Loopholes in Indian constitution and solutions
By Anushka Dubey and Ashutosh Pandey
Indian constitution is remarked as the world’s lengthiest constitution. Though it is a well intentioned piece of document, adopted with utmost concern and sincere efforts, but still few additions and subtractions are needed as perfection is not an easy task. Drafting committee, while drafting the Indian constitution considered every minute detail to make it more effective, but inarguably there are a few loopholes in its structure. And the only way to make Indian constitution more effective is through amendments. Indian constitution was framed back in 1949 by deriving concepts from multiple constitutions of the world like the constitution of USA, Canada, Ireland, South Africa, U.K. etc. But as the time evolves, social economical and political conditions of a country also keep on fluctuating. Therefore, it is essential to envisage future needs of the nation and bring some positive modifications in the supreme law of land. The loopholes of the constitution can only be put down through amendments that promise an effective regime to run the whole country. Let us have a quick review about the negative features of the Indian constitution, and their remedies:
CRACKS IN THE PREAMBLE
Every constitution in the world starts with the preamble so does the Indian constitution. So, before starting with the constitution, it is relevant to check loopholes in the preamble itself. Preamble constitutes the crux of everything embodied in the supreme law of the land. The introductory statement perfectly sets out the intention in accordance with the preamble of USA. However, many expressions incorporated in the preamble are still vague and unclear and as a result, terms detailed in the preamble are sometimes abused and inappropriately used under the shield of “National Interest”. In a modern welfare state, it is very difficult to achieve the terms enshrined in the preamble in its absolute form. The socialist approach set out in the preamble is also a negative connotation and it is slightly responsible for the emergence of Naxalism in India which somewhere disturbs the national security and peace. To aid this, it is important to give constitutional provisions a particular direction so that it may secure exact meaning and the actual interpretation of the terms penned down in the preamble.
The grand document is subject to wide interpretation. Many provisions provided in the constitution need interpretation. And thus, wide interpretations with absolutely different concepts are possible. Due to a discretionary interpretation feature of the constitution, there exists a non-stop conflict between the interpretations proposed by different bodies. That being the case, complexity is obvious. It is very much difficult to decode the provisions written in the constitution. It is often said that the framers of the constitution were lawyers and that is the sole reason behind its complex feature. Hence, everything written in the constitution is interpreted as per the whims and fancies of the legislative and judicial bodies, some acting in the limit and some beyond the limit. Almost every part of the Indian Constitution has vagueness and ambiguity in its manifestation. Nothing in the constitution is direct or away from the process of ‘interpretation’. The level of vagueness can be understood by taking article 12 as an example. Article 12 points out the definition of state and specify that state also include ‘other authorities’. Here the question arises, which authorities will fall under other authorities? To answer this, we have many landmark cases in the queue from UNIVERSITY OF MADRAS V. SHANTHABAI to AJAY HASIA V. KHALID MUJIB, carrying bundles of distinct judicial interpretations and views of the term ‘other authorities’. This feature of Indian constitution does not only confer discretionary powers, but also affects the consistency and undermines the certainty and predictability of the law.
To deal with this, in a recent report of the national commission to review the working of the constitution, it was recommended that an explanation should be added in the definition of state under article 12 to provide a direct interpretation of “other authorities.”
To put an end to wide interpretations, it is required to bring amendments in the provisions by introducing explanations and provisos where there are extraordinary conditions of ambiguity and vagueness. Furthermore, it is to be kept in mind that while formulating new provisions, simplified language should be preferred over complex, leaving no room for ambiguity and arbitrariness. Direct provisions are way better than complex structure as they will lead to speedy justice in an indirect way by eliminating the burden on judicial and legislative bodies.
