Constitution Why and How
WHY DO WE NEED A CONSTITUTION?
Constitution allows coordination and assurance
– A large group of people living together is diverse in terms of religion, professions, abilities, hobbies, wealth, and age.
– Disputes are likely to arise within the group on various aspects of life, such as property ownership, education, security, and discrimination.
– Despite their diversity, the members of the group are interdependent and need to live together peacefully.
– Basic rules are necessary for the group to function and ensure coordination.
– Without basic rules, individuals would feel insecure, not knowing the actions others may take.
– Basic rules need to be publicly known and enforceable to provide assurance and incentivize compliance.
– The constitution serves the purpose of providing a set of basic rules that enable minimal coordination among society members.
Specification of decision making powers
– The constitution determines the fundamental rules by which a state is governed.
– The question of who gets to decide the laws that govern society must be addressed.
– The constitution allocates power and specifies the decision-making authority in a society.
– Different constitutional systems exist, such as monarchy, single-party rule, and democracy.
– In democratic constitutions, the people generally have the authority to decide, but the question of how they should decide remains.
– Methods of decision-making include direct voting, electing representatives, and establishing the structure of representative bodies.
– The Indian Constitution, for example, grants authority to Parliament to enact laws and specifies its organizational structure.
– The constitution establishes the authority that constitutes the government and identifies who has the power to make decisions in society.
Limitations on the powers of government
– A constitution is a body of fundamental principles that governs a state.
– The constitution determines who has the authority to make laws and decisions in a society.
– It addresses the question of “who gets to decide?” and specifies the allocation of power.
– Democracies generally give the power to the people, but the method of decision-making must be determined.
– Constitutions also set limits on government power and protect citizens’ fundamental rights.
– Fundamental rights include protection against arbitrary arrests and basic liberties like freedom of speech, conscience, association, and trade.
– Constitutions may allow for limitations on rights during national emergencies, as specified in it.
Aspirations and goals of a society
– Older constitutions focused on allocating decision-making power and limiting government power.
– Twentieth-century constitutions, like the Indian Constitution, also provide an enabling framework for positive actions by the government.
– Constitutions enable the government to address deep-rooted inequalities and fulfill societal aspirations.
– For example, the Indian Constitution empowers the government to combat caste discrimination and promote social welfare.
– Enabling provisions are supported by the Constitution’s Preamble and Fundamental Rights.
– The Directive Principles of State Policy guide the government in fulfilling societal aspirations.
– The fourth function of a constitution is to create conditions for a just society and fulfill the aspirations of the people.
Fundamental identity of people
– A constitution expresses the fundamental identity of a people and forms their collective identity.
– By agreeing to basic norms and principles, individuals constitute their political identity.
– Constitutional norms provide the framework for pursuing individual aspirations and freedoms.
– Constitutions set authoritative constraints and define fundamental values, shaping moral identity.
– While constitutions differ in form of government and procedural details, they share democratic elements and protection of basic rights.
– Constitutions embody conceptions of national identity, reflecting historical traditions and diverse groups within a nation.
– National identity is shaped by the relationship between different regions and the central government.
THE AUTHORITY OF A CONSTITUTION
– A constitution is a compact document or set of documents that outlines the structure of the state and the norms it should follow.
– Some countries, like the United Kingdom, have a constitution comprised of multiple documents and decisions.
– Constitutions exist in various forms, but they seek to perform essential functions in a society.
– The effectiveness of a constitution depends on factors such as implementation and enforcement.
– A constitution’s impact on people’s lives determines its effectiveness.
– Evaluating whether a constitution is just involves considering fairness, equality, and protection of rights.
– Justice in a constitution can be assessed based on the protection of individual rights, equality before the law, and social justice considerations.
Mode of promulgation
– The crafting of a constitution and the authority of its creators are crucial factors in its effectiveness.
– Constitutions crafted by military leaders or unpopular figures often fail to gain legitimacy and remain defunct.
– Successful constitutions, like those of India, South Africa, and the United States, emerge from popular national movements.
– The Indian Constitution was created by a Constituent Assembly with immense public credibility and the ability to garner consensus.
– While the Indian Constitution was not subjected to a referendum, it carried significant public authority due to the consensus and backing of popular leaders.
– The adoption and adherence to the provisions of the constitution by the people also contribute to its authority and prospects for success.
The substantive provisions of a constitution
– A successful constitution gains allegiance by giving everyone in society a reason to support its provisions.
– A constitution that allows oppression of minority groups or privileges certain members over others fails to command allegiance.
– The constitution should provide a framework for pursuing basic justice and preserving freedom and equality.
– The Indian Constitution aims to give everyone a reason to support its broad outlines.
Balanced institutional design
– Well-crafted constitutions fragment power to prevent subversion by small groups.
– Horizontal power fragmentation in the Indian Constitution ensures checks and balances among institutions.
– Successful constitutions strike a balance between preserving core values and adapting to changing needs.
– The Indian Constitution is described as a living document, allowing for changes within limits.
