Chapter 1: Constitution: Why and How? - Prashanth Ellinancertbooks.prashanthellina.com/class_11.PoliticalScience.India... · would not know what members of this group could do to

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Chapter 1: Constitution: Why and How?

Chapter One

CONSTITUTION:WHY AND HOW?

INTRODUCTION

This book is about the working of the Indian Constitution. In the chapters thatfollow, you will read information about various aspects of the working of ourConstitution. You will learn about the various institutions of the government inour country and their relationship with each other.

But before you begin to read about elections, governments, and presidentsand prime ministers, it is necessary to understand that the entire structure of thegovernment and the various principles that bind the institutions of governmenthave their origin in the Constitution of India.

After studying this chapter, you will learn:what a constitution means;what a constitution does to the society;how constitutions govern the allocation of power in society; andwhat was the way in which the Constitution of India was made.

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Indian Constitution at Work

WHY DO WE NEED A CONSTITUTION?What is a constitution? What are its functions? What role does itperform for a society? How does a constitution relate to our dailyexistence? Answering these questions is not as difficult as you mightthink.

Constitution allows coordination andassuranceImagine yourself to be a member of areasonably large group. Further imagine thatthis group has the following characteristics.The members of this group are diverse invarious ways. They have different religiousallegiances: some are Hindus, some areMuslims, some Christians and some perhapsprofess no religion at all. They are also varied

in many different respects: theypursue different professions, havedifferent abilities, have differenthobbies, different tastes ineverything from films to books.Some are rich and some are poor.Some are old, some young.Imagine further that members ofthis group are likely to have disputes over various aspectsof life: How much property should one be allowed to own?Should it be compulsory that every child be sent to schoolor should the parents be allowed to decide? How muchshould this group spend on its safety and security? Orshould it build more parks instead? Should the group beallowed to discriminate against some of its members?Every question will elicit a variety of answers from differentpeople. But, for all their diversity, this group has to live

together. They are dependent upon each other in various ways. Theyrequire the cooperation of each other. What will enable the group tolive together peacefully?

Yes, this could be myYes, this could be myYes, this could be myYes, this could be myYes, this could be mycolony as well! Does thiscolony as well! Does thiscolony as well! Does thiscolony as well! Does thiscolony as well! Does thisapply to your village orapply to your village orapply to your village orapply to your village orapply to your village ortown or colony too?town or colony too?town or colony too?town or colony too?town or colony too?

This group is very muchThis group is very muchThis group is very muchThis group is very muchThis group is very muchlike the people of mylike the people of mylike the people of mylike the people of mylike the people of myvillage.village.village.village.village.

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One may say that perhaps members of this group can live togetherif they can agree on some basic rules. Why will the group need certainbasic rules? Think of what would happen in the absence of somebasic rules. Every individual would be insecure simply because theywould not know what members of this group could do to each other,who could claim rights over what. Any group will need some basicrules that are publicly promulgated and known to all members ofthat group to achieve a minimal degree of coordination. But theserules must not only be known, they must also be enforceable. Ifcitizens have no assurance that others will follow these rules, theywill themselves have no reason to follow these rules. Saying that therules are legally enforceable gives an assurance to everybody thatothers will follow these, for if they do not do so, they will be punished.

The first function of a constitution is to provide a set ofbasic rules that allow for minimal coordination amongstmembers of a society.

ActivityEnact the thought experiment of this section in theclassroom. The entire class should discuss and arriveat some decisions that would apply to everyone forthis entire session. The decision could be about:

How would the class representatives be chosen?Which decisions will the representative be able totake on behalf of the entire class?Are there some decisions that the classrepresentative cannot take without consulting theentire class?You can add any other items to this list (collectionof common kitty for the class, organisation of picnicand trips, sharing of common resources, …) as longas everyone agrees to it. Make sure that youinclude those subjects that have led to anydifferences in the past.How to revise these decisions in case youneed to?

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Write down all these decisions on a paper and putit up on the notice board. Which problems did youencounter in this decision? Were there differencesamong different students? How did you resolvethese differences? Did the entire class gainsomething from this exercise?

Specification of decision making powersA constitution is a body of fundamental principles according to whicha state is constituted or governed. But what should thesefundamental rules be? And what makes them fundamental? Well,the first question you will have to decide is who gets to decide whatthe laws governing the society should be? You may want rule X, butothers may want rule Y. How do we decide whose rules or preferencesshould govern us? You may think the rules you want everyone tolive by are the best; but others think that their rules are the best.How do we resolve this dispute? So even before you decide whatrules should govern this group you have to decide: Who gets todecide?

