Constitutional Design
The definition of the term "constitution" and its significance for the people and the government are covered in this chapter. We will also learn about the formation of the Indian Constitution and the postindependence integration of various regions.
1.0Introduction
As we mentioned in the previous chapter, the authorities in a democracy are not at liberty to act as they like. The government and the people are required to abide by a few fundamental laws. A constitution is made up of all these regulations. The constitution, which is the ultimate law of the land, establishes citizen rights, governmental authority, and the proper course of government. We pose several fundamental queries concerning a democracy's constitutional structure in this chapter. Why is a constitution necessary? How do constitutions become drafted? How and by whom are they designed? Which principles are reflected in the constitutions of democratic states? Can we amend a constitution after it is adopted if required by the changing conditions?
The constitution of South Africa is one recent example of one created for a democratic state. In this first section of the chapter, we examine what transpired there and the process that South Africans used in creating their constitution. Next, we discuss the composition process of the Indian Constitution, its guiding principles, and how it offers a sound platform for the government and citizenry to operate within.
2.0Democratic Constitution in South Africa
"I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die." This was Nelson Mandela, being tried for treason by the white South African government. He and seven other leaders were sentenced to life imprisonment in 1964 for daring to oppose the apartheid regime in his country. He spent the next 28 years in South Africa's most dreaded prison, Robben Island.
Struggle against Apartheid
Apartheid was the name of a system of racial discrimination unique to South Africa. The white Europeans imposed this system on South Africa. During the seventeenth and eighteenth centuries, the trading companies from Europe occupied it with arms and force, in the way they occupied India. But unlike India, a large number of 'whites' had settled in South Africa and became the local rulers.
The system of apartheid divided the people and labelled them based on their skin colour. The native people of South Africa are black in colour. They made up about three-fourth of the population and were called 'blacks'. Besides these two groups, there were people of mixed races who were called 'coloured' and people who migrated from India. The white rulers treated all non- whites as inferiors. The non-whites did not have voting rights. The apartheid system was particularly oppressive for the blacks. Blacks were forbidden from living in white areas. They could work in white areas only if they had a permit. They could not even visit the churches where the whites worshipped. Blacks could not form associations or protest the terrible treatment. Trains, buses, taxis, hotels, hospitals, schools and colleges, libraries, cinema halls, theatres, beaches, swimming pools public toilets, were all separate for the whites and blacks. This was called segregation. They could not even visit the churches where the whites worshipped. Blacks could not form associations or protest against the terrible treatment.
Policy of apartheid opposed by people of South Africa
Since 1950, the blacks, coloured and Indians fought against the apartheid system. They launched protest marches and strikes. The African National Congress (ANC) was the umbrella organisation that led the struggle against the policies of segregation. This included many workers' unions and the Communist Party. Many sensitive whites also joined the ANC to oppose apartheid and played a leading role in this struggle. Several countries denounced apartheid as unjust and racist. But the white racist government continued to rule by detaining, torturing, and killing thousands of black and coloured people.
Towards a new constitution
Nelson Mandela, being tried for treason by the white South African government. He and seven other leaders were sentenced to life imprisonment in 1964 for daring to country. He spent the next 28 years in South Africa's most dreaded prison, Robben Island.
(i) End of Apartheid:
As protests and struggles against apartheid had increased, the government realised that they could no longer keep the blacks under their rule through repression. The white regime changed its policies. Discriminatory laws were repealed. Ban on political parties and restrictions on the media were lifted. After 28 years of imprisonment, Nelson Mandela walked out of the jail as a free man. Finally, at the midnight of 26 April 1994, the new national flag of the Republic of South Africa was unfurled marking the newly born democracy in the world. The apartheid government came to an end, paving way for the formation of a multi-racial government.(ii) Features of the S. African Constitution:
After the emergence of the new democratic South Africa, black leaders appealed to fellow blacks to forgive the whites for the atrocities they had committed while in power. They said let us build a new South Africa based on equality of all races and men and women, on democratic values, social justice and human rights. The party that ruled through oppression and brutal killings and the party that led the freedom struggle sat together to draw up a common constitution.After two years of discussion and debate they came out with one of the finest constitutions the world has ever had. This constitution gave to its citizens the most extensive rights available in any country. Together, they decided that: (i) In the search for a solution to the problems, nobody should be excluded, no one should be treated as a demon. (ii) Everybody should become part of the solution, whatever they might have done or represented in the past. (iii) The preamble to the South African Constitution sums up this spirit. (iv) The South African constitution inspires democrats all over the world. (v) A state denounced by the entire world till 1994 as the most undemocratic one is now seen as a model of democracy. (vi) What made this change possible was the determination of the people of South Africa to work together, to transform bitter experiences into the binding glue of a rainbow nation.
