Constitution: Why and How? — Notes

A constitution is the body of basic rules and principles by which a country is governed. It sets up the main organs of government, defines their powers and relates them to the people.

Written and unwritten: in a written constitution the fundamental rules are collected in one authoritative document. India has a written constitution, among the longest in the world. Britain has no single written document: its fundamental rules are found in statutes, conventions and judicial decisions.

A constitution performs five functions.

1. Coordination and assurance: it provides basic rules that allow minimal coordination and assurance among members of society.
2. Decision-making authority: it specifies who has the power to make decisions and how the government is constituted.
3. Limits on government: it sets limits on the powers of government, for example through fundamental rights.
4. Aspirations: it enables the government to fulfil the aspirations of society and to create the conditions for a just society.
5. Identity: it expresses the fundamental identity of a people.

Why people accept a constitution depends on three things.

• Mode of promulgation: who made it, and whether it is widely accepted.
• Substantive provisions: whether the content is fair and gives everyone a reason to accept it.
• Institutional design: a balanced design with checks and balances, neither too rigid nor too flexible.

The demand for a constituent assembly grew within the national movement. The Nehru Report (1928) was an early outline of a constitution for India.

The Assembly was formed on the lines of the Cabinet Mission plan (1946). Members were elected indirectly by the members of the provincial legislative assemblies, and representatives of the princely states were also included. It first met on 9 December 1946. After Partition its strength fell to about 299 members (as commonly taught). Dr Rajendra Prasad was its President, and the Drafting Committee was chaired by Dr B. R. Ambedkar.

The Objectives Resolution, moved by Jawaharlal Nehru on 13 December 1946 and adopted in January 1947, set out the ideals that shaped the Preamble.

The Assembly deliberated through committees, aimed at consensus and open discussion, and respected diverse views. Its members came from many regions, communities and opinions, and it built on the inheritance of the national movement.

Some argue that indirect election limited how fully it could represent all citizens; others argue that its varied membership and open debate gave it breadth. Weigh both views with reasons.

The Government of India Act 1935 provided the base for many administrative provisions. Ideas were adapted, not copied, from other constitutions:

• Britain: parliamentary government, rule of law, the office of the Speaker, single citizenship.
• United States: a bill of rights (fundamental rights), judicial review, an independent judiciary.
• Ireland: Directive Principles.
• France: liberty, equality and fraternity.
• Canada: a quasi-federal form with a strong centre and residuary powers with the centre.

The Constitution was adopted on 26 November 1949 (now observed as Constitution Day) and came into force on 26 January 1950 (Republic Day). The Assembly took about three years, commonly given as 2 years, 11 months and 18 days.