The constitution has to provide an answer to this question. Itspecifies the basic allocation of power in a society. It decides whogets to decide what the laws will be. In principle, this question, whogets to decide, can be answered in many ways: in a monarchicalconstitution, a monarch decides; in some constitutions like the oldSoviet Union, one single party was given the power to decide. But indemocratic constitutions, broadly speaking, the people get to decide.But this matter is not so simple. Because even if you answer that thepeople should decide, it will not answer the question: how shouldthe people decide? For something to be law, should everyone agreeto it? Should the people directly vote on each matter as the ancientGreeks did? Or should the people express their preferences by electingrepresentatives? But if the people act through their representatives,how should these representatives be elected? How many should therebe?

In the Indian Constitution for example, it is specified that in mostinstances, Parliament gets to decide laws and policies, and thatParliament itself be organised in a particular manner. Beforeidentifying what the law in any given society is, you have to identify

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who has the authority to enact it. If Parliament has the authority toenact laws, there must be a law that bestows this authority onParliament in the firstplace. This is the functionof the constitution. It is anauthority that constitutesgovernment in the firstplace.

The second functionof a constitution is tospecify who has thepower to makedecisions in a society.It decides how thegovernment will beconstituted.

Limitations on thepowers of governmentBut this is clearly notenough. Suppose youdecided who had theauthority to makedecisions. But then thisauthority passed laws thatyou thought were patentlyunfair. It prohibited youfrom practising yourreligion for instance. Or itenjoined that clothes of acertain colour wereprohibited, or that youwere not free to sing certain songs or that people who belonged to aparticular group (caste or religion) would always have to serve othersand would not be allowed to retain any property. Or that governmentcould arbitrarily arrest someone, or that only people of a certain skincolour would be allowed to draw water from wells. You would obviouslythink these laws were unjust and unfair. And even though they werepassed by a government that had come into existence based

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Countries of the European Union tried to create aEuropean constitution. The attempt failed. Here is acartoonist’s impression of this attempt. Does thisalways happen in any constitution making?

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on certain procedures there would be somethingobviously unjust about that government enacting theselaws.

So the third function of a constitution is to setsome limits on what a government can impose onits citizens. These limits are fundamental in thesense that government may never trespass them.

Constitutions limit the power of government in manyways. The most common way of limiting the power ofgovernment is to specify certain fundamental rights thatall of us possess as citizens and which no governmentcan ever be allowed to violate. The exact content andinterpretation of these rights varies from constitution toconstitution. But most constitutions will protect a basiccluster of rights. Citizens will be protected from beingarrested arbitrarily and for no reason. This is one basiclimitation upon the power of government. Citizens willnormally have the right to some basic liberties: to freedomof speech, freedom of conscience, freedom of association,freedom to conduct a trade or business etc. In practice,these rights can be limited during times of nationalemergency and the constitution specifies thecircumstances under which these rights may bewithdrawn.

Aspirations and goals of a societyMost of the older constitutions limited themselves largelyto allocating decision-making power and setting somelimits to government power. But many twentieth centuryconstitutions, of which the Indian Constitution is thefinest example, also provide an enabling framework forthe government to do certain positive things, to expressthe aspirations and goals of society. The IndianConstitution was particularly innovative in this respect.Societies with deep entrenched inequalities of variouskinds, will not only have to set limits on the power ofgovernment, they will also have to enable and empowerthe government to take positive measures to overcomeforms of inequality or deprivation.

Ah! So you first create aAh! So you first create aAh! So you first create aAh! So you first create aAh! So you first create amonster and then startmonster and then startmonster and then startmonster and then startmonster and then startworrying about savingworrying about savingworrying about savingworrying about savingworrying about savingyourself from it! I wouldyourself from it! I wouldyourself from it! I wouldyourself from it! I wouldyourself from it! I wouldsay, why create thissay, why create thissay, why create thissay, why create thissay, why create thismonster called governmentmonster called governmentmonster called governmentmonster called governmentmonster called governmentin the first place?in the first place?in the first place?in the first place?in the first place?

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For example, India aspires to be a society that is free of castediscrimination. If this is our society’s aspiration, the government willhave to be enabled or empowered to take all the necessary steps toachieve this goal. In a country like South Africa, which had a deephistory of racial discrimination, its new constitution had to enablethe government to end racial discrimination. More positively, a

constitution may enshrine the aspirations of a society. The framersof the Indian Constitution, for example, thought that eachindividual in society should have all that is necessary for them tolead a life of minimal dignity and social self-respect — minimummaterial well being, education etc. The Indian Constitutionenables the government to take positive welfare measuressome of which are legally enforceable. As we go on studyingthe Indian Constitution, we shall find that such enabling

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The constitution makers have to address themselves to verydifferent aspirations. Here is Nehru trying to balance betweendifferent visions and ideologies. Can you identify what thesedifferent groups stand for? Who do you think prevailed in thisbalancing act?

