‘Why Make a Constitution?

A Critical Analysis’
 TABLE OF CONTENTS

I. INTRODUTION……………………………………………………………...…….1
I.1. Brief Overview……………………………………………………………………....
I.2. Statement Of Problem……………………………………………………………….
I.3. Relevance Of Study………………………………………………………………….
I.4. Objective Of Study………………………………………………………………….
I.5. Hypothesis…………………………………………………………………………...
I.6. Research Questions……………………………………………………………….....
I.7. Research Methodology………………………………………………………………
II. RESEARCH QUESTION I………………………………………………………….
III. RESEARCH QUESTION II…………………………………………………………
IV. RESEARCH QUESTION III………………………………………….......................
V. CONCLUSION………………………………………………………………………
VI. BIBLIOGRAPHY……………………………………………………………………
INTRODUCTION

BRIEF OVERVIEW:

"The Constitution is not an instrument for the government to restrain the people, it is an
instrument for the people to restrain the government."

- Patrick Henry

Every country must have a constitution as the constitution helps and guides in governing a
country. History tells that since the origin of the countries there have been some kinds of
rules and regulations to maintain the order and harmony. In every country be it democratic or
despotic it is essential that rules must be accepted which would decide the role and
organization of political institutions in order to save the society from anarchy. And now, in
modern states these rules took the appearance in the form of a constitution

OBJECTIVES OF THE STUDY:

The underlying purpose of this study is to assess the various factors that influenced the
making of the constitution. The question of Why make a question can be called the major
object of the research conducted. On the basis of this objective the research is conducting in 3
fold manner.

RELEVANCE OF THE STUDY:

The question why me a constitution arose when the influencing factors / the purpose of
having a constitution come into question. This research focuses on interpreting what must
have gotten one to have in place constitution of sorts apart from the various purposes served
by it. This paper focuses on what came before the constitution. What was it that gave birth to
the constitution?

STATEMENT OF THE PROBLEM:

The statement of problem can be identified as the lack of knowledge and material to support
the philosophical purpose of the constitution. Many people focus solely on the purposes the
constitution serves after it is formed. They fail to recognise the ideologies that influence the
making of the same.

LITERATURE REVIEW:

The Fundamentals of a Constitution / April 2017 / Nora Hedling

This Constitution Brief provides basic information about the nature and functions of
constitutions and is intended for use by constitution-makers and other democratic actors and
stakeholders in India.
CONSTITUTIONALISM IN INDIA IN COMPARATIVE PERSPECTIVE / Prof. (Dr.)
Mahendra Pal Singh

HYPOTHESIS:

In the beginning of my research I had quite few assumptions about the reason a constitution
is made. I had considered only the political or legal factors such as – Requirement of law,
Power map etc as pre requisites of establishing a constitution. I held less knowledge about
the philosophical aspect of it all.

RESEARCH METHODOLOGY:

The research is conducted on the basis of information gathered from sources like - Books,
Journals, Web articles, Research papers etc

RESEARCH QUESTIONS

Q. 1. What are the various politico-legal factors behind setting up of a

constitution?

Q.2. How must one decipher the philosophy behind the making of the
constitution?

Q. 3. A critical analysis of the world’s constitutions with special references to the

lengthiest i.e. the Indian constitution.
 RESEARCH QUESTION No. 1

What are the various politico-legal factors behind setting up of a constitution?

To decipher the underlying purpose of setting up a document of rules and regulations for a
country we must understand the political inclination and the legal standards of that country
with respect to time.
1. British Raj: India, for around 2 centuries was subjected to more than many atrocities under
the british raj. The rights of the people of the land were played with by the ones in power. Be
it the Rowlett act, the jaliwan bagh massacare 1or even the several other mishaps under a
greedy coloniser. This collectively gave rise to the Indian freedom struggle and its goal of
complete swaraj.

