The case for a new constitution order

News: There is deep unrest amongst various sections of our society about how our constitution is functioning. This was evident when farmers refused to accept laws framed by the legislature and declined to listen to Supreme Court when they were asked to present their case.

What do constitutional amendments suggest?

The USA has made only 27 amendments to its constitution. India has witnessed 105 amendments in the last 72 years. In India, one can easily witness people taking to the streets and dictating framing and repeal of laws.

What are the challenges faced by the Indian constitution?

There is an imbalance of power between various organs of the state, including the executive, legislature and judiciary.

Judiciary has excess power as it can overturn laws, even if they don’t violate constitutional provisions.

The executive has excess power over the legislature by virtue of anti-defection laws.

The Centre has excessive economic power compared to states. Similarly, the States have excessive power compared to local bodies.

As a result, the bottom of the pyramid is weakening.

What is the impact of this imbalance?

Because of the imbalances, every organ can stop the other organ from functioning.
Judiciary has the power to appoint judges. After SC overturned NJAC, the executive has taken power to delay the appointments. Judiciary can even make laws under Article 142, but it can not implement them without the backing of the state.

The legislature can make laws but cannot implement them if there is excessive social pressure or street mobs.

Also, sometimes even that top court has been unable to decide many constitutional cases from Sabrimala review to article 370 to CAA.

How can we address these challenges?

First, The concurrent list should be done away with and these powers should be devolved to states.

Second, third list, a list for local bodies should be created, and it should not be subservient to state bodies.

Third, The power between state and judiciary needs to be rebalanced.

Fourth, the Higher judiciary needs to be bifurcated into courts of appeal and constitutional court. The power to adjudicate on PIL’s must be exercised sparingly, and that too by constitutional courts only.

Thus, India needs to look beyond a piecemeal approach, formulate an all-inclusive committee that should take comprehensive reform of the constitution.

Source: This post is based on the article “The case for a new constitution order” published in Business Standard on 30th November 2021.

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