A discussion on the constitution invariably ends up dividing the folks into two groups - one saying it is crap and must be replaced and other saying there is no problem with it.
Irrespective of whether there is a problem with the constitution or not, there are some (including the courts) who believe it cannot be changed let alone replaced...at least the "basic structure" of it.
Now, my question is this:
Let's say we are allowed to replace it. Let's say we have the opportunity to write a new constitution. What would we change or do differently from the existing one?
I have observed that people who are quick to blame the constitution are equally quick to go silent on this question. Honesly speaking, when I asked this question to myself, I was hard pressed for the answer. It's not that easy. There are so many constraints that something that seems obviously correct seems utterly inadequate as soon as another important reality is brought into the equation.
For example, our constitution create states on the basis on language. Seems easy to attack. But what could be the other option? I don't know.
Lenghty constitution. Ok, what part would you remove?
Parliamentry form of govt. is not suitable for India. OK, is Presidential form really suitable? Ummm......I don't know :confused:
The more I think about it, the more I feel that the original authors of the constitution did a really good job. In fact, I am feeling that nearly all the amendments look like unthoughful and unneeded patches on a great fabric!!! For example, original constitution had a fundamental right to property. They removed it by 44th amendment (and made it only a statutary right) just because zamindars were owing huge tracts of land. Hey, less drastic measures to fix this issue could be used too!!!
So, my point is that I am not saying whether it should be or should not be replaced. How can I say either without knowing the options??? Just blindly supporting either makes no sense.
Should the Constitution of India be replaced?
Should the Constitution of India be replaced?
Difficult question indeed. Frankly there is not much which needs to be changed in our constitution. Our problem in the last 50 years or so has been that for short term political benefits, we make amendments and unfortunately the drafting committee did not make the amd standards stringent enough.
I think in this global world what we need is a legislature which is tuned to market...make regulations business friendly (ofcourse taking care of masses also) and make them fast enough n most importantly have a vision.
Will write a detailed reply later...my flight is leaving in 10 min so need to go !
I think in this global world what we need is a legislature which is tuned to market...make regulations business friendly (ofcourse taking care of masses also) and make them fast enough n most importantly have a vision.
Will write a detailed reply later...my flight is leaving in 10 min so need to go !
Should the Constitution of India be replaced?
For example, our constitution create states on the basis on language.
The 1950 Constitution created three types of states - Parts A, B and C. It was the States Reorganization Act of 1956 that removed A, B and C distinctions and created state boundaries on linguistic lines.
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Lets take a minor part of the Constitution (see link and extract below). Clearly, the directive that the state would take steps to prohibit the slaughter of cows, .... is an example of how the founders succumbed to pandering to vested religious interests.
http://www.constitution.org/cons/india/p04048.html
Extract
PART IV
DIRECTIVE PRINCIPLES OF STATE POLICY48. Organisation of agriculture and animal husbandry.-
The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
The 1950 Constitution created three types of states - Parts A, B and C. It was the States Reorganization Act of 1956 that removed A, B and C distinctions and created state boundaries on linguistic lines.
------------
Lets take a minor part of the Constitution (see link and extract below). Clearly, the directive that the state would take steps to prohibit the slaughter of cows, .... is an example of how the founders succumbed to pandering to vested religious interests.
http://www.constitution.org/cons/india/p04048.html
Extract
PART IV
DIRECTIVE PRINCIPLES OF STATE POLICY48. Organisation of agriculture and animal husbandry.-
The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
Should the Constitution of India be replaced?
[QUOTE]For example, original constitution had a fundamental right to property. They removed it by 44th amendment (and made it only a statutary right) just because zamindars were owing huge tracts of land. Hey, less drastic measures to fix this issue could be used too!!!
Can you expound on the differences between a statutory right and a fundamental right especially as it relates to property.
If by being a fundamental right, it takes the power of eminent domain away from the state, then I for one would support it more as a statutory right than a fundamental one.
Can you expound on the differences between a statutory right and a fundamental right especially as it relates to property.
If by being a fundamental right, it takes the power of eminent domain away from the state, then I for one would support it more as a statutory right than a fundamental one.
Should the Constitution of India be replaced?
We need to trash what we have now and come up with something new. Maybe we could copy the US constitution this time around.
Should the Constitution of India be replaced?
Has it ever occured to you that it may not be the constitution, the type of Govt, or the courts thats the problem, but its the people. No matter what you give them, they will find a way to circumvent it and expolit.
Should the Constitution of India be replaced?
Desi # 4:
On the removal of right to property from the list of fundamental rights, I agree with OP Hanu.
Even if right to property had remained a fundamental right, it would not have precluded the state from acquiring private property compulsorily (eminent domain), after payment of fair compensation, if it could show that larger public interest would be served via acquisition.
When right to property is a mere statutory right, state can acquire private property compulsorily, by merely passing a law to that effect, without any burden to show how larger public interest would be served, and without paying fair compensation.
www.ccsindia.org/ccsindia/policy/rule/studies/wp0041.pdf talks about how the right to property was over several years, repeatedly assaulted, until the final nail was struck via the 44th amendment in 1978.
In view of the fact that the Kesavananda Bharati case judgement preceded the 44th amendment, it looks like the 44th amendment itself is potentially subject to judicial review.
On the removal of right to property from the list of fundamental rights, I agree with OP Hanu.
