Opinion: Critical reflections on the Constitution

Balancing rights with the duties of citizens is essential to uphold the Constitution’s ideals

By Prof GB Reddy, Pavan Kasturi

On 26 January 2025, India celebrated a remarkable milestone of its Republic, marking 75 years of its Constitution — a testament to its resilience amid a global average constitution lifespan of just 17 years. Unlike neighbouring nations such as Sri Lanka, Pakistan and Bangladesh, which have experienced multiple constitutions due to coups, authoritarian regimes and unrest, India’s Constitution has endured and evolved.

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Despite external threats, internal conflicts over religion, caste and language, challenges like the Emergency-era and attempts to undermine institutions, it remains a living document, adapting through 106 amendments to address shifting socio-political landscapes. This disproves Thomas Jefferson’s belief that constitutions must be rewritten every generation. This milestone calls for a critical reflection on the successes and shortcomings of this second-oldest Constitution.

Bridging Ideals, Realities

The framers envisioned justice, liberty, equality and fraternity for a newly independent yet fractured nation. Early challenges required reconciling these ideals with socio-economic priorities. Reforms such as the abolition of zamindari and land ceilings faced resistance due to constitutional property rights (Articles 19(1)(f) and 31). To bypass judicial hurdles, the provisional parliament, even before the first elections introduced the 1st Constitutional Amendment Act, 1951 (CAA) through Articles 31A and 31B, shielding land reform laws from judicial review via the Ninth Schedule, an idea borrowed from VKT Chari, a former Advocate General of Madras.

Linguistic tensions were similarly addressed through the States Reorganization Commission (SRC), led by Justice Fazal Ali. The States Reorganization Act of 1956, through Articles 3 and 4 of the Constitution, reorganised State boundaries to meet regional demands for linguistic and cultural recognition.

Abolishing privy purses in 1971 through executive order revealed tensions between judicial conservatism and socialist governance. These payments, assured to princely States during their integration into India, were viewed as outdated colonial vestiges incompatible with socialist ideals by the government. However, the Supreme Court struck down the move in Madhav Rao Scindia v Union of India (1971), but ultimately Parliament countered with the 26th CAA, abolishing privy purses.

Gravest Challenge

Our Constitution faced its gravest challenge during the Emergency of 1975–1977. The crisis began with Indira Gandhi’s controversial re-election in 1971 which the Allahabad HC overturned on grounds of corrupt electoral practices. Article 352 was invoked, enabling mass detentions and suspension of fundamental rights under the draconian MISA Act.

Key issues like appointment of ECs, delaying State bills, One Nation, One Election and delimitation need careful consideration

While some High Courts valiantly upheld citizens’ rights, the SC’s judgment in ADM Jabalpur Case (1976) silenced these efforts, ruling that even the right to life could be curtailed during the Emergency. The only silver lining was the dissenting opinion of Justice HR Khanna who declared otherwise.

Amid these upheavals, the Basic Structure Doctrine, institutionalised in the Kesavananda Bharati Case (1973), emerged as a bulwark against parliamentary overreach, preserving core principles like democracy and the rule of law. This doctrine was put to use against the 39th CAA, which sought to exempt the elections of the Prime Minister from judicial review. However, the judiciary’s independence faced direct threats, including the arbitrary transfer of judges to ensure a committed judiciary.

1975 to 2000

Post-Emergency, reforms like the 44th CAA, 1978, were introduced to curtail emergency powers, safeguard democratic integrity and restore public trust in governance. The subsequent decades witnessed constitutional dynamism. The emergence of coalition politics in the 1980s and 1990s brought political instability, prompting the enactment of the 52nd CAA, 1985, which introduced the Anti-Defection law to curb opportunistic politics.

During this period, the judiciary significantly expanded its role through Public Interest Litigations, such as the Hussainara Khatoon Case (1979), which highlighted the plight of undertrial prisoners and upheld the right to a speedy trial, and the Bandhua Mukti Morcha Case (1984), which addressed the exploitation of bonded labourers and directed their rehabilitation. Also, the Legal Aid moment ensured access to justice for marginalised groups, advancing social equity.

The push for grassroots governance culminated in the 73rd and 74th CAA, 1992, institutionalising decentralised governance via Panchayati Raj and urban local bodies. These landmark reforms, championed by Rajiv Gandhi and implemented under PV Narasimha Rao, empowered local governments, ensuring community participation in decision-making.

Further, the issue of social justice gained prominence with the Mandal Commission recommendations in 1990, introducing 27 per cent reservations for OBCs in public employment. This led to widespread protests, igniting debates on social equity versus meritocracy. The SC, in Indra Sawhney v Union of India (1992), upheld the reservation policy while imposing a 50 per cent cap and excluding the “creamy layer,” balancing affirmative action with constitutional principles.

The early 1990s also saw economic liberalisation, with India shifting to market-driven policies. While this boosted economic growth, it brought challenges of financial accountability, intensifying scrutiny of corruption through the CBI and market regulator Sebi. Throughout this period, judicial independence remained a key focus, the appointments were streamlined through the Collegium following the Third Judges’ Case (1998). Parliament later attempted to replace this system with the National Judicial Appointments Commission 99th CAA, but the SC struck it down in 2015, as violating the Basic Structure, particularly judicial independence.

The Transformative Phase

The period from the 2000s to 2025 marks a transformative phase. The amendments, judicial interventions and reforms expanded rights and governance. For instance, the 86th CAA, 2002, made education a Fundamental Right under Article 21A.

Similarly, the SC interpreted Article 19(1)(a) to include the right to information as part of freedom of speech and expression. In PUCL v Union of India (2003), the court upheld voters’ rights to access candidates’ criminal antecedents. These principles were institutionalised through the Right to Information Act, 2005, which empowered citizens and promoted accountability.

Economic reforms like the GST, through 101st CAA, 2016, unified the taxation system, fostering fiscal coherence. Simultaneously, the judiciary expanded constitutional rights, with the Right to Privacy judgment (2017) recognising privacy as a Fundamental Right under Article 21. Social reforms followed, including the NALSA judgment (2014) which recognised the rights of the third gender. Further, the decriminalisation of Section 377, IPC 1860 (2018), affirming LGBTQ+ rights, and the 103rd CAA, 2019, introduced 10 per cent reservations for economically weaker sections.

The path forward lies in reaffirming and strengthening institutions like the Election Commission, CAG and the Judiciary. Any threat to the independence and integrity of institutions poses a danger to the Constitution. Further, a few constitutional conundrums, such as the misuse of the Governor’s and Speaker’s roles, the ineffective Anti-Defection law and the politicisation of investigative agencies like the CBI and the ED, require urgent reform.

Similarly, issues like the appointment process for Election Commissioners, delays in approving State bills, unsustainable populist freebies and the failure to empower Panchayati Raj institutions demand critical attention. Proposals such as One Nation, One Election, and Delimitation should also be carefully implemented to balance federal diversity. Lastly, fostering a culture that balances rights with the duties of citizens is essential to uphold the Constitution’s ideals and ensure its continued relevance in a diverse and evolving democracy.

(Prof GB Reddy is Senior Professor and Pavan Kasturi is Research Fellow, University College of Law, Osmania University, Hyderabad)