Chapter Notes - Constitution: Why and How?
Introduction
A constitution is vital as it provides the foundational framework for governance, ensuring
coordination, protection of rights, and guiding societal goals. Born from the struggle for
India's independence, it balances power, prevents misuse, and reflects the collective
identity and aspirations of the people, embodying the principles fought for during the long
freedom movement.
Why Do We Need a Constitution?
A constitution is needed for the following purposes:
[Link] Allows Coordination and Assurance
The constitution provides a framework of basic rules that allow for coordination and
peaceful coexistence among diverse members of a society or group.
Ensures individuals feel secure about their rights and obligations within the group.
Rules must be publicly known and enforceable to promote confidence and
adherence.
Enforceability through legal means reassures individuals that there are
consequences for violations.
Without rules, people would argue over things like property, education, and how
resources are shared, making it hard for everyone to live peacefully together.
The constitution makes sure that everyone knows the rules are followed, and if
someone breaks them, they will be punished, helping people feel safe in their dealings
with each other.
[Link] of Decision-Making Powers
The constitution specifies the basic allocation of power within society, determining
who has the authority to make decisions regarding laws and policies.
Outlines the process of decision-making, such as direct voting or elected
representatives.
In democratic constitutions, power usually belongs to the people.
The constitution decides who has the right to make rules for society, helping to avoid
conflicts when people have different ideas about what the rules should be.
For example, in India, the Constitution gives Parliament the authority to make laws
and policies. This setup creates the foundation for government and ensures that the
decision-making process is clear and organized.
[Link] on Powers of Government
The constitution establishes limits on the actions that government can take against
its citizens.
The constitution establishes basic rights that the government cannot violate, like
protection against unfair arrests and guarantees of freedoms such as speech and
association.
However, these rights can be limited during national emergencies. By setting these
fundamental rights, the constitution keeps government actions in check, protecting
citizens' freedoms.
Even a legally elected government might create laws that seem unfair, so limits on its
power are important. Fundamental rights act as a shield for citizens, ensuring their
freedoms are safe from government overreach.
[Link] and Goals of Society
The constitution provides a framework for the government to pursue positive goals
and aspirations of society.
The constitution empowers the government to tackle deep-rooted inequalities and
ensure welfare measures, like education and material well-being for all citizens.
This is supported by the Preamble and sections on Fundamental Rights and Directive
Principles of State Policy. For example, the Indian Constitution allows the
government to eliminate caste discrimination and promote social equity.
Modern constitutions, such as India's, aim to create conditions for a just and equitable
society, reflecting societal aspirations. Constitutions may include provisions for
positive welfare measures, giving governments the power to implement these
actions to uplift all citizens.
[Link] Identity of People
Constitution expresses the fundamental identity of a people by setting norms and
principles that form their basic political identity.
Reflects the unique historical traditions and diverse groups of a nation while
establishing democratic governance and protection of basic rights.
Constitutions vary in their forms of government and procedural details but often
share common features like democratic governance.
Example: Indian Constitution does not prioritize ethnic identity for citizenship,
reflecting a different conception of national identity compared to countries like
Germany.
By agreeing to the constitution, individuals collectively form their political identity,
which guides their aspirations, goals, and freedoms.
The relationship between different regions of a nation and its central government, as
delineated in the constitution, plays a pivotal role in shaping national identity.
Functions of a Constitution
The Authority of a Constitution
The authority of a constitution derives from its recognition as the highest legal
authority in a country, and it establishes the framework for the exercise of
governmental powers and the protection of individual rights and liberties.
Key Questions About Constitutions:
a) What is a constitution?
b) How effective is a constitution?
c) Is a constitution just?
In most countries, a constitution is a document with articles that outline how the
state is organized and the rules it must follow. However, some countries, like the
United Kingdom, don't have a single document but a collection of documents and
decisions that together make up the constitution.
The constitution aims to perform the functions we discussed earlier, but many exist
only on paper. The key question is how effective a constitution is and what makes it
impactful in people's lives. Its effectiveness depends on many factors.
Mode of promulgation
The mode of promulgation means to how a constitution comes into being and
who crafted it.
Constitutions often fail if made by military leaders or unpopular leaders who lack
public support. Successful constitutions, like those of India, South Africa, and the
United States, were created after popular national movements.
India’s Constitution was crafted by a Constituent Assembly between December
1946 and November 1949, influenced by the nationalist movement.
It gained legitimacy because it was created by credible leaders who had public trust
and could negotiate and command respect. These framers convinced the public that
the constitution reflected a national consensus, not personal gain.
Some countries use a referendum to approve their constitution; India’s was not, but it
still had public authority because of the consensus among popular leaders.
Therefore, the success of a constitution often depends on the authority of those who
create it.
The substantive provisions of a constitution
A successful constitution ensures that everyone in society has a reason to support it.
If a constitution allows majorities to oppress minorities, those minorities will not
want to follow it.
A constitution that favors some members over others or strengthens the power of a
small group will lose support. If any group feels their identity is being suppressed, they
won’t abide by it.
While no constitution achieves perfect justice on its own, it must convince people that
it offers a basis for basic justice.
Thought experiment: Think about what basic rules would make everyone willing to
follow them. The more a constitution preserves freedom and equality for all its
members, the more likely it is to succeed.
The Indian Constitution generally provides a reason for everyone to follow its
guidelines.
