XI NCERT – Indian Constitution at work – 1

Why does a country need a constitution?

  • Constitution allows coordination and assurance
  • It provides a set of basic rules that allow for minimal coordination amongst members of a society.
  • Specification of decision making powers
  • A constitution is a body of fundamental principles according to which a state is constituted or governed.
  • The constitution specifies the basic allocation of power in a society. It decides who gets to decide what the laws will be.
  • In a monarchial constitution, a monarch decides; in some constitutions like the old Soviet Union, one single party was given the power to decide. In democratic constitutions, the people get to decide.
  • The constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.
  • The constitution is to set some limits on what a government can impose on its citizens. These limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
  • Constitutions limit the power of government in many ways. 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.
  • Citizens will be protected from being arrested arbitrarily and for no reason. This is one basic limitation upon the government of government.
  • 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. in practice, these rights can be limited during times of national emergency and the constitution specifies the circumstances under which these rights may be withdrawn.
  • Another function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society.
  • Constitutions are not only rules and regulations controlling the powers of the government. They also give powers to the government for pursuing collective good of the society.
  • Constitution of South Africa 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, and provides that the government must progressively ensure adequate housing to all, health care, etc
  • In the case of Indonesia also, the government is enjoined to establish and conduct national education system. The Indonesian constitution ensures that the poor and destitute children will be looked after by the government.
  • The most important, the constitution expresses the fundamental identity of a people. This means the people as a collective entity come into being only through the basic constitution.
  • The constitution also gives one a moral identity.
  • The German constitution gave expression to the German identity. The Indian constitution, on the other hand, does not make ethnic diversity a criterion for citizenship.
  • Different nations embody different conceptions of what the relationship between the different religions of a nation and the central government should be. This relationship constitutes the national identity of a country.
  • 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.
  • Mode of Promulgation: this refers to how a constitution comes into being. Who crafted the constitution and how much authority did they have?
  • The substantive provisions of a constitution: it is the hallmark of a successful constitution that it gives everyone in society some reason to go along with its provisions.
  • The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.
  • A way of intelligent designing of a constitution is to ensure that no single institution acquires monopoly of power. This is often done by fragmenting power across different institutions. Ex: 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.
  • Successful constitutions strike the right balance between preserving core values and adapting them to new circumstances.

How was the Indian Constitution made?

  • Formally, the Constitution was made by the Constituent Assembly which had been elected for undivided India. It held its first sitting on 9 Dec, 1946 and resembled as Constituent Assembly for divided India on 14 Aug 1947.
  • Its members were chosen by indirect election by the members of the Provincial Legislature Assemblies that had been established under the Govt 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.
  • According to this 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. As a result the Provinces were to elect 292 members while the Princely states were allotted a minimum of 93 states.
    • 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 Legislature 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 Constitution was adopted on 26 November 1949.
  • The Constitution came into force on 26 January 1950.

The Principle of Deliberation:

  • The authority of the Constituent Assembly does not come only from the fact that it was broadly, though not perfectly, representative. It comes from the procedures it adopted to frame the Constitution and the values its members brought to their deliberations.
  • The constitution drew its authority from the fact that members of the Constituent Assembly engaged in what one might call public reason.

Inheritance of the nationalist movement:

  • The best summary of the principles that the nationalist movement brought to the Constituent Assembly is the Objectives Resolution moved by Nehru in 1946. This resolution encapsulated the aspirations and values behind the Constitution.
  • 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.

Institutional arrangements:

  • The other factor ensuring 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.
  • Thus the Constituent Assembly adopted 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.
  • Provisions adapted from constitutions of different countries:
    • British Constitution:
      • First Past the Post
      • Parliamentary form of Government
      • The idea of the rule of law
      • Institution of the Speaker and her/his role
      • Law-making procedure
    • French Constitution:
      • Principles of Liberty, Equality and Fraternity
    • United States constitution:
      • Charter of Fundamental Rights
      • Power of Judicial Review and independence of the judiciary
    • Canadian Constitution:
      • A quasi-federal form of government
      • The idea of Residual Powers
    • Irish Constitution:
      • Directive Principles of State Policy

 

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