Constitution: Why and How?
Chapter 1: Constitution: Why and How?
Introduction
This book explores the workings of the Indian Constitution.
It examines the various institutions of the government and their relationships.
The Constitution is the origin of the government's structure and principles.
Key questions to be addressed:
What does a constitution mean?
What does a constitution do to society?
How do constitutions govern the allocation of power?
How was the Constitution of India made?
Why Do We Need a Constitution?
Coordination and Assurance
A constitution is vital for diverse groups to live together peacefully.
Imagine a large, diverse group with different religious beliefs, professions, abilities, hobbies, wealth, and ages.
Disputes are likely over property, education, safety, discrimination, etc.
Basic rules are necessary to enable the group to live together and cooperate.
Without basic rules, individuals would be insecure, not knowing what others might do.
Basic rules must be publicly known and enforceable to ensure coordination.
Legal enforceability assures citizens that others will follow the rules, and violations will be punished.
The first function of a constitution is to provide basic rules for minimal coordination in society.
Specification of Decision-Making Powers
A constitution is a body of fundamental principles according to which a state is constituted or governed.
It's essential to decide who determines the laws governing society.
Disputes arise when different people want different rules.
The constitution specifies the basic allocation of power in a society.
It decides who gets to decide what the laws will be.
In a monarchy, the monarch decides.
In some constitutions, like the old Soviet Union, a single party decides.
In democratic constitutions, the people decide, but the method varies.
Should everyone agree, or should elected representatives decide?
The Indian Constitution specifies that Parliament decides laws and policies.
Before identifying the law, it is necessary to identify who has the authority to enact it.
The constitution gives authority to the government in the first place.
The second function of a constitution is to specify who has the power to make decisions in a society and how the government will be constituted.
Limitations on the Powers of Government
It is not enough to decide who can make decisions; the authority should not pass unfair laws.
Examples of unfair laws include prohibiting religious practices, restricting clothing color, suppressing freedom of speech, or institutionalizing discrimination.
The third function of a constitution is to set limits on what a government can impose on its citizens.
These limits are fundamental and should not be trespassed.
Constitutions limit government power by specifying fundamental rights that citizens possess.
These rights vary but generally include protection from arbitrary arrest and basic liberties (freedom of speech, conscience, association, trade, etc.).
These rights can be limited during national emergencies under specific circumstances.
Aspirations and Goals of a Society
Older constitutions focused on allocating decision-making power and setting limits on government power.
Many twentieth-century constitutions also enable the government to do positive things and express societal aspirations.
The Indian Constitution is innovative in this respect.
Societies with deep inequalities need to set limits on government power and empower the government to overcome inequality and deprivation.
For example, India aspires to be free of caste discrimination, so the government must take necessary steps to achieve this goal.
In South Africa, the constitution enables the government to end racial discrimination.
A constitution may enshrine societal aspirations, such as minimal dignity and social self-respect for each individual.
The Indian Constitution enables the government to take positive welfare measures.
Such enabling provisions are supported by the Preamble and found in Fundamental Rights and the Directive Principles of State Policy.
The fourth function of a constitution is to enable the government to fulfill the aspirations of a society and create conditions for a just society.
Enabling Provisions of the Constitution
Constitutions give powers to the government for pursuing the collective good of society.
The Constitution of South Africa assigns responsibilities to the government, such as promoting nature conservation and protecting against unfair discrimination.
It provides that the government must progressively ensure adequate housing and healthcare.
In Indonesia, the government is enjoined to establish a national education system and ensure the poor and destitute children will be looked after.
Fundamental Identity of a People
A constitution expresses the fundamental identity of a people.
The people as a collective entity come into being through the basic constitution.
Agreeing to basic norms about how one should be governed forms a collective identity.
Constitutional norms are the framework within which one pursues individual aspirations, goals, and freedoms.
The constitution sets constraints and defines fundamental values.
Many basic political and moral values are now shared across different constitutional traditions.
