarged to greater extent. Every person must have the right of safe drinking water and of an environment that is not harmful to one’s health or well-being.

As regards to directive principles, the Commission feels that they should be provided more backing by setting up implementation-mechanism. The commission recommends establishing a high-status body to analyze the socio-economic condition of the State before deciding the extent of application of directive principles. The Commission also recommends that the heading of Part IV of the Constitution should be amended to read as “Directive Principles of State Policy and Action”. Under this head should come the rights of work, social security, health, education, food, freedom from hunger, shelter & clothing. A special Article is needed to be incorporated for population control- “The State shall endeavour to secure control of population by means of education and implementation of small family norms”. The State will be under the duty of promotion of Inter-Religious harmony and inter-faith values by setting up ‘Mohalla Committees’ with the participation of prominent members of different communities to take note of early warning symptoms and alerting the administration in preventing them. Due emphasis also needs to be given on fundamental duties. Further, it is necessary to separate religious percepts from civil law.

As regards to electoral process, a foolproof method of preparing the electoral roll right at the Panchayat level constituency of a voter and supplementing it by a foolproof voter ID card which may in fact also serve as a multi-purpose citizenship card for all adults is the necessary electoral reform. Further, the EC should consider the use of tamper-proof video and other electronic surveillance at sensitive polling stations/constituencies. Any election campaigning on the basis of caste or religion and any attempt to spread caste and communal hatred during elections should be punishable with mandatory imprisonment. If such acts are done at the instance of the candidate, these would be punishable with disqualification. The Representation of the People Act should be amended to provide that any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as or for being a member of Parliament or Legislature of a State. Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off speedily, if necessary, by appointing Special Courts. The political parties as well as individual candidates should be made subject to a proper statutory audit of the amounts they spend. These accounts should be monitored through a system of checking and cross-checking through the income-tax returns filed by the candidates, parties and their well-wishers. At the end of the election each candidate should submit an audited statement of expenses under specific heads. A comprehensive law regulating the registration and functioning of political parties or alliances of parties in India [may be named as the Political Parties (Registration and Regulation) Act] should be made.

The Parliamentarians have to be like Caesar’s wife, above suspicion. They must voluntarily place themselves open to public scrutiny through a parliamentary ombudsman. Supplemented by a code of ethics which has been under discussion for a long time, it would place Parliament on the high pedestal of people’s affection and regard.

Right to information should be guaranteed and needs to be given real substance. The Prevention of Corruption Act, 1988 should be amended to provide for confiscation of the property of a public servant who is found to be in possession of property disproportionate to his/her known sources of income and is convicted for the said offence.

A ‘Judicial Council’ at the apex level and Judicial Councils at each State at the level of the High Court should be set up. There should be an Administrative Office to assist the National Judicial Council and separate Administrative Offices attached to Judicial Councils in States. The criminal investigation system needs higher standards of professionalised action and it should be provided adequate logistic and technological support. The number of Forensic Science Institutions with modern technologies such as DNA fingerprinting technology should be enhanced. In order to cope up with the workload of cases at the lower level and also to curtail arrears and delay, the States should appoint honorary judicial magistrates selected from experienced lawyers on the criminal side to try and dispose less serious and petty cases on part-time basis.

Panchayat should be categorically declared to be ‘institutions of self-government’ and exclusive functions be assigned to them by amending Article 243(G). The Eleventh and Twelfth Schedules to the Constitution should be restructured in a manner that creates a separate fiscal domain for Panchayats and Municipalities.

Agriculturists and many other traditional producing classes suffer from the adverse effects of natural calamities like drought, cyclone, floods, etc. A similar national convention should identify the measures required to protect them from such adverse effects of natural calamities including crop insurance, preparedness etc., arrive at a consensus about these measures and institute a continuing machinery of continuous monitoring and corrections and modifications.

The number of necessary reforms in the Constitution is countless. But these reforms should start forthwith. Shut your eyes, but problem will still remain a problem. Problems do not run away because you run away from them or prefer to ignore them. India is at crossroads; she may flung herself into the darkness of paralysed governance & fiscal collapse, if nothing is done or it may scoot on the vehicle of timely Constitutional Review towards some new high. We need strong political will to realise such in-depth review of the Constitution because when it comes to national wellbeing, there cannot & ought not be any compromise!