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Contemporary Issues In India Under Constitutional Law

The Indian Constitution serves as both, a legal and a political document to the country. It has taken quite a while for the people of the nation to be open to the laws and the protective measures that have been provided to them through the law of land.

Since, we have a federal structure of the country; both the central and the state government are independent in their own spheres. This invites for the nation, a complex structure and mechanism for its functioning; aimlessly leading to some persistent issues in the country.

There are certain matters of legal as well as political intricacies that need to be looked upon once again as the nation strives to reach the pinnacle of success in adopting the law of this land in its complete sense. There are issues which demand the authority to delve into depths of reforms, proper allocation of resources and creation of a new realm of laws for the Indian citizens.

Constitutional Morality As A Challenge

The doctrine of constitutional morality is a relatively recent addition to this list. Constitutional morality has meant different things at different points in time. But today, it essentially means two things: firstly, the opposite of popular morality, and secondly, the spirit or essence of the Constitution.

The basic structure doctrine enables constitutional courts to examine the validity of constitutional amendments by examining whether they violate the basic structure of the Constitution. Likewise, constitutional morality, allows constitutional courts to examine the validity of all government actions, not merely constitutional amendments, by looking at the spirit of the Constitution.[1]

There are several recent developments that have been made under the name of constitutional morality that try, wholly or partially, to bring India to block of backwardness in many fields. The courts these days have announced many verdicts that have left the social entities of India into a process of deep thinking about the future of the nation. The judgements in the name of morality are many a times these days highly unexpected and unwelcoming for the citizens.

The abrogation of Article 370 that came through a resolution of parliament, without taking any consent of the state government of Jammu and Kashmir was another example of the constitutionally immoral decisions.[2] The democratic government of India is an integral part of the law and hence it is bound to take decisions that are both the legally and politically acceptable.

The government must have taken the people of state into confidence before indulging itself into taking such a strong decision. The central government's stand on the Sabrimala Case [3] was so minimal that it could not provide any support to the state government of Kerala in overriding the judgement that the state unit was demanding; just to keep its vote bank satisfied and happy.

Data Protection Bill And Right To Privacy

One of the major challenges while dealing with the issue is the Right to Privacy. Privacy is one of the most difficult concepts to define and can not be understood as a static and one-dimensional concept. It can only be construed as a group of rights. It is clear from the facts that in every 79 seconds an identity is being stolen, acknowledging the fact that privacy concern is the wildest increasing crime of these days.

The right has recently been read into Article 21 of the Indian Constitution by the Supreme Court but it has become a burning issue regarding to the concerns raised against the government's initiatives to collect personal data from citizens. Not only the right to privacy but the Data Protection Bill is itself at stake. The definition of social media intermediary provided in clause 26 of the bill itself reads it to be vague. Moreover, the power of the intermediaries to verify their users themselves can prove to be a big challenge to the government in the long run.

This might overlap the powers of the government to regulate intermediaries under section 79 of the Information Technology Act, 2000. [4] Clause 35 of the same bill provides wide power to the government to exempt any agency or department from partial or complete application of data protection law. This exception gives to the government use of data for surveillance, which hails against the decision laid out in the Puttaswamy Judgement that declared Right to Privacy as a fundamental right to the citizens. [5]

The Act formed by passing such a bill is apparently an attempt to create a complex legal framework for data protection. Hacking of personal social media accounts of the celebrities as well as the common people these days is a quite common deal. We often get to hear news stating the leak of information from various users' account. The terms and conditions of almost all the web pages include the permission for these pages to intrigue into the user history to know the interests of the user. Hence, privacy is one of the major contemporary concerns of the constitutional law; giving it a tough target of dealing with this issue.

Constitutional Supremacy Or Parliamentary Sovereignty

When we look into the practical scenario, the answer is a echoing sound of constitutional supremacy. Article 49(1) of the Indian Constitution not only declares itself to be the supreme law of the land but also limits the power of parliament to pass laws. [6]

When it comes to protecting the natural rights of citizens, the constitution has always proved to be a boon. The Constitution of India divides its power into three bodies that are both independent and dependent on each other. This sharing of power inculcates the value of responsibility and maintains a check on each of these entities.

