Constitution: Why and How?

Introduction to the Study of the Indian Constitution

• This text serves as a definitive guide to the working of the Indian Constitution, exploring government institutions and their interrelationships.

• Prior to examining specific components like elections, presidents, or prime ministers, one must recognize that the entire governmental structure and binding principles originate from the Constitution.

• Key learning objectives include:

  • The meaning of a constitution.

  • The functions a constitution performs for society.

  • How constitutions govern the allocation of power within society.

  • The historical process and methodology behind the creation of the Constitution of India.

The Requirement for a Constitution: Coordination and Assurance

• Imagine a large, diverse group with various characteristics:

  • Religious allegiances: Hindus, Muslims, Christians, and those with no religion.

  • Diverse professions, abilities, hobbies, and tastes (films to books).

  • Economic variability: Rich and poor.

  • Age variability: Old and young.

• This group face disputes over daily life aspects:

  • Quantitative limits on property ownership.

  • Compulsory education for children vs. parental choice.

  • Allocation of funds: Safety and security vs. public parks.

  • The legality of discrimination against specific members.

• Despite diversity, the group is interdependent and requires cooperation to live peacefully.

• First Function of a Constitution: To provide a set of basic rules that allow for minimal coordination amongst members of a society.

• Characteristics of these rules:

  • They must be publicly promulgated and known to all members.

  • They must be legally enforceable to provide assurance.

  • Without enforceability, citizens have no incentive to follow rules, as they cannot be certain others will do the same. Punishment for non-compliance provides this necessary assurance.

Specification of Decision-Making Powers

• Definition: A constitution is a body of fundamental principles according to which a state is constituted or governed.

• The constitution must determine who has the authority to decide the laws governing society.

• Resolving Rule Disputes: Various individuals may prefer different rules (Rule X vs. Rule Y). The constitution resolves this by specifying the basic allocation of power.

• Second Function of a Constitution: To specify who has the power to make decisions in a society. It decides how the government will be constituted.

• Methods of Decision-Making across different systems:

  • Monarchical Constitution: A monarch decides.

  • Single-Party Systems (e.g., Old Soviet Union): One party holds the power to decide.

  • Democratic Constitutions: Broadly speaking, the people decide.

• Complexity in Democracies: Even if "the people" decide, the constitution must define "how":

  • Direct voting on every matter (as seen in ancient Greece).

  • Electing representatives to express preferences.

  • Defining the number of representatives and the election process.

• In the Indian Constitution, it is specified that the Parliament generally gets to decide laws and policies, and it provides the specific organization of that Parliament.

• Authority Flow: Before a law exists, there must be a law that bestows the authority to enact that law upon an entity (like Parliament). The Constitution is that primary authority.

Limitations on the Powers of Government

• Identifying who makes decisions is insufficient if that authority passes patently unfair laws.

• Examples of Unjust Laws:

  • Prohibiting the practice of a specific religion.

  • Prohibiting clothes of a certain color.

  • Restricting the singing of certain songs.

  • Mandating that specific groups (based on caste or religion) must always serve others with no right to property.

  • Arbitrary arrest of individuals.

  • Restricting access to basic resources (like water from wells) based on skin color.

• Third Function of a Constitution: To set some limits on what a government can impose on its citizens. These limits are fundamental and may never be trespassed by the government.

• Common Methods of Limitation:

  • Specifying Fundamental Rights that all citizens possess and which no government may violate.

  • Protection from arbitrary arrest without reason.

  • Basic liberties: Freedom of speech, freedom of conscience, freedom of association, and freedom to conduct trade or business.

• Caveats: These rights can be limited during times of national emergency, with the constitution specifying the conditions for such withdrawals.

Aspirations and Goals of a Society

• Older constitutions focused primarily on power allocation and limitation. Twentieth-century constitutions, like India's, provide an enabling framework for positive government action to express societal goals.

• Innovation in the Indian Constitution: Enabling of power to overcome deep-seated inequalities or deprivations.

• The Indian Context: India aspires to be free of caste discrimination. The Constitution must empower the government to take steps to achieve this goal.

• The South African Context: The constitution enabled the government to end a deep history of racial discrimination.

• The Indonesian Context: The government is enjoined to establish a national education system and look after poor and destitute children.

• Fourth Function of a Constitution: To enable the government to fulfill the aspirations of a society and create conditions for a just society.

• Framework for Aspirations:

  • Includes the right to a life of minimal dignity and social self-respect (material well-being, education).

  • These provisions are supported by the Preamble.

  • They are found in the section on Fundamental Rights and the Directive Principles of State Policy, which enjoin the government to fulfill specific aspirations.