The state is believed to have a monopoly over force and coercion. What if institutions of such
states fall into wrong hands who abuse this power? Even if these institutions were created for
our safety and well-being, they can easily turn against us. Experience of state power the
world over shows that most states are prone to harming the interests of at least some
individuals and groups. If so, we need to draw the rules of the game in such a way that this
tendency of states is continuously checked. Constitutions provide these basic rules and
therefore, prevent states from turning tyrannical. Hence, it serves the purpose of restricting
powers.

2. Declaring sovereignty: Another political purpose of the constitution is to provide complete

and total sovereignty to the nation. Bal Gangadhar Tilak in one of the congress sessions, first
mentioned complete Swaraj. While forming the constitution of India the constituent assembly
was of the view that a pre-requisite of statehood is provided with the existence of the
constitution. Hence, another politico-legal aspect of it was the declaration to the world, by
way of the constitution, that India is a sovereign – It refuses to address any international/
external interference in its Domestic matters.

1
https://www.britannica.com/event/Rowlatt-Acts
3. Commitment to freedom, equality, and social justice: Another legal understanding of the
existence of the constitution is the human being’s right to virtues of freedom, equality, and
social justice. Now, this is highly culture and demographic specific. A right not excessively
exercised in a country like North Korea hold much importance in India. Hence, to ensure the
safeguarding o f such rights the need to formulate a constitution rose.

The fundamental rights mentioned in part three f the constitution are proof of the fact that this
purpose is served. Had it not been for the rights provided to the citizens, they would have
never been able to justify the making of the constitution. The makers were of the view that
freedom must be given to all, equality must be exercised by all and justices must be srved to
all. In the Maneka gandhi case2 The fundamental issue included was whether the option to
travel to another country is a piece of individual freedom under Article 21

In fact, the preamble itself highlights the importance of these virtues and swears that the
constitution provides for it.

4. The constitution is an embodiment: Constitution is a written instrument which serves as the

embodiment of the rules of a political or social organization. These rules and regulations lay
down the base of the nation so that it can run without any sort of issue or dispute and in case
any problem occurs in the legal and governmental sectors or between the masses of the
country and the judiciary, these provisions help the country to get through this phase where
there is a regular threat of a civil war breakdown which is probably the last thing any country
can have nightmares about. One of the most praised cases ‘His Holiness Kesavnanda Bharti
Sripadagalavaru V. Province of Kerala3 as chosen by a seat of 13 adjudicators. For this
situation, the apex court managed the issue – that whether the Parliament can correct any
piece of the Constitution and what was the cutoff to that power?

5. Governs the power distribution: The Constitution defines the powers of each organ and let
everyone related to a country know about the power and governmental and legal body has. It
demarcates the responsibilities of each of the parties whether it is a governmental institution,
companies of the country or the masses of the nation. The Constitution helps to regulate the

2
Maneka Gandhi v. Union of India AIR 1978 SC 597; (1978) 1 SCC 248 1978
3
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461
relationship between the government and the people in such a manner that no one part can
miss treating the power in any way possible.

6. A power map: Various restrictions are placed upon the states, primarily with a view to
preventing interferences by them with the proper activities of the general government. In
addition, the states are obliged by the Constitution to respect various legal determinations in
other states. But, by and large, the states are left fairly autonomous, however republican they
are required and helped to be under the Constitution. In Indira Gandhi Nehru v. Raj Narain,
the Supreme court asserted the Kesavananda ruling and upheld the basic structure as well as
the separation of powers doctrine, making it a landmark case our country.

To name a few article that place restriction on the working of the various organs

7. Federalism: he Indian Constitution anticipated the key issue of asymmetric federalism by

including an item on the North-East (Art. 371). A powerful central government was
established. However, despite this, the Indian Constitution has a unitary bias. There are
significant constitutional differences between the U.S. and the U.K. The legal standing and
powers of several sub-units both belong to the same federation. In contrast to the constitution,
Indian federalism has the symmetry of American federalism.

he privilege of special status was also granted to the North-Eastern State of Nagaland under
Article 371A. This article not only gives pre-existing laws in Nagaland legal force, but it also
safeguards native identity through immigration limitations. Such unique arrangements benefit
a large number of other countries as well.

