Review of Constitution in Contemporary era

Author : Shakshi Sharma (The ICFAI University, Dehradun)

Abstract

The Indian constitution is a framework of the laws of a country. It talks about all the rights that have to be given to a person and what duties they need to follow , what are the duties they need to follow and how our country works on what terms and conditions ,but there are some changes that need to be made in policies that are made under this constitution. This is about a few such policies that need to be changed in our constitution for the betterment of our country. In this article we Come to know about the loopholes of our Indian constitution which need some amendments For the growth and welfare of the society. Our constitution is most lengthiest and blend of rigid and flexible in nature, which Create for some particular class of people. Trough this article we come to know about some most needed amendments in our Indian constitution.

Introduction

The word ‘Constitution’ Comes from French which means regulations and orders. The constitution of any country is the Fundamental law of the land with a vast power and sanctity. The constitution of any country is not only describe the rules , regulation, powers and duties but also envision a path of growth and development of a nation. 

We all know that India is the largest democratic country and has the longest written constitution. The Constitution of India is not only a document, it is the identification of the person. Every year on 26th January we celebrate it as Republic Day. The Indian constitution was adopted by the constituent assembly of India on 26th November 1949 and became effective on 26th January 1950 “We, the people of India”, resolved to adopt , enact and give to ourselves the constitution of independent India.The formation of the constitution took 2 years, 11 months and 18 days. The Constituent assembly of India was formed in 1946. In 1934, MN Roy proposed the idea of a constituent Assembly. The demand was taken up by the congress party in 1935 as an official demand. The British official presented officials of the India Act 1935. It was not very useful at the time, but later on became one of the important sources of the Indian Constitution. Dr Sachidanand Sinha became the first president of the constituent assembly, Dr BR Ambedkar became the chair of the drafting committee. Our constitution contains 395 schedules in 22 parts and 8 schedules. Later on, more than 100 amendments were made to the preamble and other parts of the constitution. The constitution of India lays down a structure lays down a structure for political, Economic and social democracy. It also states the commitment of the people of India for ascertaining, ensuring and achieving the various national goals through peaceful and democratic ways but on the other hand there are some article in our constitution which are creating problem to some particular group of people and Contradictory to the Fundamental Rights given in our constitution. As growth of the nation is our priority so we have to amend some provisions which are conflicting in nature for the upliftment of our country only.

COLLEGIUM SYSTEM

It is given under article 124(2)¹ and 217(1)² the word collegium came into force as per judicial pronouncement . The origin of this system is taken from the recommendation of the Bar council of India on 17 Oct 1971 at a national seminar in Ahmedabad . The constituent assembly took a consultative process for their separation from political influence . For the appointment of judges, the national appointment commission was formed in 2014 by the government of India on the 9th constitutional amendment and it is also known as the 1st judge bench . The main aim of NJAC was to make the appointment of chief justices , Supreme Court and High Court judges in a more transparent manner, as compared to the old collegium system, but after 1 year of implementation of this commission, the supreme court of India declared it as unconstitutional and the supreme court also ordered to follow the old collegium system³. Although the supreme court believes that the old collegium system given in Article 124(2) and 217(1) of the constitution of India is not perfect in itself and promised the improvement of the old collegium system, till now there has not been any amendment that came into force regarding this. Many people believe that in the appointment of judges of the supreme court and High Court the president plays an important role, but in the second case, the supreme court said that the order given by the president is not binding, so the role of the president in the appointment of judges is only to sign the memorandum all the power regarding this is invested. There is justice , there is not any transparency in this system.

CAPITAL PUNISHMENT

Over the years, different countries have adopted different methods of executing people who are found guilty of capital crimes and capital punishment is one of them. Capital punishment is a violation of article 21, which is about the right to life and personal liberty and thus, no one has any right to kill another, no matter if the person is a criminal . If someone is murdered and a judgement against him by the court comes to hang the person and kill him, what makes our laws and society different from such murder’s rights. And one more important thing is that, not all the time the justice is done may be. Sometimes the innocent person is unable to prove himself and hanging an innocent person is not justified at all .The saddest thing about capital punishment is the stories of unfortunate people who end up being executed for a crime they did not commit⁴ . According to sec 416 of , if, high court finds that a women who has been awarded capital punishment then the punishment shall be postponed now what about the child who will take care of that kid why should the child be deprived of mother love whatever happened it’s not his fault and thus capital punishment should be removed as soon as possible as this is the violation of human right.

REMOVAL OF ARTICLE 370

The abrogation of article 370 of the Indian constitution in August 2019 was a historic move that revoked the special autonomous status of Jammu and Kashmir (j&k). While proponents argued that it would lead to integration and development,there are several disadvantages associated with the removal of article that warrant careful consideration .Article 370 granted J&K a certain level of autonomy ,allowing the state to have its own constitution and make laws independently .the removal of this article led to the dilution of this special status, which some resident of the religion saw as a breech of the agreement made during the accession of India. There is a possibility of more spread of terrorism in India. The people of India have fear about it⁵..