Balanced Institutional design
Constitutions are often undermined by small groups trying to increase their own
power, rather than by the general public. Well-designed constitutions fragment
power to prevent any single group from dominating.
The Indian Constitution divides power among the Legislature, Executive, Judiciary,
and bodies like the Election Commission, ensuring checks and balances.
A successful constitution balances core values with the ability to adapt to change,
avoiding extremes of being too rigid or too flexible.
The Indian Constitution is a living document, allowing changes while maintaining
respect and stability.
To evaluate a constitution's authority, consider the credibility of its framers, the
organization of power, and whether it provides reasons for everyone to follow it.
Authority of a Constitution
How was the Indian Constitution made?
The Constitution of India was created by a Constituent Assembly elected for
undivided India, and was guided by the British Cabinet Mission (1946).
Seats in the Assembly were allocated based on population, with a ratio of roughly 1
seat per 10 lakh (10,00,000) people.
This resulted in 292 members from the provinces and a minimum of 93 seats for
princely states.
Seats within each province were divided among the main communities—Muslim, Sikh,
and General—in proportion to their populations.
The method for selecting representatives from princely states was decided through
consultation.
Composition of the Constituent Assembly
After the Partition on June 3, 1947, members elected from territories that became
Pakistan were removed from the Constituent Assembly, reducing its number to 299.
The Constitution was adopted on November 26, 1949, with 284 members signing it
on January 24, 1950. It officially came into force on January 26, 1950.
The Constitution was created amid the violence of Partition, but the framers
managed to draft it under great pressure and learned from the chaos.
It established a new idea of citizenship where minorities were protected, and
religious identity did not affect citizenship rights.
Although the Constituent Assembly was not elected by universal suffrage, efforts
were made to ensure it was representative, with members from all religions and
twenty-eight members from the Scheduled Castes.
The Congress Party dominated the Assembly, holding eighty-two percent of the
seats post-Partition, and was diverse enough to include a range of opinions.
The Principle of Deliberation
The authority of the Constituent Assembly comes not just from its broad
representation but from its procedures and the values of its members.
While diverse representation is important, members also considered the nation's
overall interests rather than just their own communities.
The Assembly faced disagreements on key issues like centralization versus
decentralization, state and central relations, judicial powers, and property rights.
However, most debates were not about personal interests but about principles.
The only provision passed with minimal debate was universal suffrage, which granted
voting rights to all citizens regardless of religion, caste, gender, or income.
The Constitution gained authority from the Assembly's commitment to public reason.
Members focused on discussion and reasoned argument, offering principled reasons
rather than personal interests.
The extensive debates in the Assembly, scrutinizing every clause, are a testament to
public reason and are considered as significant as the French and American
revolutions in the history of constitution making.
Procedures
The importance of public reason was evident in the procedures of the Assembly.
The Constituent Assembly had eight major committees chaired by figures like
Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, and B.R. Ambedkar. Despite their
differences—Ambedkar's criticism of the Congress and Gandhi, and Patel and Nehru's
disagreements—they worked together effectively.
Each committee drafted specific Constitution provisions, which were then debated
by the entire Assembly.
The aim was to reach a consensus to ensure that the provisions would not harm any
particular interests.
Some provisions were put to a vote, but every argument or concern was addressed
carefully and in writing.
The Assembly met for 166 days over nearly three years, with sessions open to the
press and the public.
Inheritance of the Nationalist Movement
No constitution is merely the result of the Assembly that drafts it.
The Constituent Assembly of India could not have functioned effectively without a
background consensus on the core principles the Constitution should embody.
These principles were shaped during the long struggle for freedom.
The Assembly was essentially giving concrete shape to the principles inherited from
the nationalist movement.
For decades before the Constitution was enacted, the nationalist movement debated
crucial questions about the form of government, values, and inequalities that needed
addressing. The answers developed from these debates were finalized in the
Constitution.
The Objective Resolution of 1946, moved by Jawaharlal Nehru, best summarizes the
principles brought to the Assembly.
This resolution reflected the aspirations and values behind the Constitution and
inspired its substantive provisions.
The Constitution institutionalized fundamental commitments such as equality,
liberty, democracy, sovereignty, and a cosmopolitan identity.
Thus, it represents not just a set of rules but a moral commitment to establish a
government that fulfills the promises made by the nationalist movement.
Institutional arrangements
The third factor in ensuring the effectiveness of a constitution is a balanced
arrangement of government institutions.
A key principle is that the government must be democratic and focused on the
welfare of the people.
The Constituent Assembly carefully balanced the roles of the executive, legislature,
and judiciary, leading to the adoption of a parliamentary system and a federal
structure.
This setup distributes powers between the States and the central government, as
well as between the legislature and the executive.
In creating this balance, the framers of the Constitution learned from the experiences
of other countries.
They borrowed provisions from various constitutional traditions, but these ideas
were adapted to suit Indian needs and aspirations.
Rather than simply imitating, the Assembly thoughtfully integrated the best practices
from around the world, ensuring that each provision was relevant to India's unique
context.
Conclusion
The authority and effectiveness of a constitution come from its ability to balance power,
adapt to change, and embody the core values and aspirations of society. The Indian
Constitution, crafted with public credibility and broad consensus, provides a robust
framework for justice, equality, and governance, demonstrating why a well-structured
constitution is vital for any nation.