Chapter 1: Constitution: Why and How?

Introduction to the Study of the Indian Constitution

• This comprehensive study guide focuses on the working of the Indian Constitution, exploring the various institutions of the government and their intricate relationships.
• Fundamental Premise: The entire structure of the government and the principles binding its institutions originate in the Constitution of India.
• Core Learning Objectives:
  • Understanding the definition of a constitution.
  • Identifying the functions a constitution performs for society.
  • Analyzing how constitutions govern the allocation of power.
  • Reviewing the historical process of how the Indian Constitution was drafted.

The Primal Need for a Constitution: Coordination and Assurance

• Function One: To provide a set of basic rules that allow for minimal coordination among members of a society.
• The Diversity Thought Experiment:
  • Imagine a large, diverse group with different religious allegiances (Hindus, Muslims, Christians, etc.), professions, abilities, hobbies, and economic statuses (rich and poor).
  • Potential for Dispute: Disagreements may arise over property ownership, compulsory education for children, budget allocation (security vs. parks), and discrimination.
  • Requirement for Cooperation: Despite diversity, the group is interdependent and requires cooperation to live peacefully.
• The Role of Basic Rules:
  • In the absence of rules, individuals are insecure, not knowing what rights others can claim or what actions they might take.
  • Rules must be publicly promulgated and known to all members.
  • Enforceability: Rules must be legally enforceable. If citizens lack assurance that others will follow the rules, they have no incentive to follow them themselves. The threat of punishment for non-compliance provides necessary assurance.

Specification of Decision-Making Powers

• Function Two: To specify who has the power to make decisions in a society and decide how the government will be constituted.
• Definition of a Constitution: A body of fundamental principles according to which a state is constituted or governed.
• Allocation of Power:
  • The constitution decides "who gets to decide" what the laws will be.
  • Monarchical Constitutions: A monarch decides.
  • Single-Party Constitutions (e.g., Old Soviet Union): One party holds the power.
  • Democratic Constitutions: Broadly, the people decide.
• Mechanisms of Choice in Democracies:
  • How do the people decide? Direct voting (Ancient Greek model) vs. electing representatives.
  • The Indian Model: The Constitution specifies that Parliament generally decides laws and policies and provides for the specific organization of Parliament.
• Legitimacy of Authority: For a law to be valid, the authority enacting it must be legally bestowed that power by the constitution.

Limitations on the Powers of Government

• Function Three: To set some limits on what a government can impose on its citizens; these limits are fundamental and must never be trespassed.
• The Problem of Unjust Laws: A government constituted by correct procedures might still pass unfair laws, such as:
  • Prohibiting the practice of a religion.
  • Restricting clothing color or specific songs.
  • Enforcing caste/religious servitude.
  • Arbitrary arrest or racial discrimination (e.g., banning specific skin colors from using public wells).
• Common Methods of Limitation:
  • Fundamental Rights: A cluster of rights protected by most constitutions that no government can violate.
  • Protection from arbitrary arrest.
  • Basic Liberties: Freedom of speech, freedom of conscience, freedom of association, and freedom to conduct trade or business.
• Exceptions: The constitution specifies circumstances (such as national emergencies) under which these rights may be temporarily withdrawn.

Aspirations and Goals of a Society

• Function Four: To enable the government to fulfill the aspirations of a society and create conditions for a just society.
• Evolution of Constitutions: While older constitutions focused on limiting power, 20th-century constitutions (with India as a prime example) provide enabling frameworks for positive government action.
• Addressing Inequality: In societies with deep entrenched inequalities (like India with caste discrimination or South Africa with racial discrimination), the constitution must empower the government to take positive measures.
• The Indian Context:
  • Individual Dignity: The framers believed individuals should have the necessary means for a life of minimal dignity, social self-respect, education, and material well-being.
  • Enabling Provisions: These are supported by the Preamble, the Fundamental Rights, and the Directive Principles of State Policy.
• International Examples:
  • South Africa: The government is tasked with nature conservation, protecting against unfair discrimination, and ensuring health care and housing.
  • Indonesia: The government is enjoined to establish a national education system and look after poor/destitute children.

Fundamental Identity of a People

• Expression of Identity: A constitution expresses the fundamental identity of a people as a collective entity.
• Political Identity: Formed by agreeing to basic norms about how and by whom one should be governed.
• Moral Identity: The constitution sets authoritative constraints and defines fundamental values that must not be trespassed.
• National Identity vs. Ethnic Identity:
  • Some nations base identity on ethnicity (e.g., German identity was historically constituted as being ethnically German).
  • The Indian Constitution does not make ethnic identity a criterion for citizenship.
  • National identity is also defined by the relationship between different regions and the central government.