Fundamental Identity of a People

• A constitution expresses the fundamental identity of a people, creating a collective entity from fragmented prior identities.

• Three Strands of Identity:

  1. Political Identity: Formed by agreeing to basic norms about governance and who is governed.

  2. Moral Identity: The constitution sets authoritative constraints and defines fundamental values that may not be trespassed, defining what one may or may not do.

  3. National Identity: How a constitution embodies the conception of the nation.

• Differences in National Identity:

  • German Identity: Historically constituted by being ethnically German; the constitution expressed this.

  • Indian Identity: The Indian Constitution does not make ethnic identity a criterion for citizenship.

• National identity also involves the defined relationship between different regions of a nation and the central government.

The Authority and Effectiveness of a Constitution

• Three critical questions regarding any constitution:

  1. What is a constitution?

  2. How effective is it?

  3. Is it just?

• Effectiveness depends on the Mode of Promulgation:

  • Successful constitutions (India, South Africa, USA) often emerge following popular national movements.

  • Constitutions crafted by military leaders or unpopular figures often remain defunct.

  • Legitimacy stems from the people who draw up the document; in India, these were individuals with immense public credibility, capable of negotiation and commanding respect.

• Effectiveness depends on Substantive Provisions:

  • A constitution succeeds if it gives everyone in society a reason to go along with its provisions.

  • It must not allow permanent majorities to oppress minorities or privilege small groups.

  • It must preserve the freedom and equality of its members to ensure allegiance.

• Effectiveness depends on Balanced Institutional Design:

  • Power is fragmented horizontally across the Legislature, Executive, and Judiciary, including independent bodies like the Election Commission.

  • Checks and Balances: One institution can check the transgressions of another.

  • Flexibility vs. Rigidity: A "living document" strikes a balance between preserving core values and adapting to changing circumstances.

Case Study: Constitution Making in Nepal

• Nepal has had five constitutions since $1948$: $1948$, $1951$, $1959$, $1962$, and $1990$.

• Prior to $2008$, constitutions were "granted" by the King.

• The $1990$ constitution introduced multi-party competition, but the King retained final powers.

• In October $2002$, the King took over all powers. Militant agitations, led by groups like the Communist Party of Nepal (Maoist), demanded a popularly elected constituent assembly.

• In $2008$, Nepal abolished the monarchy and became a democratic republic.

• A new constitution was finally adopted in $2015$.

The Making of the Indian Constitution: Composition of the Constituent Assembly

• Formal Origin: The Constituent Assembly, elected for undivided India, held its first sitting on $9$ December $1946$.

• Post-Partition: Reassembled as the Constituent Assembly for divided India on $14$ August $1947$. Members from territories falling under Pakistan ceased to be members.

• Numerical Composition:

  • Total membership reduced to $299$ after Partition.

  • $284$ members were present on $24$ January $1950$ to sign the final document.

  • Proportion: Seats allotted roughly in the ratio of $1:10,00,000$ (one seat per million people).

  • Provinces (British rule) elected $292$ members.

  • Princely States were allotted a minimum of $93$ seats.

• Election Method:

  • Indirect election by members of the Provincial Legislative Assemblies (established under the Government of India Act, $1935$).

  • Seats in Provinces distributed among three communities: Muslims, Sikhs, and General.

  • Method: Proportional representation with single transferable vote.

  • Selection for Princely States determined by consultation.

• Diversity: Although dominated by the Congress ($82$% of seats post-partition), the Assembly included $28$ members from Scheduled Castes and diverse ideological shades within the Congress.

• Key Dates:

  • First Sitting: $9$ December $1946$.

  • Adoption: $26$ November $1949$.

  • Signing: $24$ January $1950$.

  • Enforcement: $26$ January $1950$.

The Principle of Deliberation and Procedures

• The Assembly's authority was derived from Public Reason and reasoned argument.

• Members deliberated with the interests of the whole nation in mind, rather than narrow identity-based interests.

• Universal Suffrage: The only provision passed without virtually any debate was the introduction of the right to vote for all citizens regardless of religion, caste, education, gender, or income.

• Sophisticated Debate Subjects: Centralization vs. decentralization, center-state relations, judicial powers, and property rights protection.

• Assembly Procedures:

  • Eight major Committees chaired by figures like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B.R. Ambedkar.

  • Ambedkar, a critic of Congress/Gandhi, was chosen to chair the Drafting Committee for his zeal and devotion.

  • Committees drafted provisions for debate by the entire Assembly. Attempted consensus; where not possible, a vote was taken.

  • Every argument/query was responded to in writing.

  • The Assembly met for $166$ days over a period of $2$ years and $11$ months.

The Inheritance of the Nationalist Movement

• The Constitution was not a blank slate but a culmination of debates from the freedom struggle.

