CONSTITUTION: WHY AND HOW?

1. What is a Constitution?

• A constitution is a foundational set of principles that govern the establishment and functioning of a state.
• It comprises fundamental rules that facilitate minimal coordination among members of society, and these rules are legally enforceable.
• The Constitution determines the basic allocation of power within a society.
• It outlines who has the authority to make decisions and enact laws.
• In the Indian Constitution, Parliament is designated as the primary authority for lawmaking and policymaking, with specific organizational guidelines.

Functions of a Constitution

1. The constitution empowers Parliament to enact laws, laying the groundwork for the formation of a government.
2. It specifies who holds decision-making power in a society.
3. The constitution imposes limitations on government actions to prevent abuse of power.
4. It outlines how the government will be constituted, defining the structure of various branches.
5. The constitution specifies fundamental rights that citizens possess, safeguarding them from government infringement.
6. The constitution aims to enable the government to fulfil societal aspirations and establish conditions for a just society.

Features of the Indian Constitution

1.  India's constitution holds the distinction of being the world's lengthiest written constitution.
2. It combines elements of rigidity and flexibility to ensure stability and adaptability.
3. India follows a parliamentary system where the executive is drawn from the legislature.
4. The Constitution establishes an independent judiciary to uphold the rule of law.
5. While federal in structure, India's constitution allows for a strong central government.
6. India has declared a secular state, ensuring religious freedom.
7. All adults have the right to vote, promoting democratic participation.
8. Provisions are included to address emergencies in times of crisis.

2. Overview of the Indian Constitution

The Indian Constitution was formally crafted by a Constituent Assembly between December 1946 and November 1949. It drew inspiration from the extensive history of the nationalist movement, showcasing an impressive ability to unite diverse sections of Indian society.

Legitimacy and Credibility

The Constitution derived enormous legitimacy from being formulated by individuals who possessed:

1. Immense Public Credibility: The framers were figures with significant public trust.
2. Negotiation and Respect Command: They could negotiate and command respect across a wide cross-section of society.
3. Avoidance of Personal Aggrandizement: The framers convinced the people that the Constitution was not a tool for personal power aggrandizement.

Provisions of the Constitution

The provisions of the Indian Constitution serve multiple purposes:

1. Societal Consensus: It provides reasons for everyone in society to align with its provisions.
2. Minority Protection: Offers security against the oppression of minorities by permanent majorities in the constitution.
3. Avoiding Systematic Privilege: Ensures that systematic privilege or the entrenchment of power in small groups does not erode allegiance.
4. Preserving Freedom and Equality: Maintains the freedom and equality of all members of society.

3. Making of The Constitution - Constituent Assembly

The Constituent Assembly, proposed by MN Roy in 1934, gained British acceptance during the August Offer of 1940. The Cabinet Mission Plan in 1946 established the Constituent Assembly, which convened on December 9, 1946, and was later reconvened on August 14, 1947, as the Constituent Assembly for Divided India. Dr. Rajendra Prasad was elected president on December 11, 1946, with Sachidanand Sinah serving as the interim or Provisional president.

Balanced Institution Design

Objective: Preventing Monopoly of Power

The Indian Constitution is designed to prevent any single institution from acquiring a monopoly of power. This is achieved by distributing powers among different institutions, including:

1. Legislature
2. Executive
3. Judiciary

Additionally, statutory bodies like the Election Commission contribute to the checks and balances, ensuring that if one institution attempts to subvert the Constitution, others can intervene.

Balance between Rigidity and Flexibility

A successful constitution strikes a balance between establishing authoritative values and procedures while allowing flexibility to respond to changing needs. Excessive rigidity may result in breaking under the weight of change, while excessive flexibility may provide no security, predictability, or identity to a nation. The Indian Constitution aims to find this delicate balance.

4. Cabinet Mission Plan

The Cabinet Mission Plan emerged in response to the post-World War II scenario, where British Prime Minister Clement Atlee aimed to transfer powers from the British Indian Government to Indian leaders. The plan had three primary objectives:

1. Agreement on Constitution Framing: To secure an agreement with Indian leaders regarding the framing of a constitution for India.
2. Constitution-Making Body: To establish a constitution-making body, which became the Constituent Assembly of India.
3. Executive Council Formation: To form an Executive Council with the support of major Indian political parties.

Key Provisions of the Cabinet Mission Plan

Representation Based on Population

• Each province and princely state or group of states were allotted seats proportional to their respective populations, roughly in the ratio of 1:10,00,000.
• Seats in each province were distributed among three main communities (Muslims, Sikhs, and General) based on their respective populations.

Representation Method

• Members of each community in the Provisional Legislative Assembly elected their representatives using proportional representation with a single transferable vote.
• The method of selection for representatives of princely states was to be determined through consultation.

Procedural Aspects

• The Constituent Assembly comprised eight major committees, chaired by prominent leaders such as Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad, and Bhim Rao Ambedkar.
• Each committee drafted specific provisions of the Constitution, subject to debate by the entire assembly, with some provisions requiring voting.

5. Drafting Committee's Task

The Drafting Committee, established on August 29, 1947, was assigned the crucial task of preparing the draft constitution. The Constituent Assembly dedicated 2 years, 11 months, and 17 days to frame the constitution.

• Chairman: B.R. Ambedkar
• Members: N. Gopalaswami Ayyangar, AK Ayyar, KM Munshi, Mohammad Sadullah, BL Mittar, DP Khaitan.

Given the diversity of the Constituent Assembly, a background consensus on the main principles the constitution should enshrine was essential for its effective functioning.

