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Chapter 1 Constitution: Why And How?
Introduction
This chapter serves as an introduction to the Indian Constitution, specifically focusing on its creation and purpose. Subsequent chapters will delve into the specific institutions and working mechanisms of the government as defined by this foundational document.
Before exploring aspects like elections, the roles of various government officials (President, Prime Minister), or governmental structures, it is essential to grasp that the entire framework of the Indian government and its underlying principles are derived from the Constitution of India.
Why Do We Need A Constitution?
Understanding what a constitution is, its functions, its role in society, and its relevance to our daily lives is crucial. A constitution performs several vital functions for any society.
Constitution Allows Coordination And Assurance
Imagine a large, diverse group of people living together. Members may have different religions, professions, abilities, hobbies, tastes, wealth levels, and ages. Such a group is bound to have disagreements on various issues, such as property ownership rules, compulsory education, spending priorities (security vs. parks), or whether discrimination is acceptable. Despite these differences, they must coexist and cooperate.
To live together peacefully, such a group needs a set of basic rules. Without these rules, individuals would feel insecure, unsure of what others might do or who has rights over what. Basic rules, publicly known to all members, are necessary for even a minimal level of coordination.
However, merely knowing the rules is not enough. Members need assurance that others will follow them. If rules are not enforced, people have no incentive to follow them themselves. Legal enforceability provides this assurance: members know that breaking the rules will result in punishment, making others more likely to adhere to them.
Therefore, the first function of a constitution is to establish a set of fundamental rules that enable basic coordination and assurance among society's members.
Specification Of Decision Making Powers
A constitution is the set of fundamental principles that govern a state. But what should these fundamental rules be, and what makes them fundamental? Before deciding *which* specific rules govern a society, a more fundamental question must be answered: Who has the authority to decide what the laws should be? Different people will have different ideas about the best rules. How is this resolved?
A constitution answers this question by specifying the basic allocation of power within society. It determines who possesses the authority to make laws and how governmental power will be structured.
This question can be answered in various ways throughout history and different systems: a monarch might decide (monarchy), a single party (like in the old Soviet Union), or broadly, the people (democracy). Even when the answer is 'the people', the constitution must specify *how* the people decide. Should everyone vote directly on every issue (direct democracy, like in ancient Greece)? Or should people elect representatives? If representatives make laws, how are they elected, and how many should there be?
For example, the Indian Constitution states that Parliament generally makes laws and policies and specifies how Parliament itself is to be constituted. To know what the law is, you first need to know *who* has the authority to create it. The constitution is the foundational law that bestows this authority, thereby constituting the government itself.
The second function of a constitution is to specify who holds decision-making power in society and how the government will be formed.
(This cartoon likely depicts the difficulties and disagreements encountered when trying to draft a constitution, suggesting it's not always a smooth process.)
Limitations On The Powers Of Government
Knowing who has the power to make decisions is not enough. What if this authority passes laws that are widely considered unjust or unfair? For instance, laws prohibiting the practice of a specific religion, dictating clothing colours, restricting freedom of expression (singing certain songs), enforcing servitude or property denial based on group identity (caste, religion), allowing arbitrary arrests, or restricting access to common resources based on skin colour would be seen as fundamentally unjust, even if passed through established procedures.
Therefore, the third function of a constitution is to set limits on what the government can impose on its citizens. These limits are fundamental and cannot be violated by the government.
Constitutions restrict government power in various ways. The most common is by guaranteeing certain fundamental rights to all citizens that no government can violate. While the exact rights and their interpretation differ across constitutions, most protect a core set:
- Protection against arbitrary arrest or detention without cause.
- Basic liberties like freedom of speech, conscience, association, and the right to pursue a trade or business.
These rights can sometimes be limited, for example, during a national emergency, but the constitution specifies the conditions under which such limitations are permissible.
(The cartoon's dialogue suggests a cynical view: if a constitution creates a government with power, it immediately necessitates worrying about limiting that power.)
Aspirations And Goals Of A Society
Older constitutions primarily focused on power allocation and limiting government. However, many 20th-century constitutions, notably the Indian one, go further. They provide an enabling framework for the government to undertake positive actions and to articulate the aspirations and goals of the society.
In societies marked by deep-seated inequalities, merely limiting government power is insufficient. The government must also be empowered and enabled to take positive measures to address and overcome these inequalities and deprivations.
For example, if a society aims to eliminate caste discrimination (like India), the government must be equipped to take necessary steps towards this goal. The new constitution of post-apartheid South Africa had to empower the government to end racial discrimination.