The Authority and Effectiveness of a Constitution

• What constitutes a "Constitution"?
  • Usually, a compact document comprising articles about the state.
  • In the United Kingdom, no single document exists; rather, a series of documents and decisions collectively serve as the constitution.
• Factors for Effectiveness:
  1. Mode of Promulgation: How the constitution came into being. Constitutions crafted by unpopular military leaders or those without public credibility often remain defunct.
  2. Substantive Provisions: A successful constitution gives everyone a reason to go along with it. It must preserve freedom and equality and avoid privileging small groups or allowing permanent majorities to oppress minorities.
  3. Balanced Institutional Design: No single institution (Legislature, Executive, or Judiciary) should have a monopoly on power. The Indian Constitution uses a system of horizontal fragmentation and checks and balances.
• The Nepali Context (Case Study):
  • Nepal had five constitutions between 1948 and 1990 (1948, 1951, 1959, 1962, 1990), all granted by the King.
  • Conflict arose over the role of monarchy vs. republicanism.
  • In 2008, Nepal became a democratic republic, and a new constitution was finally adopted in 2015.

The Making of the Indian Constitution

• The Constituent Assembly: Formally made the Constitution for undivided India starting on December 9, 1946.
• Reassembly for Divided India: August 14, 1947.
• Method of Selection:
  • Indirect election by members of the Provincial Legislative Assemblies (under the Government of India Act, 1935).
  • The Cabinet Mission Plan Guidelines:
    • Proportions: Seats allotted in a ratio of $1:10,00,000$ (one seat per million people).
    • Composition: Provinces (British rule) elected 292 members; Princely States were allotted 93 seats.
    • Communities: Seats in Provinces divided among Muslims, Sikhs, and General based on population.
    • Voting: Proportional representation with a single transferable vote for Provincial legislators.
    • Princely States: Selection method determined by consultation.
• Post-Partition Composition:
  • Membership reduced to 299.
  • Adoption Date: November 26, 1949.
  • Final Signing: 284 members signed on January 24, 1950.
  • Date of Effect: January 26, 1950.

The Principle of Deliberation and Public Reason

• Source of Authority: Not just representation, but the procedure of public reason.
• Public Reason: Members provided principled reasons for their positions to the whole nation, rather than just protecting narrow interests.
• The Suffrage Exception: Universal suffrage (the right to vote for all citizens regardless of gender, caste, education, or income) was the only provision passed without debate.
• Sophisticated Debates: Covered centralized vs. decentralized government, center-state relations, judicial powers, and property rights.
• Committees of the Assembly: Eight major committees chaired by leaders like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, and B.R. Ambedkar.
• Consensus Building: Despite disagreements (e.g., Ambedkar’s criticism of Gandhi/Congress, Patel/Nehru disagreements), they worked together for nearly three years (166 days of sessions).

Inheritance of the Nationalist Movement and the Objectives Resolution

• Background Consensus: Principles were forged during the long struggle for freedom.
• Objectives Resolution (1946): Moved by Nehru; encapsulated the values of the constitution.
• Key Points of the Objectives Resolution:
  • India is an independent, sovereign, republic.
  • India shall be a Union of British Indian territories, Indian States, and willing external parts.
  • Territories remain autonomous units except for powers vested in the Union.
  • Power and authority flow from the people.
  • Guarantee of social, economic, and political justice; equality of status; and fundamental freedoms (speech, belief, vocation, etc.).
  • Safeguards for minorities, backward and tribal areas, and depressed classes.
  • Maintenance of territorial integrity and sovereign rights.
  • Contribution to world peace and human welfare.

Institutional Arrangements and Borrowed Provisions

• Core Principle: Government must be democratic and committed to welfare.
• Form of Government: Adoption of a parliamentary form and federal arrangement.
• The Wisdom of Borrowing: Framers learned from global experiences to suit Indian problems, not through "slavish imitation."
• Provisions from Other Constitutions:
  • British Constitution: First Past the Post; Parliamentary form; Rule of Law; Institution of the Speaker; Law-making procedure.
  • United States Constitution: Charter of Fundamental Rights; Power of Judicial Review; Independence of the Judiciary.
  • Irish Constitution: Directive Principles of State Policy.
  • French Constitution: Principles of Liberty, Equality, and Fraternity.
  • Canadian Constitution: Quasi-federal form (strong central government); Residual Powers.

Questions & Discussion

• Progress Check Question: Can the government order a citizen to follow a specific religion?
  • Response: No, the Constitution places limitations on the power of the government in this regard.
• Progress Check Question: What is the significance of the Constitution being the supreme law?
  • Response: It ensures that all governmental actions and other laws are held accountable to the foundational principles of the state.
• Reflective Exercise: Why obeys a document written fifty years ago in tough language?
  • Response: Because it provides the framework for democracy, protects individual rights, and its authority stems from a broad national consensus and the credibility of its framers, ensuring it remains a "living document."
• Discussion Positions on Constitutional Success:
  • Position A (Harbans): Success in providing a framework for democratic government.
  • Position B (Neha): Failure because promises of liberty, equality, and fraternity are unfulfilled.
  • Position C (Nazima): The Constitution has not failed; rather, the people/operators have failed the Constitution.