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provisions have the support of the Preamble to ourConstitution, and these provisions are found in the sectionon Fundamental Rights. The Directive Principles of Stateof Policy also enjoin government to fulfil certainaspirations of the people.

The fourth function of a constitution is to enablethe government to fulfil the aspirations of a societyand create conditions for a just society.

Enabling provisions of the Constitution

Constitutions are not only rules and regulationscontrolling the powers of the government. Theyalso give powers to the government for pursuingcollective good of the society.

Constitution of South Africa assigns manyresponsibilities to the government: it wantsthe government to take measures to promoteconservation of nature, make efforts to protectpersons or groups subjected to unfairdiscrimination, and provides that thegovernment must progressively ensureadequate housing to all, health care, etc.In the case of Indonesia also, the governmentis enjoined to establish and conduct nationaleducation system. The Indonesian Constitutionensures that the poor and destitute childrenwill be looked after by the government.

Fundamental identity of a peopleFinally, and perhaps even most importantly, aconstitution expresses the fundamental identity of apeople.

This means the people as a collective entity comeinto being only through the basic constitution. It isby agreeing to a basic set of norms about how oneshould be governed, and who should be governed thatone forms a collective identity. One has many setsof identities that exist prior to a constitution. But by

What does it take toWhat does it take toWhat does it take toWhat does it take toWhat does it take towrite nice things in thewrite nice things in thewrite nice things in thewrite nice things in thewrite nice things in theconstitution? What is theconstitution? What is theconstitution? What is theconstitution? What is theconstitution? What is thepoint in writing downpoint in writing downpoint in writing downpoint in writing downpoint in writing downlofty aspirations andlofty aspirations andlofty aspirations andlofty aspirations andlofty aspirations andgoals if they cannot changegoals if they cannot changegoals if they cannot changegoals if they cannot changegoals if they cannot changethe life of the people?the life of the people?the life of the people?the life of the people?the life of the people?

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agreeing to certain basic norms and principles one constitutes one’sbasic political identity. Second, constitutional norms are the overarchingframework within which one pursues individual aspirations, goals andfreedoms. The constitution sets authoritative constraints upon what onemay or may not do. It defines the fundamental values that we may nottrespass. So the constitution also gives one a moral identity. Third andfinally, it may be the case that many basic political and moral values arenow shared across different constitutional traditions.

If one looks at constitutions around the world, they differ in manyrespects — in the form of government they enjoin in many proceduraldetails. But they also share agood deal. Most modernconstitutions create a form ofgovernment that is democraticin some respects, most claimto protect certain basic rights.But constitutions are differentin the way they embodyconceptions of naturalidentity. Most nations are anamalgamation of a complexset of historical traditions;they weave together thediverse groups that residewithin the nation in differentways. For example, Germanidentity was constituted bybeing ethnically German.The constitution gaveexpression to this identity.The Indian Constitution, onthe other hand, does notmake ethnic identity acriterion for citizenship.Different nations embodydifferent conceptions ofwhat the relationship

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The writing of the new Iraqi constitution afterthe collapse of Saddam Hussain’s regime sawa lot of conflict between different ethnicgroups in the country. What do thesedifferent people stand for? Compare theconflict depicted here with that depicted inearlier cartoons for the European Union andIndia.

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between the different regions of a nation and the central governmentshould be. This relationship constitutes the national identity of acountry.

Check your progressHere are some provisions of the Indian and other constitutions.For each of these write the function that this provisionperforms.

The government cannot Limitations on theorder any citizen to follow power of theor not to follow any religion government

The government must tryto reduce inequalitiesin income and wealth

The President has thepower to appointthe Prime Minister

The Constitution is thesupreme law that everyonehas to obey

Indian citizenship is notlimited to people ofany race, caste or religion

THE AUTHORITY OF A CONSTITUTION

We have outlined some of the functions a constitution performs. Thesefunctions explain why most societies have a constitution. But thereare three further questions we can ask about constitutions:

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a) What is a constitution?b) How effective is a constitution?c) Is a constitution just?In most countries, ‘Constitution’ is a compact

document that comprises a number of articles about thestate, specifying how the state is to be constituted andwhat norms it should follow. When we ask for theconstitution of a country we are usually referring to thisdocument. But some countries, the United Kingdom forinstance, do not have one single document that can becalled the Constitution. Rather they have a series ofdocuments and decisions that, taken collectively, arereferred to as the constitution. So, we can say thatconstitution is the document or set of documents thatseeks to perform the functions that we mentioned above.