LIVING WILL

Living will is a legal document that outlines an individual’s preference for medical treatment or intervention in case they become incapacitated and unable to communicate their wishes .it typically addresses situations where a person is terminally ill or in a persistent vegetative state but medical reports are not 100%accurate all the time,thus it may cause ambiguity while making decision.whenever a person makes his living will it may be possible that if such condition arises his wish changes may be possible that he wants to live longer,so we cannot rely on living will decision and wishes of the person may change from time to time.it will definitely affect the medical facilities that has to be given to the deceased because his relatives and doctor will think that the person has already made living will.

UNIFORM CIVIL CODE

Article 44 of The Constitution Of India itself talks about the Uniform Civil Code where it says that “The State shall endeavour to secure the citizens a Uniform Civil Code throughout the territory of India”⁶. Now it’s been more than 75 years of independence and we are yet discriminating against a large population in the name of various personal laws and other religious practices which must be stopped as soon as possible. We are continuously discriminating muslim womens in the matters of succession, inheritance, property, maintenance, adoption and guardianship which is somehow against the fundamental rights given under the constitution of india⁷.

The Hon’ble Supreme court in various cases stated about the uniform civil code like shah bano case, sarla mudgal case, shaira bano case and various other judgements has also been given which has supported the concept of uniform civil code.

SIGNIFICANCE OF UCC WHEN IT COME IN MAIN PROVISION

• A uniform civil code will promote national unity as one nation one law.
• It will remove the contradiction arose due to various personal laws with the constitutional provisions regarding Fundamental Rights.
• Directive Principle Of State Policy can override upon the Fundamental Right if it violates the other Fundamental Rights of any individual for eg. If any tradition or practices of any religion violates the rights of an individual given under Article 14⁸15⁹ and 21¹⁰of the Indian Constitution then it cannot be defended on the name of Right to Freedom of Religion given under Article 25¹¹,26¹²,27¹³and 28¹⁴ of the Constitution of India.

RESERVATION POLICY IN INDIAN CONSTITUTION

Article 15(4) and 16(4) of the Constitution of India which talks about benefits of reservation given to “Socially” and ” Educationally ” backward classes but there is no any criteria and basis for determining who are “Socially” and “Educationally” backward. The wholesome authority to decide it is given in the hands of the ruling government and the government using this as their vote bank policies. As the reservation grows larger it becomes a method for exclusion in spite of inclusion, because According to today’s scenario the previously advantaged communities are becoming disadvantaged to a large extent due to this reservation system. Many people belonging to the upper caste are still plagued by poverty and illiteracy. As Article 14 of The Indian Constitution talks about Equality Before Law and Equal protection of Law and on the other hand privileges are given to some particular class , It is nothing more than divide and rule policy. At the time of drafting of our Indian Constitution the situation of SCs , STs and OBC was adverse they are suppressed by upper caste people but now the time come for some Amendments in this policy because The tool which were given to them for their protection and upliftment now they are using it as sword. Reservation should be on the basis of Income not on the basis of caste, Gender, or Religion.

CONCLUSION

Through this policy , we have explored the topic of Constitutional amendments , Our Constitution is the longest Constitution in the world. this is a living document, Thus it need to be reviewed and amended again and again because day to day the needs of people are changing , their perspective on several things are changing and also Law is dynamic in nature and the framers of the constitution had imagined this before hand that with time the indian society will grow and uplift and it will create problem to stay with a rigid constitution. laws which are made are for the benefit of people but still more than it’s benefit it is causing harm to the society. Some are being privileged, some are not so these things need to be changed. As our motive is development and welfare of the state as a whole. none of us should suffer injustice ,Thus for the betterment of all of us some of the provisions needed to amend again.

¹ Power on the president to appoint judges of supreme court including CJI by warrant under his hand and seal.

² Power on the president to appoint judges of high court consultation with CJI, Governor of state, and in case of appointment of judges other than the chief justice ,the chief justice of high court.

³ 1st judge case (1993)4scc441,air 1994 sc 268

⁴ https://soapboxie.com/government/Advantages-and-Disadvantages-of-Capital-Punishment-Death-Penalty

⁵ Think India journal

⁶Anusandhan the research respiratory of gibs

⁷ The Shah Bano Case Supreme Court Weekly Reporter,1949

⁸ Equality before law

⁹ Prohibition of discrimination on ground of religion, race, caste, sex and place of work

¹⁰ Protection of life and personal liberty

¹¹ Freedom of conscience and free profession, practice, and propagation of religion

¹² Freedom to Manage Religious Affair

¹³ Freedom of payment of taxes for particular religion

¹⁴ Freedom of conscience and free profession, practice, and propagation of religion

Bibliography

1. Book Referred
   • H.M Seervai, Fourth Edition volume 1
   • Dr. J.N Pandey, Central Law Agency

2. Link Referred
   • www.thehindu.com/specials/in-depth/nja retrieved on 15.05.2017
   • www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-