Chapter 1 Constitution: Why And How?

This book explores the working of the Indian Constitution, detailing the structure of the government, its institutions, and their relationships. Understanding these aspects requires first understanding the Constitution itself, as it forms the basis for the entire governmental structure and principles in India.

After studying this chapter, you will learn:

• The meaning of a constitution.
• The functions a constitution performs for a society.
• How constitutions determine the allocation of power within a society.
• The process by which the Constitution of India was created.

Why Do We Need A Constitution?

To understand the need for a constitution, consider a large group of diverse individuals with different religious beliefs, professions, abilities, hobbies, tastes, wealth, and age. Living together peacefully, despite these differences and potential disputes (over property, rules, resources, discrimination), requires cooperation and coordination.

Without basic rules, every individual in such a group would be insecure, unsure of others' actions or who has rights over what. To achieve even a minimal degree of coordination and assurance, any group needs a set of basic rules that are publicly known and agreed upon by its members. These rules must also be enforceable. If members are not assured that others will follow the rules, they have no reason to follow them either. Legally enforceable rules provide this assurance, as violations lead to punishment.

The first function of a constitution is to provide a set of basic rules that allow for minimal coordination and assurance among members of a society, enabling them to live together peacefully.

Beyond coordination, a constitution addresses the fundamental question of who gets to decide what the laws governing society should be. When members of a diverse group disagree on rules, a mechanism is needed to resolve this dispute and determine whose preferences will prevail. A constitution answers this by specifying the basic allocation of power in society – it decides who has the authority to make laws.

This allocation of power can take different forms: in a monarchy, the monarch decides; in a single-party system, one party decides; in democratic constitutions, broadly speaking, the people decide. However, even in a democracy, the question remains: how should the people decide? Should everyone vote directly on every issue (like in ancient Greece)? Or should people elect representatives to make decisions? If through representatives, how should they be elected, and how many should there be?

A constitution provides the answer to these questions. For example, the Indian Constitution specifies that Parliament generally makes laws and policies and outlines how Parliament is constituted. The authority to enact laws must come from a foundational law itself. This is the constitution's role – it is the authority that constitutes, or establishes, the government in the first place.

The second function of a constitution is to specify who has the power to make decisions in society and how the government will be constituted.

However, simply establishing who makes laws is not enough. A government with unlimited power could enact unjust or unfair laws, such as prohibiting religious practices, dictating dress codes, restricting property ownership based on group identity, or arbitrarily arresting citizens. This would be unjust even if the government was constituted through accepted procedures.

The third function of a constitution is to set limits on what a government can impose on its citizens. These are fundamental limits that the government cannot violate. Constitutions limit governmental power in various ways, most commonly by specifying fundamental rights that citizens possess and which the government cannot infringe upon. These basic rights, such as protection from arbitrary arrest and fundamental liberties (speech, conscience, association, trade), are typically protected, although they may be limited under specific circumstances like a national emergency, as defined by the constitution.

While older constitutions often focused primarily on allocating power and limiting government, many 20th-century constitutions, including the Indian Constitution, go further. They also provide an enabling framework for the government to actively pursue certain positive goals and express the aspirations of society.

The Indian Constitution is innovative in this respect. Societies with deep inequalities need a constitution that not only limits government power but also empowers it to take positive measures to overcome these inequalities and deprivations. For example, if a society aspires to be free of caste discrimination, the government must be enabled to take necessary steps to achieve this. Similarly, in countries with a history of racial discrimination, the constitution must empower the government to end it. More broadly, a constitution can embody societal aspirations for dignity and well-being (minimum material well-being, education) and enable the government to implement positive welfare measures, some of which may be legally enforceable. These enabling provisions, like those in the Directive Principles of State Policy, are supported by the Preamble to the Constitution and reflect the aspirations the society holds.

The fourth function of a constitution is to enable the government to fulfill the aspirations of society and create conditions for a just society.

Finally, and perhaps most significantly, a constitution defines the fundamental identity of a people. By agreeing upon a basic set of norms about how they will be governed and who will constitute the governing body, people form a collective identity. While individuals possess multiple prior identities, the constitution shapes their basic political identity. Constitutional norms establish authoritative constraints and define fundamental values, giving individuals a moral identity as well. Although many modern constitutions share features (democratic forms, basic rights), they differ in how they embody national identity. Nations are complex amalgams of traditions and groups, and constitutions weave these together in different ways. For instance, some national identities may be strongly linked to ethnic origin, while others, like India's, are not. Constitutions embody different conceptions of the relationship between regions and the central government, contributing to the national identity.