But many constitutions around the world exist onlyon paper; they are mere words existing on a parchment.The crucial question is: how effective is a constitution?What makes it effective? What ensures that it has a realimpact on the lives of people? Making a constitutioneffective depends upon many factors.

Mode of promulgationThis refers to how a constitution comes into being. Whocrafted the constitution and how much authority did theyhave? In many countries constitutions remain defunctbecause they are crafted by military leaders or leaderswho are not popular and do not have the ability to carrythe people with them. The most successful constitutions,like India, South Africa and the United States, areconstitutions which were created in the aftermath ofpopular national movements. Although India’sConstitution was formally created by a ConstituentAssembly between December 1946 and November1949, it drew upon a long history of the nationalistmovement that had a remarkable ability to take alongdifferent sections of Indian society together. TheConstitution drew enormous legitimacy from the

What do people do if theyWhat do people do if theyWhat do people do if theyWhat do people do if theyWhat do people do if theyfind out that theirfind out that theirfind out that theirfind out that theirfind out that theirconstitution is not just?constitution is not just?constitution is not just?constitution is not just?constitution is not just?What happens to peopleWhat happens to peopleWhat happens to peopleWhat happens to peopleWhat happens to peoplewhen a constitution existswhen a constitution existswhen a constitution existswhen a constitution existswhen a constitution existsonly on paper?only on paper?only on paper?only on paper?only on paper?

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fact that it was drawn up by peoplewho enjoyed immense publiccredibility, who had the capacityto negotiate and command therespect of a wide cross-section ofsociety, and who were able toconvince the people that theconstitution was not an instrumentfor the aggrandisement of theirpersonal power. The finaldocument reflected the broadnational consensus at the time.

Some countries have subjectedtheir constitution to a full-fledgedreferendum, where all the peoplevote on the desirability of aconstitution. The IndianConstitution was never subject tosuch a referendum, butnevertheless carried enormouspublic authority, because it hadthe consensus and backing ofleaders who were themselvespopular. Although theConstitution itself was notsubjected to a referendum, thepeople adopted it as their own byabiding by its provisions.Therefore, the authority of peoplewho enact the constitution helpsdetermine in part its prospects forsuccess.

The substantive provisions of aconstitutionIt is the hallmark of a successfulconstitution that it gives everyonein society some reason to go alongwith its provisions. A constitution

Debate over Constitutionmaking in Nepal:Making a constitution is not alwaysan easy and smooth affair. Nepalis an example of the complicatednature of constitution making.Since 1948, Nepal has had fiveconstitutions, in 1948, 1951, 1959,1962 and 1990. But all theseconstitutions were ‘granted’ by theKing of Nepal. The 1990constitution introduced a multi-party competition, though the Kingcontinued to hold final powers inmany respects. For the last tenyears Nepal was faced with militantpolitical agitations for restructuringthe government of the country. Themain issue was the role of themonarchy in the constitution ofNepal. Some groups in Nepalwanted to abolish the institution ofmonarchy and establishrepublican form of government inNepal. Others believed that it maybe useful to shift to limitedmonarchy with a reduced role forthe King. The King himself was notready to give up powers. He tookover all powers in October 2002.

Many political parties andorganisations were demanding theformation of a new constituentassembly. The Communist Party ofNepal (Maoist) was in the forefrontof the struggle for a popularlyelected constituent assembly.Finally, under pressure of popularagitation, the King had to instal agovernment acceptable to theagitating parties. This governmenthas stripped the King of almost allpowers. Now, all the parties aretrying to decide the manner inwhich a constituent assembly willbe formed.

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that, for instance, allowed permanent majorities to oppress minoritygroups within society would give minorities no reason to go alongwith the provision of the constitution. Or a constitution thatsystematically privileged some members at the expense of others, orthat systematically entrenched the power of small groups in society,would cease to command allegiance. If any group feels their identityis being stifled, they will have no reason to abide by the constitution.No constitution by itself achieves perfect justice. But it has to convincepeople that it provides the framework for pursuing basic justice.

Do this thought experiment. Ask yourself this question: Whatwould be the content of some basic rules in society, such that theygave everyone a reason to go along with them?

