CHAPTER- 1 Constitution Why and How?
NOTES
1. Constitution– A constitution is a set of fundamental rules and principles that govern a country or organization, which is in written form.2. Main Functions of the Constitution-
- The first function is to provide a set of fundamental rules that help maintain a minimum level of coordination and trust among the members of society.
- The constitution clarifies the fundamental distribution of power in society. For example, the Indian Constitution clearly states that most laws will be made by the Parliament, and that this Parliament will be formed in a specific manner.
- The second function of the constitution is to clarify who holds the power to make decisions in society. It also determines how the government will be formed.
- The third function of the constitution is to place certain limitations on the laws that the government can impose on its citizens. These limitations are fundamental in nature, meaning the government can never violate them.
- The fourth function of the constitution is to empower the government to fulfill the aspirations of the people and to create appropriate conditions for the establishment of a just society.
3. It is through the constitution that a society gains its identity as a collective entity. Constitutional rules provide us with a broad framework within which we exercise our individual aspirations, goals, and freedoms.
- Rights The constitution protects certain fundamental rights and makes possible the establishment of governments that are, in some form, democratic.
4. In most countries, the constitution is a written document that contains various provisions about the state. These provisions outline how the state will be formed and what principles it will follow.
- Some countries, such as England, do not have a single document that can be called a constitution. Instead, they have a long series of documents and decisions which are collectively referred to as the constitution.
6. The Indian Constitution was formally drafted by a Constituent Assembly between December 1946 and November 1949, but in doing so, it drew significant inspiration from the long history of the national movement.
7. Fundamental Provisions of the Constitution– A successful constitution is characterized by the fact that it provides every individual with a reason to respect its provisions.
- If a constitution provides more privileges to certain people compared to others or systematically strengthens the power of small sections of society, it will cease to earn the loyalty of the people.
- The more a constitution protects the freedom and equality of all its citizens, the greater its chances of success become.
8. Balanced Framework of Institutions-
- In a well-structured constitution, powers are distributed in such a way that no single group can destroy the constitution.
- An effective method of framing a constitution is to ensure that no single institution holds a monopoly over all powers.
- While designing the framework of institutions, it is also ensured that there is a balance between binding values, rules, and procedures, and flexibility in their functioning, so that they can adapt to changing needs and circumstances.
9. Formation of the Indian Constitution-
- Formally, the Constitution was drafted by a Constituent Assembly that was elected in undivided India.
- Its first meeting was held on 9th December 1946, and then it met again on 14th August 1947 as the Constituent Assembly of divided India.
- The Constituent Assembly was formed almost according to the plan proposed by a committee of the British Cabinet — the Cabinet Mission. According to this plan:
1) Each province, princely state, or group of princely states was allotted seats in proportion to its population. Roughly, the ratio was one seat for every one million people. The provinces under direct British rule were to elect 292 members, while the princely states were allotted a minimum of 93 seats.
2) The seats of each province were divided among the three major communities- Muslims, Sikhs, and the General category- in proportion to their population.
3) Members of each community in the provincial legislatures elected their representatives using the system of proportional representation with a single transferable vote.
4) The method of electing representatives from the princely states was determined in consultation with them.
10. Nature of the Constituent Assembly-
- According to the plan of 3rd June 1947, after the partition, all those representatives who had been elected from the regions that became part of Pakistan were no longer members of the Constituent Assembly.
- The actual number of members in the Constituent Assembly was reduced to 299. Out of these, 284 members were present on 26th November 1949. They were the ones who signed the adopted Constitution.
- The members of our Constituent Assembly were not elected on the basis of universal adult franchise, but serious efforts were made to make it as representative as possible.
11. Working Style of the Constituent Assembly-
- The foundation of the Constituent Assembly’s popular authority lay in the process adopted for drafting the Constitution and in the values embedded in the deliberations of its member.
- The members of the Constituent Assembly deliberated with the interests of the entire country in mind. Differences of opinion did arise among the members, but rarely were these differences based on personal or sectional interests.
- There was only one provision in the Constitution that was passed almost without any debate. This was the provision for universal suffrage, which means that all citizens, upon reaching a certain age, would have the right to vote without any discrimination based on religion, caste, education, gender, or income.
- The real strength of the Constituent Assembly came from the fact that it was working in the public interest.
- The discussions held in the Constituent Assembly have been published in several comprehensive volumes, and the detailed and nuanced debates on each article most authentically reflect the spirit of public conscience.
12. Procedure-
- The importance of public conscience was clearly evident even in the general procedure of the Constituent Assembly.
- The Constituent Assembly had eight main committees for various issues. Generally, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B. R. Ambedkar served as the chairpersons of these committees.
- Each committee generally drafted certain provisions of the Constitution, which were later discussed by the entire Constituent Assembly.
- Over a span of two years and eleven months, the Constituent Assembly held its sessions for a total of 166 days.
13. Legacy of the National Movement-
- The principles brought into the Constituent Assembly from the national movement are best summarized in the 'Objectives Resolution' presented by Nehru in 1946. This resolution defined the aims and objectives of the Constituent Assembly.
- This resolution encompassed all the aspirations and values of the Constitution.
- It was on the basis of this resolution that fundamental commitments such as equality, freedom, democracy, sovereignty, and a universal identity were given institutional form in our Constitution.
14. Institutional Arrangements-
- The third factor in making the Constitution effective is to organize all branches of government in a balanced manner.
- The Constituent Assembly gave deep thought to establishing a proper balance among the different branches of government — the legislature, the executive, and the judiciary.
- The Constituent Assembly adopted the parliamentary system of governance and a federal structure, which ensure the distribution of powers — on one hand, between the legislature and the executive, and on the other, between the central government and the states.
- India was fortunate that our Constituent Assembly, setting aside narrow perspectives, adopted the best elements from around the world and made them its own.
15. Provisions Borrowed from the Constitutions of Various Countries-
a) British Constitution-
- Decision of victory in elections based on majority of votes.
- Parliamentary form of government
- The concept of the Rule of Law
- The position of the Speaker in the Legislature and their role
- The procedure of law-making
b) Irish Constitution-
- Directive Principles of State Policy
c) French Constitution-
- The principle of Liberty, Equality, and Fraternity
d) Canadian Constitution-
- A quasi-federal form of government (a federal system with a strong central government)
- The principle of residuary powers
e) American Constitution-
- List of Fundamental Rights
- Power of Judicial Review and Independence of the Judiciary
