Constitution-Why and How?

CONSTITUTION
It is a written set of laws and fundamental principles to develop a relationship between
the people and the government which comprises a number of articles about the state.
We need a constitution to provide a set of basic rules to allow minimal coordination
amongst the members of a society.

TYPES OF CONSTITUTION

1. Written Constitution- A written constitution is a compact document which

comprises a number of articles about the state. For eg. India, USA, France

2. Unwritten Constitution- An unwritten constitution is a series of documents and

decisions that are collectively referred to as the Constitution. For eg. UK, Israel

3. Rigid Constitution- If the constitution of a state cannot be amended easily, it is called

a rigid constitution.

4. Flexible constitution- If the constitution of the state can be amended easily, it is

called a flexible constitution.

REFERENDUM
A referendum is a vote in which all the citizens of a country vote to accept or reject a
particular proposal. It can be for the adoption of a new constitution, a constitutional
amendment or the recall of an elected official.

WHY DO WE NEED A CONSTITUTION?/ FUNCTIONS OF A CONSTITUTION

1. Constitution allows coordination and assurance

The constitution provides a set of basic rules to allow minimal coordination amongst
the members of a society. If there were no rules, there would be chaos. No one would
know what members of a society could do to each other and who could claim rights
over what.

2. Specification of decision making powers

It specifies who has the power to make decisions in a country and who makes laws. It
decides how the government will be constituted. For eg. According to the Indian
Constitution, the Parliament decides the laws and policies of the country.

3. Limitations on the powers of the government

The constitution sets some limits on what a government can impose on its citizens. The
government cannot violate these limits. Citizens normally have the right to basic
liberties such as freedom of speech, freedom of association, freedom of conscience etc.
(through fundamental rights)

4. Aspirations and goals of a society

The constitution enables the government to fulfil the aspirations of a society and create
conditions for a just society. For eg. India wants to be free of caste discrimination. So,
the government has been empowered to take the necessary steps to achieve this goal.

5. Fundamental identity of the people

The Constitution expresses the fundamental identity of the people. It gives them a
moral and political identity.

Political Identity- By accepting the basic rules and regulations by the people, the
constitution gives people a political identity.
For eg. German identity was constituted by being ethnically German. The Indian
Constitution on the other hand, does not make ethnic identity a criterion for
citizenship.

Moral Identity- Moral identity specifies what we should do and what we shouldn't do. It
represents the values of a society. This gives people a moral identity.

FUNDAMENTAL IDENTITY OF THE PEOPLE

1. One has many sets of identities prior to a constitution. But by agreeing to certain
basic norms and principles, one constitutes one’s basic political identity.

2. The constitution sets constraints upon what one may or may not do. It defines
the fundamental values that we may not trespass. So, the constitution also gives
one a moral identity.

HOW IS A CONSTITUTION EFFECTIVE?

1. A Constitution is drafted by people who are respected by all sections of society.

They are people who were able to reflect the broad national consensus at the
time.

2. The Constitution gives everyone a reason to go along with its provisions. For
example, a Constitution which allowed the majority to oppress the minority
would not be very successful. It preserves the freedom and equality of all its
members.
 3. Well-framed Constitutions fragment power in society so that no single group can
subvert the constitution. The Indian Constitution, for example, has fragmented
power into the Executive, Legislature and Judiciary. This ensures that if one
group wants to subvert the Constitution, the others can check its transgressions.

4. The Constitution was made by the Constituent Assembly which had been elected
for undivided India. Its members were elected by indirect election by the
members of the Provincial Legislative Assemblies that had been established in
1935.

5. Members of all religions were given representation in the Constituent Assembly.

In addition, six members from what were then known as the Scheduled Castes
were also present.

6. The Constituent Assembly had eight major committees on different subjects.

Each committee usually drafted particular provisions of the Constitution which
were then subjected to debate by the entire Assembly.

WHAT IF THE CONSTITUTION DIDN’T EXIST?

1. In the absence of some basic rules, every individual would be insecure simply
because they would not know what members of this group could do to each
other, who could claim rights over what.

2. Any group will need some basic rules that are publicly promulgated and known
to all members of that group to achieve a minimal degree of coordination. They
must also be enforceable.

MODE OF PROMULGATION
This refers to how a constitution comes into being.

HOW WAS THE INDIAN CONSTITUTION MADE?

The Constitution was made by the Constituent Assembly which had been elected for
undivided India. It held its first sitting on 9 December, 1946 and reassembled as
Constituent Assembly for divided India (after partition) on 14 August, 1947. Its members
were elected by indirect election by the members of the Provisional Legislative
Assemblies that had been established under the Government of India Act of 1935.

Social Democracy- It means a way of life, which recognises liberty, equality and
fraternity as the principles of life.
ON WHAT BASIS THE CONSTITUENT ASSEMBLY WAS COMPOSED?
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:

1. Each Province and each Princely State or group of States were allotted seats
proportional to their respective population roughly in the ratio of 1:10,00,000. As
a result the Provinces (that were under direct British rule) were to elect 292
members while the Princely States were allotted a minimum of 93 seats.

2. The seats in each Province were distributed among the three main communities,
Muslims, Sikhs and general, in proportion to their respective populations.