The main characteristic of the South African constitution is that it signalled the end of the apartheid regime and offered the people of South Africa extensive rights regardless of their colour, faith, religion, sex, or gender. It also establishes the foundation for a brand-new South Africa based on the ideals of justice, equality, and democracy. Additionally, it makes way for a representative democracy in which the members of parliament are chosen by the general populace.
3.0Why do we need a constitution?
The South African example is a good way to understand why we need a constitution and what do constitutions do. The oppressor and the oppressed in this new democracy were planning to live together as equals. It was not going to be easy for them to trust each other. They had their fears. They wanted to safeguard their interests. The black majority was keen to ensure that the democratic principle of majority rule was not compromised. They wanted substantial social and economic rights. The white minority was keen to protect its privileges and property. After long negotiations both parties agreed to a compromise. The whites agreed to the principle of majority rule and that of one person one vote. They also agreed to accept some basic rights for the poor and the workers. The blacks agreed that majority rule would not be absolute. They agreed that the majority would not take away the property of the white minority. This compromise was not easy. (i) The only way to build and maintain trust in such a situation is to write down some rules of the game that everyone would abide by. (ii) These rules lay down how the rulers are to be chosen in future. (iii) These rules also determine what the elected governments are empowered to do and what they cannot do. (iv) Finally, these rules decide the rights of the citizen. These rules will work only if the winner cannot change them very easily. This is what the South Africans did. (v) They agreed on some basic rules. They also agreed that these rules will be supreme, that no government will be able to ignore these. This set of basic rules is called a constitution.
Constitution making is not unique to South Africa. Every country has diverse groups of people. Their relationship may not have been as bad as that between the whites and the blacks in South Africa. But all over the world people have differences of opinion and interests. Whether democratic or not, most countries in the world need to have these basic rules. This applies not just to governments. Any association needs to have its constitution. It could be a club in your area, a cooperative society or a political party, they all need a constitution.
Constitution and its contents
The constitution of a country is a set of written rules that are accepted by all people living together in a country. Constitution is the supreme law that determines the relationship among people living in a territory (called citizens) and the relationship between the people and government. A constitution does many things.
First, it generates a degree of trust and coordination that is necessary for different kind of people to live together. Second, it specifies how the government will be constituted, who will have power to take which decisions.
Third, it lays down limits on the powers of the government and tells us what the rights of the citizens are.
Fourth, it expresses the aspirations of the people about creating a good society. All countries that have constitutions are not necessarily democratic. But all countries that are democratic will have constitutions. After the War of Independence against Great Britain, the Americans gave themselves a constitution. After the Revolution, the French people approved a democratic constitution. Since then it has become a practice in all democracies to have a written constitution.
4.0Making of the Indian Constitution
Like South Africa, India's Constitution was also drawn up under very difficult circumstances. The making of the constitution for a huge and diverse country like India was not an easy affair.
Problems
(i) At that time the people of India were emerging from the status of subjects to that of citizens. (ii) The country was born through a partition on the basis of religious differences. This was a traumatic experience for the people of India and Pakistan. At least ten lakh people were killed on both sides of the border in partition related violence. (iii) There was another problem. The British had left it to the rulers of the princely states to decide whether they wanted to merge with India or with Pakistan or remain independent. (iv) The merger of these princely states was a difficult and uncertain task. (v) When the constitution was being written, the future of the country did not look as secure as it does today. The makers of the constitution had anxieties about the present and the future of the country.
