Indian Constitution: Why and How? - NCERT Notes UPSC

Need of Constitution

Constitution allows coordination and assurance: It provides a set of basic rules that allow for minimal coordination amongst members of society.

• For minimal degree of coordination: Any group will need some basic rules that are publicly promulgated and known to all members.
• Enforcement of rules: Their enforcement gives an assurance to everybody that others will follow these and there will be punishment for not following them.

Specification of decision-making powers: It specifies who has the power to make decisions in society and decides how the government will be constituted.

• It is a body of fundamental principles according to which a state is constituted or governed. 
• Specifies the basic allocation of power in a society: It decides who will make the laws.
• In the Indian Constitution, Parliament gets to decide laws and policies.

Limitations on the Powers of Government

• Need: If laws made by the government based on certain procedures are found to be unjust and unfair.
• It sets some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
• It specifies certain fundamental rights that all of us possess as citizens and which no government can ever be allowed to violate such as protection from being arrested arbitrarily.
• Citizens will normally have the right to some basic liberties: to freedom of speech, freedom of conscience, freedom of association, freedom to conduct a trade or business etc. 
• Specifies circumstances when these rights may be withdrawn: These rights can be limited during times of national emergency.

Aspirations and Goals of a Society

It enables the government to fulfil the aspirations of a society and create conditions for a just society.

• Most of the older constitutions limited themselves largely to allocating decision-making power and setting some limits to government power. 
• Societies with deep entrenched inequalities of various kinds will not only have to set limits on the power of government but they will also have to enable and empower the government to take positive measures to overcome forms of inequality or deprivation.
• For example, India aspires to be a society that is free of caste discrimination and for this the government will have to be empowered to take all the necessary steps to achieve this goal. 
• The Constitution makers thought that each individual in society should have all that is necessary for them to lead a life of minimal dignity and social self-respect - minimum material well-being, education etc. So, the Indian Constitution enables the government to take positive welfare measures some of which are legally enforceable. 

The Fundamental Identity of People

• People as a collective entity come into being only through the basic constitution. It is by agreeing to a basic set of norms about how one should be governed, and who should be governed that one forms a collective identity.
• National identity: 
  • Different nations embody different conceptions of about the relationship between the different regions of a nation and the central government. This relationship constitutes the national identity of a country.

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The Authority of a Constitution

• In most countries, ‘Constitution’ is a compact document that comprises a number of Articles about the state, specifying how the state is to be constituted and what norms it should follow.
• In some countries, such as the United Kingdom, do not have one single document that can be called the Constitution. Rather they have a series of documents and decisions that, taken collectively, are referred to as the Constitution. 

Factors Responsible for Effectiveness of Constitution

Mode of Promulgation

• It talks about how a constitution comes into being, who crafted the constitution and what is the limit of their authority.
• In many countries, constitutions remain defunct because they are crafted by military leaders or leaders who are not popular and do not have the ability to carry the people with them.
• Some successful constitution like India, South Africa were created in the aftermath of popular national movements. 
• Some countries have subjected their constitution to a full-fledged referendum, where all the people vote on the desirability of a constitution. 
• Formation of Indian Constitution:
  • It was formally created by a Constituent Assembly between December 1946 and November 1949 and drew upon a long history of the nationalist movement that had a remarkable ability to take along different sections of Indian society together. 
  • The final document reflected the broad national consensus at the time. 
  • Enormous public authority: It had the consensus and backing of leaders who were themselves popular and it was never subjected to a referendum.
  • The people adopted it as their own by abiding by its provisions. Therefore, the authority of people who enact the Constitution helps determine in part its prospects for success.

Substantive Provisions of a Constitution

• Hallmark of a successful constitution: It gives everyone in society some reason to go along with its provisions. 
• No constitution by itself achieves perfect justice but it has to convince people that it provides the framework for pursuing basic justice. 
• For example, A group will have no reason to abide by it if their identity is being stifled.
• More a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.

Balanced Institutional Design

• No single group can subvert Constitution: Well-crafted constitutions fragment power in society intelligently.
• Checks and balances: It ensures that no single institution acquires monopoly of power. This is often done by fragmenting power across different institutions. 
• For example, the Indian Constitution horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary for ensuring that others institution can check transgressions of other. 
• It must strike the right balance between certain values, norms and procedures as authoritative, and allow enough flexibility in its operations to adapt to changing needs and circumstances. 
• Issues:
  • Too rigid Constitution: It is likely to break under the weight of change.
  • Too flexible:  A constitution will give no security, predictability or identity to a people. 
• Indian Constitution is described as ‘a living’ document:
• By striking a balance between the possibility to change the provisions and the limits on such changes, the Constitution has ensured that it will survive as a document respected by people.

Formation of Indian Constitution

• It 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 on 14 August 1947. 
• Members of Assembly: They were not elected by universal suffrage and were chosen by indirect election by the members of the Provincial Legislative Assemblies that had been established under the Government of India Act, 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.
  • 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.
  • 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 Provincial 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.

