Indian constitution was designed and written after years of long deliberation. I consider our Constitution as the best Constitution tailor made for fitting a geographically, culturally, physically and linguistically diverse country like India.
However, in this article we will discuss about certain flaws which could imperil the Constitution itself. A similar flaw existed in our Constitution which was used by Mrs. Indira Gandhi to impose emergency with the intent to destroy democracy in India. The flaw has been taken care in the 43rd and 44th Constitutional amendments.
There are more flaws still. Let me list them down.
- Independence of Judiciary: Though separation of powers between Legislature(Parliament), Judiciary (Supreme Court) and Executive(President) is considered as a basic structure of the constitution, this is not the reality on the ground. The Executive in Indian has ways to influence judiciary. While appointment of any Judge in Supreme Court or High Court is done by the Supreme Court, the Executive(President) has the final approval power. President(who acts on the aid and advise of the PM) many a times use the power to ensure that Judges favorable to his Govt. are appointed in Higher Judiciary by not approving/delaying the “unsuitable” judges. This has happened with all Govts since independence. Even before emergency Mrs. Gandhi appointed her loyalist A. N. Ray as Chief Justice of India. Due to that reason, SC did not give a single judgement unfavorable to Mrs. Gandhi during the entire emergency period. For a strong democracy, Independence of Judiciary is must. Making the Judiciary subservient to the Executive(President) is not a good thing for democracy.
- No accountability of the Higher Judiciary: In India, judges appoint Judges. The Senior most judges in Supreme court(forming the Collegium) appoint the Supreme Court Judges. The Supreme Court Judges appoint the High Court Judges. Such a system makes the Judiciary accountable to none and is the biggest stumbling block in judicial reforms. Ideally, in my opinion, the appointment of judges should be done by an independent and neutral organization like a Council (whose members are chosen by parliament with a very high, say 2/3rd majority of both houses and should have immunity like Supreme Court Judges).
- Neutrality of Election Commissioners: Free and fair elections is considered a basic structure of our Constitution. The Election Commissioners(EC) are appointed by President. As per Constitution, President must act on advise of PM. In a way the Election commissioners are appointed by PM, who is supposed to be the No. 1 person of ruling party. Say, if a PM appoints ECs who are not neutral, then there is a big chance for the elections to be rigged. Though no Govt. has so far used this flaw to do something mischievous, I consider this as a big flaw in our Constitution and should be plugged.
- Neutrality of Comptroller and Auditor General(CAG): The CAG is supposed to do audit of accounts of state and central Govts and hence should be neutral. The CAG is appointed by the President on advise of PM. Here also, the PM by asking the President to appoint a biased person as CAG could undermine the financial neutrality of the nation.
- Govt’s control of tribunals: Part XIVA (Articles 323A and 323B) speak about tribunals. They are essentially courts, but Govt does the appointment of members/judges. In many cases Govt is a party and the Govt appointed judges decide the cases. Ideally the tribunal members should be appointed by a neutral authority. Many cases are adjudicated by these tribunals.
- Neutrality of Governors: Governors are supposed to be head of Individual states who are deputed by the President on advise of PM. There have been ample instances where Governors (who are typically appointees of Central Govt.) have been used by the Central Govts. to destabilize the state Govts. which is a against the spirit of federalism. The person to abuse the Governor’s post the most was Mrs. Indira Gandhi. During her reign, Governors wielded more power than the CM and state assembly and many state Govts. were dismissed using Article 356 just because of the fact their CMs did not obey her and her family.
- No limit on term of top Constitutional positions: Many countries have limits on the number of terms (time period) a person can serve in top Constitutional positions. For e.g. no person in US can be the president for more than 2 terms. Same should happen in India. There should be a limit on the time period a person can serve as President, PM, Governor or CM. Had this provision been there in our Constitution, then Mrs. Indira Gandhi could not have been able to become so powerful.
- Continuous Election Mode: Due to the Five year term given for Parliament and State Legislatures, Indian is a continuous mode. India should learn from US, where the date the new President should enter the office is specified in the Constitution. There we don’t see President’s rule etc. On this point, I support Modiji’s idea of “One Nation, One Election”.
- Ninth Schedule: The laws listed in 9th Schedule of Indian Constitution are beyond Judicial Review i.e. courts cannot review it. This is actually wrong, Anything done by Govt. or Parliament should be reviewable by Judiciary to have the right Check and Balance across the 3 arms(Legislature, Executive and Judiciary) of the Govt.
A system like this can help plug most of the holes and should be seriously considered by the Govt.
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