– The authority of a constitution is determined by the credibility of its enactors, intelligent organization of power, and its ability to give everyone a reason to support it.
– The principles of justice underlying the Indian Constitution will be explored in the last chapter of the book.
How was the Indian Constitution made?
– The Indian Constitution was formally made by the Constituent Assembly.
– The members of the Constituent Assembly were elected indirectly by the members of Provincial Legislative Assemblies.
– The composition of the Constituent Assembly followed the plan proposed by the British Cabinet’s committee, known as the Cabinet Mission.
– Seats in the Constituent Assembly were allocated based on population, with Provinces and Princely States having proportional representation.
– The selection of representatives for each community was done through proportional representation with a single transferable vote.
– The method of selection for representatives of Princely States was determined through consultation.
– The effectiveness and respectability of the Indian Constitution will be assessed based on the factors discussed in the previous section.
Composition of the Constituent Assembly
– Due to the Partition, members elected from territories that became part of Pakistan ceased to be members of the Constituent Assembly.
– The number of members in the Constituent Assembly was reduced to 299.
– The Constitution was adopted on November 26, 1949, and came into force on January 26, 1950.
– The Constitution was framed amidst the violence of the Partition, but the framers showed resilience and drew lessons from the violence.
– The Constitution emphasized a new conception of citizenship, ensuring security for minorities and removing the influence of religious identity on citizenship rights.
– The Constituent Assembly aimed to be representative, providing representation for different religions and including members from Scheduled Castes.
– The Congress party dominated the Assembly, holding around 82% of the seats after the Partition, and it accommodated diverse opinions within its ranks.
The Principle of Deliberation
– The authority of the Constituent Assembly came not only from its representative nature but also from the procedures and values adopted during the framing of the Constitution.
– Members of the Assembly deliberated with the interests of the entire nation in mind, not just their own identities or communities.
– Disagreements among members were based on principles rather than personal interests.
– Various crucial issues were discussed and debated, such as the system of government, the relationship between states and the center, powers of the judiciary, and protection of property rights.
– Universal suffrage was the only provision passed without significant debate, highlighting the democratic commitment of the Assembly.
– Public reason played a vital role in the Assembly, with members emphasizing discussion and reasoned argument.
– The extensive debates and scrutiny of each clause in the Constituent Assembly are considered significant in the history of constitution making, comparable to the French and American revolutions.
Procedures
– The Constituent Assembly had major Committees chaired by influential figures like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, and B.R. Ambedkar, who often held differing views.
– The Committees drafted specific provisions of the Constitution, which were then debated by the entire Assembly.
– Consensus was sought, and provisions agreed upon by all were believed to be fair to all interests.
– Some provisions were put to a vote, but every argument, query, or concern was carefully addressed in writing.
– The Assembly met for 166 days over two years and eleven months, with sessions open to the press and the public.
Inheritance of the nationalist movement
– The Constituent Assembly of India did not operate in isolation but built upon a background consensus on the main principles the Constitution should embody.
– These principles were shaped during the long struggle for freedom and debates within the nationalist movement.
– The Objectives Resolution, moved by Nehru in 1946, summarized the aspirations and values behind the Constitution and influenced its drafting.
– The Constitution gave institutional expression to fundamental commitments such as equality, liberty, democracy, sovereignty, and a cosmopolitan identity.
– The Constitution represents a moral commitment to establish a government that fulfills the promises made by the nationalist movement.
Institutional arrangements
– The Indian Constitution was made by the Constituent Assembly elected for undivided India.
– The Assembly held its first sitting on 9 December 1946 and reassembled for divided India on 14 August 1947.
– The Assembly comprised members chosen through indirect election by Provincial Legislative Assemblies.
– The Constitution was adopted on 26 November 1949 and came into force on 26 January 1950.
– The Assembly worked under immense pressure, considering the backdrop of violence during the Partition.
– The Constitution aimed to ensure minority security and eliminate religious identity bias in citizenship rights.
– The Assembly functioned through public reason, emphasizing discussion and reasoned arguments.
– Eight major Committees drafted provisions subjected to debate by the entire Assembly.
– The Assembly met for 166 days over two years and eleven months, with sessions open to the press and public.
– The Constitution’s principles were forged during the long struggle for freedom and shaped by the nationalist movement.
– The Objectives Resolution moved by Nehru in 1946 captured the aspirations and values behind the Constitution.
– The Constitution established a balanced arrangement of institutions, adopting a parliamentary form and federal system.
– The framers of the Constitution borrowed ideas from different countries, adapting them to suit Indian problems and aspirations.
Conclusion : Constitution Why and How
The chapter “Constitution Why and How” provides a comprehensive overview of the importance of constitutions in governing societies. It explains why we need constitutions, how they are made, and the different types of constitutions that exist. The chapter also discusses the Indian Constitution, its history, and its key features. By understanding the importance of constitutions, we can better appreciate the foundations of our democracy and the importance of protecting our constitutional rights.