The fifth and arguably most important function of a constitution is to express the fundamental identity of a people, providing both political and moral frameworks.

The cartoon depicting the attempted European Constitution highlights the difficulty in achieving agreement when diverse visions and ideologies clash during constitution-making. The cartoon of Nehru balancing different visions similarly suggests the complexity of balancing diverse aspirations in crafting the Indian Constitution. The cartoon on the Iraqi constitution reflects the conflict arising from differing ethnic group identities and visions for the state.

The Authority Of A Constitution

Having outlined the functions of a constitution, we consider what gives a constitution authority. What makes it effective and ensures it impacts people's lives? Effectiveness depends on several factors.

A constitution is typically a document (or set of documents) outlining the state's structure and norms. However, many constitutions exist only formally; their actual effectiveness varies.

Mode of promulgation: How the constitution was created is crucial. Constitutions crafted by unpopular leaders or military regimes often lack effectiveness. Successful constitutions (India, South Africa, USA) emerged from popular national movements. The Indian Constitution, though not enacted by universal suffrage, drew legitimacy from the nationalist movement's long history of unity and the credibility of its leaders, who represented diverse sections, negotiated effectively, and convinced people the constitution served national interests, reflecting a broad consensus.

The substantive provisions: A successful constitution must give all sections of society a reason to adhere to it. A constitution that permanently oppresses minorities or entrenches the power of small groups will lose legitimacy. While no constitution is perfectly just, it must provide a framework for pursuing basic justice, convincing people it is fair. The more a constitution protects the freedom and equality of all, the more likely it is to succeed.

Balanced institutional design: Constitutions can be subverted by small powerful groups. Well-designed constitutions prevent this by intelligently fragmenting power across different institutions, ensuring no single entity has a monopoly. The Indian Constitution, for instance, divides power horizontally among the Legislature, Executive, Judiciary, and independent bodies like the Election Commission, creating a system of checks and balances. A successful constitution also balances core values/procedures with flexibility to adapt to changing needs. A rigid constitution breaks under change; a too-flexible one lacks stability and identity. The Indian Constitution, a 'living document', achieves this balance by allowing amendments within certain limits.

Assessing a constitution's authority involves asking: Were the creators credible? Did it intelligently organize power to prevent subversion? Does it provide a framework for justice and development, commanding voluntary allegiance?

A political cartoon by Ares, depicting the new Iraqi Constitution as a 'castle of cards', suggesting fragility and potential instability. This contrasts with the stability sought in constitution-making processes like India's.

How Was The Indian Constitution Made?

The Indian Constitution was formally created by the Constituent Assembly, which was elected for undivided India. Its first session was on 9 December 1946. After the Partition of India, the Assembly reassembled on 14 August 1947 for divided India, with members from territories now part of Pakistan ceasing membership. The Assembly's size reduced to 299 members.

Members were chosen by indirect election by the Provincial Legislative Assemblies, which had been established under the Government of India Act, 1935. The Assembly's composition broadly followed the Cabinet Mission Plan:

• Seats were allocated to Provinces (under British rule) and Princely States based on population, roughly 1:1,000,000. Provinces elected 292 members, and Princely States were allocated a minimum of 93 seats.
• Seats in each Province were distributed among three main communities (Muslims, Sikhs, General) proportional to their population.
• Community members in the Provincial Assemblies elected their representatives using proportional representation with a single transferable vote.
• The selection method for representatives of Princely States was determined through consultation.

The Constitution was adopted on 26 November 1949. It came into force on 26 January 1950 (Republic Day). On 24 January 1950, 284 members signed the final document.

The Constitution was framed amidst the violence of Partition. Despite immense pressure, the framers drafted the constitution and learned crucial lessons, committing to a new concept of citizenship where religious identity did not determine rights and minorities would be secure.

While not elected by universal suffrage, the Assembly aimed for representativeness. Members from all religions and Scheduled Castes were included. The Congress Party dominated (82% seats after Partition), but its diversity accommodated many viewpoints. Although some question if a universally elected assembly would differ, the Assembly's procedures and members' values provided it authority.

