Class 11 Political Science Chapter 1 Constitution: Why and How? Notes in English

1 Why Do We Need a Constitution?

What is a constitution? What does it do for a society? How does it relate to your everyday life? These questions are not as hard to answer as they sound. The book explains this with a thought experiment.

1.1 Function 1: Coordination and Assurance

• The group can live together peacefully if it agrees on some basic rules
• Without basic rules, every individual would be insecure, simply because they would not know what other members could do to them
• Rules must be publicly promulgated and known to all members to achieve even a minimal degree of coordination
• But being known is not enough, rules must also be enforceable
• If citizens have no assurance that others will follow the rules, they themselves have no reason to follow them either
• Saying a rule is legally enforceable is what gives everybody that assurance: break it, and you will be punished

1.2 Function 2: Specification of Decision-Making Powers

Before you can even decide what the rules should be, a prior question has to be settled: who gets to decide?

• In a monarchical constitution, a monarch decides; in some constitutions, like the old Soviet Union, one single party held this power
• In democratic constitutions, broadly speaking, the people get to decide
• But even that is not simple: should everyone vote directly on every matter, the way the ancient Greeks did? Or should people act through elected representatives?
• If through representatives, how should those representatives be elected, and how many should there be?
• In the Indian Constitution, Parliament gets to decide laws and policies in most instances, and the Constitution itself specifies how Parliament is to be organised

1.3 Function 3: Limitations on the Powers of Government

Deciding who has authority is still not enough. Suppose that authority then passed laws that were patently unfair.

• It could prohibit a religion, ban clothes of a certain colour, forbid certain songs
• It could force one caste or religious group to always serve others, with no right to hold property
• It could allow arbitrary arrest, or restrict access to a well by skin colour
• Even if passed by a government that came to power through proper procedure, such laws would still be unjust

• Citizens are protected from arbitrary arrest, and enjoy basic liberties: freedom of speech, freedom of conscience, freedom of association, freedom to conduct a trade or business
• In practice, these rights can be limited during a national emergency, and the constitution itself specifies the circumstances under which this can happen

1.4 Function 4: Aspirations and Goals of a Society

• Most older constitutions limited themselves to allocating power and setting limits on government
• Many twentieth-century constitutions, of which the Indian Constitution is the finest example, go further, they enable the government to do positive things and express a society’s aspirations and goals
• Societies with deeply entrenched inequality must not only limit government power, they must also enable and empower government to take positive steps against inequality

• The framers of the Indian Constitution believed every individual should have what is necessary for a life of minimal dignity and self-respect: minimum material well-being, education
• This is supported by the Preamble, the section on Fundamental Rights, and the Directive Principles of State Policy

1.5 Function 5: Fundamental Identity of a People

• Perhaps most importantly, a constitution expresses the fundamental identity of a people
• People become a collective entity only through agreeing to a basic constitution, this is a political identity
• The constitution also defines the fundamental values that may not be trespassed, giving it a moral identity
• Many basic political and moral values are now shared across different constitutional traditions

The relationship between a nation’s different regions and its central government also constitutes that nation’s national identity.

2 The Authority of a Constitution

Having outlined why constitutions exist, the book turns to three further questions: what is a constitution? how effective is it? is it just?

• In most countries, a “Constitution” is one compact document of articles specifying how the state is constituted and what norms it should follow
• Some countries, the United Kingdom for instance, do not have one single document that can be called the Constitution; rather, they have a series of documents and decisions that, taken collectively, are referred to as the constitution
• But many constitutions around the world exist only on paper, so the real question is: how effective is a constitution?

The book identifies three factors that make a constitution effective and command respect.

2.1 Factor 1: Mode of Promulgation

• This means how a constitution comes into being: who crafted it, and how much authority they had
• Constitutions crafted by military leaders or unpopular leaders often remain defunct
• The most successful constitutions, India, South Africa and the United States, were created in the aftermath of popular national movements
• India’s Constitution was formally created between December 1946 and November 1949, but drew upon a long history of the nationalist movement
• Its legitimacy came from framers who enjoyed immense public credibility, who could negotiate and command respect, and who convinced people the Constitution was not a tool for their own personal power
• Some countries subject their constitution to a full referendum, where the whole people vote on its desirability
• India’s Constitution was never put to a referendum, yet it carries enormous public authority, because the people adopted it as their own by abiding by its provisions

2.2 Factor 2: The Substantive Provisions

• A successful constitution gives everyone in society some reason to go along with its provisions
• A constitution that let a permanent majority oppress minorities, or that systematically privileged some members over others, would lose people’s allegiance
• No constitution by itself achieves perfect justice, but it must convince people it offers a framework for pursuing basic justice
• The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed

2.3 Factor 3: Balanced Institutional Design

• Constitutions are subverted not by the people, but by small groups who want to enhance their own power
• Well-crafted constitutions fragment power intelligently, so no single institution can gain a monopoly of power
• The Indian Constitution horizontally fragments power across the Legislature, Executive and Judiciary, and even independent statutory bodies like the Election Commission
• This lets other institutions check any one institution that tries to subvert the Constitution: a system of checks and balances