The more a constitution preserves the freedom and equality ofall its members, the more likely it is to succeed. Does the IndianConstitution, broadly speaking, give everyone a reason to go alongwith its broad outlines? After studying this book, one should beable to answer this question in the affirmative.

Balanced institutional designConstitutions are often subverted, not by the people, but by smallgroups, who wish to enhance their own power. Well craftedconstitutions fragment power in society intelligently so that no singlegroup can subvert the constitution. One way of such intelligentdesigning of a constitution is to ensure that no single institutionacquires monopoly of power. This is often done by fragmenting poweracross different institutions. The Indian Constitution, for example,horizontally fragments power across different institutions like theLegislature, Executive and the Judiciary and even independentstatutory bodies like the Election Commission. This ensures thateven if one institution wants to subvert the Constitution, others cancheck its transgressions. An intelligent system of checks andbalances has facilitated the success of the Indian Constitution.

Another important aspect of intelligent institutional design is:that a constitution must strike the right balance between certainvalues, norms and procedures as authoritative, and at the sametime allow enough flexibility in its operations to adapt to changingneeds and circumstances. Too rigid a constitution is likely to breakunder the weight of change; a constitution that is, on the other

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hand, too flexible, will give no security,predictability or identity to a people.Successful constitutions strike the rightbalance between preserving core values andadapting them to new circumstances. Youwill notice the wisdom of makers of theIndian Constitution in the chapter on theConstitution as a living document (Chapter9). The Indian Constitution is described as‘a living’ document. By striking a balancebetween the possibility to change theprovisions and the limits on such changes,the Constitution has ensured that it willsurvive as a document respected by people.This arrangement also ensures that nosection or group can, on its own, subvertthe Constitution.

Therefore in determining whether aconstitution has authority you can askyourself three questions:

Were the people who enacted theconstitution credible? This questionwill be answered in the remaining partof this chapter.Secondly, did the constitution ensure

that power was intelligently organised so that it was not easy forany group to subvert the constitution? And, most importantly,does the constitution give everyone some reason to go along withit? Most of this book is about this question.Also, is the constitution the locus of people’s hopes andaspiration? The ability of the constitution to command voluntaryallegiance of the people depends to a certain extent upon whetherthe constitution is just. What are the principles of justiceunderlying the Indian Constitution? The last chapter of this bookwill answer this question.

How was the Indian Constitution made?Let us find out how the Indian Constitution was made. Formally, theConstitution was made by the Constituent Assembly which had beenelected for undivided India. It held its first sitting on

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Why does the cartoonist describethe new Iraqi Constitution as thecastle of cards? Would thisdescription apply to the IndianConstitution?

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9 December1946 and re-assembled as Constituent Assembly fordivided India on 14 August 1947. Its members were elected byindirect election by the members of the Provisional LegislativeAssemblies that had been established in 1935. The ConstituentAssembly was composed roughly along the lines suggested by theplan proposed by the committee of the British cabinet, known as theCabinet Mission. According to this plan:

Each Province and each Princely State or group of States wereallotted seats proportional to their respective population roughlyin the ratio of 1:10,00,000. As a result the Provinces (that wereunder direct British rule) were to elect 292 members while thePrincely States were allotted a minimum of 93 seats.The seats in each Province were distributed among the three maincommunities, Muslims, Sikhs and general, in proportion to theirrespective populations.Members of each community in the Provisional LegislativeAssembly elected their own representatives by the method ofproportional representation with single transferable vote.The method of selection in the case of representatives of PrincelyStates was to be determined by consultation.

An article of faithMuch before the ConstituentAssembly finally came into being, thedemand for such an assembly hadalready been made. This was echoedby Dr. Rajendra Prasad in his firstaddress as the Chairman of theConstituent Assembly of India on 9December 1946. Rajendra Prasadquotes Mahatma Gandhi that swarajwould mean wishes of the people asexpressed through their freelychosen representatives. He said “………..the idea of a ConstituentAssembly had come to prevail largelyas an article of faith in almost all thepolitically-minded classes in thecountry.”

Rajendra PrasadCAD, Vol. I, p.6

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The previous section discusses the three factors thatmake a constitution effective and respectable. How fardoes the Indian Constitution pass this test?

Composition of the Constituent AssemblyAs a consequence of the Partition under the plan of 3June 1947 those members who were elected fromterritories which fell under Pakistan ceased to bemembers of the Constituent Assembly. The numbers inthe Assembly were reduced to 299 of which 284 wereactually present on 26 November 1949 and appendedtheir signature to the Constitution as finally passed. TheConstitution was thus framed against the backdrop ofthe horrendous violence that the Partition unleashed onthe sub-continent. But it is a tribute to the fortitude ofthe framers that they were not only able to draft aconstitution under immense pressure, but also learnt theright lessons from the unimaginable violence thataccompanied Partition. The Constitution was committedto a new conception of citizenship, where not only wouldminorities be secure, but religious identity would haveno bearing on citizenship rights.

