Learnings from Constitutions Around the World: Let’s Try Again

Arifa Khan[1]

There have been doubts about the demonetization of currency but it still is an attempt and any attempt made for betterment should be appreciated. However, black money isn’t the only problem India is facing and delaying the progress of our country. India has a long list of absolutely unnecessary laws. Many of the laws in our Constitution were written during the colonial era which includes rules to manage issues arising out of the Partition of India, which are no longer relevant. There are more than a dozen laws imposing redundant taxes that yield little and cost a lot to collect, as well as several outdated laws. For example- Telegraph Wires (Unlawful Possession) Act, 1950– The law regulates possession of telegraph wires by Indians. The problem with this law is India sent out its last telegram in July 2013,[2] after which telegraph services were shut, but the Act is still valid in the books in 2018. There is a need to get India out of these “maze of useless laws “and introduce new practical and realistic laws.

A constitution cannot last for two centuries if it does not have sufficient means of reform. The average predicted life expectancy of a national constitution is 19 years.[3]The Dominican Republic, for example, has had 39 different constitutions since its independence in 1844. At the other extreme, Australia has had only one constitution since 1901. Constitutions face external pressures, societies change and the international environment shift. Rules adopted for one generation might not make sense for later generation. Laws must advance and keep pace with the times. Constitutional systems that are more flexible, by allowing easy amendment, can get rid of outmoded laws and adopt new ones.

Indian Constitution has gone through several amendments and it needs more as the time and society changes. We can take examples from the constitutions of countries around the world[4] for the benefit of our people. There is a grave need of various progressive laws that will take our country one step further on the road to development which other countries are already quite far along, keeping in mind the outlook of the society, the environment, circumstances and progress of our country.

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Topics Covered in this article

Same-sex marriage

Netherlands was the first country to legalize same sex marriage in 2001;many other countries joined them later including Belgium, Canada, Spain, Sweden, Mexico, England and U.S.A. Whereas, in India, Article 377[5] criminalized same-sex marriage in 2013,this has been repeatedly protested by many. It carries a maximum jail sentence of life, and gives the police one more excuse to harass, extort and jail law-abiding people whose only ‘crime’ is that they do not conform to the traditional view of sexuality. There have been many reports of honor killings, attacks, torture, and beatings of members of the LGBT (Lesbian-Gay-Bisexual-Transgender) community and we need to protect them from so called “traditional people”. We have to take cognizance of the changing social values and reject the moral views which were prevalent in Britain in the 18th century when Article 377 was originally framed. Intercourse with same gender has to be de-criminalized by making Article 377 void and same-sex marriage has to be legalized. Every homosexual couples deserves the same rights as heterosexual couples, for example- opening a joint bank account together, getting a flat together or visiting their partners in hospitals (since only family members have visiting rights). Homosexuality is a truth of human nature and its time that India embraced love – in its every form.

Marital rape

Sweden is one of the many countries including Malaysia, Brazil, France, Finland, Japan, Italy, Switzerland that acknowledge the un-comprisable importance of consent in any sexual union. This offence is criminally punishable by death in some parts of the world. Consent is always the basis of all unions, be it marital or otherwise. But India continues to hold on to its orthodox outlook on this matter. Ridiculous reasons have been given in its defense including if this law is enacted, it could be misused, but that probability exists with every single law. There can be proper guidelines issued to ensure mis-use of the law. The only difference with rapes in general cases and marital rape is that the woman is married; everything else- the torture, the attack, the violence and the non-consensual sex is the same. Not criminalizing marital rape gives men the right to legally rape a woman. Women cannot be subjected to that especially when, in India, many women are still being married without their permission, in most parts of the country women still don’t have a say about their marriage. Sexual intercourse with a girl below the age of 18 is considered rape, whether consent or not. But since child marriages are only voidable and not illegal, a man can legally have sex with his wife even if she is a minor, as long as she is above the age of 15[6] with consent or without consent. It is high time that marital rape be considered a criminal offence.

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De-criminalizing prostitution

There are several countries that have legalized prostitution like New Zealand, Austria, Belgium, Denmark etc. However, legalizing prostitution in India might not be the best solution due to the huge stigma and taboo attached to it. Prostitution is one of the most thriving businesses in the country but since it is criminalized, there is no way to assist those caught unaware in the business. Decriminalizing the trade can help bring down trafficking, corruption and a host of other social evils prevalent in the country. Decriminalizing prostitution will lead to sex-workers having all the rights a worker has as a citizen of India. Culturally rich India always looks the other way when it comes to prostitution which leads to the neglect of poor victims of trafficking caught unaware in this rut.

Euthanasia

The Switzerland government[7] recognizes an individual’s right to end their own life and it certainly is a step towards ensuring complete liberty for the citizens. The processes involved in assisted suicide are severe as they should be – a thorough evaluation of their mental stability and awareness of the consequences of their decision. The Supreme Court already has ruled that individuals had a right to die with dignity, allowing passive euthanasia with strict guidelines. The need to change euthanasia laws was triggered by the famous Aruna Shanbaug[8] case. It permitted withdrawal of life-sustaining treatment from patients not in a position to make an informed decision. There is still a need for proper legislation based on the Supreme Court guidelines. However, India may not be yet ready for active euthanasia since it is easy to get fake papers in India due to high-corruption and might lead to more murders than assisted suicide or active euthanasia.

Requirements for politicians

While countries like Singapore, Canada and some others have strict requirements for candidature in the Parliamentary elections; India is one of the most liberal countries in this regard. Persons convicted with a criminal offence and who have served a prison term over a year is disqualified from contesting. We could use some strictness in Indian politics. The only requirements for contesting elections in India are citizenship and a minimum age[9]. Since, our country doesn’t have a high literacy rate, a high education requirement might be unjust to many and education is not always a proper scale to measure wisdom. However, a minimum education and a clean criminal record with proper guidelines and exceptions can be introduced in our constitution. After all they are the one who take decisions and their decision affect 1.27 billion people.

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Eco- friendly initiatives

A new initiative towards keeping the planet green, France made it compulsory for all new structures to be built with either a rooftop garden or covered with solar panels. With the ever-increasing and immensely threatening levels of pollution in India, a similar initiative should be introduced.

Our constitution could be further improved by adding more reasonable laws and unnecessary laws being held void or removed. Adapting the above mentioned laws, that have already been implemented in countries around the world, could be a start to improve our constitution and making a better life for the people of our country.


[1] Student, Post Graduate, College of Law, Osmania University

[2] Geeta Pandey,Telegrams Stop: End of service delivering joy and heartache, BBC (November 28, 2019), www.bbc.com/news/magazine-23271384.

[3] The Endurance of National Constitu­tions (Cambridge, 2009).

[4] Comparative Constitutions Project (November 28, 2019), www.comparativeconstitutionsproject.org.

[5] Indian Penal Code, 1950 Section 377.

[6] Indian Penal Code, 1860 Section 375.

[7] Dignitas (November 28, 2019), www.dignitas.

[8] Aruna Ramchandra Shanbaug v. Union of India 2011 (4) SCC 454.

[9] INDIAN CONST. art.58; art 173.