Constitution: Why and How

Class 11 Political Science

 Constitution: Why and How? 

– Detailed Notes

Introduction: The Blueprint of Governance

· This chapter is the foundation for understanding the working of the Indian Constitution.

· The entire structure of the Indian government—its institutions (like the Parliament, Prime Minister, President, and Judiciary) and the principles that bind them—has its origin in the Constitution of India.

· Before we can discuss elections, governments, and leaders, it is essential to understand what a constitution is and why we need one.

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Part I: Why Do We Need a Constitution? (The Four Key Functions)

A constitution is not just a document; it performs vital functions for any society. It answers fundamental questions about how a society should be governed and how people should live together.

1. Function 1: Allows Coordination and Assurance

· The Problem: Imagine a large, diverse group of people. They have different religions (Hindus, Muslims, Christians), different professions, different tastes, and different economic statuses. They will naturally have disputes on various issues like property ownership, child education, public spending on safety vs. parks, and discrimination.

· The Need for Basic Rules: For such a diverse group to live together peacefully and cooperatively, they need to agree on a set of basic rules. Without these rules, life would be insecure and chaotic, as no one would know what to expect from others.

· The Solution (Coordination): The first function of a constitution is to provide this set of basic rules that allow for minimal coordination amongst members of a society.

· The Solution (Assurance): It’s not enough to just have rules. People need to be assured that others will follow them. A constitution makes these rules legally enforceable, meaning if someone breaks them, they will be punished. This legal backing gives everyone the assurance to follow the rules themselves.

2. Function 2: Specifies Decision-Making Powers

· The Problem: A society must decide who has the authority to make the final decisions. You might want one rule (X), while someone else wants a different rule (Y).

· The Solution: The constitution’s second function is to specify who has the power to make decisions in a society. It decides how the government will be constituted.

· Examples of Decision-Making Power:

  · In a monarchy, the monarch decides.

  · In the old Soviet Union, a single party decided.

  · In a democracy, the people get to decide, usually through their representatives.

· Indian Context: The Indian Constitution specifies that, in most instances, Parliament gets to decide laws and policies. It also outlines how Parliament itself is to be organised. The constitution is the supreme law that bestows this authority on the government in the first place.

3. Function 3: Sets Limitations on Government Power

· The Problem: What if the government, even one formed by proper procedures, passes laws that are patently unfair? For example, a law that prohibits a specific religion, restricts what you can wear or sing, allows for arbitrary arrest, or discriminates based on caste or skin colour.

· The Solution: The third function of a constitution is to set fundamental limits on what the government can impose on its citizens. These are boundaries the government can never cross.

· How it's done: The most common way is to specify certain Fundamental Rights that all citizens possess. These rights protect citizens from the arbitrary use of power.

· Common Fundamental Rights:

  · Protection from arbitrary arrest.

  · Right to basic liberties: freedom of speech, conscience, association, and to conduct a trade or business.

· Note: These rights can be limited during a national emergency, and the constitution specifies the circumstances for this.

4. Function 4: Enables Aspirations and Goals of a Society

· The Evolution: Older constitutions mostly focused on limiting government power. However, 20th-century constitutions, like India's, go a step further.

· The New Function: They provide an enabling framework for the government to do positive things to achieve the aspirations and goals of society.

· Why is this needed? In societies with deep-rooted inequalities (like caste discrimination or historical racial discrimination), the government must be empowered to take positive measures to overcome them. It’s not enough to just say "don't discriminate"; the government needs the power to actively create a just society.

· Indian Context:

  · The framers believed every individual should have a life of minimal dignity, including material well-being and education.

  · The Constitution enables the government to take positive welfare measures.

  · These aspirations are supported by the Preamble, the section on Fundamental Rights, and are further enjoined in the Directive Principles of State Policy.

  · Example: To end caste discrimination, the government is empowered to take steps to achieve this goal.

5. Function 5: Expresses the Fundamental Identity of the People

· Creating a Collective Identity: A constitution does not just govern a pre-existing people. In a way, the people as a collective political entity come into being by agreeing to the constitution.

· Two Aspects of Identity:

  1. Political Identity: By agreeing to a set of basic norms and principles about how they should be governed, a people constitute their basic political identity.

  2. Moral Identity: The constitution sets authoritative constraints on what one may or may not do, thereby giving the people a moral identity.

· Constitutions and National Identity:

  · Constitutions differ in how they embody conceptions of national identity.

  · Example of Ethnic Identity: The German constitution (historically) gave expression to an identity that was based on being ethnically German.

  · Example of Civic Identity (India): The Indian Constitution, on the other hand, does not make ethnic identity a criterion for citizenship. It creates a civic identity where anyone can be an Indian citizen regardless of their ethnic or religious background.

