Chapter Notes

Introduction to the Constitution

The Constitution of India is the foundation for our entire system of government. It's not just a rulebook; it's the source from which all government institutions—like the Parliament, the President's office, and the courts—get their power and structure. To understand how elections, governments, and laws work in India, we must first understand the Constitution that created them.

A constitution is a body of fundamental principles that explains how a state is governed. This chapter explores what a constitution is, its functions in a society, and how the Constitution of India was created.

Why Do We Need a Constitution?

Every society needs a constitution to perform several key functions that allow people to live together peacefully and productively.

Constitution Allows Coordination and Assurance

In any large and diverse society, people have different beliefs, professions, and interests. This diversity can lead to disagreements on basic issues like property ownership, education, or security.

To live together peacefully, a society needs a set of basic rules that are known and accepted by everyone. A constitution provides these rules.

• Coordination: These rules create a minimal degree of coordination, so people know what to expect from each other.
• Assurance: For these rules to work, people need an assurance that others will also follow them. A constitution makes these rules legally enforceable, meaning anyone who breaks them will be punished. This gives everyone a reason to follow the rules.

Specification of Decision-Making Powers

Once a society agrees on the need for rules, the next question is: who has the power to make these rules and decide on laws? A constitution answers this fundamental question.

• It specifies the basic allocation of power in a society.
• It decides who gets to make the laws.
• In a monarchy, the monarch decides. In a democracy, the people decide, usually by electing representatives.

The Indian Constitution, for example, gives the Parliament the authority to make laws. The constitution is the ultimate source of this authority; it is the document that constitutes the government in the first place.

Limitations on the Powers of Government

A constitution doesn't just give power to the government; it also sets limits on that power. This is crucial to prevent the government from becoming unjust or oppressive.

Imagine a government passing unfair laws, such as prohibiting a certain religion, arresting people arbitrarily, or discriminating against a particular group. A constitution prevents this by placing clear limits on what a government can do.

• These limits are fundamental, meaning the government can never trespass them.
• The most common way to limit government power is by guaranteeing fundamental rights to citizens. These rights, such as freedom of speech, religion, and association, cannot be violated by the government.

Aspirations and Goals of a Society

Many modern constitutions, especially those created in the twentieth century like India's, do more than just limit power. They also provide a framework for the government to achieve the aspirations and goals of the society.

• They empower the government to take positive measures to overcome inequality and deprivation.
• For example, the Indian Constitution enables the government to take steps to create a society free of caste discrimination.
• The Constitution may also enshrine goals like ensuring a life of dignity, minimum material well-being, and education for all citizens.

These goals are often found in the Preamble, the section on Fundamental Rights, and the Directive Principles of State Policy.

Fundamental Identity of a People

A constitution expresses the fundamental identity of a people. It does this in three ways:

1. Political Identity: By agreeing on a basic set of norms and principles about how they should be governed, people form a collective political identity.
2. Moral Identity: A constitution sets out fundamental values that cannot be trespassed. It defines the moral framework within which individuals pursue their goals and freedoms.
3. National Identity: Constitutions define the relationship between different regions of a nation and the central government, which helps constitute a country's national identity. The Indian Constitution, for instance, does not base citizenship on ethnic identity, creating an inclusive national identity.

The Authority of a Constitution

For a constitution to be effective, it must have authority. This means people must respect it and abide by its rules. Three key factors contribute to a constitution's effectiveness.

Mode of Promulgation

This refers to how a constitution comes into being.

• Constitutions created by military leaders or unpopular figures often fail.
• The most successful constitutions, like those of India, South Africa, and the United States, were created after popular national movements.
• The Indian Constitution was drafted by a Constituent Assembly between December 1946 and November 1949. Its members were credible leaders with immense public respect, which gave the document enormous legitimacy and authority.

The Substantive Provisions of a Constitution

A constitution is more likely to succeed if it gives everyone in society a reason to go along with its provisions.

• It should not allow a majority to oppress minorities or privilege one group over another.
• It must convince people that it provides a framework for achieving basic justice for all.
• The more a constitution preserves the freedom and equality of all its members, the more likely it is to command their allegiance.

