Loopholes in the Indian Constitution and Solutions For Them
By Vaishali Singh & Yogesh Sharma
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 One cannot deny the fact that some of these laws are extremely outdated and need to be amended since they may have worked in that period however in recent time they might have become outdated.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.
The preamble is the preface to the Constitution. It contains the essence of the constitution. The preamble of the Indian Constitution signifies the intent of the constitutional makers for framing the constitution. In Beru bari Case Hon’ble Supreme court of India stated that Preamble tells the objective of the constitutional forefathers for putting every article in Indian Constitution.
The Preamble starts from We, the People of India it means in India there is a democratic form of Government. Democratic government is a form of government where people are sovereign & runs the country. But in India, reality is different the country is in the hands of rich politicians who run the nation according to their needs. Constitution of India does not define many terms such as minority, backward class etc.
Overlapping powers of President and Governor
According to Article 53(1) 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) 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.
Power under article 226 is wider than article 32
Since we know that the Supreme Court of India is India’s highest adjudicating authority. Article 32 is called the heart and soul of the constitution because it gives rights to people to move Supreme Court directly for enforcement of their fundamental rights. But still the power to High Court under Article 226 is wider than the power of the Supreme Court under Article 32. The major loophole in this arrangement is that Article 32 is suspended during the period of the emergency whereas Article 226 cannot be suspended during emergency.
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 favor of the Union. Residuary legislative & Residuary executive power is exercised by the Union of India. There is an encroachment of union in the state.
Is Election Commission independent?
According to Article 324, superintendence, direction and control of elections is vested in Election Commission of India. The office of Chief Election Officer is the constitutional post and if election commission becomes multi-member body then chief election commissioner should be the chairman of the body.
Article 324 undermines the independence of the Election Commission of India. Article 324(2) gives the power to appoint Chief Election Commissioner & other Election Commissioners to President of India. But by virtue of Article 74 of Constitution, President works in aid & advice of the Council of Ministers. Thus indirectly the power is in the hands of the government of India. The government of India is a political party who wants to win next elections. The government of India will appoint CEC & EC who will favor them. So major loophole in Article 324 is that it undermines the independence of the Election Commission by giving the power to appoint CEC & EC to parliament.
Clause 5 of Article 324 states that Chief Election Commissioner should be removed from his office in the same manner as the Supreme court judge is removed as a way of impeachment under Article. We know that the post of CEC is constitutional and EC can be removed only on recommendations of CEC. It means that by virtue of clause 3, CEC can override decisions of other ECs. But parliament by law stated that the decision of election commission is either taken by consensus or by the majority. This Rule of parliament is in contravene to the Constitution because by this decision of other ECs can overpower the decision of the CEC but by bare reading of 324 gives more power to CEC than EC. Thus it undermines the independent status of the CEC itself. The supreme court Judge & CEC have equivalent powers in their own domain. Since we know that democracy is the basic structure of the Indian Constitution. Free & Fair elections are the responsibility of the Election Commission but there is no independence of election commission in reality. Election Commission should be considered as an independent body and CEC should be given more power than other ECs.
Article 327 & 328 of the Constitution gives power to parliament and state legislature to make any law related to delimitation & electoral rolls. It is up to the parliament & state legislature to make law for delimitation of constituencies. Whereas Article 329 starts with notwithstanding clause and states that no court will interfere in the relation of delimitation of constituencies & Electoral polls. At one side under Article 327 & 328 parliaments restricts their power subject to constitution whereas on another side under Article 329 is restricting the power to question delimitation & electoral rolls. Thus indirectly it gives power to parliament to make religious & caste based constituency. Since we know that the ruling government has the majority in parliament thus for winning elections they will bifurcate the constituencies according to religious or caste base so that they can secure their voting bank.
No interference by courts in election of Panchayats & Municipalities
According to Article 243-O and 243ZG law related to the delimitation of constituencies or allotment of seats made in elections of Panchayats and Municipalities under Article 243 and 243ZA respectively shall not be called in Question in any court. It also states that no election in panchayats & municipalities shall be called in question. Since we know that the judicial review is included in the basic structure of the constitution. Thus these provisions undermine the independence of the judiciary by not allowing the judiciary to intervene in the election matters of the panchayats and municipalities.
Loopholes in Tenth Schedule of Constitution
10th Schedule of the Indian Constitution deals with the Anti Defection law. It was inserted in 1985 via 52nd Amendment of the Constitution. The main objective of inserting 10th schedule in the constitution is to disqualify legislators on the grounds of defection. 10th Schedule makes a mockery of parliamentary democracy. Section 2(1) b of the schedule states that members of the Lok Sabha & Rajya Sabha are bound by the direction of the leader of political party which the leader belongs & if he votes contrary to the decision of his political party then by virtue of 2(1) He shall be disqualified. Truly speaking, each MLA and MP is the representative of people from where he has been elected and its his duty that the voice these people reach the parliament and he represent them there, but the anti defection law or 10th schedule stands contrary to this philosophy and pressurize the MLA/MP to stand for the ideology of his party and not his people.
According to Para 6 of 10th Schedule, the speaker is the final adjudicating authority for deciding the disqualification of the member of parliament therefore it is a violation of the principle of natural justice because the bare text of schedule did not provide recourse to courts and it is made upon the procedure enshrined in Article 122.
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, 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.
No clear definition of Public Interest Litigation
‘Public interest litigation’ in simpler words is the litigation filed for the public interest. Although article 32 of the Constitution contains provisions regarding the involvement of the public in the judiciary it is interesting to know that PIL has not been described anywhere in the constitution. The Indian PIL is different from class action or group litigation which is the present state in America from where it has been developed. The unique feature of a PIL is that it may be introduced in a court suo moto, without the mandatory requirement of the aggrieved party. Although it is no doubt an innovative judicial procedure for the benefit of the public at large however one cannot deny its dark side. It has received a number of criticisms relating to overlapping of power and the overreaching of the judiciary. PIL has further created a new set of the problems such as an increase in the workload of the already overburdened Apex court, lack of proper judicial infrastructure to examine the factual matter, abuse of power, friction with other organs of democracy, and a dangerous inherent in judicial populism. It is safe to say that PIL is being misused in the pretense of public interest by masses for private grievances defeating the original purpose of it. It has now become a means to seek publicity rather than raising concerns for public causes.
It is important that the courts have a proper system to monitor them and allow only genuine one to be addressed. The judiciary should even be strict in the sense that it does not allow cases for propagating judicial populism and should also ensure that these PIL are disposed of as soon as possible. Further, there should be a strict separation of power
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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6. Sumedha Upadhyay, Indian Constitution: A Comprehensive Analysis, Loopholes And More, YOUTH KI AAWAAZ.
 Sumedha Upadhyay, Indian Constitution: A Comprehensive Analysis, Loopholes And More, YOUTH KI AAWAZ, AVAILABLE AT https://www.youthkiawaaz.com/2010/11/indian-constitution-a-comprehensive-analysis-loopholes-and-more/, last seen on 26/03/2019.
 In Re: The Berubari Union And ... vs Unknown AIR 1960 SC 845, 1960 3 SCR 250
 53. Executive power of the Union
(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution
 74. Council of Ministers to aid and advise President
(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration
 Kihoto Hollohan vs Zachillhu And Others 1992 SCR (1) 686, 1992 SCC Supl. (2) 651.