Constitutional Design

2.1 DEMOCRATIC CONSTITUTION IN SOUTH AFRICA

– Mandela and seven others were sentenced to life imprisonment in 1964 for opposing apartheid in South Africa.
– Apartheid was a system of racial discrimination imposed by white Europeans in South Africa. It divided people based on skin color: whites, blacks (native population), colored (mixed races), and Indian migrants.
– Non-whites, especially blacks, faced oppression under apartheid, including segregation and denial of voting rights.
– Protests against apartheid began in 1950, led by the African National Congress (ANC), unions, and the Communist Party.
– Many countries denounced apartheid, but the white government continued to detain, torture, and kill black and colored people.

Towards a new constitution

– As protests and struggles against apartheid had increased, the government realized that they could no longer keep the blacks under their rule through repression.
– Nelson Mandela was released from prison after 28 years, and South Africa transitioned to democracy.
– The new South Africa embraced belief in the capacity for goodness in others and cherished faith in human beings.
– Black leaders urged forgiveness and the building of a new South Africa based on equality, democratic values, social justice, and human rights.
– Extensive rights were granted to citizens through the constitution, which was developed through discussions between the oppressive ruling party and the freedom struggle leaders.
– The South African Constitution is considered a model of democracy, symbolizing the transformation of bitter experiences into unity.
– Mandela emphasized that the constitution reflects a commitment to never repeat the racist and repressive past, creating a country shared by all its people regardless of race or gender.

2.2 WHY DO WE NEED A CONSTITUTION?

– The South African example highlights the need for a constitution and its purpose.
– In the new democracy, the oppressor and oppressed had to trust each other and protect their interests.
– A compromise was reached, including majority rule, protection of property rights, and basic rights for the poor and workers.
– To build and maintain trust, rules of the game were written down, determining how rulers are chosen, government powers, and citizen rights.
– The constitution is the supreme law, generating trust, specifying government composition and powers, setting limits on government, and expressing societal aspirations.
– Constitutions exist in all democratic countries, providing a framework for governance and ensuring rights and responsibilities.
– Countries like the United States and France adopted constitutions after their respective struggles for independence and revolution.

2.3 MAKING OF THE INDIAN CONSTITUTION

– India’s Constitution was drafted under challenging circumstances, similar to South Africa.
– India was transitioning from subjects to citizens, and the country was born through a traumatic partition based on religious differences.
– Partition-related violence resulted in the deaths of at least one million people.
– The issue of princely states’ merger with India or Pakistan added complexity and uncertainty.
– During the constitution-making process, concerns and anxieties about the country’s present and future were prevalent.

The path to Constitution

– The makers of the Indian Constitution had the advantage of not having to create a consensus about the nature of a democratic India.
– The consensus had evolved during the freedom struggle, which aimed to rejuvenate and transform Indian society and politics.
– Basic ideas, such as universal adult franchise, freedom, equality, and minority rights, were accepted by most leaders before the Constituent Assembly.
– Familiarity with colonial political institutions and the experience gained from working in them aided in designing India’s own institutions.
– The Indian Constitution incorporated details and procedures from colonial laws like the Government of India Act, 1935.
– Years of thinking and deliberation allowed Indian leaders to learn from other countries while adapting ideas to suit India’s specific context.
– Inspiration came from the ideals of the French Revolution, British parliamentary democracy, the US Bill of Rights, and the socialist revolution in Russia.
– Each step of the constitution-making process involved questioning whether these ideas were suitable for India’s unique circumstances.

The Constituent  Assembly

– The Indian Constitution was drafted by the Constituent Assembly, consisting of elected representatives.
– The Assembly had 299 members and adopted the Constitution on 26 November 1949.
– The Constitution represents a broad consensus of its time, incorporating values accepted by leaders during the freedom struggle.
– The Constituent Assembly had fair geographical and social representation, including diverse political groups and opinions.
– The Assembly worked systematically, with a Drafting Committee led by Dr. B.R. Ambedkar preparing the initial draft.
– Thorough discussions and debates took place over three years, resulting in a comprehensive Constitution.
– The Constituent Assembly Debates, consisting of 12 volumes, provide the rationale behind each provision and are used for interpretation.

2.4 GUIDING VALUES OF THE INDIAN CONSTITUTION

The Dream and the Promise

– Mahatma Gandhi was not a member of the Constituent Assembly, but many members aligned with his vision.
– Gandhi envisioned an India that eliminates inequality.
– Dr. Ambedkar, who played a significant role in the Constitution’s making, had a different approach to addressing inequalities and criticized Gandhi’s vision.
– Jawaharlal Nehru delivered a renowned speech to the Constituent Assembly on the midnight of August 15, 1947.

Philosophy of the Constitution

– The values that guided the freedom struggle are the foundation of India’s democracy and are reflected in the Preamble of the Constitution.
– The Preamble sets out the basic values and philosophy of the Constitution.
– Many countries, including India, begin their constitutions with a preamble inspired by the American model.
– The Preamble of the Indian Constitution serves as a standard to assess laws and government actions.
– The Preamble is considered the soul of the Indian Constitution.

Institutional design

– A constitution embodies values into institutional arrangements.
– The Indian Constitution is a long and detailed document that requires regular amendments to stay updated.
– The makers of the Constitution saw it as adaptable and incorporated provisions for constitutional amendments.
– The Constitution uses legal language but has a basic institutional design that outlines the procedure for choosing leaders, power distribution, and citizen rights.
– The book will cover key constitutional provisions related to governance, decision-making, and citizen rights, but not all aspects of the institutional design.