Composition Of The Constituent Assembly

As described above, the Constituent Assembly was composed of members indirectly elected by Provincial Assemblies, with representation based on population and community. Post-Partition, the Assembly size and composition changed. The document was debated, adopted, and signed by members who represented various sections of Indian society, despite not being directly elected by all citizens.

Dr. B.R. Ambedkar famously highlighted the need for political democracy to be underpinned by social democracy, recognizing liberty, equality, and fraternity as interconnected principles essential for democracy, where separation would defeat its purpose and lead to inequality or stifled initiative.

An image related to the debates or proceedings of the Indian Constituent Assembly, suggesting the process of discussion and deliberation involved in drafting the Constitution.

The Principle Of Deliberation

The authority of the Constituent Assembly stemmed significantly from its procedures and the values of its members. While representation was broad, authority came from the deliberative process. Members aimed to consider the whole nation's interests, not just their own or their community's. Disagreements existed but were based on differing principles (e.g., centralization vs. decentralization, center-state relations, judicial powers, property rights), debated with sophistication.

Universal suffrage was the only provision passed with almost no debate, highlighting the Assembly's democratic commitment. Every other matter was seriously discussed. The Constitution's authority is rooted in this public reason – members justified positions with reasoned arguments, moving beyond narrow interests. The extensive debates, scrutinizing each clause, exemplify public reason at its best, seen as a significant chapter in constitution-making history.

Procedures

The Assembly's mundane procedures also emphasized public reason. It had eight major Committees on different subjects, often chaired by prominent leaders with diverse views (Nehru, Rajendra Prasad, Sardar Patel, B.R. Ambedkar) who worked together despite disagreements. Committees drafted provisions debated by the full Assembly. Attempts were made for consensus, believing broadly agreed provisions wouldn't harm specific interests. Some provisions were voted on, but every argument and concern was carefully addressed in writing. The Assembly met for 166 days over nearly 3 years, open to press and public, reflecting transparency and commitment to reasoned debate.

Inheritance Of The Nationalist Movement

The Constitution wasn't solely a product of the Assembly; it inherited principles from the nationalist movement. The diverse Assembly functioned due to a background consensus on core principles forged during the long freedom struggle, where questions about India's future government, values, and inequalities were debated. The Assembly gave concrete form to these inherited principles.

The Objectives Resolution, moved by Nehru in 1946, best summarized these principles and the Assembly's aims and values. It encapsulated the aspirations and values behind the Constitution, inspiring its substantive provisions (equality, liberty, democracy, sovereignty, cosmopolitan identity). The Constitution is thus seen as a moral commitment to fulfill the nationalist movement's promises.

Main points of the Objectives Resolution:

• India is an independent, sovereign, republic Union of British Indian territories, Indian States, and other willing parts.
• Union territories shall be autonomous units with governmental/administrative powers, except those assigned to the Union.
• Powers of sovereign India and its constitution flow from the people.
• All people guaranteed social, economic, political justice; equality of status, opportunities, and before law; fundamental freedoms (speech, expression, belief, faith, worship, vocation, association, action) subject to law/public morality.
• Adequate safeguards for minorities, backward/tribal areas, depressed/other backward classes.
• Territorial integrity and sovereign rights maintained according to justice and civilized nations' law.
• Land will contribute to world peace and mankind's welfare.

The question about whether the Constitution would be different if independence was achieved earlier or later suggests that historical context, including the intensity of the freedom struggle and the challenges faced (like Partition), significantly influenced the choices and compromises made by the framers.

Institutional Arrangements

Effective constitutions balance governmental institutions. The Indian Constitution ensures democratic government committed to public welfare through a balanced arrangement of institutions. It adopted the parliamentary form and federal structure, distributing powers between legislature/executive and states/center.

In developing balanced arrangements, framers learned from other countries' constitutional experiences, borrowing provisions from various traditions (British, US, Irish, French, Canadian). However, this borrowing was not blind imitation; each provision was defended based on its suitability for Indian problems and aspirations. The Assembly's readiness to adapt global best practices to India's unique context was a testament to its foresight.

Provisions adapted from other countries:

• British Constitution: First Past the Post (electoral system), Parliamentary Form of Government, Rule of Law, Institution and Role 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.
• French Constitution: Principles of Liberty, Equality and Fraternity.
• Canadian Constitution: Quasi-federal form of government (federal with strong center), Idea of Residual Powers.

Exercises

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