Most modern constitutions create a democratic form of government and claim to protect basic rights.
Constitutions differ in how they embody conceptions of national identity.
Most nations weave together diverse groups in different ways.
For example, German identity was constituted by being ethnically German.
The Indian Constitution does not make ethnic identity a criterion for citizenship.
Different nations embody different conceptions of the relationship between the different regions of a nation and the central government.
This relationship constitutes the national identity of a country.
The Authority of a Constitution
Questions about Constitutions
What is a constitution?
How effective is a constitution?
Is a constitution just?
Definition
In most countries, a constitution is a compact document with articles specifying how the state is constituted and what norms it should follow.
Some countries, like the United Kingdom, do not have a single document but a series of documents and decisions.
A constitution is the document or set of documents that seeks to perform the functions mentioned above.
Effectiveness
Many constitutions exist only on paper.
Making a constitution effective depends on many factors.
Mode of Promulgation: How a constitution comes into being, who crafted it, and their authority.
Constitutions crafted by military leaders or unpopular leaders often remain defunct.
Successful constitutions are created in the aftermath of popular national movements (e.g., India, South Africa, and the United States).
India's Constitution drew upon a long history of the nationalist movement.
The Constitution drew enormous legitimacy from the public credibility of its leaders.
Some countries subject their constitution to a referendum.
The Indian Constitution was not subjected to a referendum but carried public authority because of the consensus and backing of popular leaders.
The authority of the people who enact the constitution helps determine its prospects for success.
Substantive Provisions: A successful constitution gives everyone in society a reason to go along with its provisions.
A constitution should not allow permanent majorities to oppress minorities or systematically privilege some at the expense of others.
If any group feels their identity is being stifled, they will have no reason to abide by the constitution.
No constitution achieves perfect justice, but it has to convince people that it provides the framework for pursuing basic justice.
The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.
The Indian Constitution, broadly speaking, gives everyone a reason to go along with its broad outlines.
Balanced Institutional Design: Well-crafted constitutions fragment power intelligently so that no single group can subvert the constitution.
Ensure that no single institution acquires a monopoly of power.
The Indian Constitution horizontally fragments power across different institutions like the Legislature, Executive, Judiciary, and Election Commission.
An intelligent system of checks and balances has facilitated the success of the Indian Constitution.
A constitution must strike the right balance between values, norms, and procedures while allowing flexibility to adapt to changing needs.
Too rigid a constitution is likely to break, while too flexible a constitution will give no security or identity.
The Indian Constitution is described as a living document.
By striking a balance between the possibility to change provisions and the limits on such changes, the Constitution has ensured that it will survive as a document respected by people.
This arrangement also ensures that no section or group can subvert the Constitution on its own.
Determining a Constitution's Authority: Three Questions
Were the people who enacted the constitution credible?
Did the constitution ensure that power was intelligently organized?
Does the constitution give everyone some reason to go along with it?
Is the constitution the locus of people’s hopes and aspirations?
How Was the Indian Constitution Made?
Constituent Assembly
Formally made by the Constituent Assembly, elected for undivided India.
First sitting on 9 December 1946; reassembled for divided India on 14 August 1947.
Members were chosen by indirect election by the members of the Provincial Legislative Assemblies established under the Government of India Act, 1935.
Composed along the lines suggested by the Cabinet Mission.
Each Province and Princely State were allotted seats proportional to their population (roughly 1:1,000,000).
Provinces were to elect 292 members, while Princely States were allotted a minimum of 93 seats.
Seats in each Province were distributed among Muslims, Sikhs, and general categories in proportion to their populations.
Members of each community in the Provincial Legislative Assembly elected their representatives by proportional representation with a single transferable vote.
The method of selection in the case of representatives of Princely States was to be determined by consultation.
Composition of the Constituent Assembly
Partition under the plan of 3 June 1947 resulted in members elected from territories falling under Pakistan ceasing to be members.
The number of members in the Assembly was reduced to 299.
