Emerging Challenges in Constitutional Law


Constitution Day is celebrated on 26th November in India every year to commemorate the adoption of the Constitution of India. It was declared by Prime Minister, Narendra Modi on 12th October 2015. Constitution of India was adopted by the Constituent Assembly of India on 26th November 1949 and became effective on 26th January 1950. The Constitution of India declares and asserts India a sovereign, socialist, secular, democratic and republic nation and assuring its citizens’ justice, equality and liberty, and endeavours to promote fraternity. At present, Constitution of India comprises of 448 articles which are grouped into 25 parts with 12 schedules and 5 appendices and 104 amendments. Initially, our constitution had 395 articles in 22 parts and 8 schedules.

The Constitution of India serves as both, a legal and a political document to the country. As we have a federal structure of the country; both the Central and the State Government are independent in their spheres. This invites for the nation, an intricate and complex structure and mechanism for its functioning; aimlessly leading to some persistent problem and controversy 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 citizens of India.


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 cannot 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 today’s world. The right has recently been perusing into Article 21 of the Constitution of India by the Supreme Court but it has become an emerging and alarming issue regarding the concerns raised against the government’s initiatives to collect personal data from citizens. Not only the right to privacy but also the Data Protection Bill is itself at stake. The definition of social media intermediary given in clause 26 of the Bill itself read it to be vague. Besides, 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 may overlap the powers of the government to regulate intermediaries under Section 79 of the Information Technology Act, 2000. Clause 35 of the same bill provides wide power to the government to exempt any agency or department from the complete or partial 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 Case Judgement that declared Right to Privacy as a fundamental right to the citizens.[1] The Act formed by passing such a bill is an attempt to create a convoluted legal framework for data protection. Hacking of social media accounts of the celebrities as well as the common people these days is the quite common deal. The terms and conditions, approximately of all the web pages include the permission for these pages to intrigue into the user history to know the interests of the user. Thus, privacy is one of the major contemporary concerns of constitutional law.

Political Parties

The Constitution of India like almost all constitutions is silent on political parties. It offers no theory of government. It contains no doctrine of economic blueprints. It has no binding declarations on how to balance faith and diversity, innovations in resource exploitations and management and economic regulation, or to preserve history and tradition while embracing great leaps of science, technology and globalization of our affairs of life. It is because of all these that we have challenges. But they are no barter bargains for a community where the silence of the grave and the sound and fury of arms and ammunitions will rule. Non-violence, as human and State conduct, as the foundation towards building saner and peaceful existences, is the next challenge in constitutional law.

Challenges in constitutional law are, thus, challenges by the people and for the people. They are challenges to political parties, representatives of people, judges and civil servants.

Constitutional Supremacy or Parliamentary Sovereignty

When we examine and look into the practical scenario, the answer is echoing sound of constitutional supremacy. Article 49(1) of the Constitution of India not only declares itself to be the supreme law of the land but also limits the power of parliament to pass laws.[2] When it comes to the protection of the natural rights of citizens, the constitution has always proved to be a boon. The Constitution of India divides its power into three bodies but executive and legislature are dependent on each other. This sharing of power instilled the value of responsibility and maintains a check on each of these entities.

The three organs of the Constitution of India are the legislature, executive and judiciary. However, these powers never prove that parliamentary sovereignty is any less powerful. All the liberties of the citizens can be lifted by the Parliament if required for national safety and integrity. But, sometimes these parliamentary powers have proved themselves to be undemocratic and totalitarian. When the former Prime Minister, Indira Gandhi, was declared guilty of corrupt practices and the election was deemed to be null and void, she declared an emergency in the state in flagrant contempt of the court[3]. It eventually turns out that there is a certain basic structure of the Constitution of India that cannot 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 of India 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 element in the betterment of the country. The makers of our constitution, by way of the constitutional supremacy, authorised the common people of the country to live freely with a sense of honour and dignity.


