Chapter 3 Constitutional Design PDF

3.3 MAKING OF THE INDIAN CONSTITUTION Like South Africa, India’s like. Much of this consensus had Constitution was also dra...

3.3 MAKING OF THE INDIAN CONSTITUTION Like South Africa, India’s like. Much of this consensus had Constitution was also drawn up evolved during the freedom struggle. under very difficult circumstances. Our national movement was not The making of the constitution for a merely a struggle against a foreign huge and diverse country like India rule. It was also a struggle to Vallabhbhai was not an easy affair. At that time rejuvenate our country and to Jhaverbhai PPatel atel the people of India were emerging transform our society and politics. (1875-1950) born: Gujarat. from the status of subjects to that There were sharp differences of Minister of Home, of citizens. The country was born opinion within the freedom struggle All sketches by Rajeev Kumar Information and through a partition on the basis of about the path India should take Broadcasting in the Interim religious differences. This was a after Independence. Such Government. Lawyer and leader of Bardoli peasant traumatic experience for the people differences exist even today. Yet satyagraha. Played a of India and Pakistan. some basic ideas had come to be decisive role in the Atleast ten lakh people were killed accepted by almost everyone. integration of the Indian on both sides of the border in As far back as in 1928, Motilal princely states. Later: Deputy Prime Minister. partition related violence. There was Nehru and eight other Congress another problem. The British had leaders drafted a constitution for left it to the rulers of the princely India. In 1931, the resolution at the states to decide whether they Karachi session of the Indian wanted to merge with India or with National Congress dwelt on how Pakistan or remain independent. independent India’s constitution The merger of these princely states should look like. Both these was a difficult and uncertain task. documents were committed to the When the constitution was being inclusion of universal adult franchise, Abul Kalam Azad written, the future of the country did right to freedom and equality and to (1888-1958) born: Saudi Arabia. not look as secure as it does today. protecting the rights of minorities in Educationist, author and The makers of the constitution had the constitution of independent India. theologian; scholar of anxieties about the present and the Thus some basic values were Arabic. Congress leader, future of the country. accepted by all leaders much before active in the national the Constituent Assembly met to movement. Opposed deliberate on the Constitution. Muslim separatist politics. Later: Education Minister in A C T I V I T Y The familiarity with political the first union cabinet. institutions of colonial rule also Speak to your grandparents or some other elders helped develop an agreement over in your locality. Ask them if they have any memory the institutional design. The British of partition or independence or the making of the rule had given voting rights only to constitution. What were their fears and hopes a few. On that basis the British had about the country at that time? Discuss these in introduced very weak legislatures. the classroom. Elections were held in 1937 to Provincial Legislatures and T.T.Krishnamachari.T.Krishnamachari T he pa th ttoo CConstitution path onstitution Ministries all over British India. (1899-1974) Despite all these difficulties, there These were not fully democratic born: Tamil Nadu. was one big advantage for the governments. But the experience Member, Drafting makers of the Indian Constitution. gained by Indians in the working of Committee. Entrepreneur and Congress leader. Later: Unlike South Africa, they did not the legislative institutions proved to Finance Minister in the have to create a consensus about be very useful for the country in Union Cabinet. what a democratic India should look setting up its own institutions and CONSTITUTIONAL DESIGN 45 working in them. That is why the called the Constituent Assembly. Indian constitution adopted many Elections to the Constituent institutional details and procedures Assembly were held in July 1946. Its from colonial laws like the Government first meeting was held in December of India Act, 1935. 1946. Soon after, the country was Years of thinking and deliberation divided into India and Pakistan. The on the framework of the constitution Constituent Assembly was also had another benefit. Our leaders divided into the Constituent Assembly Rajendra Prasad gained confidence to learn from of India and that of Pakistan. The (1884-1963) born: Bihar. other countries, but on our own Constituent Assembly that wrote President of the Constituent Assembly. Lawyer, known terms. Many of our leaders were the Indian constitution had 299 for his role in the inspired by the ideals of French members. The Assembly adopted Champaran satyagraha. Three Revolution, the practice of the Constitution on 26 November times the president of parliamentary democracy in Britain 1949 but it came into effect on 26 Congress. Later: the first and the Bill of Rights in the US. The January 1950. To mark this day we President of India. socialist revolution in Russia had celebrate January 26 as Republic inspired