Objective Resolution

Presentation and Adoption

Presented by Jawaharlal Nehru on December 13, 1946, the Objective Resolution laid down the underlying principles of the Constitution. Adopted on January 22, 1947, it provided the institutional expression of equality, liberty, sovereignty, and a cosmopolitan identity, eventually becoming the Preamble of the Constitution.

Main Points of the Objectives Resolution

1. India is a sovereign and self-governing nation, formed by former British Indian territories, Indian States, and other areas wishing to join the union.
2. All powers and functions, except those vested in the Union, shall be exercised by the territories forming the Union.
3. The people are the source of all sovereign powers, authority, and the constitution of independent India.
4. All Indians are guaranteed social, economic, and political justice, equality of status and opportunities, and fundamental freedoms.
5. Protection for minorities, backward and tribal areas, and depressed and other backward classes, ensuring territorial integrity and sovereign rights.
6. Willing contribute to the advancement of world peace and human welfare.

6. Institutional Arrangements in the Indian Constitution

The Constituent Assembly devoted significant effort to establishing a balanced framework among the executive, legislature, and judiciary. The adopted institutional arrangements included:

Parliamentary and Federal System: Embraced the parliamentary form and federal arrangement, dividing powers between the legislature and executive, as well as between the States and the federal government.

Borrowed Features from the British Constitution:

• Nominal Head – President (like Queen): The President serves as a ceremonial head similar to the British monarch.
• Cabinet System of Ministers: Adopted the British-style Cabinet system.
• Post of PM: Instituted the position of Prime Minister.
• Parliamentary Type of Govt.: Followed a parliamentary system of government.
• Bicameral Parliament: Established a two-chamber Parliament.
• Lower House more powerful: Granting more power to the Lower House.
• Council of Ministers responsible to Lower House: Ensured accountability to the Lower House, with the Council of Ministers responsible to the Speaker in Lok Sabha.
• First past the Post: Utilized the first-past-the-post electoral system.
• Law-Making Procedure: Modeled law-making procedures after the British system.
• Idea of the Rule of Law: Embedded the concept of the rule of law.

Borrowed Features from the U.S. Constitution

• Nominal Head – President (like Queen): Similar to the U.S. President's role.
• Cabinet System of Ministers: Adopted a system with a Cabinet of Ministers.
• Post of PM: Incorporated the position of Prime Minister.
• Parliamentary Type of Govt.: Followed a parliamentary system.
• Bicameral Parliament: Adopted a two-chamber Parliament.
• Lower House more powerful: Granted supremacy to the Lower House.
• Council of Ministers responsible to Lower House: Ensured ministerial accountability to the Speaker in Lok Sabha.

Borrowed Features from Various Countries

• From USSR: Incorporated the idea of Fundamental Duties and Five-Year Plans.
• From Australia: Adopted a Concurrent List, the language of the Preamble, and provisions related to trade, commerce, and intercourse.
• From Japan: Integrated the law governing the functioning of the Supreme Court.
• From the Weimar Constitution of Germany: Included provisions for the suspension of Fundamental Rights during emergencies.
• From Canada: Followed a scheme of federation with a strong centre, distribution of powers between the centre and states, and placing residuary powers with the centre.
• From Ireland: Borrowed the concept of Directive Principles of State Policy, the method of electing the President, and the President's nomination of members to the Rajya Sabha.
• From South Africa: Incorporated the procedure of Constitutional Amendment.

7. Schedules in the Indian Constitution

The Indian Constitution incorporates various schedules that outline essential aspects of governance, administration, and representation. Here is an overview of the key schedules:

• First Schedule - States and Union Territories: Contains a list of states and Union Territories, providing a fundamental reference for the political and administrative divisions of the country.
• Second Schedule - Salary Provisions: Specifies the salaries of the President, Governors, Chief Judges, Judges of High Courts and the Supreme Court, and the Comptroller and Auditor General.
• Third Schedule - Forms of Oaths and Affirmations: Enlists the oaths and affirmations that various officeholders, including the President, judges, and government officials, must take as a formal commitment to their duties.
• Fourth Schedule - Rajya Sabha Representation: Deals with the allocation of seats for each state in the Rajya Sabha, the upper house of India's Parliament.
• Fifth Schedule - Scheduled Areas and Tribes: Focuses on the administration and control of scheduled areas and tribes, aiming to safeguard the rights and interests of tribal communities.
• Sixth Schedule - Tribal Areas in Specific States: Provides provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram, recognizing their unique governance requirements.
• Seventh Schedule - Allocation of Powers: Divides powers and functions between the Union and States, containing three lists:

1. Union List: Powers exclusive to the central government.
2. State List: Powers exclusive to state governments.
3. Concurrent List: Powers shared between the Union and States.

• Eighth Schedule - Languages Recognized: Lists the 22 languages of India officially recognized by the constitution, highlighting the country's linguistic diversity.
• Ninth Schedule - Acts and Orders: Added by the 1st amendment in 1951, it contains acts and orders related to land tenure, land tax, railways, and industries. It was initially introduced to protect land reform laws from judicial review.
• Tenth Schedule - Anti-Defection Provisions: Added by the 52nd amendment in 1985, it outlines provisions for the disqualification of members on grounds of defection, aiming to curb political opportunism.
• Eleventh Schedule - Panchayati Raj Provisions: Added by the 73rd amendment in 1992, it provides for the inclusion of Panchayati Raj institutions, empowering local self-governance at the village, intermediate, and district levels.
• Twelfth Schedule - Municipal Corporation Provisions: Added by the 74th amendment in 1992, it outlines provisions for the functioning and powers of Municipal Corporations, promoting decentralized urban governance.