• Institutional design must also balance rigidity and flexibility: treating certain values as authoritative while leaving room to adapt to changing needs
• Too rigid a constitution breaks under the weight of change; too flexible gives no security, predictability or identity to a people
• This is exactly why the Indian Constitution is described as a ‘living document’ (a theme the book takes up fully in Chapter 9)

3 How Was the Indian Constitution Made?

• The Constitution was formally made by the Constituent Assembly, which had been elected for undivided India
• It held its first sitting on 9 December 1946, and reassembled as the Constituent Assembly for divided India on 14 August 1947
• Members were chosen by indirect election by the Provincial Legislative Assemblies
• These Provincial Legislative Assemblies had themselves been established under the Government of India Act, 1935

3.1 The Cabinet Mission Plan

The Constituent Assembly’s composition followed the plan proposed by a committee of the British cabinet, known as the Cabinet Mission.

3.2 Composition of the Constituent Assembly

• After the Partition plan of 3 June 1947, members elected from territories that fell to Pakistan ceased to be members of the Assembly
• The Assembly’s membership was reduced to 299
• The Constitution was adopted on 26 November 1949

• This all happened against the backdrop of the horrendous violence unleashed by Partition
• Yet the framers not only drafted a constitution under immense pressure, they learnt the right lessons from that violence
• Result: a new conception of citizenship, where minorities would be secure and religious identity would have no bearing on citizenship rights
• The Assembly was not elected by universal suffrage, but there was a serious attempt to make it representative: all religions were given representation, and it had 28 members from the Scheduled Castes
• After Partition, the Congress held 82 per cent of the Assembly’s seats, but Congress itself was such a diverse party that it accommodated almost every shade of opinion

3.3 The Principle of Deliberation

• The Assembly’s authority did not come only from being broadly representative, it came from the procedures it adopted and the values members brought to their debates
• Each member deliberated with the interests of the whole nation in mind, not their own community’s
• Disagreements were common, but they were disagreements of principle, not of self-interest

Giving reasons to others is exactly what moves a person beyond a narrow concern for their own interest. The Constituent Assembly’s debates are regarded as being of equal importance to the French and American revolutions.

3.4 Procedures

• The Constituent Assembly had eight major Committees on different subjects
• These were usually chaired by Jawaharlal Nehru, Rajendra Prasad, Sardar Patel or B.R. Ambedkar
• Dr. Rajendra Prasad was the President of the Constituent Assembly, and Dr. B.R. Ambedkar was the Chairman of the Drafting Committee, two separate roles
• These four did not agree with each other on everything: Ambedkar had been a bitter critic of Congress and Gandhi, and Patel and Nehru disagreed on many issues. Yet they all worked together
• Each Committee usually drafted particular provisions, which were then debated by the full Assembly; an attempt was made to reach consensus, though some provisions went to a vote
• Every argument, query or concern was answered in writing
• The Assembly met for 166 days, spread over two years and eleven months; its sessions were open to the press and the public

3.5 Institutional Arrangements

• A constitution’s effectiveness also depends on a balanced arrangement of institutions
• The Constituent Assembly spent a great deal of time finding the right balance among the executive, legislature and judiciary
• Result: the parliamentary form and the federal arrangement, distributing power both between the legislature and executive, and between the States and the Centre

3.6 Inheritance of the Nationalist Movement

• No constitution is simply a product of the Assembly that produces it
• An Assembly as diverse as India’s could not have functioned without a background consensus on the Constitution’s main principles
• These principles were forged during the long freedom struggle; the Assembly gave them their final, concrete shape

Based on this resolution, the Constitution gave institutional expression to five fundamental commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity.

4 Borrowed Provisions, Yet an Original Mind

• While evolving the most balanced arrangements, the Constitution’s makers did not hesitate to learn from other countries’ experiments and experience
• They borrowed a number of provisions from different constitutional traditions
• But this was not slavish imitation: every provision had to be defended as suited to India’s own problems and aspirations

Country	What India borrowed
British Constitution	Parliamentary form of government, the idea of the rule of law, institution of the Speaker and her/his role, law-making procedure, First Past the Post
United States Constitution	Charter of Fundamental Rights, power of Judicial Review, and independence of the judiciary
Irish Constitution	Directive Principles of State Policy
French Constitution	Principles of Liberty, Equality and Fraternity
Canadian Constitution	A quasi-federal form of government (a federal system with a strong central government), the idea of Residual Powers

India was extremely fortunate to have an Assembly that, instead of being parochial in outlook, could take the best available idea from anywhere in the world and make it its own.

5 Conclusion

• It is a tribute to the wisdom and foresight of the Constitution’s makers that they gave the nation a document enshrining fundamental values and the highest shared aspirations of the people
• This is one reason this intricately crafted document has not only survived but become a living reality, while many other constitutions have perished with the paper they were first written on
• India’s Constitution became a unique document, and in turn an exemplar for other constitutions, most notably South Africa’s
• Nearly three years of searching aimed to strike the right balance, so the institutions the Constitution created would not be haphazard arrangements, but could accommodate India’s aspirations for a long time to come