Constitution: Why and How? Class 11 Political Science

Introduction

Why Do We Need a Constitution?

A constitution is needed for the following purposes: 

Constitution Allows Coordination and Assurance

• The constitution provides a framework of basic rules that allow for coordination and peaceful coexistence among diverse members of a society or group.
• Ensures individuals feel secure about their rights and obligations within the group.
• Rules must be publicly known and enforceable to promote confidence and adherence.
• Enforceability through legal means reassures individuals that there are consequences for violations.
• Without rules, people would argue over things like property, education, and how resources are shared, making it hard for everyone to live peacefully together. 
• The constitution makes sure that everyone knows the rules are followed, and if someone breaks them, they will be punished, helping people feel safe in their dealings with each other.

Specification of Decision-Making Powers

• The constitution specifies the basic allocation of power within society, determining who has the authority to make decisions regarding laws and policies.
• Outlines the process of decision-making, such as direct voting or elected representatives.
• In democratic constitutions, power usually belongs to the people. 
• The constitution decides who has the right to make rules for society, helping to avoid conflicts when people have different ideas about what the rules should be. 
• For example, in India, the Constitution gives Parliament the authority to make laws and policies. This setup creates the foundation for government and ensures that the decision-making process is clear and organized.

Limitations on Powers of Government

• The constitution establishes limits on the actions that government can take against its citizens.
• The constitution establishes basic rights that the government cannot violate, like protection against unfair arrests and guarantees of freedoms such as speech and association. 
• However, these rights can be limited during national emergencies. By setting these fundamental rights, the constitution keeps government actions in check, protecting citizens' freedoms. 
• Even a legally elected government might create laws that seem unfair, so limits on its power are important. Fundamental rights act as a shield for citizens, ensuring their freedoms are safe from government overreach.

Aspirations and Goals of Society

• The constitution provides a framework for the government to pursue positive goals and aspirations of society.
• The constitution empowers the government to tackle deep-rooted inequalities and ensure welfare measures, like education and material well-being for all citizens. 
• This is supported by the Preamble and sections on Fundamental Rights and Directive Principles of State Policy. For example, the Indian Constitution allows the government to eliminate caste discrimination and promote social equity. 
• Modern constitutions, such as India's, aim to create conditions for a just and equitable society, reflecting societal aspirations. Constitutions may include provisions for positive welfare measures, giving governments the power to implement these actions to uplift all citizens.

Fundamental Identity of People

• Constitution expresses the fundamental identity of a people by setting norms and principles that form their basic political identity.
• Reflects the unique historical traditions and diverse groups of a nation while establishing democratic governance and protection of basic rights.
• Constitutions vary in their forms of government and procedural details but often share common features like democratic governance.
• Example: Indian Constitution does not prioritize ethnic identity for citizenship, reflecting a different conception of national identity compared to countries like Germany.
• By agreeing to the constitution, individuals collectively form their political identity, which guides their aspirations, goals, and freedoms.
• The relationship between different regions of a nation and its central government, as delineated in the constitution, plays a pivotal role in shaping national identity.

Functions of a Constitution

The Authority of a Constitution

• The authority of a constitution derives from its recognition as the highest legal authority in a country, and it establishes the framework for the exercise of governmental powers and the protection of individual rights and liberties.
• Key Questions About Constitutions:
  a) What is a constitution?
  b) How effective is a constitution?
  c) Is a constitution just?
• In most countries, a constitution is a document with articles that outline how the state is organized and the rules it must follow. However, some countries, like the United Kingdom, don't have a single document but a collection of documents and decisions that together make up the constitution.
• The constitution aims to perform the functions we discussed earlier, but many exist only on paper. The key question is how effective a constitution is and what makes it impactful in people's lives. Its effectiveness depends on many factors.

Mode of promulgation

The mode of promulgation means to how a constitution comes into being and who crafted it.

• Constitutions often fail if made by military leaders or unpopular leaders who lack public support. Successful constitutions, like those of India, South Africa, and the United States, were created after popular national movements.
• India’s Constitution was crafted by a Constituent Assembly between December 1946 and November 1949, influenced by the nationalist movement. 
• It gained legitimacy because it was created by credible leaders who had public trust and could negotiate and command respect. These framers convinced the public that the constitution reflected a national consensus, not personal gain.
• Some countries use a referendum to approve their constitution; India’s was not, but it still had public authority because of the consensus among popular leaders. 
• Therefore, the success of a constitution often depends on the authority of those who create it.

