Chapter Notes

Overview

In a democracy, rulers cannot do whatever they want. Both the government and the citizens must follow a set of basic rules. This collection of rules is called a constitution. As the supreme law of a country, the constitution defines the rights of citizens, the powers of the government, and the way the government must function.

This chapter explores why a democracy needs a constitution, how constitutions are created, and what values guide them. We will look at the recent example of South Africa's journey to creating its constitution and then examine how India’s constitution was designed.

Democratic constitution in South Africa

The story of South Africa provides a powerful example of how a country can move from oppression to democracy by designing a constitution together.

Struggle against apartheid

For many years, South Africa was ruled by a system of extreme racial discrimination called apartheid. This system was imposed by white European settlers who became the local rulers.

• Racial Division: Apartheid divided people based on their skin color. The native people, who were black, made up about three-fourths of the population. Other groups included people of mixed races, called 'coloured', and people who had migrated from India.
• System of Oppression: The white rulers treated all non-whites as inferior. Non-whites had no voting rights and were subjected to harsh segregation.
• Segregation: Blacks were forbidden from living in white areas and needed a permit to work there. Public facilities like trains, buses, hospitals, schools, libraries, beaches, and even churches were separate for whites and blacks.
• Resistance: Since 1950, blacks, coloureds, and Indians began to fight against the apartheid system. The African National Congress (ANC) became the main organization leading this struggle, which included workers' unions, the Communist Party, and even some sensitive white South Africans.
• Government Repression: The white government responded with force, detaining, torturing, and killing thousands of protesters. A key leader of the movement, Nelson Mandela, was tried for treason and sentenced to life imprisonment in 1964. He spent 27 years in prison.

Towards a new constitution

As protests and international pressure grew, the white government realized it could no longer rule through repression. This led to a remarkable transition.

1. Change in Policy: The white regime began to change its policies. It repealed discriminatory laws, lifted the ban on political parties, and removed restrictions on the media.
2. Mandela's Release: After 28 years in prison, Nelson Mandela was released.
3. Birth of a Democracy: On the midnight of 26 April 1994, South Africa became a democracy. The old apartheid government ended, and a new multi-racial government was formed.

The transition was peaceful because both sides were willing to compromise and trust each other. Black leaders urged their followers to forgive the whites for their past atrocities. The former oppressors and the oppressed sat down together to create a common constitution.

Why do we need a constitution?

The South African experience helps us understand the fundamental purpose of a constitution. In a country with diverse groups of people, a constitution serves several crucial functions.

• It generates trust and coordination: For different groups to live together peacefully, they need a set of rules that everyone agrees to follow. The constitution provides these basic rules, creating a foundation of trust.
• It specifies how the government will be formed: A constitution lays out the procedures for choosing rulers and defines who will have the power to make which decisions.
• It lays down limits on the powers of the government: It sets boundaries for what an elected government can do and, importantly, what it cannot do. It protects the rights of citizens from being violated by the government.
• It expresses the aspirations of the people: A constitution often reflects the kind of society the people want to create, based on shared values and ideals.

While all democratic countries have a constitution, it's important to remember that not all countries with a constitution are democratic.

MAKING OF THE INDIAN CONSTITUTION

Like South Africa, India's constitution was created under very challenging circumstances. The country was emerging from being subjects of British rule to becoming citizens of a free nation.

The process was complicated by several factors:

• The Partition: The country was born through a violent partition based on religious differences, which led to the deaths of at least ten lakh people.
• Princely States: The British left it to the rulers of the princely states to decide whether they wanted to join India, Pakistan, or remain independent. Integrating these states was an uncertain and difficult task.

The path to Constitution

Despite these difficulties, the makers of the Indian Constitution had some key advantages. Unlike in South Africa, a broad agreement on the basic values of a democratic India had already emerged during the freedom struggle.

• Early Consensus: As early as 1928, Motilal Nehru and eight other Congress leaders drafted a constitution for India. In 1931, a resolution at the Karachi session of the Indian National Congress outlined what an independent India's constitution should look like. Both documents included core values like universal adult franchise, the right to freedom and equality, and protection for minorities.
• Familiarity with Institutions: Indians had gained experience working with the legislative institutions introduced by the British, such as the provincial legislatures established after the 1937 elections. This experience was useful in designing India’s own institutions. Many procedural details were adapted from colonial laws like the Government of India Act, 1935.
• Inspiration from Abroad: Indian leaders were inspired by global ideals. They drew from the French Revolution, the practice of parliamentary democracy in Britain, the Bill of Rights in the US, and the socialist revolution in Russia. However, they did not simply copy these ideas but questioned and adapted them to suit India's unique context.