SEPARATION OF POWER
Theory of separation of power is a feature of basic structure as it focuses to eliminate the interference and to bring coordination amongst the constitutionally recognized bodies by dividing powers between legislative, executive and judiciary, and providing for checks and balances in the democracy. The said concept was propounded by the great jurist Montesquieu and in his book “the spirit of laws”, he outlined that in a free democracy, government shall have three organs i.e. legislative, executive and judiciary, and the powers and functions of these organs shall not be overlapping with one another and separate in nature. But this doctrine is not strictly followed in India as in USA (it is the first country to recognize the theory of separation of powers). In India, there is a constant war between the bodies and every tier want to rule over the other to prove its supremacy in position. In the leading case of INDIRA NEHRU GANDHI V. SHRI RAJ NARAIN, the court observed that in India we follow the theory of separation of power in a broad sense and not in a rigid sense as it is followed in countries like USA and Australia. Therefore, meddlesomeness can be seen in its practical approach. For example, president’s impeachment proceedings are conducted in the parliament. Or, under article 13, power to review legislative enactments and laws is granted to the judiciary. The adoption of the doctrine in a broad sense somewhere disturbs the independent running trait and chances of unsmooth working are relatively higher. And thus, it is a loophole in our supreme document.
No organ should intervene in the matters of the other. Our constitutional provisions should be made in a way that there is no direct or indirect inference. If we also follow a rigid system of distribution of powers and functions as it is followed in USA, then there will be an ease and smoothness in working. Some polish is needed in the applicability of this doctrine in India so that each organ can work as a sovereign body and carry out its operation in an effective and efficient manner. Dividing work in an exclusive manner is the sole method of granting independence to all the three organs.
SECRECY IN JUDICIAL APPOINTMENTS
The national judicial appointment commission (borrowed from U.K.) was formed under the 99th constitution (amendment) act together with the national judicial appointments commission act, 2014 laying down the procedures for selection of judges to vanish out the system of secret proceedings in appointment and transfer of judges. However, the newly introduced appointment system is also somewhere affecting the glassiness in appointments. There are certain disregarded features which restrict the open and merit based appointment of judges and limits the choice. At present, crystallization in judicial appointments is like a dream for our nation. Retired J. Ruma pal, 16 years career holder recently presented her opinion that secrecy in judicial appointments is a sin committed by the judges and further she added that the process of appointments of judges is the best kept secret in the country. The framers made all sincere efforts to provide us with the strong constitutional provisions, but secrecy in judicial appointments is not a positive concept. The provision of involvement of executive body in judicial appointments should be erased and a clear system should be formed under the Indian constitution to ensure that all the judicial appointments are done in an open ground based on the capabilities of the people to bring fairness and reasonableness in judicial appointments.
LENGTHY PROCESS OF AMENDMENT
For amending constitutional provisions, the process is not so flexible and because of it, new amendments cannot be brought in easily by the legislative organs. As the time changes, laws also need to mould. But, with lengthy procedures it is quite difficult to implement policies when there is an actual need of implementation. Article 368 provides for the amendment of the constitution by stating an extra comprehended amendment procedure. In India, there is a need of a flexible amendment procedure as per the nature and subject matter of the proposed bills. To make the working quick, it is important to eliminate the rigidness of article 368. For this, relaxation should be provided in the amendment procedure by diving nature and subject matter of the required amendments respectively. Quick amendments will keep our constitution updated and precise.
DIRECTIVE PRINCIPLES OF STATE POLICY
The non-enforceable part of the Indian constitution is DPSP i.e., part IV (article 36- article 51). DPSP contains certain social, economic and political principles which we wish to achieve. It provides with guidelines which are to be followed by the state while formulating policies and thus, they are fundamental in the governance of the country (Article 37). The idea of welfare state settled under constitutional provisions can only be achieved if the states aspire to achieve them. This novel feature is derived from the constitution of Ireland. However, many times these principles are not treated in a way they are meant to be treated. States consciously avoids implementing the basic guidelines of part IV under the enactments. The non-enforceable nature leads to misconduct of states and it is often considered as a loophole by many judicial bodies. Non- enforceable character gives freedom to states to abuse constitutional provisions for self interests. Therefore, if directive principles of part IV are made enforceable by the court or made more strict for implementation then, there will be a regular check on autocratic tendencies of the state. It may also to some extent help in uniting the country. It is not practically possible to put forth the whole part of DPSP in enforceable character but, some strictness can be brought in for the implementation of DPSP for witnessing social & economic growth of the country.