The Path to Constitution
Despite all these difficulties, there was one big advantage for the makers of the Indian Constitution. Unlike South Africa, they did not have to create a consensus about what a democratic India should look like. Much of this consensus had evolved during the freedom struggle. Our national movement was not merely a struggle against a foreign rule. It was also a struggle to rejuvenate our country and to transform our society and politics. There were sharp differences of opinion within the freedom struggle about the path India should take after Independence. Yet some basic ideas had come to be accepted by almost everyone.Factors Contributing in the making of the Indian Constitution
In 1928, Motilal Nehru and eight other Congress leaders drafted a constitution for India. In 1931, the resolution at the Karachi session of the Indian National Congress dwelt on how independent India's constitution should look like. Both these documents were committed to the inclusion of universal adult franchise, right to freedom and equality and to protecting the rights of minorities in the constitution of independent India. Thus, some basic values were accepted by all leaders much before the Constituent Assembly met to deliberate on the Constitution.
The familiarity with political institutions of colonial rule also helped develop an agreement over the institutional design. The British rule had given voting rights only to a few. On that basis the British had introduced very weak legislatures. Elections were held in 1937 to Provincial Legislatures and Ministries all over British India. These were not fully democratic governments. But the experience gained by Indians in the working of the legislative institutions proved to be very useful for the country in setting up its own institutions and working in them. That is why the Indian constitution adopted many institutional details and procedures from colonial laws like the Government of India Act, 1935.
Years of thinking and deliberation on the framework of the constitution had another benefit. Our leaders gained confidence to learn from other countries, but on our own terms. Many of our leaders were inspired by the ideals of French Revolution, the practice of parliamentary democracy in Britain and the Bill of Rights in the US. The socialist revolution in Russia had inspired many Indians to think of shaping a system based on social and economic equality. Yet they were not simply imitating what others had done. At each step they were questioning whether these things suited our country. All these factors contributed to the making of our Constitution.
The Constituent Assembly
The drafting of the document called the constitution was done by an assembly of elected representatives called the Constituent Assembly. Elections to the Constituent Assembly were held in July 1946. Its first meeting was held in December 1946. The Constituent Assembly that wrote the Indian constitution had 299 members. The Assembly adopted the Constitution on 26 November 1949, but it came into effect on 26 January 1950. To mark this day, we celebrate January 26 as Republic Day every year.Why should we accept the Constitution made by this Assembly more than six decades ago?
The Constitution does not reflect the views of its members alone. It expresses a broad consensus of its time. Many countries of the world have had to rewrite their Constitution afresh because the basic rules were not acceptable to all major social groups or political parties. In some other countries, the Constitution exists as a mere piece of paper. No one actually follows it. The experience of our Constitution is different.(i) Over the last half a century, several groups have questioned some provisions of the Constitution. But no large social group or political party has ever questioned the legitimacy of the Constitution itself. This is an unusual achievement for any constitution. (ii) The second reason for accepting the Constitution is that the Constituent Assembly represented the people of India. There was no universal adult franchise at that time. So, the Constituent Assembly could not have been chosen directly by all the people of India. (iii) It was elected mainly by the members of the existing Provincial Legislatures that we mentioned above. This ensured a fair geographical share of members from all the regions of the country. (iv) The Assembly was dominated by the Indian National Congress, the party that led India's freedom struggle. But the Congress itself included a variety of political groups and opinions. The Assembly had many members who did not agree with the Congress. (v) In social terms too, the Assembly represented members from different language groups, castes, classes, religions, and occupations. Even if the Constituent Assembly was elected by universal adult franchise, its composition would not have been very different.
Finally, the way the Constituent Assembly worked gives sanctity to the Constitution. The Constituent Assembly worked in a systematic, open, and consensual manner. Hence, we should accept the constitution made by this assembly more than six decades ago.