The Constitution was adopted on 26 November 1949.
284 members were present on 24 January 1950 and signed the Constitution.
The Constitution came into force on 26 January 1950.
The Constitution was framed against the backdrop of the violence of the Partition.
It was committed to a new conception of citizenship, where religious identity would have no bearing on citizenship rights.
Members of all religions were given representation; the Assembly had twenty-eight members from the Scheduled Castes.
The Congress dominated the Assembly, occupying as many as eighty-two percent of the seats after the Partition.
The Congress was a diverse party that accommodated almost all shades of opinion within it.
The Principle of Deliberation
The authority of the Constituent Assembly comes from its representative nature and the procedures it adopted to frame the Constitution.
Members participated not only as representatives of their own identity or community but with the interests of the whole nation in mind.
There were disagreements, but few could be traced to members protecting their own interests.
There were differences of principle on issues such as centralized vs. decentralized government, relations between States and the center, powers of the judiciary, and protection of property rights.
Only one provision was passed without virtually any debate: the introduction of universal suffrage.
The members emphasized discussion and reasoned argument.
The debates in the Constituent Assembly are a tribute to public reason.
Procedures
The Constituent Assembly had eight major Committees on different subjects.
Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B.R. Ambedkar chaired these Committees.
Each Committee drafted particular provisions of the Constitution, which were then debated by the entire Assembly.
An attempt was made to reach a consensus.
Each argument, query, or concern was responded to with great care and in writing.
The Assembly met for one hundred and sixty-six days over two years and eleven months.
Its sessions were open to the press and the public alike.
Inheritance of the Nationalist Movement
The Constituent Assembly was giving concrete shape to principles inherited from the nationalist movement.
For decades, the nationalist movement had debated questions relevant to the making of the constitution.
The Objective Resolution moved by Nehru in 1946 encapsulated the aspirations and values behind the Constitution.
The Constitution gave institutional expression to equality, liberty, democracy, sovereignty, and a cosmopolitan identity.
The Constitution is a moral commitment to establish a government that will fulfill the promises of the nationalist movement.
Main Points of the Objectives Resolution
India is an independent, sovereign, republic.
India shall be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and Indian States willing to be part of the Union.
Territories forming the Union shall be autonomous units, exercising all powers except those assigned to the Union.
All powers and authority of sovereign and independent India and its constitution shall flow from the people.
All people of India shall be guaranteed social, economic, and political justice; equality of status and opportunities; equality before the law; and fundamental freedoms.
Minorities, backward and tribal areas, depressed and other backward classes shall be provided adequate safeguards.
The territorial integrity of the Republic and its sovereign rights on land, sea, and air shall be maintained according to justice and law of civilized nations.
The land would make full and willing contribution to the promotion of world peace and welfare of mankind.
Institutional Arrangements
The government must be democratic and committed to the welfare of the people.
The Constituent Assembly spent a lot of time on evolving the right balance among the various institutions.
This led to the adoption of the parliamentary form and the federal arrangement.
The framers of the Constitution were not averse to borrowing from other constitutional traditions.
Each provision of the Constitution had to be defended on grounds that it was suited to Indian problems and aspirations.
Provisions Adapted from Constitutions of Different Countries
British Constitution
First Past the Post
Parliamentary Form of Government
The idea of the rule of law
Institution of the Speaker and her/his role
Law-making procedure
United States Constitution
Charter of Fundamental Rights
Power of Judicial Review and independence of the judiciary
Irish Constitution
Directive Principles of State Policy
French Constitution
Principles of Liberty, Equality, and Fraternity
Canadian Constitution
A quasi-federal form of government
The idea of Residual Powers
Conclusion
The makers of the Constitution presented a document that enshrined fundamental values and highest aspirations shared by the people.
India’s Constitution is a unique document which in turn became an exemplar for many other constitutions, most notably South Africa.
The main purpose was to strike the right balance so that institutions would be able to accommodate the aspirations of the people of India for a long time to come.