Constitution: Why and How?

Notes | Class 11 Political

Science

Constitution: Why? And How?

What & why do we need a Constitution?

A constitution is a body of fundamental principles according to which a state is
constituted or governed. It provides a set of basic rules that allow for minimal
coordination amongst members of a society that are legally enforceable.

Who can decide which rules are the best to suit 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 organised in a particular
manner.

Functions of Constitution

 Parliament has the authority to enact laws that constitute a government in

the 1st Place.
 Specifies who has the power to make decisions in a society.
 To put Limitations on the government
 It decides how the government will be constituted.
 It specifies certain fundamental rights that all of us possess as citizens and which
no government can ever be allowed to violate.
 To enable the government to fulfil the aspirations of a society and create
conditions for a just society.
What are the features of the Indian Constitution?
The features of the Indian Constitution as it stands today, are as follow
 Lengthiest Written Constitution
 Blend of Rigidity and Flexibility
 Parliamentary Government
 Independent Judiciary
 A federal system with Unitary Features
 Secular State
 Universal Adult Franchise
 Emergency Provisions

Fundamental Identity of the People

 The people as a collective entity come into being only through the basic
constitution.
 Constitutional norms are the overarching framework within which one pursues
individual aspirations, goals and freedoms.
 The constitution sets authoritative constraints upon what one may or may not do.
 It defines the fundamental values that we may not trespass. Hence, the
constitution also gives one a moral identity.
 Many basic political and moral values are now shared across different
constitutional traditions.

Mode of Promulgation: This refers to how a constitution comes into being. Who crafted
the constitution and how much authority did they have?

In many countries, constitutions remain defunct why?

The reason why in many countries the constitution remains defunct is that either the
constitution is drafted by the military leaders or by those leaders who were not popular
among the citizens.

The major reason for the stringent constitutions is that the people or the makers of the
constitution lacked the ability to carry people with them.
Why Countries like India, South Africa and the United States are the
most successful constitutions?

These countries had a constitution that was drafted in the aftermath of the popular
national movement. The fact that the nation faced the very challenges during the
movement helped the makers to create a well-structured document
An overview of the Indian Constitution

The constitution was formally created by a Constituent Assembly between December

1946 and November 1949. It drew upon a long history of the nationalist movement that
had a remarkable ability to take along different sections of Indian society together

It carried 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, The ones who were able to convince
the people that the constitution was not an instrument for the aggrandisement of
their personal power.

Provision of the Constitution:

 It gives everyone in society some reason to go along with its provisions

 It gives security towards the oppression of the minorities by the permanent
majorities of the constitution.
 Systematically privileged some members at the expense of others, or that
systematically entrenched the power of small groups in society, would cease to
command allegiance
 It preserves the freedom and equality of all its members
 The more a constitution preserves the freedom and equality of all its members,
the more likely it is to succeed.

Making of The Constitution

Constituent Assembly
MN Roy proposed the idea of a constituent assembly for the first time in 1934. The
British accepted the constituent assembly's demand for the first time in August Offer
(1940).
In 1946, the Cabinet Mission Plan established the Constituent Assembly. The assembly
met for the first time on December 9, 1946, and was reconvened on August 14, 1947,
as the Constituent Assembly for Divided India.
Members were chosen through an indirect election process by members of the
Provisional Legislative Assemblies, which were established in 1935. On December 11,
1946, Dr. Rajendra Prasad was elected president of the constituent assembly.

Sachidanand Sinah was the interim or Provisional president of the Constituent

Assembly

Balanced Institution Design

The designing of a constitution to ensure that no single institution acquires monopoly of
power

This is done by distributing powers across different institutions. Thus the Indian
constitution assigned different powers to different institutions:

 Legislature
 Executive
 Judiciary

Also, to statutory bodies like the Election Commission.

This ensures that even if one institution tries to subvert the Constitution, others will be
able to check it.

A constitution must strike the right balance between establishing certain values, norms,
and procedures as authoritative while also allowing for sufficient flexibility in its
operations to respond to changing needs and circumstances. A constitution that is too
rigid will likely break under the weight of change; on the other hand, a constitution that is
too flexible will provide no security, predictability, or identity to a people.

What was the Cabinet Mission Plan?

The British Prime Minister, Clement Atlee, decided to send a mission to India for the
transfer of powers from the British Indian Government to Indian leaders.
Objectives
 To obtain an agreement with the Indian leaders as to the framing of a constitution
for India.
 To formulate a constitution-making body (the Constituent Assembly of India).
 To establish an Executive Council with the support of the major Indian parties.

According to Cabinet Mission 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 the
single transferable vote.
 The method of selection in the case of representatives of Princely States was to
be determined by consultation.