Balanced Institutional Design

A well-crafted constitution intelligently fragments power so that no single group or institution can subvert it.

• Checks and Balances: The Indian Constitution horizontally divides power among the Legislature, Executive, and Judiciary, and independent bodies like the Election Commission. This ensures that if one institution oversteps its authority, others can check it.
• Flexibility and Rigidity: A successful constitution must strike a balance. It should be rigid enough to protect core values from being easily changed, but flexible enough to adapt to new circumstances. The Indian Constitution is described as a 'living document' because it balances the possibility of change with limits on those changes.

How was the Indian Constitution Made?

The Indian Constitution was formally created by the Constituent Assembly.

• The Assembly was elected for undivided India and held its first sitting on 9 December 1946.
• Its members were chosen through indirect election by the members of the Provincial Legislative Assemblies established under the Government of India Act, 1935.
• The composition of the Assembly was based on a plan proposed by the British cabinet committee known as the Cabinet Mission.

Cabinet Mission Plan:

• Seats were allotted to each Province and Princely State based on population, roughly in a 1:1,000,000 ratio.
• Seats in each Province were distributed among three main communities: Muslims, Sikhs, and general, in proportion to their populations.
• Members of each community in the Provincial Assemblies elected their own representatives using proportional representation.

Composition of the Constituent Assembly

After the Partition of India on 3 June 1947, members from territories that fell under Pakistan left the Assembly. The number of members was reduced to 299.

• The Constitution was adopted on 26 November 1949.
• It was signed by 284 members on 24 January 1950.
• The Constitution came into force on 26 January 1950.

Although not elected by universal suffrage, the Assembly was a representative body. It included members from all religions and had twenty-eight members from the Scheduled Castes. The Congress party dominated, but it was a diverse party that included almost all shades of opinion.

The Principle of Deliberation

The authority of the Constituent Assembly came from its procedures and the values of its members.

• Focus on National Interest: Members deliberated with the interests of the whole nation in mind, not just their own communities.
• Public Reason: Members engaged in reasoned arguments, giving principled reasons for their positions. The debates were extensive, with each clause subjected to scrutiny.
• Democratic Commitment: Almost every issue was seriously debated. The only provision passed without debate was the introduction of universal suffrage (the right to vote for all adult citizens regardless of religion, caste, education, gender, or income).

Procedures

The Assembly worked in a systematic and open manner.

• It had eight major Committees on different subjects, chaired by leaders like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, and Dr. B.R. Ambedkar.
• These leaders, despite their disagreements on many issues, worked together.
• Committees drafted provisions, which were then debated by the entire Assembly. The goal was to reach a consensus.
• The Assembly met for 166 days, spread over two years and eleven months. Its sessions were open to the press and the public.

Inheritance of the Nationalist Movement

The Constitution was not created from scratch. It was built upon a consensus on key principles that were forged during the long struggle for freedom.

• The Objectives Resolution, moved by Nehru in 1946, is the best summary of these principles. It defined the aims of the Assembly and encapsulated the aspirations behind the Constitution.
• This resolution gave institutional expression to fundamental commitments like equality, liberty, democracy, sovereignty, and a cosmopolitan identity.

Institutional Arrangements

The framers of the Constitution created a balanced arrangement of government institutions. They adopted a parliamentary form of government and a federal arrangement to distribute power between the central government and the states.

• They were not hesitant to learn from the experiences of other countries and borrowed provisions from different constitutional traditions.
• However, this was not "slavish imitation." Each borrowed provision was defended on the grounds that it was suitable for India's unique problems and aspirations.

• British Constitution: First Past the Post system, Parliamentary Form of Government, Rule of Law.
• United States Constitution: Charter of Fundamental Rights, Power of Judicial Review.
• Irish Constitution: Directive Principles of State Policy.
• French Constitution: Principles of Liberty, Equality, and Fraternity.
• Canadian Constitution: A quasi-federal form of government (a federal system with a strong central government).