The Constituent Assembly

The constitution was drafted by an assembly of elected representatives known as the Constituent Assembly.

• Formation and Timeline: Elections for the Assembly were held in July 1946. After the partition, the Constituent Assembly of India had 299 members. The Assembly adopted the Constitution on 26 November 1949, and it came into effect on 26 January 1950, a day we now celebrate as Republic Day.
• Representation: The Assembly was not directly elected by all the people of India through universal adult franchise. Its members were chosen by the members of the existing Provincial Legislatures. This method ensured a fair geographical representation from all regions. Though dominated by the Indian National Congress, the Assembly included people from diverse political groups, social backgrounds, castes, religions, and occupations.
• Working Process: The Constituent Assembly worked in a systematic, open, and consensual manner.
  1. First, basic principles were decided and agreed upon.
  2. Then, a Drafting Committee, chaired by Dr. B.R. Ambedkar, prepared a draft constitution.
  3. This draft was discussed clause by clause over 114 days spread across three years. More than two thousand amendments were considered.
  4. Every word spoken in the Assembly was recorded and preserved in volumes called the 'Constituent Assembly Debates', which help us understand the reasoning behind the constitutional provisions.

Guiding values of the Indian Constitution

To understand the philosophy of our constitution, we can look at the views of our leaders and the text of the constitution itself, especially its introduction, the Preamble.

The Dream and the Promise

The Constitution reflects the visions of India's great leaders.

• Mahatma Gandhi, though not a member of the Constituent Assembly, envisioned an India free from all forms of inequality, where the poorest feel it is their country, all communities live in harmony, and women have the same rights as men.
• Dr. B.R. Ambedkar, a key architect of the Constitution, warned of a contradiction. On 26 January 1950, India would achieve political equality (one person, one vote, one value) but would still have deep social and economic inequality. He cautioned that if this contradiction was not resolved, it could put political democracy in peril.
• Jawaharlal Nehru, in his famous 'Tryst with Destiny' speech on 15 August 1947, spoke of the pledge to serve the millions who suffer and to end poverty, ignorance, disease, and inequality of opportunity.

Philosophy of the Constitution

The core values that guided the freedom struggle are embedded in the Preamble of the Indian Constitution. The Preamble is the soul of the constitution, providing a standard to evaluate any law or government action.

Here are the key ideas of the Preamble:

• WE, THE PEOPLE OF INDIA: This phrase signifies that the constitution was created and enacted by the people of India through their representatives, not given to them by a king or any external power.
• SOVEREIGN: India is an independent nation with the supreme right to make decisions on its internal and external matters.
• SOCIALIST: Wealth is generated socially and should be shared to reduce socio-economic inequalities. (This term was added in 1976).
• SECULAR: Citizens are free to follow any religion, and there is no official state religion. The government treats all religions with equal respect. (This term was also added in 1976).
• DEMOCRATIC: The government is a form where people elect their rulers and hold them accountable.
• REPUBLIC: The head of the state (the President) is an elected person, not a hereditary monarch.
• JUSTICE: Citizens cannot be discriminated against on grounds of caste, religion, or gender. The government must work to reduce social inequalities.
• LIBERTY: Citizens have the freedom of thought, expression, and action without unreasonable restrictions.
• EQUALITY: Everyone is equal before the law, and the government must ensure equal opportunity for all.
• FRATERNITY: All citizens should behave as if they are members of the same family, treating each other with respect and dignity.

Institutional design

A constitution is not just a statement of philosophy; it is also about putting these values into practice through institutional arrangements.

The Indian Constitution is a very long and detailed document that describes these arrangements in legal language. It lays down:

• The procedure for choosing people to govern the country.
• Who will have how much power to make decisions.
• Limits on what the government can do by guaranteeing rights to citizens that cannot be violated.

The makers of the constitution understood that society would change, so they included provisions to make changes to the constitution over time. These changes are called constitutional amendments. This ensures that the constitution remains a living document that reflects the aspirations of the people.