Chapter 2 Constitutional Design

Overview

This chapter explores the process and purpose of constitutional design, using South Africa's transition from apartheid to democracy as a key example. It highlights the importance of a constitution in establishing rules, limiting government power, defining citizens' rights, and fostering trust and cooperation. The chapter then details the making of the Indian Constitution, its foundational values drawn from the national struggle, and the principles enshrined in its Preamble, such as sovereignty, socialism, secularism, democracy, justice, liberty, equality, and fraternity.

Democratic Constitution In South Africa

South Africa's journey to democracy involved a long struggle against the apartheid regime, a system of racial discrimination imposed by white Europeans that segregated and oppressed non-white populations (blacks, coloureds, Indians). Nelson Mandela, a leader of this struggle, spent 28 years in prison for opposing apartheid.

Struggle Against Apartheid

From the 1950s, blacks, coloureds, and Indians protested through marches and strikes, led by organizations like the African National Congress (ANC). Despite harsh repression by the white government, the struggle intensified, leading the regime to realize that continued rule through force was unsustainable. Discriminatory laws were repealed, bans on political parties lifted, and after Nelson Mandela's release, a new multi-racial government was formed in 1994, marking the end of apartheid.

Towards A New Constitution

The transition involved negotiations between former oppressors and the oppressed, driven by a willingness to trust and build a shared future. Leaders agreed on principles of majority rule, equal voting rights, protection of basic rights for the poor and workers, and safeguarding the property of the white minority. This compromise, enshrined in one of the world's finest constitutions, aimed to heal past divisions and create a society based on democratic values, social justice, and human rights. The constitution serves as a solemn pact against repeating the repressive past and a charter for a united, diverse South Africa.

Why Do We Need A Constitution?

A constitution is essential for a democracy because it lays down the fundamental rules that govern the country. It specifies:

• How the government will be formed and who holds power.
• Limits on the government's powers.
• The rights of citizens.
• The basic values and philosophy of the nation.

These rules need to be supreme and difficult to change easily to ensure trust and stability, especially in societies with diverse populations and a history of conflict. Constitutions are necessary not just for governments but also for organizations like clubs and political parties to function smoothly and democratically.

Making Of The Indian Constitution

India's constitution was drafted under difficult circumstances, including the trauma of Partition and the challenge of integrating princely states. However, the national movement had already established consensus on key democratic principles like universal adult franchise, freedom, equality, and minority rights, as seen in early drafts like the Nehru Report (1928) and the Karachi Congress resolution (1931).

The Path To Constitution

Years of thinking and debate during the freedom struggle, coupled with experience in colonial legislative institutions, provided a strong foundation. Leaders drew inspiration from various global experiences (French Revolution, British parliamentary democracy, US Bill of Rights, Russian socialist revolution) but adapted them to India's specific context.

The Constituent Assembly

The Indian Constitution was drafted by the Constituent Assembly, elected in July 1946. Despite the challenges of Partition, which divided the Assembly, the Indian Constituent Assembly, with 299 members, adopted the Constitution on November 26, 1949, which came into effect on January 26, 1950. The Assembly worked through systematic discussion, debate, and consensus-building, considering over two thousand amendments over three years. Its members represented diverse social, political, and geographical backgrounds, ensuring a broad consensus reflected in the final document.

Guiding Values Of The Indian Constitution

The Constitution's philosophy is expressed through the Preamble and the contributions of its framers, like Mahatma Gandhi (whose vision of an equal India inspired many), Dr. B.R. Ambedkar (who highlighted the contradiction between political equality and social/economic inequality), and Jawaharlal Nehru (who spoke of a 'tryst with destiny' and service to the nation).

The Dream And The Promise

The dreams of leaders like Gandhi and Nehru, envisioning an India free from inequality, untouchability, and poverty, with equal opportunities for all, guided the Constitution's framework. Dr. Ambedkar emphasized the need to bridge the gap between political equality and social-economic inequality to sustain democracy.

Institutional Design

The Constitution translates these values into institutional arrangements through legal procedures. It outlines how the government is formed, who holds power, limits on government authority, and citizens' rights. Recognizing the need for adaptation, the Constitution allows for amendments to keep it relevant to changing societal needs, distinguishing it from static, unalterable laws.

The Preamble encapsulates these core values: Sovereign, Socialist, Secular, Democratic, Republic, Justice, Liberty, Equality, and Fraternity. These principles guide all provisions of the Constitution and provide a standard for evaluating laws and government actions.