INDIAN CONSTITUTION ON POPULATION CONTROL
It is a well known fact that in India, population control is not an easy task. At present, India’s population is equivalent to 17.74% of the total world population with approx 1,364,816,871 as of march 27, 2019. India is on the 2nd spot in the list of countries (and dependencies) by population. Population growth rate of India is continuously raising high with turning minutes. But what we really have to deal with this situation in the books of law? The answer is ‘nothing’. Even our law of land nowhere provides any remedy or provision to handle this situation. It is one of the major loopholes in the Indian constitution. The silence maintained by Indian constitution on population control needs upgradation. To deal with this, it is needed to insert a separate provision in the constitution under the head of DPSP with enforceability clause. So that states while implementing legislative policies draw some attention towards population control by education and establishing small family norms.
Article 51A of the Indian constitution imposes fundamental duties on the citizens. It directs people of the country to observe certain basic norms of democratic conduct and behavior. It tries to limit the anti-social acts of reckless citizens. This Russian concept is though incorporated in the constitution but, it is not well highlighted and made effective. There is no awareness amongst the people to act in a certain way or that they owe something to the nation. To deal with it, the union and state governments need to spread general awareness amongst people and implement necessary schemes to bring in notice this part of the constitution to the citizens. Additionally, it is required by the state to perform its duty of providing education at a basic level so that people can directly connect with the constitutional provisions and perform their fundamental duties towards the nation. Furthermore, few additions are needed in article 51A and they are highlighted below:
1. Duty to actively vote and participate in democratic matters.
2. Duty to pay taxes regularly.
3. Imposing a duty on industrial organizations to give free education to children of their employees.
There is no loophole in fundamental rights but, undeniably few additions are needed in it. With evolving time, bundles of rights are recognized by the courts through judicial pronouncements to strengthen the position of citizens in the country. No recent amendments are made in the fundamental rights introducing the newly recognized rights of the citizens. For instance, the shortest article of part III I.e. Article 21 provides with multiple number of rights hidden in its interpretation, but it is recommended to specify some of those recognized rights under article 21 itself like; right to legal aid as held in HUSSAINARA KHATOON V. HOME SECRETRARY STATE OF BIHAR that right to free services is clearly an essential ingredient of reasonable, fair and just procedure for an accused person. Also, article 19 of the constitution shall include freedom of the press and other media, the freedom to hold opinions.
CRYSTALLIZATION OF ELECTORAL PROCESSES
The word ‘DEMOCRATIC’ is enshrined in the preamble of the Indian constitution and considered as a feature of basic structure. But electoral processes in India are not yet crystallized and fair. It is the biggest loophole of the constitution as governance of the country wholly depends upon the elected members and to ensure transparency, it is important to frame tight provisions in the constitution like changing the voting methods. Ensuring free and fair elections at any cost, introduction of EVMs (electronic voting machines) from macro to micro level of constituencies in the country. Spreading caste and communal hatred during elections should be considered unconstitutional and should be placed under the category of punishable offence. Furthermore, a person committed heinous crime in the past should be restricted on a permanent basis from consenting for any political office. Apart from this, it is essentially needed to extend the powers conferred on election commission to make India a democratic state in real sense.
Not only the above mentioned topics need modification but also, certain more topics are to be taken into consideration while looking for loopholes in the constitution. Like, there is no proper system under Indian constitution that deals with the matters relating to land. Land is an important topic and needs equal focus. The system made in Indian constitution regarding land is unclear and ambiguous in nature. Another loophole is misuse of Article 311. Article 311 talks about constitutional safeguard to civil servants. The exemption granted to civil servants is in excess nature and thus requires a review.
It is to be concluded that problem of Indian constitution lies in system and structure. Indian constitution is made up of borrowed concepts and thus it contains vague and unclear provisions. Indian constitution needs to be modified in a way that it provides economic freedom to individuals, eliminates discrimination at all levels, provides political and social security to the citizens and improves the working of the bodies recognized under constitutional limits. The loopholes in the Constitution can only be tightened through amendments. The very basic principles of social, economic, and political justice elaborated in the constitutional provisions need to be scrutinized as well.
As it coined in golden words that change is inevitable, but growth is optional. The same context goes with the constitution as well. Change in conditions and circumstances is constant and to deal with it, we need to keep amending our laws in a way that we can easily establish policies guaranteeing positive results and upliftment of the society.
 Preamble to Indian Constitution: An Overview - Jay Kay Law Reporter Pvt. Ltd.
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 AIR 1954 Mad.67
 (1981) 1 SCC 722; AIR 1981 SC 487
 1975 AIR 865, 1975 SCR (3) 333
 AIR 1979 SC 1369