More proactively, a constitution can embody a society's broader aspirations. The framers of the Indian Constitution envisioned a society where every individual possesses the necessities for a life of dignity and self-respect, including minimum material well-being and education. The Indian Constitution includes provisions that enable the government to pursue welfare measures, some of which are legally enforceable. These enabling aspects are supported by the Preamble and detailed in sections like Fundamental Rights and Directive Principles of State Policy, which guide the government in fulfilling people's aspirations.
The fourth function of a constitution is to enable the government to realise societal aspirations and establish conditions for a just society.
(This cartoon likely illustrates the challenge faced by the constitution makers, represented by Nehru, in balancing the diverse and sometimes conflicting visions and demands of different groups within India while framing the Constitution. The groups could represent various political ideologies, social classes, or regional interests.)
Enabling Provisions Of The Constitution
Constitutions are not just constraints on government; they also grant powers to pursue the collective good. Examples of such enabling provisions include:
- The Constitution of South Africa mandates the government to promote nature conservation, protect groups facing unfair discrimination, and progressively ensure adequate housing and healthcare for all.
- The Indonesian Constitution requires the government to establish a national education system and care for poor and destitute children.
These examples show constitutions empowering the state to actively work towards social welfare and justice.
Fundamental Identity Of A People
Finally, and very importantly, a constitution expresses the fundamental identity of a people.
This means that the constitution plays a role in bringing people together as a collective entity. By agreeing upon a basic set of norms about how they will be governed and who will govern them, people begin to form a shared political identity.
People have multiple identities (based on culture, community, etc.) that exist before a constitution. However, by accepting common constitutional norms and principles, they forge a basic political identity.
Constitutional norms also provide the overarching framework within which individuals pursue their personal aspirations, goals, and freedoms. They establish authoritative boundaries on permissible actions and define fundamental values that cannot be violated, thus giving individuals a kind of moral identity linked to the constitutional framework.
While modern constitutions globally share features like democratic forms of government and basic rights protection, they often differ in how they embody national identity. Nations are built from complex historical traditions and integrate diverse groups differently. For example, historical German identity was partly based on ethnicity, reflected in its constitutional framework. In contrast, the Indian Constitution explicitly rejects ethnic identity as a criterion for citizenship.
The relationship defined between different regions and the central government also contributes to a country's national identity as expressed in its constitution.
(This cartoon likely depicts different ethnic or sectarian groups in Iraq clashing over their demands and visions during the drafting of the new constitution after the fall of Saddam Hussein, illustrating how constitution-making can be contentious when fundamental group identities and power dynamics are at stake.)
Check Your Progress
| Constitutional Provision Example | Function Performed |
| The government cannot order any citizen to follow or not to follow any religion. | Limitations on the powers of government (protecting fundamental rights/religious freedom). |
| The government must try to reduce inequalities in income and wealth. | Aspirations and goals of a society / Enabling provisions for government action (Directive Principles). |
| The President has the power to appoint the Prime Minister. | Specification of decision making powers / How the government is constituted. |
| The Constitution is the supreme law that everyone has to obey. | Provides a set of basic rules / Authority of the Constitution. |
| Indian citizenship is not limited to people of any race, caste or religion. | Fundamental identity of a people / Limitations on the powers of government (non-discrimination). |
The Authority Of A Constitution
Having discussed the functions of a constitution, we now consider its nature, effectiveness, and justice. In most countries, a 'Constitution' refers to a single written document containing articles about the state and its governance. However, some nations, like the United Kingdom, have constitutions composed of a series of documents and decisions, collectively performing the functions of a constitution.
A critical question is: How effective is a constitution? Many constitutions exist only on paper. What makes a constitution have a real impact on people's lives? Several factors contribute to a constitution's effectiveness.
Mode Of Promulgation
The effectiveness of a constitution is partly determined by how it was created and the authority of its framers. Constitutions drafted by unpopular leaders, military regimes, or without public support often fail. Successful constitutions, like those of India, South Africa, and the United States, were typically born out of popular national movements.
India's Constitution was drafted by the Constituent Assembly (1946-1949), but its strength came from its deep connection to the nationalist movement, which had successfully united diverse sections of society. The Constitution gained immense legitimacy because its framers were highly credible public figures who could negotiate across different views and convince the people that the document was not intended for personal power gain. It reflected a broad national consensus.
While some countries use referendums (direct public votes) to adopt constitutions, India's Constitution, though not subjected to a referendum, commanded public authority because it had the backing of popular leaders and, crucially, the people accepted and abided by its provisions over time. The credibility of those who create a constitution significantly impacts its potential for success.
Debate over Constitution Making in Nepal
The experience of Nepal illustrates the complexities of constitution-making. Nepal had five constitutions between 1948 and 1990, all granted by the King. The 1990 constitution introduced multiparty competition but the King retained significant power.
