Conundrums of Indian constitution

The constitution of India is a grandiose document. The country in which we live, follows rule of
law and if one believes in rule of law one has to bow down before the grandiosity of the constitution
of India, under which the entire framework of the nation works. Though the constitution of India
was drafted with the intention of establishing a just and equitable society, the constitution itself
has contradictory provisions and the reason is diversity and differences within the constituent
assembly.

Fundamental rights, granted in part III of the Indian constitution, are subject to procedure
established by law. They are like the heart and lungs of a democracy, which on being
compromised, will lead to an unhealthy society infected with diseases like inequality, poverty,
hunger, illiteracy and more. A welfare state cannot exist without healthy functioning heart and
lungs just like a man cannot walk without his limbs. Article 21 states that no person shall be
deprived of his life or personal liberty except according to procedure established by law ensuring
that a person’s life and personal liberty is subject to procedure established by law. How shall one
confirm that procedure established by law does take, into consideration, the moral and humane
grounds i.e. the due process of law? Further, this leaves it open to be misused. Though, in 1978,
the supreme court of India, in Menka Gandhi case, clearly stated that procedure established by law
should be reasonable and due process of law is valid on the same. Its use still depends upon those
in power.

Article 46 is contradictory of the article 15. Article 46 guides the government to promote the
educational and economic interests of the weaker sections, schedules castes and scheduled tribes.
Whereas, article 15 forbids discrimination on grounds only of religion, race, caste, gender or place
of birth, implications of which can be seen as a fight for and against the system of reservation.

From the preventive detention act to MISA, national securities act and UAPA, the individual
liberties have been subject to national security. Most number of detention under MISA were seen
during emergency from 1972 to 1975. It is not that such provisions are meant to curb the individual
liberties. It is the intention and purpose which makes it a threat to individual liberties. Thus it is
necessary for the judiciary to take part in the phenomenon of democracy. The entire theory of
checks and balances is depended upon judicial activism. Thus an independent judiciary is a sign
of healthy democracy. However, there has always been debate between judicial activism and
legislative supremacy. Though the legislature makes the laws, supreme court has the power to
review any law and declare them unconstitutional.