The Substantive Provisions of a Constitution It is the hallmark of a successful constitution that gives everyone in society some reason to go along with its provisions. A constitution that, for instance, allowed permanent majorities to oppress minority groups with society would give minorities no reason to go along with the provision of the Constitution. Or a constitution that systematically privileged some members at the expense of others, or that systematically entrenched the power of small groups in society would cease to command allegiance. If any group feels their identity is being stifled, they will have no reason to abide by the constitution.
No constitution by itself achieves perfect justice. But it has to convince -people that it provides the framework for pursuing basic justice. Do this thought experiment. Ask yourself this question: What would be the content of some basic rules in society, such that they gave everyone a reason to go along with them?
WHY DO WE NEED CONSTITUTION
The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed. Does the Indian Constitution, broadly speaking, give everyone a reason to go along with its broad outlines? Balanced institutional design Constitutions are often subverted, not by the people, but by small groups, who wish to enhance their own power. Well-crafted constitutions fragment power in society intelligently so that no single group can subvert the constitution. One way of such intelligent designing of a constitution is to ensure that no single institution acquires a monopoly of power.
This is often done by fragmenting power across different institutions. The Indian Constitution, for example, horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary and even independent statutory bodies like the Election Commission. This ensures that even if one institution wants to subvert the Constitution, others can check its transgressions. An intelligent system of checks and balances has facilitated the success of the Indian Constitution.
Another important aspect of intelligent institutional design is: that a constitution must strike the right balance between certain values, norms, and procedures as authoritative, and at the same time allow enough flexibility in its operations to adapt to changing needs and circumstances. Too rigid a constitution is likely to break under the weight of change; a constitution that is, on the other hand, too flexible will give no security, predictability, or identity to a people. Successful constitutions strike the right balance between preserving core values and adapting them to new circumstances. You will notice the wisdom of the makers of the Indian Constitution in the chapter on the Constitution as a living document.
The Indian constitution is described as ‘a living’ document. By striking a balance between the possibility to change the provisions and the limits on such changes, the Constitution has ensured that it will survive as a document respected by people. This arrangement also ensures that no section or group can, on its own, subvert the Constitution.
MAKING OF THE INDIAN CONSTITUTION: As far back as 1928. Motilal Nehru and eight other Congress leaders drafted a constitution for India. In 1931, the resolution at the Karachi session of the Indian National Congress dwelt on how independent India’s constitution should look,. Both these documents were committed to the inclusion of universal adult franchise, the right to freedom and equality, and protecting the rights of minorities in the constitution of independent India. Thus some basic values were accepted by all leaders much before the Constituent Assembly met to deliberate on the Constitution.
The familiarity with the political institutions of the colonial rule also helped develop an agreement over the institutional design. The Indian constitution adopted many institutional details and procedures from colonial laws like the Government of India Act 1935. Years of thinking and deliberation on the’ framework of the constitution had another benefit. Our leaders gained the confidence to learn from other countries, but on their own terms. Many of our leaders were inspired by the ideals of the French Revolution, the practice of parliamentary democracy in Britain.
The socialist revolution in Russia had inspired many Indians to think o shaping a system based on social and economic equality. Yet they were not simply imitating what others had done. At each step, they were questioning whether these things suited our country. All these factors contributed to the making of our Constitution. The drafting of the document called the constitution was done by an assembly of elected representatives called the Constituent Assembly. Elections to the Constituent Assembly were held in July 1946. It held its first sitting on 9 December 1946 and reassembled as Constituent Assembly for divided India on 14 August 1947. Its members were elected by indirect election by the members of the Provisional Legislative Assemblies that had been established in 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 plan:
• Each Province and each Princely State or group of States were allotted seats proportional to their respective population roughly in the ratio of 1:1.000000. As a result’ the Provinces (that were under direct British rule) were to elect 292 members while the Princely States were allotted a minimum of 93seats.
• The seats in each Province were distributed among the three main communities, Muslims, Sikhs, and general, in proportion to their respective populations.
• Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representation with a single transferable vote
• The method of selection in the case of representatives of Princely States was to be determined by consultation