Constitution: Why and How – Indian Polity Notes for UPSC

In this Article, You will read Constitution: Why And How – Indian Polity Notes For UPSC IAS.

What is a Constitution?

• A Constitution is a document of people faith and aspirations possessing a special legal sanctity.
• It is the fundamental law of a country and all other laws and customs of the country in order to be legally valid shall conform to the constitution.
• It is the supreme law of the land.
• It sets out the framework and the principal functions of various organs of the government, viz , the Executive. Legislature and judiciary as well as relations between the government and the people which is called citizenship.
• It prescribes the extent of the sovereign powers of the organs of the government and the manner of its exercise. In short, a Constitution is the rule book of a nation. Codifying The rule of law.

Who can decide which rules are the best to suite for a society?

• The constitution specifies the basic allocation of power in a society.
• It decides who gets to decide what the laws will be.
• In the Indian Constitution, it is specified that in most instances, Parliament gets to decide laws and policies and that Parliament itself be organized in a particular manner.

Purpose and functions of a Constitution

• Lays out certain ideals that form the basis of the kind of country that we as citizens aspire to live in.
• Defines the nature of a country’s political system; plays a crucial role in laying out certain important guidelines that govern decision-making within these societies.
• Provides a set of basic rules that allow for minimal coordination amongst members of society.
• Provides safeguards against the leaders who might misuse their authority—sets some limits on what a government can impose on its citizens. These limits are fundamental in the sense that the government may never trespass them. (Ex – Aseem Trivedi, Shreya Singal Case, Section 66A of IT Act)
• Protects minorities from the tyranny of the majority (i.e. from inter-community and intra-community domination (Ex – Apartheid Movement in South Africa)
• Constitution saves us from ourselves (This may sound strange but what is meant by this is that we might at times feel strongly about an issue that might go against our larger interests and the Constitution helps us guard against this.)
• It helps to protect us against certain decisions that we might take that could have an adverse effect on the larger principles that the country believes in. Therefore, the constitution sets authoritative constraints upon what one may or may not do. (Ex – Cow slaughter, Ghar Wapsi issue)
• Enables the government to fulfill the aspirations of a society and create conditions for a just society. (Directive Principles of State Policy, DPSP, and various acts)
• Constitution expresses the fundamental identity of a people.

In many Countries, Constitutions remain defunct. Why?

• 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.

Why the Constitution of countries like India, South Africa, and the United States is the most successful?

• The Constitutions were created in the aftermath of popular national movements and were crafted by popular leaders who had the ability to take forward the citizens with them and were highly credible— drawing upon a long history of the nationalist movement that had a remarkable ability to take along different sections of society together. (Ex – Nehru, B.R.Ambedkar, etc.)
• The Constitution drew enormous legitimacy from the fact that it was drawn up by people who enjoyed immense public credibility, who had the capacity to negotiate and command the respect of a wide cross-section of society, and who were able to convince the people that the constitution was not an instrument for the aggrandizement of their personal power.
• In some countries (not India) Constitution was framed on the basis of a full-fledged referendum, where all the people vote on the desirability of a constitution.

Therefore, the authority of people who enact the Constitution helps determine in part its prospects for success.

The Hallmark of a successful constitution/an effective constitution is one which –

• Gives everyone in society some reason to go along with its provisions.
• Does not allow permanent majorities to oppress minority groups within society.
• Does not systematically privilege some members at the expense of others or that systematically entrenched the power of small groups in society.
• Does not stifle the identity of any group.
• Has to convince people that it provides the framework for pursuing basic justice.
• Preserves the freedom and equality of all its members.
• Fragments power in society intelligently so that no single group can subvert the constitution
• Ensures that no single institution acquires a monopoly of power
• Provides for balanced institutional design – i.e., an intelligent system of checks and balances
• Strikes 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
• Is not too rigid or too flexible

Such a Constitution can ensure that it will survive as a document respected by people.

How was the Indian Constitution made?

• The present Constitution of India was framed by an elected Constituent Assembly, and was formally adopted on 26th November, 1949.
• It came into force on 26th January 1950 – as desired by Pandit Nehru.
• The Constituent Assembly was set up under the Cabinet Minister (1946) proposal to draft a Constitution for independent India.
• It was a large representative body having385 members of which 292 were elected by the elected members of the provincial Legislative Assemblies while 93 members were nominated by the princely States But when the Muslim League decided to withdraw its members form the Constituent Assembly of India and with the creation of a separate Constituent Assembly for Pakistan on july16, 1947.
• The membership of the Constituent Assembly of India was reduced t 299, out of which 299 represented the Provinces and 70 were nominated by the Princely State.
• The first meeting of the Constituent Assembly had Taken place on December 9, 1946 with Dr. Sachidanand Sinha as the interim President. Subsequently, Dr. Rajendra Prasad was elected as its President on 11th December 1946 .
• To cope with the wide range of the specialized tasks, the Constituent Assembly formed major Committees to outline the proposed Constitution such as, Committee on Union Constitution, Union Powers Committee (both headed by J.L. Nehru), Committee on Fundamental Rights, Advisory Committee (both headed by Sardar Vallabhbhai Patel), Committee on Concessions to Minorities, Committee on the Supreme Court and the High Courts etc.
• All these Committees Submitted their reports which were widely discussed by the Constituent Assembly.
• Much before the Constituent Assembly finally came into being, the demand for such a constituent assembly was first echoed by Dr. Rajendra Prasad (in 1946).
• (Rajendra Prasad quoted Mahatma Gandhi that “swaraj would mean wishes of the people as expressed through their freely chosen representatives”).
• However, the idea of a constituent assembly to frame a constitution for India was first mooted by M. N. Roy in 1934.
• Members were elected by indirect election by the members of the Provisional Legislative Assemblies that had been established in 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.

Cabinet Mission Plan:

Cabinet Mission was a high-powered mission sent in February 1946 to India by the Atlee Government (British Prime Minister.) The mission had three British cabinet members – Pethick Lawrence, Stafford Cripps, & and A.V. Alexander. The Cabinet Mission’s aim was to discuss the transfer of power from British to Indian leadership.

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.
• 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 a single transferable vote.
• The method of selection in the case of representatives of Princely States was to be determined by consultation.

Objective Resolutions:

• Nehru introduced an Objectives Resolution (a resolution that outlined the Assembly’s goals) in 1946 before the constitution-making process began. 
• The aims and principles that drove the creation of the Constitution were embodied in this resolution. 
• The Objectives Resolution provided the foundation for India’s Constitution, which institutionalized the essential values of equality, liberty, democracy, sovereignty, and cosmopolitan identity. 
• This solidified the moral resolve to form a government that will carry out the many promises made by the nationalist movement to the Indian people.
• The Preamble to the Constitution is based on this resolution, which was overwhelmingly accepted on January 22, 1947.
• The essential framework of our constitution is included in the preamble’s goals. It emphasizes the Indian constitution’s key ideas and philosophy. It is regarded as the constitution’s soul.

Constitution of India: Drawn From Various Sources