The three organs of the constitution are named-the legislature, the executive and the judiciary. The legislature is what we call the parliament. However, these powers never prove that the parliamentary sovereignty is any less powerful.

It holds the authority to amend the laws of the Constitution in the light of Article 159 of the Indian Constitution. All the liberties of the citizens can be lifted up by the Parliament if required for national safety and integrity.

But these parliamentary powers have proved themselves to be undemocratic sometimes. When the former Prime Minister, Indira Gandhi, was declared guilty of corrupt practices and the election was considered null and void, she declared an emergency in the state in flagrant contempt of the court. [7] It eventually turns out that there is a certain basic structure of the Indian Constitution that can not be amended or abrogated by the legislature; making it quite relieving.

The separation of power is given its true meaning only in constitutional supremacy where the judiciary wholly attempts to uphold the laws laid down in the constitution and also keeps a check that the new laws passed by the parliament abide by the basic structure of the Constitution and do not violate any of its Articles.

Also, constitutional supremacy is a major foreseen factor in the betterment of the country. The makers of our constitution, through the constitutional supremacy, authorised the common people of the country to live freely with a sense of honour and dignity.

Patriarchy And Permanent Commission In Army

A permanent commission in army means to serve until one retires. This was one of the major concerns related not only to career but also equality. The Constitution of India does not mention any inequality on the basis of gender. This issue dealt with women who were not given a choice to opt for permanent commission i.e. to continue the service in army after 10 years of joining. The recruitment of women staff in army began in 1992 through Women Special Entry Scheme (WSES).

However, they were kept out of any command appointment and could not qualify for government pension, which one can avail only after 20 years of service as an officer. A PIL concerning the same was filed in the year 2003 in Delhi HC. [8] There were many decisions from the court while the case was finally decided in the Supreme Court in the year 2020; which included granting permanent commission to women in Judge Advocate General (JAG) and Army Education Corps (AEC).

Despite the deficiency of officers in support services, trained women were not granted permanent commission with a feeble argument that women are physically weak and are more prone to be caught by the enemies. All the arguments against granting them permanent commission were nothing more than a sex stereotype and a challenge to the Right to Equality mentioned in Article 14 of the Constitution. [9]

There have been women like Sarojini Naidu and Rani Laxmi Bai who fought no less than men of their contemporary times. There have been women who proved that females too can be physically strong and mentally forward. There have been women who made the country proud by landing in space and set a bar of honour for themselves. And still if such problems of being inferior to men are faced by the women of a country after 72 long years of independence, then it definitely leads to a major set back not only to the constitutional law but also to the development of mindset of people.

We still have to strive for a long time until these issues are completely dealt with. We still have to wait for the mindsets to be changed, for the long culture of nepotism in politics to come to an end, for the meaning and purpose of the Constitution to be acknowledged, for the women to be given the same pedestal as men and for the country to be fully developed with all its laws implemented.

  1. Chandrachud, Abhinav, The Many Meanings of Constitutional Morality, January 18, 2020
  2. Dr. Shah Faesal and Ors. V. Union of India and Ars., (2019) Writ Petition (Civil) No. 1099 of 2019
  3. Indian Young Lawyer Association v. State of Kerala, (2018) SCC Online SC 1690
  4. Section 79, Information Technology Act, 2000
  5. Justice K.S. Puttaswamy v. Union of India, (2012) Writ Petition (Civil) No. 494 of 2012
  6. Constitution Of India, 1950, Art. 49, Cl. 1
  7. Jahaberdeen M. Yunoos, Constitutional Supremacy Or Parliamentary Supremacy?, The STAR
  8. Babita Puniya and Ors. V. Union of India, (2003), Writ Petition No. 1597 of 2003
  9. Constitution Of India, 1950, Art. 14

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