But this account of the composition of the ConstituentAssembly that drafted the Constitution touches upon onlythe surface of how our Constitution was made. Although,the members of the Assembly were not elected byuniversal suffrage, there was a serious attempt to makethe Assembly a representative body. Members of allreligions were given representation under the schemedescribed above; in addition, the Assembly had twenty-six members from what were then known as theScheduled Classes. In terms of political parties, theCongress dominated the Assembly occupying as manyas eighty-two per cent of the seats in the assembly afterthe Partition. The Congress itself was such a diverse partythat it managed to accommodate almost all shades ofopinion within it.

What would have happenedWhat would have happenedWhat would have happenedWhat would have happenedWhat would have happenedif the Constituent Assemblyif the Constituent Assemblyif the Constituent Assemblyif the Constituent Assemblyif the Constituent Assemblywas elected by all the peoplewas elected by all the peoplewas elected by all the peoplewas elected by all the peoplewas elected by all the peopleof India? Could it be veryof India? Could it be veryof India? Could it be veryof India? Could it be veryof India? Could it be verydifferent from what it was?different from what it was?different from what it was?different from what it was?different from what it was?

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The Principle of DeliberationThe authority of the Constituent Assembly does not come only fromthe fact that it was broadly, though not perfectly, representative. Itcomes from the procedures it adopted to frame the Constitution andthe values its members brought to their deliberations. While in anyassembly that claims to be representative, it is desirable that diversesections of society participate, it is equally important that theyparticipate not only as representatives of their own identity orcommunity. Each member deliberated upon the Constitution withthe interests of the whole nation in mind. There were oftendisagreements amongst members, but few of these disagreementscould be traced to members protecting their own interests.

There were legitimate differences of principle. And the differenceswere many: should India adopt a centralised or decentralised systemof government? What should be the relations between the States andthe centre? What should be the powers of the judiciary? Should theConstitution protect property rights? Almost every issue that lies atthe foundation of a modern state was discussed with greatsophistication. Only one provision of the Constitution was passedwithout virtually any debate: the introduction of universal suffrage(meaning that all citizens reaching a certain age, would be entitled tobe voters irrespective of religion, caste, education, gender or income).So, while the members felt no need at all to discuss the issue of whoshould have the right to vote, every other matter was seriouslydiscussed and debated. Nothing can be a better testament to thedemocratic commitment of this Assembly.

The Constitution drew its authority from the fact that membersof the Constituent Assembly engaged in what one might call publicreason. The members of the Assembly placed a great emphasis ondiscussion and reasoned argument. They did not simply advancetheir own interests, but gave principled reasons to other membersfor their positions. The very act of giving reasons to others makesyou move away from simply a narrow consideration of your owninterest because you have to give reasons to others to make them goalong with your view point. The voluminous debates in the

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Constituent Assembly, where each clause of the Constitution wassubjected to scrutiny and debate, is a tribute to public reason at itsbest. These debates deserved to be memorialised as one of the mostsignificant chapters in the history of constitution making, equal inimportance to the French and American revolutions.

ProceduresThe importance of public reasonwas emphasised in the mundaneprocedures of the Assembly as well.The Constituent Assembly hadeight major Committees on differentsubjects. Usually, JawaharlalNehru, Rajendra Prasad, SardarPatel, Maulana Azad or Ambedkarchaired these Committees. Thesewere not men who agreed with eachother on many things. Ambedkarhad been a bitter critic of theCongress and Gandhi, accusingthem of not doing enough for theupliftment of Scheduled Castes.Patel and Nehru disagreed on manyissues. Nevertheless, they allworked together. Each Committeeusually drafted particularprovisions of the Constitutionwhich were then subjected todebate by the entire Assembly.Usually an attempt was made toreach a consensus with the beliefthat provisions agreed to by all,would not be detrimental to anyparticular interests. Someprovisions were subject to the vote.But in each instance every singleargument, query or concern wasresponded to with great care and

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Cartoonist’s impression of the ‘snail’space’ with which the Constitution wasmade. Making of the Constitution tookalmost three years. Is the cartoonistcommenting on this fact? Why do youthink, did the Constituent Assemblytake so long to make the Constitution?