India is today a multilingual federation, notwithstanding the Constitution's original

prohibition. Politically, each major linguistic group is recognised, and all are treated equally.
As a result, India's democratic and linguistic federalism has been able to reconcile calls to
unity and cultural acknowledgment. There is a very strong political arena that allows for the
interplay of many identities that are complementary to one another.

S.R. Bommai And Others Etc. Etc. vs UoI Others Etc4

4
S.R. Bommai V.UoI ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)
The case, which would go on to become one of the most cited whenever hung Assemblies
were returned, and parties scrambled to for a government, took almost five years to see a
logical conclusion. On March 11, 1994, a nine-judge Constitution Bench of the Supreme
Court issued the historic order, which in a way put an end to the arbitrary dismissal of State
governments under Article 356 by spelling out restrictions.

“The dissolution of Legislative Assembly is not a matter of course. It should be resorted to

only where it is found necessary for achieving the purposes of the Proclamation," 5the Court
said, highlighting Federalism in the country’s governing system.

RESEARCH QUESTION No. 2

How must one decipher the philosophy behind the making of the constitution?

Some people believe that a constitution merely consists of laws and that laws are one thing,
values and morality, quite another. For the same reason many cannot fathom the
philosophical approach towards the constitution. Though, they hold a legalistic understanding
of the same but have no moral – based notion. However, humans, popularly called social
animals, often concentrate all their acts to benefit their well being. Their well-being comes

5
https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-and-why-is-it-quoted
often/article23929119.ece
from the society and the society is based on culture/ values/ morals etc. Thereby, forming
many laws closely connected to our deeply held values. For example, a law might prohibit
discrimination of persons on grounds of language or religion is based on our respect and
commitment to equality. It being a moral embedded in us. Therefore, there is a connection
between laws and moral values

Now, we must look upon the constitution as a document f rules and regulations that is based
on a certain moral vision.

1. Indian liberalism:
It had two streams. The first stream began with Rammohan Roy. He emphasised
individual rights, particularly the rights of women. The second stream included
revolutionaries like K.C. Sen, Justice Ranade and Swami Vivekananda. They
introduced the spirit of social justice within orthodox Hinduism. For Vivekananda,
such a reordering of Hindu society could not have been possible without liberal
principles.6

2. Respect for Culture and minority rights:

The Indian Constitution encourages communities to treat one other with respect. This
was difficult in our country, first because groups do not necessarily have equal
relationships with one another; instead, they prefer to have hierarchical relationships
(as in the case of caste). Second, even when these societies perceive each other as
equals, they often turn into adversaries (as in the case of religious communities). How
to make communities liberal in their approach and develop a sense of equal respect
among them within existing conditions of hierarchy or heated rivalry was a big
challenge for the Constitution's framers. It would have been quite simple to avoid this
dilemma by refusing to recognise communities altogether, as most Western liberal
constitutions do.

However, in our country, this would have been impossible and unacceptable. This isn't
because Indians have a stronger sense of belonging to their community than other people.

Individuals from all walks of life belong to cultural groups, and each one has its own set of
6
In Defence of Liberalism, Bombay, Asia Publishing House, 1962.
values, traditions, practises, and language that its members share.

Individuals in France or Germany, for example, are members of a language community and
are deeply attached to it. What sets us apart is that we have embraced the importance of
communities more openly. More importantly, India is a land that is home to a diverse range
of cultural groups. We have multiple language and religious communities, unlike Germany or
France. It was critical to ensure that no single group systematically dominated the others. Our
Constitution was forced to recognise community-based rights as a result of this. The right of
religious communities to establish and administer their own educational institutions is one
such right. The government may provide funding to such organisations. This provision
demonstrates that the Indian Constitution does not see religion as just a "personal" subject.
ARTICLE 25-28 provide for the right to the freedom of religion and ARTICLE 29 AND 30
esure cultural and educational rights to minorities.