3. Members of each community in the Provisional Legislative Assembly elected

their own representatives by the method of proportional representation with
single transferable vote.

4. The method of selection in the case of representatives of Princely States was to

be determined by consultation.

COMPOSITION OF THE CONSTITUENT ASSEMBLY

1. The Constitution was adopted on 26 November,1949. The Constituent Assembly

consisted of 299 members of which 284 were actually present on 24 January,1950
and appended their signature to the Constitution as finally passed. The Indian
Constitution came into force on 26 January, 1950.

2. Although the members of the Assembly were not elected by universal suffrage,
there was a serious attempt to make the Assembly a representative body.

3. Members of all religions were given representation.

4. In addition, the Assembly had twenty eight (28) members from what were then
known as the Scheduled Castes.

5. In terms of political parties, the Congress dominated the Assembly occupying as

many as eighty-two per cent (82%) of the seats in the assembly after the
Partition.
THE SUBSTANTIVE PROVISIONS OF A CONSTITUTION
It is the hallmark of a successful constitution that it gives everyone in society some
reasons to go along with its provisions.

For instance, a constitution allowing permanent majorities to oppress minority groups

within society would give minorities no reason to go along with the provision of the
constitution. (public credibility)

BALANCED INSTITUTIONAL DESIGN

Well crafted constitutions fragment power in society intelligently so that no single

group can subvert the constitution.

For example, the Indian Constitution horizontally fragment power across different
institutions like the Legislature, Executive and the Judiciary and even independent
statutory bodies like the Election Commission. An intelligent checks and balances has
facilitated the success of the Indian Constitution.

The Indian Constitution is also described as a ‘living’ document.

HALLMARK OF A SUCCESSFUL CONSTITUTION

1. A constitution must strike the right balance between certain values, norms and
procedures as authoritative, and at the same time allow flexibility in its
operations to adapt to changing needs and circumstances.

2. Too rigid a constitution is likely to break under the weight of change.

3. On the other hand, a constitution that is too flexible will give no security to the
people.

4. Successful constitutions strike the right balance between preserving core values
and adapting them to new circumstances.

THE PRINCIPLE OF DELIBERATION

➔ Each member deliberated upon the constitution with the interest of the whole
nation in mind.

➔ There were many differences in discussions such as- Should India adopt a
centralised or decentralised system of government? What should be the relations
between the States and the centre?, What should be the power of the judiciary?,
Should the constitution protect property rights etc.
 ➔ Only one provision of the constitution was passed without any virtually any
debate– introduction of universal suffrage meaning all citizens reaching a
certain age, would be entitled to be voters irrespective of religion, caste,
education, gender or income.

➔ The constitution drew its authority from the fact that members of the
constituent assembly engaged in what one might call public reason.

PROCEDURES TAKEN TO DRAFT THE CONSTITUTION

1. The constituent assembly had eight major committees on different subjects.
Usually, Jawaharlal Nehru, Rajendra Prasad (President of the Constituent
Assembly), Sardar Patel aur BR Ambedkar (Chairman of the Drafting Committee)
chaired these committees. They had many disagreements but nevertheless, they
all worked together.

2. Each committee usually drafted particular provisions of the constitution which

were then subjected to debate by the entire assembly.

3. The Assembly met for one hundred and sixty six (166) days, spread over 2 years
and 11 months. Its sessions were open to the press and the public alike.

INHERITANCE OF THE NATIONALIST MOVEMENT

The best summary of the principles that the Nationalist movement brought to the
Constituent Assembly is the Objective Resolution ( the resolution that defined the aims
of the Assembly) moved by Jawaharlal Nehru in 1946.
Based on this, our constitution gave institutional expression to these fundamental
commitments- equality, liberty, democracy, sovereignty and the cosmopolitan identity.

MAIN PROVISIONS OF THE OBJECTIVE RESOLUTION (1946)

1. India is an independent, sovereign, republic.

2. All powers and authority of sovereign and independent India and its constitution
shall flow from the people.

3. The minorities, backward and tribal areas, depressed and other backward classes
shall be provided adequate safeguards.

4. The land would make a full and willing contribution to the promotion of world
peace and welfare of mankind.
INSTITUTIONAL ARRANGEMENTS
The Constituent Assembly spent a lot of time on evolving the right balance among the
various institutions like the Executive, the Legislature and the Judiciary.

SOME PROVISIONS THAT INDIAN CONSTITUTION MAKERS BORROWED FROM THE

CONSTITUTIONS OF DIFFERENT COUNTRIES

1. United Kingdom: First Past The Post system

2. United States: Charter of Fundamental Rights
3. Ireland: Directive Principles of State Policy
4. France: Principles of Liberty, Equality and Fraternity
5. Canada: The idea of residual powers
 CARTOONS

(4 December, 1949)
The constitution makers have to address themselves to very different aspirations.
Here Nehru is trying to balance between different visions and ideologies.

The writing of the new Iraqi constitution after the collapse of Saddam Hussain’s
regime saw a lot of conflict between different ethnic groups in the country.
Cartoonist describe the new Iraqi Constitution as the castle of cards as it does not
have a written constitution like India. Thus it leads to many conflicts and violence.

Countries of the European Union tried to create a European constitution. The

attempt failed. Here is a cartoonist’s impression of this attempt.