Working of the Constituent Assembly
First some basic principles were decided and agreed upon. Then a Drafting Committee chaired by Dr. B.R. Ambedkar prepared a draft constitution for discussion. Several rounds of thorough discussion took place on the Draft Constitution, clause by clause. More than two thousand amendments were considered. The members deliberated for 114 days spread over three years. Every document presented and every word spoken in the Constituent Assembly has been recorded and preserved. These are called 'Constituent Assembly Debates'. When printed, these debates are 12 bulky volumes! These debates provide the rationale behind every provision of the Constitution. These are used to interpret the meaning of the Constitution.5.0Guiding Values of The Indian Constitution
The Dream and the Promise
Mahatma Gandhi was not a member of the Constituent Assembly. Yet there were many members who followed his vision. Mahatma Gandhi, years ago, writing in his magazine Young India in 1931, had spelt out what he wanted the constitution to do.Mahatma Gandhi I shall strive for a constitution, which will release India from all thraldom and patronage, and give her, if need be, the right to sin, I shall work for an India, in which the poorest shall it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony. There can be no room in such an India for the curse of untouchability or the curse of the intoxicating drinks and drugs. Women will enjoy the same rights as men. Since we shall not be at peace with all the rest of the world, exploiting, nor being exploited, we should have the smallest army imaginable, all interests not in conflict with the interests of the dumb millions will be scrupulously respected, whether foreign or indigenous. Personally, I hate distinction between foreign and indigenous. This is the India of my dreams. I shall be satisfied with nothing else. Young India, 10-9-31
This dream of an India that has eliminated inequality was shared by Dr. Ambedkar, who played a key role in the making of the Constitution, but he had a different understanding of how inequalities could be removed. He often bitterly criticised Mahatma Gandhi and his vision. In his concluding speech to the Constituent Assembly, he stated his anxiety very clearly:
On the 26th of January 1950 we are going to enter a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we equality to deny crudity in our social and economic life? if we continue to deny it for long, we will do so only by putting our political democracy in peril.
Finally let us turn to Jawaharlal Nehru giving his famous speech to the Constituent Assembly at the stroke of midnight on August 15, 1947.
At the dawn of history India started on her unending quest, and trackless centuries are filled with her striving and the grandeur of her successes, and her failures. Through good and ill fortune alike she has never lost sight of that quest or forgotten the ideals which gave her strength. We end today a period of ill fortune and India discovers herself again. The achievement we celebrate today is but a step, an opening of opportunity, to the greater triumphs and achievements that await us. Are we brave enough and wise enough to grasp this opportunity and accept the challenge of the future? Freedom and power bring responsibility. The responsibility rests upon this Assembly, a sovereign body representing the sovereign people of India. Before the birth of freedom, we have endured all the pains of labour and our hearts are heavy with the memory of this sorrow. Some of those pains continue even now. Nevertheless, the past is over, and it is the future that beckons to us now. That future is not one of ease or resting but of incessant striving so that we might fulfil the pledges we have so often taken and the One we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us but if there are tears and suffering, so long our work will not be over.
Philosophy of the Constitution
Preamble of the Indian Constitution - Taking inspiration from the American model most countries of the modern world have chosen to begin their Constitutions with a preamble. India has also done so. The preamble to the Indian Constitution incorporates all the guiding values inspired and nurtured by the Freedom Struggle.
Preamble - Soul of the Indian Constitution
Values that inspired and guided the freedom struggle and were in turn nurtured by it, formed the foundation for India's democracy. These values are embedded in the Preamble of the Indian Constitution. They guide all the articles of the Indian Constitution. The Constitution begins with a short statement of its basic values. This is called the Preamble to the constitution. Taking inspiration from American model, most countries in the contemporary world have chosen to begin their constitutions with a preamble. The Preamble contains the philosophy on which the entire Constitution has been built. It provides a standard to examine and evaluate any law and action of government, to find out whether it is good or bad. It is the soul of the Indian Constitution.Constitutional Amendment
Constitution of India is a very long and detailed document. Therefore, it needs to be amended quite regularly to keep it updated. Those who crafted the Indian Constitution felt that it must be in accordance with people's aspirations and changes in society. They did not see it as a sacred, static, and unalterable law. So, they made provisions to incorporate changes from time to time. These changes are called constitutional amendments.Institutional design
The Indian Constitution lays down a procedure for choosing persons to govern the country. It defines who will have how much power to take which decisions. And it puts limits to what the government can do by providing some rights to the citizens that cannot be violated.6.0Glossary
- Apartheid - The official policy of racial separation and ill treatment of blacks followed by the government of South Africa between 1948 and 1989.
- Clause - A distinct section of a document.
- Constituent Assembly - An assembly of people's representatives that writes a constitution for a country.
- Constitution - Supreme law of a country, containing fundamental rules governing the politics and society in a country.
- Constitutional amendment - A change in the constitution made by the supreme legislative body in a country.
- Draft - A preliminary version of a legal document.
- Philosophy - The most fundamental principles underlying one's thoughts and actions.
- Preamble - An introductory statement in a constitution which states the reasons and guiding values of the constitution.
- Treason - The offence of attempting to overthrow the government of the state to which the offender owes allegiance.
- Tryst - A meeting or meeting place that has been agreed upon.
7.0MIND MAP
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