Chapter -1 : Constitution || Why and How
What & Why do we need a Constitution?
- It is a body of fundamental principles according to which a state is constituted or governed.
- We need a constitution to provide a set of basic rules that allow for minimal coordination amongst members of a society which are legally enforceable.
Who can decide which rules are the best to suit for a society?
- The constitution specifies the basic allocation of power in a society.
- It decides who gets to decide what the laws will be.
- In the Indian Constitution, it is specified that in most instances, Parliament gets to decide laws and policies, and that Parliament itself be organized in a particular manner.
Functions of Constitution:
- Parliament has the authority to enact laws which constitutes government in the 1st place.
- Specifies who has the power to make decisions in a society
- It decides how the government will be constituted.
- To set some limits on what a govt. can impose on its citizens.
- The most common way of limiting the power of government is to specify certain fundamental rights that all of us possess as citizens and which no government can ever be allowed to violate.
- To enable the government to fulfill the aspirations of a society and create conditions for a just society.
Fundamental identity of a people:
- Constitution expresses the fundamental identity of a people.
- The people as a collective entity come into being only through the basic constitution.
- Constitutional norms are the overarching framework within which one pursues individual aspirations, goals and freedoms.
- The constitution sets authoritative 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.
Mode of Promulgation :
This refers to how a constitution comes into being.
Who crafted the constitution and how much authority did they have?
In many Countries constitutions remain defunct why?
- Crafted by military leaders
- Leaders who are not popular
- Do not have the ability to carry the people with them.
Why Countries like India, South Africa and the United States are the most successful constitutions?
Created in the aftermath of popular national movements.
Indian Constitution overview:
- Formally created by a Constituent Assembly between December 1946
and November 1949
- Drew upon a long history of the nationalist movement that had a remarkable ability to take along different sections of Indian society together
- Drew enormous legitimacy from the fact that it was drawn up by people who enjoyed :
- Immense public credibility
- Who had the capacity to negotiate and command the respect of a wide cross-section of society,
- who were able to convince the people that the constitution was not an instrument for the aggrandizement of their personal power
Provision of the Constitution:
- It gives everyone in society some reason to go along with its provisions
- Allowed permanent majorities to oppress minority groups within society
- Systematically privileged some members at the expense of others, or that systematically entrenched the power of small groups in society, would cease to command allegiance
- The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.
Balanced Institutional Design:
- Designing of a constitution is to ensure that no single institution acquires monopoly of power.
- For E.g. The Indian Constitution horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary and even independent statutory bodies like the Election Commission.
- This ensures that even if one institution wants to subvert the Constitution, others can check its transgressions.
- An intelligent system of checks and balances has facilitated the success of the Indian Constitution.
- A constitution must strike the right balance between certain values, norms and procedures as authoritative, and at the same time allow enough flexibility in its operations to adapt to changing needs and circumstances.
- Too rigid a constitution is likely to break under the weight of change; a constitution that is, on the other hand, too flexible, will give no security, predictability or identity to a people.
How was the Indian Constitution made ?
- Constitution was made by the Constituent Assembly which had been elected for undivided India.
- First sitting on 9 December 1946 and re-assembled as Constituent Assembly for divided India on 14 August 1947.
- Members were elected by indirect election by the members of the Provisional Legislative Assemblies that had been established in 1935
- 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 Cabinet Mission Plan:
- 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.
- The seats in each Province were distributed among the three main communities, Muslims, Sikhs and General, in proportion to their respective populations.
- Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representation with single transferable vote.
- The method of selection in the case of representatives of Princely States was to be determined by consultation
- The Constituent Assembly had eight major Committees on different subjects. Usually, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad or Ambedkar chaired these Committees.
- Each Committee usually drafted particular provisions of the Constitution which were then subjected to debate by the entire Assembly
- Some provisions were subject to the vote
- An Assembly as diverse as the Constituent Assembly of India could not have functioned if there was no background consensus on the main principles the Constitution should enshrine
- It defined the aims of the Assembly
- Moved by Nehru in 1946
- This resolution encapsulated the aspirations and values behind the Constitution.
- Based on this resolution, our Constitution gave institutional expression to these fundamental commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity.
Main points of the Objectives Resolution:
- India is an independent, sovereign, republic;
- India shall be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and Indian States as are willing to be a part of the Union;
- Territories forming the Union shall be autonomous units and exercise all powers and functions of the Government and administration, except those assigned to or vested in the Union;
- All powers and authority of sovereign and independent India and its constitution shall flow from the people;
- All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities and equality before law; and fundamental freedoms – of speech, expression, belief, faith, worship, vocation, association and action – subject to law and public morality;
- The minorities, backward and tribal areas, depressed and other backward classes shall be provided adequate safeguards;
- The territorial integrity of the Republic and its sovereign rights on land, sea and air shall be maintained according to justice and law of civilized nations;
- The land would make full and willing contribution to the promotion of world peace and welfare of mankind.
- 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
- Adoption of the parliamentary form and the federal arrangement, which would distribute governmental powers between the legislature and the executive on the one hand and between the States and the central government on the other hand