Procedures

 The Constituent Assembly had eight major Committees chaired by the popular
leader; Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad & Bhim
Rao Ambedkar.

 Each Committee usually drafted particular provisions of the Constitution which

were then subjected to debate by the entire Assembly. Also, some provisions
were subject to vote.

What task did the ‘Drafting Committee’ perform?

The Drafting Committee was entrusted with the responsibility to prepare the draft
constitution. The Drafting Committee was set up on 29 August 1947. The constituent
assembly took 2 years, 11 months and 17 days to frame the constitution.
Chairman: BR Ambedkar
Members: N Gopalaswami Ayyangar, AK Ayyar, KM Munshi, Mohammad Sadullah, BL
Mittar, DP Khaitan.
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.

Objective Resolution

The objective resolution was presented by Jawaharlal Nehru on 13 December 1946,

laying down the underlying principles of the constitution which later became the
Preamble of the constitution.

The Objective resolution was adopted on 22 January 1947. The Indian Constitution
gave the institutional expression to equality, liberty, sovereignty and a cosmopolitan
identity based on the objective resolution.

Main points of the Objectives Resolution:

India is a sovereign and self-governing nation. Former British Indian territories, Indian
States, and other areas outside of British India and Indian States wishing to join the
union will form India.

Except for those assigned to or vested in the Union, all powers and functions of
government and administration shall be exercised by the territories that make up the
Union.

The people will be the source of all sovereign and independent India's powers and
authority, as well as its constitution.

All Indians shall be guaranteed and secured social, economic, and political justice;
equality of status and opportunities; and fundamental freedoms - of speech, expression,
belief, faith, worship, vocation, association, and action - subject to the law and public
morality.

Minorities, backward and tribal areas, as well as the depressed and other backward
classes, all require adequate protection. In accordance with international law, the
Republic's territorial integrity, as well as its sovereign rights on land, sea, and air, must
be safeguarded
The land would willingly and fully contribute to the advancement of world peace and
human welfare.

Institutional Arrangements

The Constituent Assembly spent a lot of time figuring out how to strike the right balance
between the executive, legislature, and judiciary.

Adoption of the parliamentary form and federal arrangement, which would divide
governmental powers between the legislature and the executive on the one hand, and
the States and the federal government on the other.

Borrowed Features of the Constitution

From British Constitution:

 Nominal Head – President (like Queen)
 Cabinet System of Ministers
 Post of PM
 Parliamentary Type of Govt. Bicameral Parliament
 Lower House more powerful
 Council of Ministers responsible to Lower House Speaker in Lok Sabha
 First past the Post
 Law Making Procedure
 The Idea of the rule of law

From U.S Constitution

 Nominal Head – President (like Queen)
 Cabinet System of Ministers
 Post of PM
 Parliamentary Type of Govt. Bicameral Parliament
 Lower House more powerful
 Council of Ministers responsible to Lower House Speaker in Lok Sabha

From USSR:
 Fundamental Duties Five year Plan
From Australia:
 Concurrent list
 Language of the preamble
 Provision regarding trade, commerce and intercourse
From Japan:
 Law on which the Supreme Court function.

From WEIMAR CONSTITUTION OF GERMANY:

 Suspension of Fundamental Rights during the emergency.

From CANADA:
 Scheme of federation with a strong centre
 Distribution of powers between the centre and the states and placing.
 Residuary Powers with the centre

From IRELAND:
 Concept of Directive Principles of States Policy(Ireland borrowed it from SPAIN)
 Method of election of President
 Nomination of members in the Rajya Sabha by the President

From South Africa:

 The procedure of Constitutional Amendment

Schedules In The Constitution

First Schedule
 List of states and Union Territories

Second Schedule
 Salary of President, Governors, Chief Judges, Judges of High Court & Supreme
court, Comptroller and Auditor General.

Third Schedule
 Forms of Oaths and Affirmation
Fourth Schedule
 Allocation of seats of each state of India in Rajya Sabha.

Fifth Schedule
 Administration & control of scheduled areas and tribes.

Sixth Schedule
 Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura
and Mizoram.

Seventh Schedule
Gives allocation of powers and Functions between Union & States. Contains 3 lists.
 Union List
 State List
 Concurrent list

Eighth Schedule
 List of 22 languages of India recognised by the constitution.

Ninth Schedule
 Added by the 1st amendment in 1951. Contains acts and orders related to land
tenure, land tax, railways and industries.

Tenth Schedule
 Added by 52nd amendment in 1958. Provisions of disqualification on grounds of
defection.
Eleventh Schedule
 Added by 73rd amendment in 1992. Provision of Panchayati Raj.

Twelfth Schedule
 By the 74th amendment in 1992. Provision of Municipal Corporation