Chapter 2 Constitutional Design

The previous chapter established that in a democracy, rulers are not free to act arbitrarily. They, along with the citizens, must adhere to a set of fundamental rules. These collective rules form the constitution. As the supreme law of a country, a constitution defines the rights of citizens, the powers granted to the government, and outlines the proper functioning of the government.

This chapter delves into key questions about the constitutional design of a democratic state: Why is a constitution necessary? How are constitutions developed? Who is responsible for designing them and through what process? What core values underpin democratic constitutions? Can a constitution be modified over time to adapt to changing circumstances?

The recent creation of a democratic constitution in South Africa serves as a primary example to begin the chapter, exploring their process. Subsequently, the focus shifts to the making of the Indian Constitution, its founding principles, and how it provides a structure for governing both citizens and the state.

Democratic Constitution In South Africa

The chapter opens with a quote from Nelson Mandela during his trial for treason by the white South African government. In this quote, Mandela expresses his lifelong fight against both white and black domination and his commitment to a democratic, free, and harmonious society with equal opportunities for all. Despite his peaceful stance, Mandela and seven other leaders were sentenced to life imprisonment in 1964 for opposing the country's discriminatory regime, spending 27 years in the harsh Robben Island prison.

Struggle Against Apartheid

Apartheid was a unique system of racial discrimination enforced by the white European minority in South Africa. Originating from European trading companies' occupation in the 17th and 18th centuries, white settlers came to dominate and rule the local population, unlike in India where direct settlement and rule by Europeans were less extensive initially.

The apartheid system systematically divided the population based on skin colour:

• Blacks: Native Africans, constituting about three-fourths of the population.
• Whites: European settlers who held power.
• Coloured: People of mixed racial background.
• Indians: Migrants from India.

The white rulers treated all non-white groups as inferior, denying them basic rights, including voting rights. The system was particularly brutal towards blacks.

Segregation was a key feature, enforcing strict separation of races in all aspects of life:

• Non-whites were forbidden from living in white areas unless they had a special work permit.
• Public facilities like trains, buses, taxis, hotels, hospitals, schools, colleges, libraries, cinemas, beaches, swimming pools, and toilets had separate sections or facilities for whites and blacks.
• Even churches where whites worshipped were inaccessible to blacks.

Blacks were also denied the freedom to form associations or protest against this oppressive treatment. Despite thousands being detained, tortured, and killed by the white government, non-whites, including blacks, coloureds, and Indians, actively fought against apartheid from 1950 onwards through protests and strikes.

The African National Congress (ANC) served as the main organisation leading the struggle against segregation, encompassing various workers' unions and the Communist Party. Many empathetic whites also joined the anti-apartheid movement. While several countries condemned apartheid as unjust and racist, the white minority government continued its repressive rule.

Towards A New Constitution

As the anti-apartheid movement intensified, the white government realised that repression alone could no longer maintain their control over the black population. This recognition led to a shift in policy.

Discriminatory laws were repealed, bans on political parties were lifted, and restrictions on the media were removed. After 28 years, Nelson Mandela was released from prison.

Finally, on the night of April 26, 1994, South Africa unfurled its new national flag, marking the dawn of a multi-racial democracy and the end of the apartheid government.

Nelson Mandela, who became the first president of the new South Africa, described this extraordinary transition as a result of historical enemies being "prepared to accept the inherent capacity for goodness in the other." He expressed hope that South Africans would maintain faith in human goodness as a cornerstone of their democracy.

In a remarkable act of reconciliation, black leaders appealed to the black majority to forgive the white population for the past atrocities. The vision was to build a new South Africa founded on equality of all races and genders, democratic values, social justice, and human rights.

Representatives of the party that had enforced oppression and the party that led the freedom struggle sat together to draft a common constitution. After two years of extensive discussion and debate, they produced a constitution widely regarded as one of the finest globally. This constitution granted South African citizens some of the most comprehensive rights found in any country.