3. Universal franchise:

The idea of democratic self-government followed as the concept of a nation gained traction
among the elite. As a result, Indian nationalism has always envisioned a political order based
on the will of every individual in society. The concept of universal suffrage was firmly
embedded in the heart of nationalism. The author of the Constitution of India Bill (1895), the
first non-official attempt at drafting a constitution for India, declared that every citizen, i.e.,
anyone born in the year 2021-22 232 Indian Constitution at Work India, had the right to
participate in the country's affairs and be admitted to public office.

The Motilal Nehru Report (1928) reinforces this view of citizenship, stating that everybody
over the age of twenty-one, regardless of gender, is eligible to vote in the House of
Representatives or Parliament. Thus, universal franchise has been regarded as the most
significant and legitimate weapon for properly expressing the nation's will from its inception.

“Our Constitution is established on a pleasant overall influence among the three wings of the
state specifically the Legislature, the Executive and the Judiciary. It is the capacity of the
Judges nay their obligation to articulate upon the legitimacy of laws.7

7
Minerva Mills Case, 1980
 The spirit of compromise:

It depicts a philosophy of accommodation and compromise. Compromise and

accommodation need not always be viewed as negative terms. Compromises aren't always
terrible. If something valuable is given up for the sake of self-interest, we have automatically
compromised in the negative sense. However, if one value is partially exchanged for another,
especially in an open process of free discourse among equals, the compromise reached in this
way is difficult to criticise. We may bemoan the fact that we can't have everything, but
obtaining a little bit of everything isn't ethically reprehensible. Furthermore, it is morally
praiseworthy to believe that choices on the most important matters should be made by
consensus rather than by majority voting.

RESEARCH QUESTION No. 3

The Japanese constitution:

The Japanese Constitution of 1947 is popularly known as the ‘peace constitution’. The
preamble states that “We, the Japanese people desire peace for all time and are deeply
conscious of the high ideals controlling human relationship”. The philosophy of the Japanese
constitution is thus based on the ideal of peace. Article 9 of the Japanese constitution states

1) Aspiring sincerely to an international peace based on justice and order, the Japanese
people forever renounce war as a sovereign right of the nation and the threat or use of force
as means of settling international disputes.

2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as
well as other war potential, will never be maintained… This shows how the context of
making the constitution dominates the thinking of the constitution makers.

Similarly, In India the thinking of the makers played a major role. Almost all the articles are
in relevance to the solution of problems being faced by them and their ancestors back in
1950. To ensure that these are overcome in the future the foundation of the world’s lengthiest
constitution was laid down.

British Constitution:

To begin with, it is unwritten. It clearly establishes the parliamentary supremacy. This is

different form India where the parliament, though powerful, still lies below the constitution.
The Famous author William Blackstone puts it like - “what parliament can do cannot be
undone by anybody.”8 For this reason the court s in England are running with the soul
purpose of aplllying the law to a set of facts irrespective of it being right or wrong. Unlike the
courts In india that have independence to rectify the wrongs. This independence is given to
them by the constitution itself. Hence, making the constitution supreme.

American Constitution:

Unlike the constitutional symmetry of American federalism, Indian federalism has been
constitutionally asymmetric. To meet the specific “The Assembly has adopted the principle of
adult franchise with an abundant faith in the common man and the ultimate success of
democratic rule and in the full belief that the introduction of democratic government on the
basis of adult suffrage will… promote the well-being...”

IRISH CONSTITUTION:

Part IV, Directive Principles of State Policy (DPSP), the manner of President election,
candidature for the RajyaSabha, and the mandate requirements of state strategy were all taken
from Ireland's constitution.

CANADIAN CONSTITUTION:

It's worth noting that the same British parliament that passed the Government of India Act in
1935 also drafted Canada's constitution. As a result, borrowing laws from Canada entails
borrowing the same laws from the United Kingdom. The sections concerning the Federation,
the centre's appointment of governors, the Supreme Court's advisory jurisdiction under
Article 143, required obligations under Article 51-A, and the centre's residuary powers under
Article 248 were sourced from Canada.
8
Blackstone's Commentaries on the Laws of England
AUSTRALIAN CONSTITUTION:

It's worth noting that the same British parliament that passed the Government of India Act in
1935 also drafted Canada's constitution. As a result, borrowing laws from Canada entails
borrowing the same laws from the United Kingdom. The sections concerning the Federation,
the centre's appointment of governors, the Supreme Court's advisory jurisdiction under
Article 143, required obligations under Article 51-A, and the centre's residuary powers under
Article 248 were sourced from Canada.