Years of militant agitation followed, primarily debating the monarchy's role. Some groups wanted a republic, others a limited monarchy. The King's reluctance to yield power led him to seize all authority in 2002.
Under popular pressure, a new government was installed, stripping the King of most powers. In 2008, Nepal became a democratic republic after the monarchy was abolished. Finally, Nepal adopted a new constitution in 2015, drafted after prolonged political transition and debate, reflecting the struggle for a popularly-driven constitutional process.
(This cartoon likely suggests that the new Iraqi Constitution, perhaps due to internal conflicts, external influence, or lack of widespread legitimacy, is fragile and unstable, like a structure built from playing cards. This description might contrast with the Indian Constitution, which has proven durable.)
The Substantive Provisions Of A Constitution
A successful constitution includes provisions that give *everyone* in society a reason to support it. If a constitution allows a permanent majority to oppress minorities, systematically favours certain groups, or entrenches the power of a few, it will lose legitimacy and allegiance. People will not abide by a constitution that stifles their identity.
While no constitution is perfectly just, it must provide a framework that convinces people that basic justice can be pursued within its bounds. The more a constitution protects the freedom and equality of all its members, the greater its chance of success.
The Indian Constitution aims to provide reasons for all sections of society to support its broad framework, focusing on inclusivity and justice.
Balanced Institutional Design
Constitutions are often undermined by small groups seeking to consolidate power, rather than by the general populace. Well-designed constitutions prevent this by intelligently fragmenting power so that no single institution or group can easily subvert the document.
The Indian Constitution, for example, divides power horizontally among the Legislature, Executive, and Judiciary. It also includes independent bodies like the Election Commission. This system of checks and balances allows institutions to monitor and restrain each other, preventing any single entity from gaining absolute power and violating the Constitution. This balanced design has been key to the success of the Indian Constitution.
Another vital aspect of intelligent design is balancing the need for constitutional provisions to be authoritative with enough flexibility to adapt to changing needs and circumstances. A constitution that is too rigid risks breaking under pressure from societal change. One that is too flexible offers no stability, predictability, or sense of collective identity. Successful constitutions find the right balance, preserving core values while allowing for necessary adaptation.
The Indian Constitution is considered a 'living document' because it strikes this balance. It allows for amendments while also placing limits on the extent of changes, ensuring its survival and continued relevance and preventing any single section from unilaterally altering or subverting it.
To assess a constitution's authority, consider:
- Were its framers credible and widely respected?
- Does it intelligently distribute power to prevent subversion?
- Does it provide reasons for everyone to support it (are its substantive provisions just)?
- Does it embody the hopes and aspirations of the people? (Its ability to secure voluntary allegiance depends on its perceived justice).
How Was The Indian Constitution Made?
The Indian Constitution was formally drafted by the Constituent Assembly. This Assembly was elected for undivided India and first met on December 9, 1946. After the Partition, it reassembled for divided India on August 14, 1947. Members were indirectly elected by the Provincial Legislative Assemblies established under the Government of India Act, 1935.
The Assembly's composition followed the plan proposed by the British Cabinet Mission:
- Seats were allocated to Provinces (under direct British rule) and Princely States based on population, roughly in a 1:1,000,000 ratio. Provinces were to elect 292 members, and Princely States were allocated a minimum of 93 seats.
- Within Provinces, seats were divided among three main communities (Muslims, Sikhs, General) proportionally to their population.
- Representatives from each community in Provincial Assemblies elected their members using proportional representation with a single transferable vote.
- The method for selecting representatives from Princely States was decided through consultation.
Composition Of The Constituent Assembly
Due to the Partition plan, members from territories that became Pakistan ceased to be part of the Assembly, reducing its strength to 299. The Constitution was adopted on November 26, 1949, and signed by 284 members present on January 24, 1950. It came into force on January 26, 1950.
The framing of the Constitution took place amid the horrific violence of the Partition. The framers' resilience in drafting a constitution under such pressure and incorporating lessons from the violence (like committing to a secular concept of citizenship unaffected by religious identity) is noteworthy.
While not elected by universal suffrage, efforts were made to make the Assembly representative. It included members from all major religions and 28 members from the Scheduled Castes. The Indian National Congress dominated with 82% of seats after Partition, but the Congress itself was diverse enough to represent a wide range of opinions.
In his final speech in the Constituent Assembly on November 25, 1949, Dr. B.R. Ambedkar emphasised the need to transform political democracy into social democracy. He defined social democracy as a way of life based on liberty, equality, and fraternity. He stressed that these principles are interconnected and inseparable: without equality, liberty could lead to the dominance of the few; without liberty, equality could stifle individual initiative; and without fraternity, liberty and equality might not naturally flourish.
(Dr. Rajendra Prasad's tribute highlights the crucial role and dedication of Dr. Ambedkar and the Drafting Committee.)