Even if right to property had remained a fundamental right, it would not have precluded the state from acquiring private property compulsorily (eminent domain), after payment of fair compensation, if it could show that larger public interest would be served via acquisition.
When right to property is a mere statutory right, state can acquire private property compulsorily, by merely passing a law to that effect, without any burden to show how larger public interest would be served, and without paying fair compensation.
www.ccsindia.org/ccsindia/policy/rule/studies/wp0041.pdf talks about how the right to property was over several years, repeatedly assaulted, until the final nail was struck via the 44th amendment in 1978.
In view of the fact that the Kesavananda Bharati case judgement preceded the 44th amendment, it looks like the 44th amendment itself is potentially subject to judicial review.
Should the Constitution of India be replaced?
#3, Bobus,
I am not sure what you mean by types of States Part A B C. Are you talking about Art 1 (3) or Art 3 or something else?
But you are right, constitution did not form the states. It only gave the power to the legislature to form (reorganize) states in Art 3.
Regarding DP (art 48), I don't think your criticism is correct. I don't see absolutely any religious aspect there. If you read that complete sentence, it is clear that the objective of this article is purely economical. It was their belief (which could be wrong or might have become irrelevant now) that instead of going for short term benefits of killing of such animals, steps should be taken to enhance their usage as milch and draught animals. During that time, there was an acute shortage of diary as well as agriculture.
It is like saying, steps should be taken by the states to help improve savings of people. We now know that a savings based economy is not the good economy. So you can fault their logic of protecting such animals on economic grounds but not on religious grounds.
If there was any religious agenda, why would they mix it with agriculture or animan husbandry?? More over, Hindus don't worship goats or buffalow. They are talking all the milch and draught animals.
#4, Desi,
As Bobus explained, the difference between the two is in their degree of alienability. A statutary right is kind of a largess by the state that it can take back any time, while a fundamental right is something that you have with you intrinsically and the govt. recognizes it. It is a lot difficult to strip you off that for the govt. To me, right to property is probably is the most basic of all such rights. Human beings have been living to acquire property since time immortal.
So basically, the govt. can now say, I want your house, sorry. Here is 10 bucks!!!
I am not sure what you mean by types of States Part A B C. Are you talking about Art 1 (3) or Art 3 or something else?
But you are right, constitution did not form the states. It only gave the power to the legislature to form (reorganize) states in Art 3.
Regarding DP (art 48), I don't think your criticism is correct. I don't see absolutely any religious aspect there. If you read that complete sentence, it is clear that the objective of this article is purely economical. It was their belief (which could be wrong or might have become irrelevant now) that instead of going for short term benefits of killing of such animals, steps should be taken to enhance their usage as milch and draught animals. During that time, there was an acute shortage of diary as well as agriculture.
It is like saying, steps should be taken by the states to help improve savings of people. We now know that a savings based economy is not the good economy. So you can fault their logic of protecting such animals on economic grounds but not on religious grounds.
If there was any religious agenda, why would they mix it with agriculture or animan husbandry?? More over, Hindus don't worship goats or buffalow. They are talking all the milch and draught animals.
#4, Desi,
As Bobus explained, the difference between the two is in their degree of alienability. A statutary right is kind of a largess by the state that it can take back any time, while a fundamental right is something that you have with you intrinsically and the govt. recognizes it. It is a lot difficult to strip you off that for the govt. To me, right to property is probably is the most basic of all such rights. Human beings have been living to acquire property since time immortal.
So basically, the govt. can now say, I want your house, sorry. Here is 10 bucks!!!
Should the Constitution of India be replaced?
Hanu, Bobus,
Thanks for explaining. I was not clear on the differences of Statutory right vs Fundamental right.
I do believe that state should have the burden to prove its case when exercising eminent domain, but should have a right to exercising eminent domain. To the extent that this can be supported by the property right being a fundamental right. then I would be in support of it as a fundamental right.
Whatever the atrocities, issues, etc, I am against state seizing arbitrarily lands of zamindars - that is shades of socialism.
Thanks for explaining. I was not clear on the differences of Statutory right vs Fundamental right.
I do believe that state should have the burden to prove its case when exercising eminent domain, but should have a right to exercising eminent domain. To the extent that this can be supported by the property right being a fundamental right. then I would be in support of it as a fundamental right.
Whatever the atrocities, issues, etc, I am against state seizing arbitrarily lands of zamindars - that is shades of socialism.
Should the Constitution of India be replaced?
Desi;18416Whatever the atrocities, issues, etc, I am against state seizing arbitrarily lands of zamindars - that is shades of socialism.[/quote]
BTW, while it looked like the govt. seized the lands from zamindars, the land actually did not belong to them in the first place. Britishers started the zamindari system to collect revenue from peasants. This gave huge power to a selected few over the masses. Slowly, due to draughts, mismanagement of the govt. and other factors, the zamindars started behaving like owners of the land. At the time of independence, power was concentrated with the zamindars and little could be done about it.
Anyhow, even with the right to property as a fundamental right, they could have fixed the problem. Fundamental right to property does not mean right to keep illgotten property, which is exactly what it was!!!
Even today, huge tracts of land are owned by earstwhile royal families in pretty much all the cities. This is nothing but illgotten property. Why don't they seize that and build SEZs there??? (But that's for another discussion.)
In general, one may find issues with the constitution here and there but nothing that prompts a complete rewrite of it. As VS007 says, it is probably the people. After all, UK is working quite fine without even having a written constitution!!!