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in writing. The Assembly met for one hundred and sixtysix days, spread over two years and eleven months. Itssessions were open to the press and the public alike.

Inheritance of the nationalist movementBut no constitution is simply a product of the Assemblythat produces it. An Assembly as diverse as theConstituent Assembly of India could not have functionedif there was no background consensus on the mainprinciples the Constitution should enshrine. Theseprinciples were forged during the long struggle forfreedom. In a way, the Constituent Assembly was givingconcrete shape and form to the principles it had inheritedfrom the nationalist movement. For decades precedingthe promulgation of the Constitution, the nationalistmovement had debated many questions that wererelevant to the making of the constitution — the shapeand form of government India should have, the values itshould uphold, the inequalities it should overcome.Answers forged in those debates were given their finalform in the Constitution.

Perhaps the best summary of the principles that thenationalist movement brought to the ConstituentAssembly is the Objectives Resolution (the resolution thatdefined the aims of the Assembly) moved by Nehru in1946. This resolution encapsulated the aspirations andvalues behind the Constitution. What the previous sectionterms as substantive provisions of the constitution isinspired by and summed up by the values incorporatedin the Objectives Resolution. Based on this resolution,our Constitution gave institutional expression to thesefundamental commitments: equality, liberty, democracy,sovereignty and a cosmopolitan identity. Thus, ourConstitution is not merely a maze of rules and procedures,but a moral commitment to establish a government thatwill fulfil the many promises that the nationalist movementheld before the people.

What would haveWhat would haveWhat would haveWhat would haveWhat would havehappened if we gothappened if we gothappened if we gothappened if we gothappened if we gotindependence in 1937? Orindependence in 1937? Orindependence in 1937? Orindependence in 1937? Orindependence in 1937? Orif we had to wait tillif we had to wait tillif we had to wait tillif we had to wait tillif we had to wait till1957? Would our1957? Would our1957? Would our1957? Would our1957? Would ourConstitution be veryConstitution be veryConstitution be veryConstitution be veryConstitution be verydifferent from what it isdifferent from what it isdifferent from what it isdifferent from what it isdifferent from what it istoday?today?today?today?today?

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Main points of the Objectives Resolution

√ India is an independent, sovereign, republic;

√ India shall be a Union of erstwhile British Indianterritories, Indian States, and other parts outsideBritish India and Indian States as are willing to be apart of the Union;

√ Territories forming the Union shall be autonomousunits and exercise all powers and functions of theGovernment and administration, except those assignedto or vested in the Union;

√ All powers and authority of sovereign and independentIndia and its constitution shall flow from the people;

√ All people of India shall be guaranteed and securedsocial, economic and political justice; equality of statusand opportunities and equality before law; andfundamental freedoms - of speech, expression, belief,faith, worship, vocation, association and action -subject to law and public morality;

√ The minorities, backward and tribal areas, depressedand other backward classes shall be provided adequatesafeguards;

√ The territorial integrity of the Republic and its sovereignrights on land, sea and air shall be maintainedaccording 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 arrangementsThe third factor ensuring effectiveness of a constitution is a balancedarrangement of the institutions of government. The basic principle isthat government must be democratic and committed to the welfareof the people. The Constituent Assembly spent a lot of time onevolving the right balance among the various institutions like theexecutive, the legislature and the judiciary. This led to theadoption of the parliamentary form and the federal arrangement,which would distribute governmental powers between the

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legislature and the executive on the one hand andbetween the States and the central government on theother hand.

While evolving the most balanced governmentalarrangements, the makers of our Constitution did nothesitate to learn from experiments and experiences ofother countries. Thus, the framers of the Constitutionwere not averse to borrowing from other constitutionaltraditions. Indeed, it is a testament to their wide learningthat they could lay their hands upon any intellectualargument, or historical example that was necessary forfulfilling the task at hand. So they borrowed a number ofprovisions from different countries.

But borrowing these ideas was not slavish imitation.Far from it. Each provision of the Constitution had to bedefended on grounds that it was suited to Indianproblems and aspirations. India was extremely lucky tohave an Assembly that instead of being parochial in itsoutlook could take the best available everywhere in theworld and make it their own.

Was it a borrowedWas it a borrowedWas it a borrowedWas it a borrowedWas it a borrowedconstitutionconstitutionconstitutionconstitutionconstitution then? Why then? Why then? Why then? Why then? Whycould we not have acould we not have acould we not have acould we not have acould we not have aconstitution that doesconstitution that doesconstitution that doesconstitution that doesconstitution that doesnot borrow anything fromnot borrow anything fromnot borrow anything fromnot borrow anything fromnot borrow anything fromanywhere else?anywhere else?anywhere else?anywhere else?anywhere else?