The Principle Of Deliberation
The authority of the Constituent Assembly also stemmed from its deliberative process and the values of its members. While representation of diverse groups is important, members participated not just as representatives of their specific identities but with the interests of the entire nation in mind. Disagreements existed but were based on differences of principle, not narrow self-interest.
Key debates included whether India should be centralised or decentralised, the relationship between the Centre and States, the powers of the judiciary, and property rights. Almost every foundational issue of a modern state was debated with sophistication. The only provision passed with virtually no debate was universal suffrage, demonstrating the Assembly's commitment to democracy (granting voting rights to all adults regardless of religion, caste, education, gender, or income).
The Constitution's authority is rooted in the members' use of public reason. They prioritised discussion, reasoned arguments, and provided principled justifications for their positions, moving beyond narrow interests. The extensive Constituent Assembly Debates, where every clause was scrutinised, exemplify public reason and are considered a significant historical achievement.
Procedures
Public reason was also embedded in the Assembly's procedures. Eight major committees, often chaired by prominent leaders like Nehru, Rajendra Prasad, Sardar Patel, or B.R. Ambedkar (despite their differing views), drafted specific constitutional provisions. These drafts were then debated by the full Assembly.
An effort was made to achieve consensus, believing that widely agreed-upon provisions would not harm particular interests. Some issues were decided by vote. Crucially, every argument, question, or concern raised during debates received careful, often written, responses.
The Assembly met for 166 days over nearly three years. Its sessions were open to the press and public, ensuring transparency.
Inheritance Of The Nationalist Movement
The Constitution is not solely the product of the Assembly; it inherited foundational principles from the long nationalist movement. The Assembly could function smoothly because a background consensus on key principles had been forged during the freedom struggle. Decades of debate within the movement on the nature of India's future government, its values, and how to address inequalities shaped the framework adopted by the Assembly.
The Objective Resolution, moved by Nehru in 1946, best encapsulates the aspirations and values inherited from the nationalist movement. It defined the Assembly's aims and inspired the substantive provisions of the Constitution. Based on this resolution, the Constitution gave institutional form to commitments like equality, liberty, democracy, sovereignty, and a cosmopolitan identity.
Thus, the Constitution is not just a set of rules but a moral commitment to establish a government that fulfils the promises made to the people during the nationalist struggle.
Main Points of the Objectives Resolution
- India would be an independent, sovereign, republic.
- It would be a Union of former British Indian territories, Princely States, and other willing parts.
- Units forming the Union would be autonomous, exercising powers except those assigned to the Union.
- All authority of independent India and its constitution would flow from the people.
- All people would be guaranteed social, economic, and political justice; equality of status and opportunities and before law; and fundamental freedoms (speech, expression, belief, faith, worship, vocation, association, action), subject to law and public morality.
- Adequate safeguards would be provided for minorities, backward and tribal areas, depressed and other backward classes.
- The Republic's territorial integrity and sovereign rights would be maintained according to justice and international law.
- India would contribute to world peace and human welfare.
Institutional Arrangements
A balanced arrangement of government institutions is the third factor contributing to a constitution's effectiveness. The core principle is a democratic government committed to public welfare. The Constituent Assembly dedicated significant time to balancing the powers of the Executive, Legislature, and Judiciary. This led to adopting a parliamentary form of government and a federal structure (distributing power between Centre and States).
In designing these arrangements, the framers drew upon the experiences of other countries, borrowing provisions from different constitutional traditions. This was not simple imitation but a conscious adaptation. Each borrowed provision was debated and justified based on its suitability for India's specific problems and aspirations. The framers thoughtfully selected and integrated the best available ideas globally to create a document tailored for India.
Provisions Adapted from Constitutions of Different Countries
| Source Constitution | Borrowed Provisions |
|---|---|
| British Constitution |
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| United States Constitution |
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| Irish Constitution |
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| French Constitution |
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| Canadian Constitution |
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(Dr. B.R. Ambedkar's quote highlights that new constitutions, made late in history, must adapt existing principles and address faults to suit the needs of their specific country, acknowledging the necessity of drawing upon established ideas.)
Conclusion
The Indian Constitution is a testament to the wisdom and foresight of its makers, embodying fundamental values and the highest aspirations of the Indian people. Its intricate design has enabled it to survive and thrive as a 'living reality', unlike many other constitutions that have failed.
The Indian Constitution is unique and has served as an inspiration for others, notably South Africa. The nearly three-year-long process of its making aimed at creating balanced institutional arrangements that could accommodate the aspirations of India's diverse population for the long term. The remaining chapters of this book will explore these arrangements in more detail.
Exercises
As per instructions, the content of the exercises is not included, only the section heading structure is provided.