FRENCH CONSTITUTION:

The ideas of liberty, equality, and fraternity, which are drawn from France in the preamble.
Aside from these Republic elements from the Constitution, the French constitution also has
balance, fraternity, and freedom principles.

CONCLUSION

The Constitution is the spine of the nation. It is a living document. Legal provisions and
institutional arrangements depend upon the needs of the society and the philosophy adopted
by the society. The Constitution gives expression to this philosophy. The institutional
arrangements that are mentioned in the paper are based on a core and commonly agreed
vision. That vision has historically emerged through our struggle for independence. The
Constituent Assembly was the platform on which this vision was stated, refined and
articulated in legal-institutional form. Thus, no document can be perfect and no ideals can be
fully achieved. But does that mean we should have no ideals? No vision?

Our perception of truth and virtue becomes the Philosophy of the Constitution and the
constitution becomes the embodiment of this vision. Many people have said that the best
summary of this vision or the philosophy of the Constitution is to be found in the preamble to
our Constitution. Have you carefully read the preamble? Apart from the various objectives
mentioned in it, the preamble makes a very humble claim: the Constitution is not ‘given’ by a
body of great men, it is prepared and adopted by ‘We, the people of India…’. Thus, the
people are themselves the makers of their own destinies, and democracy is the instrument that
people have used for shaping their present and their future. More than five decades since the
Constitution was drafted, we have fought over many matters, we have seen that the courts
and the governments have disagreed on many interpretations, the centre and the States have
many differences of opinion, and political parties have fought bitterly.

And yet, if you asked the politician or the common citizen, you will find that every one
continues to share in that famous vision embodied in the Constitution: we want to live
together and prosper together on the basis of the principles of equality, liberty and fraternity.
This sharing in the vision or the philosophy of the Constitution is the valuable outcome of the
working of the Constitution. In 1950, making of this Constitution was a great achievement.

Today, keeping the philosophical vision of that Constitution alive may be our important
achievement and our most essential duty. We should respect its existence and dignity while
making sure that its rules and provisions are followed by each and everyone in the Nation.

BIBLIOGRAPHY

LINKS:

https://www.indialegallive.com/10-landmark-judgements-of-constitutional-law/
https://www.britannica.com/event/Rowlatt-Acts
https://www.lawteacher.net/free-law-essays/constitutional-law/indian-constitution-and
separation-of-powers-constitutional-law
essay.php#:~:text=In%20Indira%20Gandhi%20Nehru%20v,a%20landmark%20case
%20our %20country.

https://www.airtract.com/article/why-is-the-constitution-important--7-reasons

https://www.thehindu.com/news/national/what-is-the-sr-bommai-case-and-why-is-it-quoted
often/article23929119.ece
https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/

http://nujslawreview.org/wp-content/uploads/2020/08/11.4-MP-Singh
CONSTITUTIONALISM-IN-INDIA-IN-COMPARATIVE-PERSPECTIVE.pdf

https://www.idea.int/sites/default/files/publications/the-fundamentals-of-a-constitution.pdf

BOOKS:

1. Book by Hormasji Maneckji Seervai 1976

Constitutional Law of India: A Critical Commentary

2. V.N. Shukla's 1982

Constitution of India

-DIGITAL LIBRARIES:

Indian Kanoon - https://indiankanoon.org/

Manupatra - https://mobile.manupatra.in/

CASE LAWS:

A.K Gopalan vs. State of Madras, 1950

Shankari Prasad vs. Union of India, 1952

Golak Nath vs. State of Punjab, 1967

Kesavananda Bharti Sripadagalavaru vs. State of

Kerala,1973 Indira Gandhi vs. Raj Narain, 1975
 Maneka Gandhi vs. Union of India,1978

Minevra mills case Vs. Union Of India

Shayra Bano v UOI