“One likes to ask whether there canbe anything new in a constitutionframed at this hour in the history ofthe world… The only new thing, ifthere can be any, in a constitutionframed so late in the day are thevariations, made to remove thefailures and accommodate it to theneeds of the country.”

Dr. B.R. AmbedkarCAD, Vol. VII, p. 37

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Provisions borrowed fromconstitutions of differentcountries

British Constitution

First Past the Post

Parliamentary Form ofGovernment

The idea of the rule of law

Institution of the Speakerand his role

Lawmaking procedure

United StatesConstitution

Charter ofFundamentalRights,

Power of JudicialReview andindependence ofthe judiciary

IrishConstitution

DirectivePrinciples ofState Policy

FrenchConstitution

Principles ofLiberty, Equalityand Fraternity

CanadianConstitution

A quasi-federal formof government (afederal system with astrong centralgovernment)

The idea of ResidualPowers

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ConclusionIt is a tribute to the wisdom and foresight of the makers of theConstitution that they presented to the nation a document thatenshrined fundamental values and highest aspirations sharedby the people. This is one of the reasons why this most intricatelycrafted document has not only survived but become a livingreality, when so many other constitutions have perished withthe paper they were first written on.

India’s Constitution is a unique document which in turnbecame an exemplar for many other constitutions, most notablySouth Africa. The main purpose behind the long search thatwent on for almost three years was to strike the right balanceso that institutions created by the Constitution would not behaphazard or tentative arrangements but would be able toaccommodate the aspirations of the people of India for a longtime to come. You will know more about these arrangementsthrough the study of the remaining chapters in this book.

Exercises

1. Which of these is not a function of the constitution?a. It gives a guarantee of the rights of the citizen.b. It marks out different spheres of power for different branches of

government.c. It ensures that good people come to power.d. It gives expression to some shared values.

2. Which of the following is a good reason to conclude that theauthority of the constitution is higher than that of the parliament?a. The constitution was framed before the parliament came into

being.b. The constitution makers were more eminent leaders than the

members of the parliament.c. The constitution specifies how parliament is to be formed and

what are its powers.d. The constitution cannot be amended by the parliament.

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3. State whether the following statements about a constitution are Trueor False.a. Constitutions are written documents about formation and power

of the government.b. Constitutions exist and are required only in democratic

countries.c. Constitution is a legal document that does not deal with ideals

and values.d. A constitution gives its citizens a new identity.

4. State whether the following inferences about the making of the IndianConstitution are Correct or Incorrect. Give reasons to support youranswer.a. The Constituent Assembly did not represent the Indian people

since it was not elected by all citizens.b. Constitution making did not involve any major decision since

there was a general consensus among the leaders at that timeabout its basic framework.

c. There was little originality in the Constitution, for much of itwas borrowed from other countries.

5. Give two examples each to support the following conclusions aboutthe Indian Constitution:a. The Constitution was made by credible leaders who commanded

peoples’ respect.b. The Constitution has distributed power in such a way as to

make it difficult to subvert it.c. The Constitution is the locus of people’s hopes and aspirations.

6. Why is it necessary for a country to have a clear demarcation ofpowers and responsibilities in the constitution? What would happenin the absence of such a demarcation?

7. Why is it necessary for a constitution to place limitations on therulers? Can there be a constitution that gives no power at all to thecitizens?

8. The Japanese Constitution was made when the US occupation armywas still in control of Japan after its defeat in the Second WorldWar. The Japanese constitution could not have had any provisionthat the US government did not like. Do you see any problem in

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this way of making the constitution? In which way was the Indianexperience different from this?

9. Rajat asked his teacher this question: “ The constitution is a fiftyyear old and therefore outdated book. No one took my consent forimplementing it. It is written in such tough language that I cannotunderstand it. Tell me why should I obey this document?” If youwere the teacher, how would you answer Rajat?

10. In a discussion on the experience of the working of our Constitution,three speakers took three different positions:a. Harbans: The Indian Constitution has succeeded in giving us a

framework of democratic government.b. Neha: The Constitution made solemn promises of ensuring

liberty, equality and fraternity. Since this has not happened,the Constitution has failed.

c. Nazima: The Constitution has not failed us. We have failed theConstitution.Do you agree with any of these positions? If yes, why? If not,what is your own position?

Documents

Chapter 1: Constitution: Why and How? - Prashanth Ellinancertbooks.prashanthellina.com/class_11.PoliticalScience.India... · would not know what members of this group could do to