Constitution : Why and How ?
Why do we need a constitution ?
Constitution allows coordination and assurance
1 . The first function of a constitution is to provide a set of basic rules that allow for minimal coordination amongst members of a society
Specification of decision making powers
A constitution is a body of fundamental principles according to which a state is constituted or governed .
- The constitution has to provide an answer to this question .
- It specifies the basic allocation of power in a society .
- It decides who gets to decide what the laws will be .
2 . The second function of a constitution is to specify who has the power to make decisions in a society
- It decides how the government will be constituted .
Limitations on the powers of government
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 government may never trespass them .
- Constitution limit the power of government in many ways .
- The most common way of limiting the power of government is to specify certain fundamental rights that all of us possess as citizens and which no government can ever be allowed to violate .
- Citizens will normally have the right to some basic liberties ; to freedom of speech , freedom of conduct a trade or business etc .
Aspiration and goals of a society .
- Most of the older constitution limited themselves largely to allocating decision - making power and setting some limits to government power .
- The Indian constitution was particularly innovative.
- In a country like south Africa , which had a deep history of radical discrimination , its new constitution had to enable the government to end racial discrimination .
- More positively a constitution may enshrine the aspiration of a society .
- The India constitution enables the government to take positive welfare measures some of which are legally enforceable .
- Provisions are found in the section on fundamental rights .
- The Directive principles of state of policy also enjoin government to fulfill certain aspiration of the people .
Fundamental identity of a people
- Finally , and perhaps even most importantly a constitution express the fundamental identity of a people .
- One has many sets of identities that exist prior to a constitution , But by agreeing to certain basic norms and principles one constitutes one ' s basic political identity .
- Second , constitutional norms are the overarching framework within which one pursues individuals aspirations , goals and freedom .
- The constitution also gives one a moral identity
- Third and finally , it may be the case that many basic political and moral values are now shared across different constitutional traditions .
- Most modern constitution create a form of government that is democratic in some respect , most claim , to protect certain basic rights .
- The constitution gave expression to this identity .
- The Indian constitution does not make ethic identity a criterion for citizenship .
The Authority of a constitution
- In most countries , ' constitution ' is a compact document that comprises a number of articles about the state , specifying how the state is to be constituted and what norms it should follow .
- Some countries , the unites kingdom for instance do not have one single document that can be called the constitution.
- This refers to how a constitution comes into being.
- In many countries constitutions remain defunct because they are crafted by military .
- The most successful constitution , like India , south Africa and the united states , are constitution which were created in the after of popular national movements .
- India's constitution was finally created by a constituent Assembly between December 1946 and November 1949.
The substantive provisions of a constitution
- It is the hallmark of a successful constitution that it gives everyone in society some reasons to go along with its provisions .
- The more a constitution preserve the freedom and equality of all its members , the more likely it is succeed .
Balanced institutional design.
- Constitution are often subverted , not by the people , but by small groups , who wish to enhance their own power
- Indian constitution , for example ,horizontally fragments power across different institution like the legislature , Executive and the Judiciary and even independent statutory bodies like the election commission .
- The Indian constitution is described as ' a living ' document .
- By striking a balance between the possibility to changes .
- The constitution has ensured that it will survive as a document respected by people .
How was the Indian constitution made ?
- The constitution was made by the constituent assembly which had been elected for undivided India .
- It held its first sitting on 9 December 1946 and reassembled as constituent assembly for divided India on 14 August 1947.
- Constitution Assembly members were chosen by indirect election by the members of the provincial legislative assemblies that had been established under the government of India Act , 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.
According to this plain :
- The provinces were to elect 292 members while the princely states were allotted a minimum of 93 seats .
- The seats in each province were distributed among the three main communities , Muslims, Sikhs and general , in proportions to their respective populations.
- Members of each community in the provincial legislative assembly elected their own representatives by the method of proportional representatives with single transferable vote .
- The method of selection in the case of representatives of princely states was to be determined by constitution .
Composition of the constituent Assembly
- As a consequence of the partition under the plan of 3 June 1947 .
- The number of members in the Assembly was reduced to 299.
- The constitution was adopted on 26 November 1949 .
- 289 members were actually present on 24 January 1950 and appended their signature to the constitution as finally 1950 .
The principle of deliberation
- The authority of the constituent assembly does not come not come only from the fact that it was broadly , through not perfectly , representative .
- The constitution drew its authority from the fact that members of the constitutional assembly engaged in what on might call public reason .
- The members of the assembly placed a great emphasis on discussion and reasoned arguments
- The voluminous debate in the constitution assembly where each cause of the constitution was subjected to scrutiny and debate, is a tribute to public reason at its best .
Procedures
- The important of public reasons was emphasized in the mundane procedures of the assembly well.
- the constitution assembly had eight major committee on different subjects .
- Jawaharlal Nehru , Rajendra Prasad , Sardar Patel or B.R. Ambedkar chaired these committees .
- Ambedkar had been a bitter critic of the congress and gandhi , accusing them of not doing enough for the supliftment of scheduled castes .
- Patel and Nehru disagreed on many issues .
- The Assembly for one hundred and sixty six day spread over two years and eleven months .
Inheritance of the nationalist movement.
- Perhaps the best summary of the principles that the nationalist movement brought to the constitution assembly is the objectives resolution moved by nehru in 1946.
- This resolution encapsulated the aspiration and values behind the constitution .
- Based on this resolution , ur constitution gave institutional expression to these fundamental commitments ; equality liberty , democracy , sovereignty and a compilation identity .
Main points of the objectives Resolution
- India is an independent , sovereign , republic :
- Territories forming the Union shall be autonomous units and exercise all powers and functions of the government and administration , except those assigned to or vested in the union ;
- All powers and authority of sovereign and independent India and its constitution shall flow from the people ;
- The minorities , backward and tribal areas, depressed and other backward classes shall be provided adequate safeguards;
Institutional arrangements
- The third factor ensuring effectiveness of a constitution is a balanced arrangement of the institutions of government .
- The basic principle is the government must be democratic and committed to the welfare of the people .
- The constitution assembly spent a lot of time on evolving the right balance among the various institutions like the executive , the legislature and the judiciary .
- Each provision of the constitution had to be defended on grounds that it was suited to Indian problems and aspirations .
- India was extremely lucky to have an Assembly that instead of being parochial in its outlook could take the best available everywhere in the world and make it their own .
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class - 11 Political