The process was guided by a commitment to inclusivity; no group was excluded from the solution-finding process, and past actions did not lead to demonization. The spirit of this transformative reconciliation and unity is captured in the Preamble to the South African Constitution.

The South African constitution is a source of inspiration for democrats worldwide, transforming a state previously known for extreme undemocracy into a model of democratic transition. This remarkable change was possible due to the determination of South Africans to unite, turning painful historical experiences into the foundation of a 'rainbow nation'. As Mandela stated, the constitution serves as both a solemn promise to avoid repeating the oppressive past and a charter for building a country truly shared by all its people, regardless of race or gender.

Why Do We Need A Constitution?

The South African experience provides valuable insights into the necessity and functions of a constitution. In their new democracy, former oppressors and the oppressed had to live together as equals, a situation where mutual trust was challenging. Both groups harboured fears and wanted to protect their respective interests – the black majority seeking guaranteed majority rule and socio-economic rights, and the white minority wanting to safeguard their privileges and property.

Through long negotiations, a compromise was reached: the whites accepted majority rule and one person, one vote, along with basic rights for the poor and workers. The blacks, in turn, agreed that majority rule would not be absolute and the white minority's property would not be confiscated. Implementing and maintaining this complex compromise required a mechanism to build and sustain trust.

The most effective way to ensure everyone abides by an agreement, especially between groups with historical antagonism, is to write down the rules of the game that everyone must follow. These rules define how future rulers will be chosen, what powers elected governments possess, what their limitations are, and what rights citizens hold. For these rules to be effective, they must be difficult for any ruling party or winner to change unilaterally.

This is precisely what the South Africans did: they agreed upon a set of fundamental rules and established them as supreme, meaning no government could disregard them. This collection of supreme basic rules is called a constitution.

The need for such basic rules is not unique to South Africa. Every country, regardless of whether it is democratic, has diverse populations with differing opinions and interests, requiring a set of rules to manage their coexistence. This principle extends beyond national governments to any association, such as clubs, cooperative societies, or political parties, all of which benefit from having a foundational set of rules or a 'constitution'.

Therefore, a country's constitution is a set of fundamental, written rules accepted by all who live there. It is the supreme law governing the relationships among citizens within a territory and between the citizens and the government.

A constitution serves multiple vital functions:

• Fosters Trust and Coordination: It creates a necessary level of trust and coordination among different kinds of people living together.
• Structures Government: It specifies how the government will be formed, detailing who holds which powers and decision-making authority.
• Limits Government Power: It sets boundaries on the government's power and defines the rights of citizens, protecting them from arbitrary actions.
• Expresses Aspirations: It embodies the collective aspirations of the people for the creation of a just and good society.

While all democratic countries have constitutions, not all countries with constitutions are democratic. However, it has become a standard practice for democracies, following examples like the USA (after the War of Independence) and France (after the Revolution), to adopt a written constitution.

Making Of The Indian Constitution

Like South Africa, the framing of the Indian Constitution took place under exceptionally challenging conditions. Designing a constitution for a vast and diverse country like India, where people were transitioning from colonial subjects to free citizens, was a complex undertaking.

The country was created through the trauma of Partition based on religious differences, leading to widespread violence and the deaths of hundreds of thousands on both sides of the new border. Another significant challenge was the integration of the princely states, whose rulers had been given the choice to join India, Pakistan, or remain independent, making the country's future uncertain at the time the constitution was being drafted.

The makers of the Indian Constitution had to contend with immediate anxieties and uncertainties about the present and future stability of the nation.

The Path To Constitution

Despite the difficulties, the Indian Constitution makers had a significant advantage: much of the necessary consensus regarding the structure and values of a democratic India had already developed during the extended freedom struggle. The national movement was not just about ending foreign rule but also about reforming and transforming Indian society and politics.

Although differing opinions existed on the exact path independent India should follow (and continue to exist today), certain fundamental ideas had gained broad acceptance over time.