many Indians to think of Day every year. shaping a system based on social Why should we accept the and economic equality. Yet they Constitution made by this Assembly were not simply imitating what more than fifty years ago? We have others had done. At each step they already noted one reason above. The were questioning whether these Constitution does not reflect the things suited our country. All these views of its members alone. It factors contributed to the making of expresses a broad consensus of its Jaipal Singh our Constitution. time. Many countries of the world (1903-1970) have had to rewrite their born: Jharkhand T he CConstituen onstituen onstituentt AAssembly ssembly Constitution afresh because the A sportsman and Who, then, were the makers of the basic rules were not accepted to all educationist. Captain of the first national Hockey team. Indian Constitution? You will find major social groups or political Founder President of here very brief sketch of some of the parties. In some other countries, the Adivasi Maha Sabha. Later: leaders who played an important Constitution exists as a mere piece founder of Jharkhand Party. role in making the Constitution. of paper. No one actually follows it. The experience of our Constitution is different. Over the last half a A C T I V I T Y century, several groups have questioned some provisions of the Find out more about any member of the Constitution. But no large social Constituent Assembly from your state or region group or political party has ever who is not mentioned here. Collect a photograph questioned the legitimacy of the or make a sketch of that leader. Write a short Constitution itself. This is an unusual H. C. Mookherjee note on him or her, following the same style as achievement for any constitution. (1887-1956) used here: Name (year of birth-year of death), The second reason for accepting born: Bengal. Vice-Chairman of the place of birth (by current political boundaries), the Constitution is that the Constituent Assembly. brief description of political activities; role played Constituent Assembly represented Reputed author and after the Constituent Assembly. the people of India. There was no educationist. Congress universal adult franchise at that leader. Member of All India Christian Council and The drafting of the document called time. So the Constituent Assembly Bengal Legislative the constitution was done by an could not have been chosen directly Assembly. Later: Governor assembly of elected representatives by all the people of India. It was of West Bengal. 46 DEMOCRATIC POLITICS  elected mainly by the members of Constituent Assembly worked in a the existing Provincial Legislatures systematic, open and consensual that we mentioned above. This manner. First some basic principles ensured a fair geographical share of were decided and agreed upon. Then members from all the regions of the a Drafting Committee chaired by Dr. country. The Assembly was B.R. Ambedkar prepared a draft dominated by the Indian National constitution for discussion. Several G. Durgabai Deshmukh Durgabai Congress, the party that led India’s rounds of thorough discussion took (1909-1981) freedom struggle. But the Congress place on the Draft Constitution, born: Andhra Pradesh. itself included a variety of political clause by clause. More than two Advocate and public activist groups and opinions. The Assembly thousand amendments were for women’s emancipation. Founder of Andhra Mahila had many members who did not considered. The members Sabha. Congress leader. agree with the Congress. In social deliberated for 114 days spread over Later: Founder Chairperson terms too, the Assembly represented three years. Every document of Central Social Welfare members from different language presented and every word spoken in Board. groups, castes, classes, religions the Constituent Assembly has been and occupations. Even if the recorded and preserved. These are Constituent Assembly was elected called ‘Constituent Assembly by universal adult franchise, its Debates’. When printed, these composition would not have been debates are 12 bulky volumes! These very different. debates provide the rationale behind Finally, the manner in which the every provision of the Constitution. Constituent Assembly worked gives These are used to interpret the sanctity to the Constitution. The meaning of the Constitution. Read the information about all the makers of the Indian Constitution given in the side columns here. You don’t need to memorise this information. Just give examples from these to support the following CHECK statements: 1. The Assembly had many members who were not with the Congress YOUR 2. The Assembly represented members from different social groups PROGRESS 3. Members of the Assembly believed in different ideologies 3.4 GUIDING VALUES OF THE INDIAN CONSTITUTION In this book we shall study the Let us turn to these, one by one. exact provisions of the Constitution on different subjects. At this stage The Dream and the Promise let us begin by understanding the Some of you may have noticed a overall philosophy of what our name missing from the sketches of Baldev Singh Constitution is all about. We can do the makers of the constitution: ( 1901-1961) born: Haryana. this in two ways. We can Mahatma Gandhi. He was not a A successful