CHAPTER 1

CONSTITUTION: WHY AND HOW?

CONSTITUTION
It is a written instrument embodying the rules of a political or social organization. It is
the basic principles and laws of a nation, state, or social group that determine the powers and duties of
the government and guarantee certain rights to the people in it.

WHY DO WE NEED A CONSTITUTION?

a) Constitution allows coordination and assurance - the constitution is the highest authority of the
government for the people. It gives you the assurance to protect your family, assets and country
from any adverse effects / illegal activities.
b) Specification of decision making powers- A constitution is a body of fundamental principles
according to which a state is constituted & governed. It specifies the basic allocation of power in
a society. It decides who gets to decide what the laws will be.
c) Limitations on the powers of government-A limited government is the view in political
philosophy that a government, from a starting point of having no power, is empowered and
restricted by law which is written in its constitution.
d) Aspirations and goals of a society- Goals are the aspirations that are set to be achieved and are
the driving force towards working in getting them sorted out. Improving the speed at which
work is done in a society. ... They are useful in uniting forces and coming together and making it
possible to work towards one goal.
e) Fundamental identity of a people- This means the people as a collective entity come into being
only through the basic constitution, this is done by agreeing to basic set of norms and principles
then one constitute one's basic political identity.

THE AUTHORITY OF A CONSTITUTION

‘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. Many constitutions around the
world exist only on paper. The crucial question is: how effective is a constitution? What makes it
effective? In order to understand all these thing we should focus on the three major factors:-
a) Mode of promulgation
To promulgate is to officially put a law into effect. The
word promulgate comes from the Latin word
promulgatus, meaning "make publicly known."

This refers to how a constitution comes into being. 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. The most successful constitutions, like India, South Africa and the United
States, are constitutions which were created in the aftermath of popular national movements.
b) The substantive provisions of a constitution

Means having a separate and

independent existence.

It is a principle allowing courts to protect certain fundamental rights from government interference. The
more a constitution preserves the freedom and equality of all its members, the more likely it is to
succeed.
c) Balanced institutional design- Designing of a constitution is to ensure that no
single institution acquires monopoly of power. The Indian Constitution, for example,
horizontally fragments power across different institutions like the Legislature, Executive and the
Judiciary and even independent statutory bodies like the Election Commission.
 An intelligent system of checks and balances has facilitated the success of the Indian
Constitution.
 Another important aspect of intelligent institutional design is that 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.
 The Indian Constitution is described as ‘a living’ document. The Constitution has ensured that it
will survive as a document respected by people. This arrangement also ensures that no section
or group can, on its own, subvert the Constitution.

How was the Indian Constitution made?

 Constitution was made by the Constituent Assembly. It held its first sitting on 9 December1946
and re-assembled as Constituent Assembly for divided India on 14 August 1947.
 The Constituent Assembly was composed by the plan proposed by the committee of the British
cabinet, known as the Cabinet Mission. According to this:-
 Each Province and each Princely State or group of States were allotted seats
proportional to their respective population.
 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.
Composition of the Constituent Assembly
 The Constitution was thus framed against the backdrop of the horrendous violence that the
Partition unleashed on the sub-continent.
 Members of all religions were given representation in the constituent assembly. 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.

The Principle of Deliberation

Deliberation emphasizes the use of logic and
reason as opposed to power-struggle, creativity, or
dialogue. Group decisions are generally made after
deliberation through a vote.

 It is equally important that the members 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.
 Only one provision of the Constitution was passed without virtually any debate the introduction
of universal suffrage (meaning that all citizens reaching a certain age, would be entitled to be
voters irrespective of religion, caste, education, gender or income).

Inheritance of the nationalist movement

 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. These
principles were forged during the long struggle for freedom.
 The Constituent Assembly was giving concrete shape and form to the principles it had inherited
from the nationalist movement.
 The best summary of the principles that the nationalist movement brought to the Constituent
Assembly is the Objectives Resolution (the resolution that defined the aims of the Assembly)
moved by Nehru in 1946.
 Based on this resolution, our Constitution gave institutional expression to these fundamental
commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity.

supreme power or
authority. Cosmopolitanism is the idea that all
human beings are, or could or should
be, members of a single community.
  Thus, our Constitution is not merely a maze of rules and procedures, but a moral commitment to
establish a government that will fulfill the many promises that the nationalist movement held
before the people.

sovereignty cosmopolitan identity Equality

Liberty Democracy

Institutional arrangements
 It is important to ensure effectiveness of a constitution is a balanced arrangement of the
institutions of government. The basic principle is that government must be democratic and
committed to the welfare of the people.
 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. This led to the 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.
 The framers of the Constitution were not averse to borrowing from other constitutional
traditions.
Provisions borrowed from constitutions of different countries
British Constitution :-
 First Past the Post System- It is an electoral system members of the electorate cast their
vote for the candidate of their choice and the candidate who receives the most votes
wins, even if they did not receive a majority of the votes.
 Parliamentary Form of Government
 The idea of the rule of law
 Institution of the Speaker and his role
 Lawmaking procedure
 United States Constitution:-
 Charter of Fundamental Rights
 Power of Judicial Review and independence of the judiciary
Canadian Constitution :--
 A quasi-federal form of government (a federal system with a strong central government)
 The idea of Residual Powers
Irish Constitution :-
 Directive Principles of State Policy
French Constitution :-
 Principles of Liberty, Equality and Fraternity

FUNDAMENTAL RIGHTS
The Fundamental Rights are defined as the basic human rights of all citizens. We have 6 fundamental
rights. They are:-
 Right to Equality- It includes equality before law, prohibition of discrimination on grounds of
race, religion, gender, and caste or birth place. It also includes equality of opportunity in matters
of employment, abolition of untouchability and titles.

 Right to freedom: It includes freedom of speech and expression, movement, and residence. It
also includes the right to practice any profession or occupation.

 Right against Exploitation- enshrined in the Indian Constitution guarantees dignity of the
individual. It also prohibits the exploitation or misuse of service by force or inducement in the
following ways: It prohibits human trafficking i.e. it criminalizes buying and selling of human
beings like a commodity.
  Right to freedom of religion-Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion or belief and freedom.

 Cultural and educational rights- preserve the right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and
administer educational institutions of their choice.
 Right to constitutional remedies- empowers the citizens to move to a court of law in case of any
denial of the fundamental rights.

DIRECTIVE PRINCIPLE OF STATE POLICY

It aims to create social and economic conditions under which the citizens can lead a good life.
They also aim to establish social and economic democracy through a welfare state.