• As early as 1928, Motilal Nehru and eight other Congress leaders drafted a constitution for India, outlining key features.
• In 1931, a resolution at the Karachi session of the Indian National Congress also detailed expectations for the constitution of independent India.

Both these documents were committed to principles like universal adult franchise, rights to freedom and equality, and the protection of minority rights. These core values were thus agreed upon by leaders well before the formal Constituent Assembly convened.

Familiarity with the political institutions established under colonial rule also facilitated agreement on institutional design. While the British had introduced limited, non-fully democratic legislatures based on restricted voting rights (e.g., elections in 1937 to Provincial Legislatures), the experience gained by Indians in operating these institutions proved valuable in setting up India's own governmental framework. Consequently, the Indian Constitution adopted several institutional details and procedures from colonial laws, such as the Government of India Act, 1935.

Years of prior thought and discussion on the constitutional framework also benefited the process by building leaders' confidence to learn from other countries without simply copying them. Many Indian leaders were inspired by:

• The ideals of the French Revolution (liberty, equality, fraternity).
• The practice of parliamentary democracy in Britain.
• The Bill of Rights in the US (protection of individual rights).
• The socialist revolution in Russia (inspiring thoughts on social and economic equality).

Each foreign concept was evaluated for its suitability to the Indian context, ensuring that the resulting constitution was a synthesis adapted to India's specific needs and values. These diverse influences collectively shaped the making of the Indian Constitution.

The Constituent Assembly

The task of drafting the Indian Constitution fell to an assembly of indirectly elected representatives known as the Constituent Assembly.

• Elections for the Constituent Assembly were held in July 1946.
• Its first meeting took place in December 1946.

Following the Partition into India and Pakistan, the Assembly was also divided. The Constituent Assembly responsible for the Indian constitution had 299 members.

The Assembly formally adopted the Constitution on November 26, 1949. It came into effect on January 26, 1950, a date celebrated annually as Republic Day.

Why should the Indian Constitution, framed over seven decades ago, still be accepted today? Several reasons contribute to its continued legitimacy:

• Broad Consensus: The Constitution does not merely reflect the views of its individual members; it embodies the broad consensus that existed at the time regarding the vision for independent India. Unlike constitutions in many countries that have had to be rewritten due to lack of acceptance by major groups, India's Constitution has maintained legitimacy.
• Representativeness: The Constituent Assembly was broadly representative of the Indian population, even without universal adult franchise at the time. Its members were elected by the existing Provincial Legislatures, ensuring representation from different geographical regions. Although dominated by the Indian National Congress, the Assembly included members from various political groups and ideologies. Socially, it represented diverse language groups, castes, classes, religions, and occupations, making it a truly inclusive body.
• Systematic Working: The Constituent Assembly operated in a highly systematic, transparent, and consensual manner.
  • Basic principles were decided upon first.
  • A Drafting Committee, chaired by Dr. B.R. Ambedkar, prepared a draft constitution.
  • The draft underwent several rounds of thorough discussion and debate, clause by clause.
  • Over two thousand amendments were considered.
  • The members deliberated for 114 days over three years.
  Crucially, every document presented and every word spoken during the Assembly's proceedings was recorded and preserved in the 'Constituent Assembly Debates'. These voluminous records provide the rationale behind each constitutional provision and are used to interpret the Constitution's meaning today.

Guiding Values Of The Indian Constitution

To understand the spirit and philosophy behind the Indian Constitution, it is helpful to examine the values that guided the freedom struggle and were enshrined in the document. This can be done by looking at the views of prominent leaders and, most importantly, by reading the Constitution's own statement of its foundational principles contained in the Preamble.

The Dream And The Promise

The vision for independent India held by its leaders significantly shaped the Constitution. Although Mahatma Gandhi was not a member of the Constituent Assembly, many members were inspired by his ideals. Writing in 'Young India' in 1931, Gandhi articulated his expectations for the Constitution:

• It should free India from all forms of subjugation and dependence.
• It should create an India where the poorest feel their voice is effective in shaping the nation.
• There should be no social hierarchy of high and low classes.
• All communities should live in perfect harmony.
• Social evils like untouchability and substance abuse (intoxicating drinks and drugs) should be eliminated.
• Women should have equal rights with men.