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Part II: The Authority of a Constitution

Having a constitution is one thing, but making it effective and authoritative is another. A constitution’s authority depends on three key questions:

1. The Credibility of the Constitution-Makers

· A constitution is not just a document; its effectiveness depends on who made it.

· Popular Movements: The most successful constitutions (India, USA, South Africa) were created in the aftermath of popular national movements.

· India's Case: The Indian Constitution drew enormous legitimacy from the fact that it was drafted by the Constituent Assembly, whose members:

  · Enjoyed immense public credibility.

  · Had the capacity to negotiate and command respect from a wide cross-section of society.

  · Were seen as not seeking personal power.

· Although not subjected to a public referendum, the Indian Constitution carried public authority because it was backed by popular leaders like Nehru, Patel, and Ambedkar, and because the people chose to abide by it.

2. The Substantive Provisions (Is the Constitution Just?)

· For a constitution to be effective, it must give everyone in society a reason to go along with its provisions.

· A constitution that allows a permanent majority to oppress minorities would give the minorities no reason to accept it.

· The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.

3. Balanced Institutional Design

· Constitutions are often threatened not by the people, but by small groups seeking to enhance their own power.

· A well-crafted constitution fragments power so that no single group or institution can subvert it.

· Horizontal Fragmentation (India's Example): The Indian Constitution fragments power across different institutions:

  · Legislature (Makes laws)

  · Executive (Implements laws)

  · Judiciary (Interprets laws)

  · Independent Bodies (e.g., Election Commission)

· This creates a system of checks and balances, where each institution can check the transgressions of the others.

4. The Balance Between Rigidity and Flexibility

· A constitution must strike a balance:

  · Too rigid: It will break under the weight of social and political change.

  · Too flexible: It will provide no security, predictability, or a stable sense of identity.

· Successful constitutions preserve core values while adapting to new circumstances.

· The Indian Constitution is described as a 'living document' because it strikes this balance perfectly. It allows for amendments but places limits on them to ensure no single group can subvert its basic structure.

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Part III: How Was the Indian Constitution Made?

1. The Constituent Assembly: Composition and Election

· Formation: The Constitution was made by the Constituent Assembly. It first met on 9 December 1946 for undivided India and reassembled for divided India on 14 August 1947.

· Election: Its members were chosen by indirect election by the members of the Provincial Legislative Assemblies (established under the Government of India Act, 1935).

· The Cabinet Mission Plan: The composition was based on this plan:

  · Seats were allotted to Provinces and Princely States in proportion to their population (roughly 1 seat per 10,00,000 people).

  · Provinces (British India) were to elect 292 members, and Princely States were allotted 93 seats.

  · Seats in each province were distributed among three main communities—Muslims, Sikhs, and General—in proportion to their population.

· After Partition: Members from areas that fell under Pakistan ceased to be members. The Assembly's strength was reduced to 299.

· Final Adoption:

  · The Constitution was adopted on 26 November 1949.

  · 284 members signed it on 24 January 1950.

  · It came into force on 26 January 1950.

2. The Principle of Deliberation (Public Reason)

The true authority of the Constituent Assembly came not just from its composition but from its procedures and values.

· Representation: Although not elected by universal suffrage, it was broadly representative. It included members of all religions and 28 members from the Scheduled Castes. The Congress, which dominated the Assembly (82% of seats), was itself a diverse party accommodating many opinions.

· Public Reason: Members did not just represent their own community's interests. They deliberated with the interests of the whole nation in mind. They engaged in public reason, meaning they gave principled reasons for their positions rather than advancing narrow self-interests.

· Universal Suffrage: Remarkably, the provision for universal suffrage (the right of all adults to vote) was passed without virtually any debate, showing a fundamental consensus on this democratic principle.

· Process: The Assembly had eight major Committees. Each clause of the Constitution was subjected to detailed scrutiny and debate. The Assembly met for 166 days over nearly three years, and its sessions were open to the press and public.

3. Inheritance of the Nationalist Movement

· The Constitution was not created in a vacuum. It was the final, concrete form of principles forged during the long struggle for freedom.

· For decades, the nationalist movement debated the shape of government, the values to uphold, and the inequalities to overcome.

· The Objectives Resolution: Moved by Nehru in 1946, this resolution is the best summary of the principles inherited by the Assembly. It encapsulated the aspirations and values behind the Constitution.

· These principles were: equality, liberty, democracy, sovereignty, and a cosmopolitan identity. The Constitution is, therefore, a moral commitment to fulfil the promises of the nationalist movement.

4. Institutional Arrangements (Learning from Others)

· The Constituent Assembly spent a lot of time evolving the right balance among institutions, leading to the adoption of the parliamentary form of government and a federal arrangement.

· The makers did not hesitate to learn from the experiments and experiences of other countries. However, this was not slavish imitation.

· Adaptation to India: Every provision borrowed from another constitution was defended on the grounds that it was suited to Indian problems and aspirations. The goal was to create a constitution that was uniquely Indian.