Constitution: Why and How -XI Political Science
What is Constitution?
Provides enabling
framework for
the government
A set of
documents of
basic rules and regulations
Regulates the
relationship
between people
and the
government
Formation/
specification of
decision-making
powers
Functions of the Constitution
Functions of the Constitution
Man is a social animal. Society is made up of different types of community.
Constitution is necessary to keep pace with these communities. The
constitution provides the set of basic rules by which a government is framed
and the State is governed.
Why do we need a constitution?
1. Constitution allows coordination and assurance. The first function of a
constitution is to provide a set of basic rules that allow for minimal
coordination among its members of a society. These rules are legally
enforceable and gives an assurance to everybody that others will follow
these rules for if they do not do so they will be punished.
2. The second function of a constitution is to specify who has the power
to make decisions in a society. Constitution decide how the government
will be constituted. It decides who gets to decide what the laws will be.
In the Indian Constitution for example, it is a specified that in most
instances, Parliament gets to decide laws and policies and Parliament
itself be organised in a particular manner.
3. The third function of a constitution is to set, some limits on what a
government can impose on its citizens. These limits are fundamental in
the sense that governments may never trespass them. The government
has to specify certain fundamental rights that all of us possess as citizens
and which no citizens can never be allowed to violate.
4. The fourth function of a constitution is to enable the government to
fulfil the aspirations of a society and create conditions for a just Society.
For example, India aspires to be a society that is free of caste
discrimination.
5. Constitution provides the fundamental identity of a people. It means that
people as a collective entity come into being only through the basic constitution.
How was the Indian constitution made?
The Indian Constitution was made by the constituent assembly which had
been elected for undivided India. It held its first sitting on 9th December
1946 and reassembled as constituent assembly for divided India on 14th
August 1947. Its members were elected by indirect election by the members
of the provisional legislative assemblies. These provisional legislative
assemblies 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.
Composition of the Constituent Assembly
Dr. Sachchidananda Sinha was appointed as the temporary Chairman and on
11th December 1946.
Dr. Rajendra Prasad was elected as the permanent
Chairman of the Constituent Assembly.
On 13th December 1946, Pandit
Jawaharlal Nehru presented the objective resolution of the Constitution.
This resolution encapsulated the aspirations and values behind the
constitution.
Dr. BhimRao Ambedkar was elected as the Chairman of the
draft committee of India.
It was submitted on 22nd January 1947 by the
Constituent Assembly that outlined the future sovereign democratic republic
of India.
On 26th November 1949, the Constitution of India had 395 articles
and 8 schedules. It took 2 years, 11 months and 18 days to make the
constitution. At this time, the schedules have increased from 8 to 12.
Nature of the Constituent Assembly
Nature of the Constituent Assembly
Allegiance to
democratic values
Representation of
all groups / Ideologies
/ Communities
Emphasis on Consent
and Deliberations
Functioning of
the Constituent
Assembly
Working for
the Welfare
of People
Intellectual
Institutional
Design
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 do 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.
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:
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.
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.
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.
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 do 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.
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:
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.
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.
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.
Name of Countries | Borrowed Features of the Constitution |
Britain | 1. Parliamentary government 2. Rule of Law 3. Legislative procedure 4. Single citizenship 5. Cabinet system 6. Prerogative writs 7. Parliamentary privileges 8. Bicameralism |
Ireland
| 1. Directive Principles of State Policy 2. Method of Election of the president 3. Members nomination to the Rajya Sabha by the President |
United States of America | 1. Impeachment of the president 2. Functions of president and vice-president 3. Removal of Supreme Court and High court judges 4. Fundamental Rights 5. Judicial review 6. Independence of judiciary 7. The preamble of the constitution |
Canada
| 1. Centrifugal form of federalism where the centre is stronger than the states. 2. Residuary powers vest with the centre 3. Centre appoints the Governors at the states 4. Advisory jurisdiction of the supreme court |
Australia
| 1. Concept of Concurrent list 2. Article 108 i.e. Joint sitting of the two houses 3. Freedom of trade and commerce |
USSR (Now Russia)
| 1. Fundamental duties 2. The ideals of justice (social, economic, and political), expressed in the Preamble. |
France
| 1. Concept of “Republic” 2. Ideals of Liberty, Equality, and Fraternity(contained in the Preamble) |
Germany
| 1. Fundamental Rights are suspended during Emergency |
South Africa
| 1. Election of members of the Rajya Sabha 2. Amendment of the Constitution |
Japan | 1. Concept of “procedure established by Law” |
The political philosophy of the Indian constitution means that
constitution is not only a set of rules only but is connected to some
moral values as well.
The basic concepts of the constitution such as rights, citizenship, democracy,
equality, freedom etc. are the ideals enshrined in the Indian constitution.
Our constitution emphasizes that its philosophy is peaceful and democratic.
It implements the values on which the welfare policies are framed and follow
these ethical fundamental concepts.
Process of achievement
The members of the Assembly placed a great emphasis on discussion and
reasoned argument. Each member deliberated upon the constitution with
the interests of the whole nation in mind. There were legitimate differences
in principal but they work together. Each committee usually drafted a particular provision of the constitution which was then subjected to debate
by the entire assembly and decisions were taken with the consent of all.
Thus constitution gave institutional expression to all fundamental
commitments such as equality, Liberty, democracy, sovereignty and a
Cosmopolitan identity. So our constitution is not merely a maze of rules
and procedures but a commitment to establish a government and that will
fulfil the aspirations of the people.
Criticism of the constitution
Very long and detailed.
448 article 22 part and 12 schedules.
Provisions from Western countries had been borrowed.
Representatives of all the groups were not present in the framing
of the constitution.