This commitment to eradicating inequality was shared by Dr. B.R. Ambedkar, despite his critical views of Gandhi's methods. In his concluding speech to the Constituent Assembly, Ambedkar highlighted the contradiction India would face on January 26, 1950:

• Political equality (one person, one vote, one value) would contrast sharply with social and economic inequality.
• He questioned how long this contradiction could persist without imperiling political democracy, urging for the achievement of social and economic equality.

Jawaharlal Nehru's famous 'Tryst with Destiny' speech to the Constituent Assembly on August 15, 1947, also reflected the profound aspirations for the new nation. He spoke of India awakening to life and freedom, stepping from the old to the new. He emphasised the responsibility that freedom brings – the service of the suffering millions, aiming to end poverty, ignorance, disease, and inequality of opportunity. He referenced the ambition of their generation's greatest figure (implicitly Gandhi) to "wipe every tear from every eye," acknowledging that their work would continue as long as suffering existed.

Philosophy Of The Constitution

The core values that inspired and were nurtured by India's freedom struggle form the philosophical bedrock of the Indian Constitution. These values are explicitly stated in the Preamble, serving as the introduction to the Constitution and guiding all its articles. Following the example of the American constitution, many modern constitutions begin with a preamble outlining their basic values.

The Preamble of the Indian Constitution is considered its soul, containing the philosophy upon which the entire document is built. It acts as a standard against which any law or government action can be examined to determine its validity and alignment with constitutional principles. Let's understand the key words in the Preamble:

• WE, THE PEOPLE OF INDIA: Signifies that the Constitution was created and enacted by the people of India through their elected representatives, not imposed by an external authority or monarch.
• SOVEREIGN: Means India is an independent state with supreme power to make decisions on internal and external matters without external interference.
• SOCIALIST: (Added in 1976) Implies that societal wealth should be generated and shared equitably. The government should regulate the ownership of land and industry to reduce socio-economic inequalities.
• SECULAR: (Added in 1976) Guarantees citizens the freedom to practice any religion. There is no official state religion, and the government treats all religious beliefs and practices with equal respect.
• DEMOCRATIC: Refers to a form of government where people enjoy equal political rights, elect their rulers, hold them accountable, and the government functions according to fundamental rules.
• REPUBLIC: States that the head of the state is an elected person, not a hereditary monarch.
• JUSTICE: Aims to ensure citizens are free from discrimination based on caste, religion, and gender. It seeks to reduce social inequalities and requires the government to work for the welfare of all, especially disadvantaged groups.
• LIBERTY: Means there are no unreasonable restrictions on citizens' thoughts, how they express them, and how they pursue their ideas through action.
• EQUALITY: Declares that all citizens are equal before the law. Traditional social inequalities must be ended, and the government must ensure equal opportunity for all.
• FRATERNITY: Encourages a sense of common brotherhood and sisterhood among all citizens, promoting the idea that no one should treat a fellow citizen as inferior, fostering unity and national integration.

Institutional Design

A constitution is not just a declaration of values; it translates these values into concrete institutional arrangements for governance. The bulk of the Indian Constitution details these arrangements. It is a very lengthy and comprehensive document designed to be updated regularly to meet changing societal aspirations.

The framers did not view the Constitution as an unchangeable, sacred text, providing provisions for constitutional amendments to incorporate necessary changes over time.

Although the legal language can be complex, the basic institutional design is clear. Like other constitutions, it outlines the procedure for electing those who will govern, specifies the powers and decision-making authority of different government organs, and sets limits on government power by guaranteeing fundamental rights to citizens that cannot be violated. The subsequent chapters will explore these aspects – electoral politics, rights, and the functioning of government institutions – in more detail.