India ranks at 80th place in the Corruption Perceptions Index (CPI) in 2020. The height of corruption which is in the government affects all the level and sector i.e., union, state, local and judiciary. This hamper’s the country basic growth and development. Many researchers believe that the causes which lead to corruption are overabundant regulation, complexity and intricate licensing system and tax policies resulting in people not opting to seek remedies and help from the government sector, opaque bureaucracy in the government offices or departments as they enjoy certain discretionary power over many matters and certain government-owned and controlled sectors; these government sectors have lack of transparency in law and following the due process.

The actions of the elected representatives of the legislative branch of the government, both at the central and state level, at times get determined by their own personal and selfish gains. These respectable organisations get corrupted by personal motives and it can be observed in the cases of framing new policies and laws which only help the big businesses to function with greater autonomy over the welfare of the general public. Many of the elected Member of Parliament (MPs) and Members of Legislative Assembly (MLAs) have committed many criminal activities and hold criminal records and still hold office. Many ministers holding important offices have been involved in major scams such as the Coal Allotment Scam, 2G Spectrum Scam, Fodder Scam, Commonwealth Games Scam, etc. Even the judiciary is no longer independent as guaranteed by the Constitution of India. Corruption is rampant everywhere. Due to the shortage of judges in the courts, many citizens feel that there is a huge delay in disposing of cases and delivering justice. During the recent time, the judges are only focusing on the important urgent matters about a bail hearing, constitutional law, etc. and not paying much attention to the regular matters.

Constitutional Morality as a Challenge

The Doctrine of Constitutional Morality is relatively a recent addition to this list. Constitutional morality has meant different things at different point of time. But today, it essentially means two things: firstly, the opposite of popular morality, and secondly, the essence or spirit of the Constitution. The basic structure of 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.[4] Several recent developments have been made under the name of constitutional morality that tries, wholly or partially, to bring India to block of backwardness in many fields. The courts of law 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 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[5]. The democratic government of India is an integral part of the law and hence it is bound to make decisions that are both the legally and politically acceptable. The Government of India must have taken the people of the state into confidence before indulging itself into taking such a strong decision. The central government’s stand on the Sabrimala Case[6] 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 ecstatic.


The Constitution of India 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.

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 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 citizens of India. 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 of India 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.


Ques 1. Who were the people behind India’s fight for Privacy?

Answer. The original writ petition in the case for Right to Privacy was filed by retired Karnataka High Court Judge K.S. Puttaswamy in 2012 in a stand against the government’s move to make Aadhaar cards mandatory – creating a central online database with the biometrics and personal details of over a billion people, which, realistically speaking, could easily be misused by several parties.

Ques 2. What is Political Corruption?

Answer. Political corruption is the use of powers by government officials or their network contacts for illegitimate private gain.

Ques 3. What are the Corruption Perceptions Index (CPI) and India’s rank in it?

Answer. The Corruption Perceptions Index (CPI) is an index published annually by Transparency International since 1995 which ranks countries “by their perceived levels of public sector corruption, as determined by expert assessments and opinion surveys.” The CPI generally defines corruption as “the misuse of public power for private benefit”

India ranks at 80th place in the Corruption Perceptions Index (CPI) in 2020.


[1] Justice K.S. Puttaswamy v. Union of India, (2012) Writ Petition (Civil) No. 494 of 2012

[2] Constitution of India, 1950, Art. 49, Cl. 1

[3] Jahaberdeen M. Yunoos, Constitutional Supremacy Or Parliamentary Supremacy, The STAR

[4] Chandrachud, Abhinav, The Many Meanings of Constitutional Morality, January 18, 2020

[5] Dr Shah Faesal and Ors. V. Union of India and Ars., (2019) Writ Petition (Civil) No. 1099 of 2019

[6] Indian Young Lawyer Association v. the State of Kerala, (2018) SCC Online SC 1690

[7] http://ijcal.in/

[8] http://www.legalserviceindia.com/

[9] https://legaldesire.com/

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