• Objectives Resolution ($1946$): Moved by Nehru, defining the Assembly's aims and the values of the Constitution (equality, liberty, democracy, sovereignty).

• Main Points of the Objectives Resolution:

  • India is an independent, sovereign, republic.

  • India is a Union of British Indian territories, Indian States, and other willing parts.

  • Territories are autonomous units exercising powers except those assigned to the Union.

  • Power and authority flow from the people.

  • Guaranteed justice (social, economic, political), equality of status/opportunity, and fundamental freedoms (speech, belief, vocation, etc.).

  • Adequate safeguards for minorities, backward/tribal areas, depressed and other backward classes.

  • Maintenance of territorial integrity and sovereign rights according to civilized law.

  • Contribution to world peace and human welfare.

Institutional Arrangements and Borrowed Provisions

• The framers adopted a Parliamentary form and Federal arrangement to distribute power.

• The "Living Document" Concept: Dr. B.R. Ambedkar argued that while few things in a constitution can be entirely "new," variations were made to accommodate the specific needs of India.

• Provisions Borrowed and Adapted:

  • British Constitution: First Past the Post (FPTP), Parliamentary Form of Government, 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 (DPSP).

  • French Constitution: Principles of Liberty, Equality, and Fraternity.

  • Canadian Constitution: Quasi-federal form (strong central government), Idea of Residual Powers.

• Borrowing was not "slavish imitation"; every provision was defended based on its suitability to Indian problems.

Significant Philosophical Contributions

• Dr. B.R. Ambedkar on Social Democracy: Argued that political democracy cannot last without social democracy at its base. Social democracy recognizes the "Union of Trinity":

  • Liberty: Cannot be divorced from equality.

  • Equality: Without liberty, it kills individual initiative. Without equality, liberty produces supremacy of the few.

  • Fraternity: Without it, liberty and equality would not become a natural course of things.

Q&A and Discussion Topics

• Student Inquiry (Rajat's Question): Why obey a $50$-year-old document written in tough language without personal consent?

  • Response: The constitution represents an enduring framework for justice and rights that transcends individual generations, validated by its continued function and public allegiance.

• Working of the Constitution Positions:

  • Harbans: The Constitution succeeded in giving a democratic framework.

  • Neha: The Constitution failed because liberty, equality, and fraternity promises are unfulfilled.

  • Nazima: We (the people/government) have failed the Constitution, not the other way around.

• Discussion Points: Role of the US occupation in the Japanese Constitution vs. the independent making of the Indian Constitution; the necessity of clear power demarcation to prevent subversion.

This text is a guide to how the Indian Constitution works and its importance. It explains that all government institutions and rules come from the Constitution. Key points to understand include: - What a constitution is. - The roles a constitution plays in society. - How it distributes power among different groups. - The history behind creating the Indian Constitution.

Importance of a Constitution: Coordination and Assurance

• Imagine a diverse group of people with different religions, jobs, and ages. They have conflicts over issues like property ownership and education.

• Despite these differences, they must work together peacefully.

• First Function of a Constitution: It sets basic rules for coordination among society members.

• These rules must be known by everyone and legally enforced to ensure adherence.

Decision-Making Powers

• A constitution also defines who can make laws.

• Second Function of a Constitution: It specifies who decides laws in society, whether it's a monarch, a single party, or the people themselves.

Limitations on Government Powers

• It's crucial to prevent unfair laws from being passed.

• Third Function of a Constitution: It sets limits on what the government can do to its citizens, protecting fundamental rights like freedom of speech, provided conditions are met during emergencies.

Aspirations of Society

• Modern constitutions, including India's, also aim to achieve social goals and address inequalities.

• Fourth Function of a Constitution: It enables the government to pursue societal aspirations for a fair society, supported by the Preamble and Fundamental Rights.

Identity of a People

• A constitution represents the core identity of a nation, forming a united entity from diverse backgrounds. It covers political, moral, and national identities.

Effectiveness of a Constitution

• For a constitution to be successful, it must be widely accepted, effective, and just, with checks on power across different government branches.

Nepal's Constitution History

• Nepal has had several constitutions since 1948, evolving from monarchic powers to a democratic republic in 2008 with a new constitution adopted in 2015.

Making of the Indian Constitution

• The Constituent Assembly was formed in 1946, representing diverse communities. They aimed for equality, justice, and fundamental rights.

Key Concepts in Debate

• The Assembly emphasized universal suffrage and carefully debated various systemic issues, leading to a considered approach to governance.

Legacy of the Nationalist Movement

• The Constitution reflects the aims of the freedom struggle, guaranteeing rights and justice for all citizens.