Debate over Constitution making in Nepal

The substantive provisions of a constitution

• A successful constitution ensures that everyone in society has a reason to support it. If a constitution allows majorities to oppress minorities, those minorities will not want to follow it. 
• A constitution that favors some members over others or strengthens the power of a small group will lose support. If any group feels their identity is being suppressed, they won’t abide by it. 
• While no constitution achieves perfect justice on its own, it must convince people that it offers a basis for basic justice.
• Thought experiment: Think about what basic rules would make everyone willing to follow them. The more a constitution preserves freedom and equality for all its members, the more likely it is to succeed. 
• The Indian Constitution generally provides a reason for everyone to follow its guidelines.

Balanced Institutional design

• Constitutions are often undermined by small groups trying to increase their own power, rather than by the general public. Well-designed constitutions fragment power to prevent any single group from dominating.

• The Indian Constitution divides power among the Legislature, Executive, Judiciary, and bodies like the Election Commission, ensuring checks and balances.

• A successful constitution balances core values with the ability to adapt to change, avoiding extremes of being too rigid or too flexible.

• The Indian Constitution is a living document, allowing changes while maintaining respect and stability.

• To evaluate a constitution's authority, consider the credibility of its framers, the organization of power, and whether it provides reasons for everyone to follow it.

Authority of a Constitution

How was the Indian Constitution made? 

• The Constitution of India was created by a Constituent Assembly elected for undivided India, and was guided by the British Cabinet Mission (1946).
• Seats in the Assembly were allocated based on population, with a ratio of roughly 1 seat per 10 lakh (10,00,000) people. 
• This resulted in 292 members from the provinces and a minimum of 93 seats for princely states.
• Seats within each province were divided among the main communities—Muslim, Sikh, and General—in proportion to their populations. 
• The method for selecting representatives from princely states was decided through consultation.

Composition of the Constituent Assembly

• After the Partition on June 3, 1947, members elected from territories that became Pakistan were removed from the Constituent Assembly, reducing its number to 299. 
• The Constitution was adopted on November 26, 1949, with 284 members signing it on January 24, 1950. It officially came into force on January 26, 1950.
• The Constitution was created amid the violence of Partition, but the framers managed to draft it under great pressure and learned from the chaos. 
• It established a new idea of citizenship where minorities were protected, and religious identity did not affect citizenship rights.
• Although the Constituent Assembly was not elected by universal suffrage, efforts were made to ensure it was representative, with members from all religions and twenty-eight members from the Scheduled Castes. 
• The Congress Party dominated the Assembly, holding eighty-two percent of the seats post-Partition, and was diverse enough to include a range of opinions.

The Principle of Deliberation 

• The authority of the Constituent Assembly comes not just from its broad representation but from its procedures and the values of its members.
• While diverse representation is important, members also considered the nation's overall interests rather than just their own communities.
• The Assembly faced disagreements on key issues like centralization versus decentralization, state and central relations, judicial powers, and property rights. However, most debates were not about personal interests but about principles. 
• The only provision passed with minimal debate was universal suffrage, which granted voting rights to all citizens regardless of religion, caste, gender, or income.
• The Constitution gained authority from the Assembly's commitment to public reason. Members focused on discussion and reasoned argument, offering principled reasons rather than personal interests. 
• The extensive debates in the Assembly, scrutinizing every clause, are a testament to public reason and are considered as significant as the French and American revolutions in the history of constitution making.

Procedures

• The importance of public reason was evident in the procedures of the Assembly. 
• The Constituent Assembly had eight major committees chaired by figures like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, and B.R. Ambedkar. Despite their differences—Ambedkar's criticism of the Congress and Gandhi, and Patel and Nehru's disagreements—they worked together effectively.
• Each committee drafted specific Constitution provisions, which were then debated by the entire Assembly. 
• The aim was to reach a consensus to ensure that the provisions would not harm any particular interests. 
• Some provisions were put to a vote, but every argument or concern was addressed carefully and in writing. 
• The Assembly met for 166 days over nearly three years, with sessions open to the press and the public.

Inheritance of the Nationalist Movement