CONSTITUTION : WHY AND HOW
What is the Constitution?
A constitution is a written set of laws and fundamental principles to develop a relationship between people and the government.
Why do we need constitution?
1. The Constitution provides a set of basic rules that need to be followed.
2. Specification of decision making powers and it limits the powers of the government.
3. To address the aspirations and goals of a society.
Functions of the constitution
The various functions of constitution are :
1. Allows coordination - It provides a set of basic rules that allows for minimal coordination among the members of a society.
2. Specification of decision making powers - The Constitution specifies the basic allocation of power in a society. It decides who gets to decide, what laws will be and who gets to decide these laws, like in the monarchical constitution, the monarch will decide. While in a democratic constitution, people get to decide i.e., people directly vote and elect their representatives, these elected representatives(parliament) who decide about the laws and policies.
3. Limitations on the powers of government -
(i). The Constitution limits the power of the government in many ways through fundamental rights like, Citizens will be protected from being arrested arbitrarily and for no reason (Article 22). This is one of the basic limitations on the power of government. The right to some basic liberties: to freedom of speech, freedom of conscience, freedom of association, freedom to conduct a trade or business (Article 19).
(ii). In practice, these rights can be limited during times of national emergency(Article 352) and the constitution specifies the circumstances under which these rights may be withdrawn.
4. Aspirations and goals of a society -
(i). Indian Constitution also provide an enabling framework for the government to do certain positive welfare measures like,
a). To overcome the forms of inequality or deprivation.
b). Free of caste discrimination.
c). To lead a life of minimal dignity and social self-respect.
(ii). Some of these welfare measures are enforceable. These provisions have the support of the preamble, fundamental rights and Directive principles of state policy (DPSPs).
5. Fundamental identity of the people -
(i). People as a collective entity come into being only through the basic constitution.
(ii). One has many set of identities that exist prior to a constitution.
(iii). But by agreeing to certain basic norms and principles one constitutes to Political Identity and Moral Identity.
(iv). Indian constitution doesn’t make ethnic identity a criteria for citizenship.
Authority of a Constitution
Constitution is the compact document that comprises a number of articles about the states, specifying how the state is to be constituted and what norms should it follow.
Mode of Promulgation
It means the act of making a law, formally putting into effect by a public order.
In many countries constitution remains defunct because they are crafted by the military leaders or the leaders who are not popular or do not have the ability to carry the people with them.
The most successful constitutions like India, South Africa and the United States, are constitutions which were created in the aftermath of popular national movements.
Some countries have subjected their constitution to a full-fledged referendum, where all the people vote on the desirability of a constitution. But the Indian Constitution was never subject to such a referendum, the people adopted it as their own by abiding by its provisions. Therefore, the authority of people who enact the constitution helps determine in part its prospects for success.
Substantive Provisions of a Constitution
1. No constitution by itself achieves perfect justice. But it has to convince people that it provides the framework for pursuing basic justice.
2. The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.
Balanced Institutional Design
1. The Constitution is to ensure that no single institution acquires monopoly of power.
2. Indian Constitution, horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary. This ensures that even if one institution wants to subvert the Constitution, others can check its transgressions. An intelligent system of ‘‘checks and balances’’ has facilitated the success of the Indian Constitution.
3. The Indian constitution is described as a ‘‘LIVING DOCUMENT’’ as it strikes the right balance between certain values, norms and procedures as authoritative, and at the same time allow enough flexibility in its operations to adapt to changing needs and circumstances.
Institutional Arrangements
1. The basic principle is that the government must be democratic and committed to the welfare of the people and the right balance between the institution of executive, legislature and the judiciary.
2. This led to the adoption of parliamentary form and the federal arrangements which would distribute government powers between executive and legislature and between the central and state government.
3. Framers of the constitution has borrowed the best available everywhere in the world and made it Indianized.
How was the Indian Constitution Made?
1. Formally, the Constitution was made by the Constituent Assembly which had been elected for undivided India.
2. It held its first sitting on 9 December1946 and re-assembled as a Constituent Assembly for divided India on 14 August 1947.
3. Its members were elected by indirect election by the members of the Provisional Legislative Assemblies that had been established in 1935.
4. The Constituent Assembly was composed roughly along the lines suggested by the plan proposed by the committee of the British cabinet, known as the Cabinet Mission.
According to this plan :
(i). Each Province and each Princely State or group of States were allotted seats proportional to their respective population. As a result the Provinces (British India) were to elect 292 members while the Princely States were allotted a minimum of 93 seats.
(ii). The seats in each Province were distributed among the three main communities, Muslims, Sikhs and general, in proportion to their respective populations.
(iii). Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representation with single transferable vote.
(iv). The method of selection in the case of representatives of princely states was to be determined by constitution.
Composition of the Constitution
1. As a consequence of the Partition those members who were elected from territories which fell under Pakistan ceased to be members of the Constituent Assembly. The numbers in the Assembly were reduced to 299 of which 284.
2. The Constitution was committed to a new conception of citizenship, where not only would minorities be secure, but religious identity would have no bearing on citizenship rights.
3. Although, the members of the Assembly were not elected by universal suffrage, but there was an attempt to make the Assembly a representative body. Members of all religions were given representation.
4. The assembly had 26 members from scheduled classes.
5. In terms of political parties, Congress dominated the assembly occupying 82% of the seats in the assembly after the partition.
Principle of Deliberation
1. The Constituent Assembly engaged in public reason and placed a great emphasis on discussion and reasoned argument.
2. Almost every issue that lies at the foundation of modern state was discussed with great sophistication except the INTRODUCTION OF UNIVERSAL SUFFRAGE.
Procedures
1. The importance of public reason was emphasized in the procedures of the assembly.
2. The constituent assembly had 8 major committees on different subjects, mostly chaired by Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad, or B R Ambedkar.
3. The Constituent Assembly spent 2 years 11 months and 18 days to prepare the constitution to be adopted on November 26, 1949 and came into force on 26 January,1950.
Inheritance of the National Movement
1. The constituent assembly was giving a concrete shape and form to the principles it had inherited from the national movement.
2. The principles that nationalist movement brought to the constituent assembly is the OBJECTIVE RESOLUTION.
Objective Resolution
1. The resolution that defines the aims of the assembly, moved by Nehru in 1946.
2. This resolution encloses the aspirations and values behind the constitution.
3. Based on this resolution, our constitution gave institutional expression to those fundamental commitments like, Equality, Democracy, Liberty, Sovereignty and a cosmopolitan identity.
4. Thus our Constitution is not a merely a maze of rules and procedures, but also a moral commitments to establish a government that will fulfill the many promises that the nationalist movement held before the people.
5. Main objectives of the Objective Resolution:
(i). India is an independent, sovereign, republic;
(ii). India shall be a union of erstwhile British Indian territories, Indian states and other parts outside British India and Indian states as are willing to be a part of the Union;
(iii). Territories forming the union shall be autonomous units and exercise all powers and functions of the government and administration, except those assigned to or vested in the union;
(iv). All powers and authority of sovereign and independent India and its constitution shall flow from the people;
(v). All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities and equality before law; and fundamental freedoms-speech, expression, belief, faith, worship, vocation, association, and action – subject to law and public morality;
(vi). The minorities, backward and tribal areas, depressed and other backward classes shall be provided adequate safeguards;
(vii). 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;
(viii). The land would make full and willing contribution to the promotion of world peace and welfare of mankind.
This resolution was unanimously adopted by assembly on January 22, 1947.It influenced the eventual shaping of the constitution through all its subsequent stages. The preamble is the modified version of it.
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