Chapter 1: Constitution – Why and How?
Introduction to the Constitution
A constitution is the foundational document or set of documents that outlines the fundamental principles according to which a state is constituted or governed. It serves as the basic framework for how a government will be structured and operate, and how power will be allocated in society. While many countries have a single, compact document as their constitution, some, like the United Kingdom, rely on a series of documents and decisions that collectively function as their constitution.
Why Do We Need a Constitution? (Functions of a Constitution)
A constitution performs several critical functions for a society:
Providing Basic Rules for Coordination and Assurance:
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In any diverse group or society, members have varying religious beliefs, professions, abilities, hobbies, tastes, wealth, and age. These differences often lead to disputes over various aspects of life, such as property ownership, compulsory education, public spending on safety versus parks, or discrimination.
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To live together peacefully, such a group needs basic rules that are publicly known and enforceable. Without these rules, individuals would feel insecure, not knowing what others might do or claim.
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The first function of a constitution is to provide a set of basic, legally enforceable rules that allow for a minimal degree of coordination among members of a society, assuring everyone that others will follow them, or face punishment.
Specification of Decision-Making Powers:
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Beyond basic rules, a society needs to decide who gets to make the laws that govern it. Different individuals or groups may have conflicting ideas on what rules are best.
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The second function of a constitution is to specify the basic allocation of power in society and decide how the government will be constituted. For example, in a monarchical system, a monarch decides; in some historical contexts like the old Soviet Union, a single party decided.
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In democratic constitutions, broadly speaking, the people decide, often by electing representatives to Parliament, which then enacts laws and policies. The constitution establishes the authority of bodies like Parliament to enact laws.
Limitations on the Powers of Government:
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Even if the authority to make decisions is established, there’s a need to prevent the government from passing unfair or unjust laws that might prohibit fundamental freedoms (e.g., religion, speech, association) or discriminate against certain groups.
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The third function of a constitution is to set fundamental limits on what a government can impose on its citizens, ensuring it can never trespass these boundaries.
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This is commonly achieved by specifying fundamental rights that all citizens possess and which no government can violate. While the exact content varies, most constitutions protect basic rights like freedom from arbitrary arrest, freedom of speech, conscience, association, and trade. These rights can sometimes be limited during national emergencies, with the constitution specifying the circumstances for such limitations.
Enabling Framework for Societal Aspirations and Goals:
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Many 20th-century constitutions, including the Indian Constitution, go beyond merely limiting government power; they also provide an enabling framework for the government to achieve positive societal goals and aspirations.
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Societies with deep-seated inequalities need their governments to be empowered to take positive measures to overcome these forms of inequality or deprivation.
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For instance, the Indian Constitution enables the government to take steps to eliminate caste discrimination and ensure a life of minimal dignity, material well-being, and education for all individuals. Similarly, the South African Constitution enables its government to end racial discrimination and promote conservation, housing, and healthcare. The Indonesian Constitution mandates the government to establish national education and care for poor and destitute children.
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The fourth function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society. In the Indian context, the Preamble, Fundamental Rights, and Directive Principles of State Policy support these enabling provisions.
Expressing the Fundamental Identity of a People:
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A constitution expresses the fundamental identity of a people. By agreeing to a basic set of norms about how they should be governed, people form a collective identity.
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It establishes the overarching framework for individual aspirations, goals, and freedoms, setting authoritative constraints and defining fundamental values that cannot be trespassed. This also gives a people a moral identity.
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Constitutions reflect different conceptions of national identity; for example, German identity was historically based on ethnicity, whereas the Indian Constitution does not make ethnic identity a criterion for citizenship, weaving together diverse groups in different ways. The relationship between different regions and the central government also constitutes national identity.
Effectiveness of a Constitution
A constitution’s effectiveness goes beyond merely existing on paper; it depends on several factors that ensure its real impact on people’s lives:
Mode of Promulgation (Credibility of Makers):
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How a constitution comes into being is crucial. Constitutions drafted by military leaders or unpopular figures often remain defunct.
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Successful constitutions, like those of India, South Africa, and the United States, were created in the aftermath of popular national movements.
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The Indian Constitution, though formally created by the Constituent Assembly, drew immense legitimacy from the nationalist movement and was drafted by individuals who had immense public credibility and the capacity to negotiate across a wide spectrum of society. They convinced the public that the constitution was not for personal gain and reflected a broad national consensus.
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Even without a direct referendum, the Indian Constitution gained enormous public authority due to the backing of popular leaders, and people adopted it by abiding by its provisions.
Substantive Provisions:
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A hallmark of a successful constitution is that it provides everyone in society with a reason to abide by its provisions.
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If a constitution allows permanent majorities to oppress minorities, systematically privileges some members, or entrenches the power of small groups, it will lose allegiance.
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While no constitution achieves perfect justice, it must convince people that it provides a framework for pursuing basic justice. The more a constitution preserves the freedom and equality of all members, the more likely it is to succeed.
Balanced Institutional Design:
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Well-crafted constitutions intelligently fragment power to prevent any single group from subverting it.
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The Indian Constitution horizontally fragments power across institutions like the Legislature, Executive, Judiciary, and independent statutory bodies such as the Election Commission. This system of checks and balances ensures that if one institution attempts to transgress, others can check it, facilitating the Constitution’s success.
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An intelligent institutional design also requires a constitution to strike the right balance between being authoritative (through values, norms, and procedures) and being flexible enough to adapt to changing needs. A constitution that is too rigid might break under pressure, while one that is too flexible offers no security or identity.