Also, read How to Prepare Indian Polity for UPSC Prelims

Composition of the Constituent Assembly

• It was a consequence of the Partition under the plan of 3 June 1947.
• Members elected from territories which fell under Pakistan ceased to be members of the Constituent Assembly and the members in the Assembly was reduced to 299. 
• The Constitution was adopted on 26 November 1949 and 284 members were actually present on 24 January 1950 and appended their signature to the Constitution as finally passed. 
• The Constitution came into force on 26 January 1950. 
• The Constitution was committed to a new conception of citizenship where minorities would be secure and religious identity would have no bearing on citizenship rights. 
• Representative constituent assembly:
  • Members of all religions were given representation under the scheme.
  • In addition, the Assembly had twenty-eight members from the Scheduled Castes. 
  • In terms of political parties: The Congress dominated the Assembly occupying as many as eighty-two per cent of the seats in the Assembly after the Partition but it itself was a diverse party that managed to accommodate almost all shades of opinion within it.

The Principle of Deliberation

• Authority of the Constituent Assembly: It comes from the procedures it adopted to frame the Constitution and the values its members brought to their deliberations. 
• Interest of whole nation: It was desirable that diverse sections of society participate not only as representatives of their own identity or community. 
• Each member deliberated upon the Constitution with the interests of the whole nation in mind.
• Healthy Debate: 
  • Testament to democratic commitment: Almost every issue that lies at the foundation of a modern state was discussed with great sophistication.
  • Only one provision of, the introduction of universal suffrage, of the Constitution was passed without virtually any debate. 
• Members were engaged in public reason:
  • Emphasis on discussion and reasoned argument: They did not simply advance their own interests but gave principled reasons to other members for their positions. 
  • The voluminous debates in the Constituent Assembly debating and scrutinizing each clause of the Constitution is a tribute to public reason at its best. 
  • These debates deserved to be memorialized as one of the most significant chapters in the history of constitution.

Procedures 

• Mundane procedures of the Assembly:
  • The Constituent Assembly had eight major Committees on different subjects. 
  • Usually, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel or B.R. Ambedkar chaired these Committees. 
• Working together despite differences: 
  • Ambedkar was a bitter critic of the Congress and Gandhi and accusing them of not doing enough for the upliftment of Scheduled Castes. 
  • Patel and Nehru disagreed on many issues. 
  • Each Committee usually drafted particular provisions of the Constitution which were then subjected to debate by the entire Assembly. 
• Attempts to reach a consensus:
  • Belief: Provisions agreed to by all would not be detrimental to any particular interests.
  • Some provisions were subject to the vote. 
  • Every single argument, query or concern was responded with great care and writing. 
  • The Assembly met for one hundred and sixty-six days, spread over two years and eleven months. 
• Its sessions were open to the press and the public alike.

Inheritance of the Nationalist Movement

• Consensus on main principles for Constitution:
  • The Constituent Assembly was giving concrete shape and form to the principles it had inherited from the nationalist movement. 
  • The nationalist movement had debated many questions that were relevant to the making of the constitution like the shape and form of government etc.
  • Answers forged in those debates were given their final form in the Constitution.
• Best summary of the principles:
  • Objectives Resolution (the resolution that defined the aims of the Assembly): It was moved by Nehru in 1946 and had the aspirations and values behind the Constitution. It inspired the substantive provisions of the constitution.
  • Based on this resolution, the Constitution gave institutional expression to these fundamental commitments: equality, liberty, democracy, sovereignty etc.
  • Our Constitution is a moral commitment to establish a government that will fulfil the promises that the nationalist movement held before the people.

Institutional Arrangements

• Basic principle: Government must be democratic and committed to the welfare of the people. 
• Constitution’s effectiveness depends upon a balanced arrangement of the institutions of government. The Constituent Assembly spent a lot of time on evolving the right balance among the various institutions. 
• Learn from experiments and experiences of other countries: The Constitution makers borrowed number of provisions from different countries. 
• Not imitation: Each provision of the Constitution had to be defended on grounds that it was suited to Indian problems and aspirations. 

Provisions Adopted from Constitutions of Different Countries:

Interesting Points

• Enabling provisions of the Constitution: The Constitution give powers to the government for pursuing collective good of the society.
  • Constitution of South Africa: It assigns many responsibilities to the government: it wants the government to take measures to promote conservation of nature, make efforts to protect persons or groups subjected to unfair discrimination etc.
  • Case of Indonesia: The government is enjoined to establish and conduct national education system.
• “Political democracy cannot last unless there lies at the base of it social democracy”- Dr. B.R. Ambedkar.
• Universal suffrage: All citizens reaching a certain age, would be entitled to be voters irrespective of religion, caste, education, gender or income.
• Debate over Constitution making in Nepal:
  • Since 1948, Nepal had multiple constitutions.
  • The 1990 constitution introduced a multiparty competition, though the King continued to hold final powers in many respects. 
  • The King was not ready to give up powers and took over all powers in October 2002. 
  • Finally, under pressure of popular agitation, the King had to install a government acceptable to the agitating parties.
  • In 2008, Nepal emerged as a democratic republic after abolishing the monarchy. 
  • Finally, Nepal adopted a new constitution in 2015.

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