Political Science: Class 11 (Book 2) — Chapter 1: Constitution: Why and How?

In any diverse society (comprising different religions, professions, abilities, and wealth levels), disputes are inevitable. A constitution provides the baseline rules to resolve these disputes and ensure security.

• Minimal Coordination: Society requires basic rules that are publicly promulgated and known to all members to achieve coordination.
• Enforceability: Rules must be legally enforceable to give citizens the assurance that others will also follow them, preventing insecurity.
• First Function: To provide a set of basic rules that allow for minimal coordination amongst members of a society.

A constitution defines the basic framework of authority and power distribution within a state.

• Who Decides? It specifies who has the authority to enact laws (e.g., a monarch, a single party, or elected representatives of the people).
• Indian Context: The Indian Constitution specifies that Parliament gets to decide laws and policies, and dictates how Parliament itself is organized.
• Second Function: To specify who has the power to make decisions in a society. It decides how the government will be constituted.

To prevent the establishment of a tyrannical or unjust regime, a constitution must place limits on what the government can do.

• Preventing Injustice: Limits prevent the government from passing patently unfair laws, such as prohibiting a religion, enforcing arbitrary arrests, or practicing racial/caste discrimination.
• Fundamental Rights: The most common way to limit state power is by specifying Fundamental Rights that all citizens possess, which no government can violate (except under specific circumstances like national emergencies).
• Third Function: To set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.

Modern constitutions, particularly those of the twentieth century, go beyond limiting power to provide an enabling framework for positive state action.

• Overcoming Inequality: In societies with deep-seated inequalities (like caste discrimination in India), the government must be empowered to take positive measures to achieve social justice.
• Welfare Measures: The constitution enables the state to ensure minimum material well-being, education, and dignity for all citizens.
• Fourth Function: To enable the government to fulfil the aspirations of a society and create conditions for a just society.

A constitution expresses the fundamental identity of its citizens.

• Political Identity: Formed by agreeing to a basic set of norms about how one should be governed and who should be governed.
• Moral Identity: Created by setting authoritative constraints on what citizens and the state may or may not do, defining fundamental values.
• National Identity: Different nations define identity differently (e.g., German identity historically based on ethnic criteria, whereas Indian citizenship is inclusive and not limited by race, caste, or religion).

This refers to how a constitution comes into being and the credibility of its creators.

• Popular Legitimacy: Successful constitutions (e.g., India, South Africa, USA) were crafted in the aftermath of popular national movements by leaders who enjoyed immense public trust and credibility.
• Defunct Constitutions: Constitutions often fail or remain on paper when they are crafted by military leaders or unpopular regimes without public consensus.
• The Indian Experience: Although the Constituent Assembly was not directly elected by universal suffrage, it drew immense authority from the popular nationalist movement and was never subjected to a referendum because it already enjoyed broad national consensus.

Nepal has experienced a complicated history of constitution making, with constitutions drafted in 1948, 1951, 1959, 1962, and 1990. All of these were "granted" by the King, who retained final powers. Following intense militant political agitations and popular movements demanding the abolition of the monarchy, the King was stripped of powers. In 2008, Nepal emerged as a democratic republic, and after prolonged negotiations, a new constitution was finally adopted in 2015.

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Political Analysis & Systemic Significance: This case highlights that a constitution cannot achieve stability or authority if its source of power is an autocratic ruler rather than the popular will of the people. True constitutional legitimacy requires a representative process that reflects the democratic aspirations of all major political and social groups.

A successful constitution must give every section of society a reason to abide by its provisions.

• Inclusivity: If a constitution allows a permanent majority to oppress a minority, or systematically privileges small groups, it will fail to command voluntary allegiance.
• Framework of Justice: It must preserve the freedom and equality of all members, convincing them that it provides a framework for pursuing basic justice.

Constitutions are often subverted by small groups seeking power. Intelligent design prevents this by fragmenting power.

• Horizontal Fragmentation: Power is distributed across different institutions—the Legislature , Executive , and Judiciary —as well as independent statutory bodies like the Election Commission . This creates a robust system of checks and balances .
• Rigidity vs. Flexibility: A constitution must strike a balance between preserving core values (rigidity) and adapting to changing circumstances (flexibility). A "living document" like the Indian Constitution survives because it allows for amendments while protecting its basic framework.

The Assembly was constituted in December 1946 and reassembled for a divided India on 14 August 1947.

• Indirect Election: Members were elected by the Provincial Legislative Assemblies established under the Government of India Act, 1935 .
• Cabinet Mission Plan:
  • Provinces and Princely States were allotted seats proportional to their population (roughly $1:10,00,000$).
  • Provinces (under direct British rule) elected 292 members, while Princely States were allotted a minimum of 93 seats.
  • Seats in each Province were distributed among three main communities: Muslims, Sikhs, and General, in proportion to their population.
  • Voting was conducted via proportional representation with single transferable vote .
  • Princely States' representatives were selected through consultation.
• Post-Partition Changes: Following the Partition, members from territories that fell under Pakistan ceased to be members. The Assembly's strength was reduced to 299, of whom 284 were present on 24 January 1950 to sign the final document.
• Representative Character: Despite not being elected by universal suffrage, the Assembly represented all religions and included 28 members from the Scheduled Castes. The Congress party held 82% of the seats post-partition but was itself a highly diverse coalition representing almost all shades of opinion.

The authority of the Assembly came from its commitment to public reason and democratic deliberation.

• National Interest: Members deliberated with the interests of the entire nation in mind, rather than merely protecting their own group identities or interests.
• Universal Suffrage: The introduction of universal suffrage (the right to vote for all adult citizens irrespective of religion, caste, education, gender, or income) was the only provision passed without any debate.
• Public Reason: Every other clause was subjected to intense scrutiny, debate, and reasoned argument, ensuring that decisions were backed by principled justifications.

The Assembly's work was organized systematically through various committees.

• Major Committees: The Assembly had eight major committees on different subjects, usually chaired by prominent leaders like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B.R. Ambedkar.
• Consensus and Debate: Despite deep ideological differences among these leaders (e.g., Ambedkar's criticism of Congress, or disagreements between Patel and Nehru), they worked together. Committees drafted provisions which were then debated clause-by-clause by the entire Assembly.
• Duration: The Assembly met for 166 days, spread over 2 years and 11 months, with sessions open to the press and public.

The Constituent Assembly did not work in a vacuum; it gave concrete shape to principles forged during the long struggle for freedom.

• The Objectives Resolution: Moved by Nehru in 1946, this resolution encapsulated the aspirations and values behind the Constitution. It committed India to equality, liberty, democracy, sovereignty, and a cosmopolitan identity.

The framers of the Constitution designed a balanced system of governance by adopting and adapting successful institutional models from other democratic countries, ensuring they suited Indian conditions.