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The Indian Constitution is described as a “living document,” striking this balance by allowing for changes while also setting limits on them, ensuring its survival and respect from the people. This design also prevents any single section or group from subverting it.
How the Indian Constitution Was Made
The Indian Constitution was crafted through a rigorous process that reflected the nation’s aspirations and unique challenges:
The Constituent Assembly:
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Formally, the Constitution was made by the Constituent Assembly, which was elected for undivided India.
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It first convened on December 9, 1946, and reassembled for divided India on August 14, 1947.
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Its members were chosen by indirect election from the Provincial Legislative Assemblies established under the Government of India Act, 1935.
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The Assembly’s composition largely followed the British Cabinet Mission’s plan:
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Seats were allotted to Provinces and Princely States proportional to their population (roughly 1:1,000,000). Provinces under direct British rule elected 292 members, and Princely States were allotted a minimum of 93 seats.
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Seats in each Province were distributed among three main communities: Muslims, Sikhs, and General, proportional to their populations.
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Community members in Provincial Assemblies elected their representatives via proportional representation with a single transferable vote.
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The method for selecting representatives from Princely States was determined through consultation.
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After Partition, members from territories now in Pakistan ceased to be part of the Assembly, reducing its number to 299.
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The Constitution was adopted on November 26, 1949, and 284 members signed it on January 24, 1950. It came into force on January 26, 1950.
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Despite not being elected by universal suffrage, the Assembly made a serious attempt to be representative, including members from all religions and twenty-eight from Scheduled Castes. The Congress party dominated, holding 82% of seats post-Partition, but its diverse nature allowed it to accommodate almost all shades of opinion.
The Principle of Deliberation:
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The Constituent Assembly’s authority derived not just from its broad representativeness, but also from its procedures and the values of its members.
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Members deliberated with the interests of the entire nation in mind, not just their own interests or communities. Disagreements were based on legitimate differences in principle, such as federalism vs. centralisation, State-Centre relations, judicial powers, or property rights.
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Almost every fundamental issue of a modern state was discussed with great sophistication.
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Universal suffrage (the right to vote for all citizens above a certain age, irrespective of religion, caste, education, gender, or income) was virtually the only provision passed without debate, showcasing the Assembly’s democratic commitment.
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The Assembly emphasized “public reason,” where members engaged in discussion and reasoned argument, giving principled reasons for their positions rather than just advancing narrow interests. The voluminous debates, where each clause was scrutinized, are a testament to this public reason.
Procedures:
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The Assembly operated through eight major committees on different subjects, often chaired by prominent leaders like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B.R. Ambedkar. These leaders, despite their disagreements, worked together.
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Each committee drafted specific provisions, which were then debated by the entire Assembly.
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An effort was made to reach consensus, believing that provisions agreed upon by all would not harm any particular interests. Even when a vote was taken, every argument, query, or concern was responded to carefully and in writing.
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The Assembly met for 166 days over two years and eleven months, with sessions open to the press and public.
Inheritance of the Nationalist Movement:
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The Constitution was not solely a product of the Assembly; it was deeply rooted in the background consensus forged during India’s long struggle for freedom.
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The nationalist movement had debated crucial questions about India’s future government, its values, and inequalities it needed to overcome. The Constitution gave concrete shape to the principles inherited from these decades of debate.
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The Objective Resolution, moved by Nehru in 1946, best summarizes these principles, encapsulating the aspirations and values behind the Constitution.
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Based on this resolution, the Constitution gave institutional expression to fundamental commitments such as equality, liberty, democracy, sovereignty, and a cosmopolitan identity. It represents a moral commitment to establish a government fulfilling the promises made by the nationalist movement.
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Key points of the Objectives Resolution included India being an independent, sovereign republic; a Union of diverse territories with autonomous units; power flowing from the people; guaranteed social, economic, and political justice, equality, and fundamental freedoms; adequate safeguards for minorities, backward and tribal areas; maintenance of territorial integrity; and contribution to world peace.
Institutional Arrangements and Borrowings:
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The Constituent Assembly spent significant time evolving a balanced arrangement among the executive, legislature, and judiciary to ensure a democratic government committed to welfare. This led to the adoption of the parliamentary form of government and a federal arrangement distributing powers between the center and states.
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The framers were open to learning from the experiences of other countries and borrowed provisions from various constitutional traditions, but this was not “slavish imitation”.
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Each borrowed provision was defended on grounds that it was suited to Indian problems and aspirations.
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Examples of provisions adapted from other constitutions include:
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British Constitution: First Past the Post system, Parliamentary Form of Government, Rule of Law, Institution of the Speaker, Law-making procedure.
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United States Constitution: Charter of Fundamental Rights, Power of Judicial Review, Independence of the Judiciary.
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Irish Constitution: Directive Principles of State Policy.
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French Constitution: Principles of Liberty, Equality, and Fraternity.
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Canadian Constitution: A quasi-federal form of government (federal with strong centre), Idea of Residual Powers.
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As Dr. B.R. Ambedkar noted, while there can be little “new” in a constitution framed so late in history, the innovation lies in variations made to remove faults and accommodate the specific needs of the country.
Conclusion
The Indian Constitution is a unique document that has not only survived but thrived as a “living reality,” serving as an exemplar for others, notably South Africa. Its enduring success is a testament to the wisdom and foresight of its makers, who meticulously balanced fundamental values, highest aspirations, and practical institutional arrangements to accommodate the diverse people of India for a long time.