entrepreneur understand it by reading the views member of the Constituent and leader of the Panthic of some of our major leaders on our Assembly. Yet there were many Akali Party in the Punjab Constitution. But it is equally members who followed his vision. Assembly. A nominee of important to read what the Years ago, writing in his magazine the Congress in the Constituent Assembly. Constitution says about its own Young India in 1931, he had spelt Later: Defence Minister in philosophy. This is what the out what he wanted the Constitution the Union Cabinet. preamble to the Constitution does. to do: CONSTITUTIONAL DESIGN 47  I shall strive for a constitution which will release India from all thralldom and patronage … I shall work for an India in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in Kanhaiyalal Maniklal Munshi (1887-1971) born:Gujarat. which all communities shall live in perfect harmony. There Advocate, historian and linguist. Congress leader can be no room in such an India for the curse of and Gandhian. Later: Minister in the Union Cabinet. Founder of the untouchability or the curse of the intoxicating drinks Swatantra Party. and drugs. Women will enjoy the same rights as men … I shall be satisfied with nothing else. This dream of an India that has how inequalities could be removed. He Bhimrao Ramji eliminated inequality was shared by often bitterly criticised Mahatma Ambedkar Dr. Ambedkar, who played a key role Gandhi and his vision. In his conclud- (1891-1956) born: Madhya Pradesh. Chairman of the in the making of the Constitution but ing speech to the Constituent Assem Drafting Committee. Social he had a different understanding of bly he stated his anxiety very clearly: revolutionary thinker and agitator against caste divisions and caste based On the 26th of January 1950 we are going to enter a life of contradictions. inequalities. Later: Law minister in the first cabinet of post-independence India. In politics we will have equality and in social and economic life we will have Founder of Republican Party of India. inequality. In politics we will be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall Shyama Prasad we continue to deny equality in our social and economic life? If we continue to Mukherjee (1901-1953) born: West deny it for long, we will do so only by putting our political democracy in peril. Bengal. Minister for Industry and Supply in the Interim Government. Educationist and lawyer. Active in Hindu Mahasabha. Finally let us turn to Jawaharlal Constituent Assembly at the stroke Later: Founder President of Nehru giving his famous speech to the of midnight on August 15, 1947: Bharatiya Jansangh. 48 DEMOCRATIC POLITICS  Long years ago we made a tryst with destiny destiny,, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life Jawaharlal Nehru (1889-1964) born: Uttar and freedom. A moment comes, which comes but rarely in history, when we step Pradesh. Prime Minister of the interim government. out from the old to the new, when an age ends, and when the soul of a nation, Lawyer and Congress leader. Advocate of socialism, democracy and long suppressed, finds utterance. It is fitting that at this solemn moment we take anti-imperialism. Later: First Prime Minister of India. the pledge of dedication to the service of India and her people and to the still larger cause of humanity … Freedom and power bring responsibility. The responsibility rests upon this Assembly, a sovereign body representing the sovereign people of India. Before the Sarojini Naidu Sarojini birth of freedom we have endured all the pains of labour and our hearts are heavy (1879-1949) born: Andhra Pradesh. Poet, writer and political with the memory of this sorrow. Some of those pains continue even now. Nevertheless, activist. Among the foremost women leaders in the Congress. Later: the past is over and it is the future that beckons to us now. Governor of Uttar Pradesh. That future is not one of ease or resting but of incessant striving so that we may fulfil the pledges we have so often taken and the one we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition Somnath LLahiri ahiri (1901-1984) born: West of the greatest man of our generation has been to wipe every tear from every eye. Bengal. Writer and editor. Leader of the Communist Party of India. Later: That may be beyond us, but as long as there are tears and suffering, so long our Member of West Bengal Legislative Assembly. work will not be over. CHECK Read the three quotations above carefully. YOUR  Can you identify one idea that is common to all these three?  What are the differences in their ways of expressing that common idea? PROGRESS CONSTITUTIONAL DESIGN 49 Philosophy of the articles of the Indian Constitution. C onstitution The Constitution begins with a short Values that inspired and guided the statement of its basic values. This freedom struggle and were in turn is called the Preamble to the nurtured by it, formed the constitution. Taking inspiration foundation for India’s democracy. from American model, most These values are embedded in the countries in the contemporary Preamble of the Indian world have chosen to begin their Constitution. They guide all the constitutions with a preamble. in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish thisConstitution for the United States of America. We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to — Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations. May God protect our people. Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso. God seën Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika. 50 DEMOCRATIC POLITICS  WE, THE PEOPLE Let us read the Preamble of our Constitution very REPUBLIC OF INDIA carefully and understand the meaning of each of its The head of the state The constitution has key words. is an elected person been drawn up and The Preamble of the Constitution reads like a poem and not a hereditary enacted by the people on democracy. It contains the philosophy on which the position. through their entire Constitution has been built. It provides a standard representatives, and to examine and evaluate any law and action of JUSTICE not handed down to government, to find out whether it is good or bad. It is Citizens cannot be them by a king or any the soul of the Indian Constitution. discriminated on the outside powers. grounds of caste, religion and gender. SOVEREIGN SOVEREIGN Social inequalities People have supreme have to be reduced. right to make Government should decisions on internal work for the welfare as well as external of all, especially of matters. No external the disadvantaged power can dictate the groups. government of India. LIBERTY SOCIALIST There are no Wealth is generated unreasonable socially and should restrictions on the be shared equally by citizens in what they society. Government think, how they wish should regulate the to express their ownership of land and thoughts and the way industry to reduce they wish to follow up socio-economic their thoughts in inequalities. action. SECULAR EQUALITY Citizens have All are equal before complete freedom to the law. The follow any religion. traditional social But there is no official inequalities have to be religion. Government ended. The treats all religious government should beliefs and practices ensure equal with equal respect. opportunity for all. DEMOCRATIC DEMOCRATIC FRATERNITY FRATERNITY A form of government All of us should where people enjoy behave as if we are equal political rights, members of the same elect their rulers and family. No one should hold them account- treat a fellow citizen able. The government as inferior. is run according to some basic rules. CONSTITUTIONAL DESIGN 51 Compare the Preambles to the constitutions of the United States of America, India and South Africa.  Make a list of ideas that are common to all these three.  Note down at least one of the major differences among these.  Which of the three makes a reference to the past? CHECK  Which of these does not invoke God? YOUR Institutional design be quite difficult to understand. Yet PROGRESS A constitution is not merely a the basic institutional design is not statement of values and philosophy. very difficult to understand. Like any As we noted above, a constitution is Constitution, the Indian mainly about embodying these values Constitution lays down a procedure into institutional arrangements. for choosing persons to govern the Much of the document called country. It defines who will have how Constitution of India is about these much power to take which decisions. arrangements. It is a very long and And it puts limits to what the detailed document. Therefore it needs government can do by providing to be amended quite regularly to keep some rights to the citizen that it updated. Those who crafted the cannot be violated. The remaining Indian Constitution felt that it has to three chapters in this book are about be in accordance with people’s these three aspects of the working aspirations and changes in society. of Indian constitution. We shall look They did not see it as a sacred, static at some key constitutional and unalterable law. So, they made provisions in each chapter and provisions to incorporate changes understand how they work in from time to time. These changes are democratic politics. But this called constitutional amendments. textbook will not cover all the salient The Constitution describes the features of the institutional design institutional arrangements in a very in the Indian Constitution. Some legal language. If you read the other aspects will be covered in your Constitution for the first time, it can textbook next year. Apartheid: The official policy of racial separation and ill treatment of blacks followed by the government of South Africa between 1948 and 1989. Clause: A distinct section of a document. Constituent Assembly: An assembly of people’s representatives that writes GLOSSARY a constitution for a country. Constitution: Supreme law of a country, containing fundamental rules governing the politics and society in a country. Constitutional amendment: A change in the constitution made by the supreme legislative body in a country. Draft: A preliminary version of a legal document. Philosophy: The most fundamental principles underlying one’s thoughts and actions. Preamble: An introductory statement in a constitution which states the reasons and guiding values of the constitution. Treason: The offence of attempting to overthrow the government of the state to which the offender owes allegiance. Tryst: A meeting or meeting place that has been agreed upon. 52 DEMOCRATIC POLITICS