MAKING OF THE CONSTITUTION (Part 1)
WHAT IS A CONSTITUTION?
- A Constitution is the supreme sovereign document of a country. It acts as a functional manual of a democratic society. It lays down the basic structure of the political system under which its people are to be governed.
- Constitution establishes the nature of the State and allocates power among the three organs of the state: legislature, executive and judiciary. It defines their powers, demarcates their responsibilities and regulates their relationship with each other so that there would not be any overlapping of jurisdictions.
- A Constitution is not a frozen and static set of regulations. It is a living document. It keeps constantly evolving as it requires changes, revisions and re-examinations.
- A proper Constitution should address the problems that a society is facing at the time of its inception; at the same time, it should be able to respond to all the challenges that may arise in future.
- The term ‘Constitution’ is derived from the Latin term ‘Constiture’, which means ‘to establish’.
- The idea of Constitution was originated in USA. James Madison is called the Father of American Constitution. It came to existence in 1789.
Basic functions of a Constitution include the following:
- To provide a set of basic rules that allow for minimal coordination amongst the members of a society.
- To specify who has the power to make decisions in that society. It includes how governments will be constituted.
- To set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that the government may never trespass them.
- To enable the government to fulfill the aspirations of a society and create conditions of a just society.
WRITTEN AND NON-WRITTEN CONSTITUTIONS
- A written constitution is one in which most of the basic principles are reduced to writing. It is found in one or more legal documents duly enacted in the forms of law.
- A written constitution is the result of the conscious and deliberate efforts of the people. It is also called as Enacted Constitution.
- An unwritten constitution is one in which most of the provisions are not in written form. It consists of customs, conventions and traditions and may also some written laws.
- An unwritten constitution is not the result of conscious and deliberate efforts of the people and is not enacted by a representative body. It is called as Evolved or Cumulative constitution.
- The Constitution of India is the largest written constitution of any sovereign country in the world, with 448 articles in 25 parts and 12 schedules.
- Monaco’s Constitution, with just 3814 words, is the shortest in the world.
- The United States’ Constitution, having 4400 words is the oldest and shortest written constitution of any major governments in the world.
- The British constitution and Israel Constitution are example for non-written constitution. Britain does not have one single document that can be called a Constitution. Rather, they have a series of documents, conventions and legislations such as The Magna Carta (1215), The Act of Settlement (1700) and so on.
- First written law in the world Hamurabi’s Code
- ‘Eye for an Eye Tooth for a Tooth’ is related to Hamurabi’s Code
- First law giver in the world Hamurabi
- First Law giver in India Manu
- Modern Manu B.R. Ambedkar
RIGID AND FLEXIBLE CONSTITUTIONS
- Constitution can be further subdivided into two as Rigid and Flexible. This subdivision is based on the nature of the procedure to be followed for the amendment of the constitution.
- A rigid constitution is one which cannot be amended in the manner in which ordinary laws are passed, amended or repealed.
- If a special procedure is needed for its amendment, it is called a rigid constitution. Eg: Constitutions of USA, Canada, Switzerland, Japan, Australia etc.
- A Flexible Constitution is one which can be amended easily by a simple majority of Parliament. Here, there will not be any difference between constitutional law and ordinary law. Eg: British Constitution.
DO YOU KNOW?
Largest democracy in the world ……………………………………… India
The first democracy in the world …………………………………….. Greece
The country known as the cradle of democracy …………..……… Greece
Longest surviving democracy in the world …………..……………… Britain
Land of Modern Democracy …………………………………………….. British
Bible of Modern Democracy ………………………… Social Contract (Roussaeu)
Home of Direct Democracy …………………………………………….. Switzerland
EVOLUTION OF THE CONCEPT OF CONSTITUTION IN INDIA
- As early as in December 1918, the Delhi Session of the Indian National Congress unanimously adopted a resolution demanding that ‘the principles of self-determination should be applied to India.’
- On February 1924, Motilal Nehru, the leader of the Swaraj Party introduced a resolution in the Central Legislative Assembly embodying a demand for summoning a representative Round Table Conference to recommend for the scheme of a Constitution of India.
Swaraj Party was the first political party which raised the demand for a constituent assembly to frame a constitution for India. C R Das was the founder and first President of Swaraj Party. Motilal Nehru was the first Secretary.
- An All Party Conference held in 1928 in Bombay as part of the Anti-Simon protests, appointed a committee under the chairmanship of Motilal Nehru to determine the principles of Constitution of India.
- The ‘Nehru Committee’ report was submitted on August 10, 1928. This report demanded dominion status but asserted that it will not be the ultimate goal. Also, the report defined ‘Citizenship’ and ‘Fundamental Rights’ for the first time.
- The Karachi Session of the Indian National Congress in 1931 presided by Sardar Vallabhai Patel adopted a resolution on ‘Fundamental Rights’ and ‘Economic Policy’.
- M.N. Roy, a veteran communist and later profounder of the Radical Humanism, put forward the idea of a Constituent Assembly for the first time in 1934.
- The scheme of a Constituent Assembly for framing the Indian Constitution was officially adopted by the Indian National Congress in 1934 Bombay Session. Dr. Rajendra Prasad was the President of INC at that time.
- This resolution was confirmed at the session of the Congress held at Faizpur in December 1936. This resolution said that:
“The Congress stands for a genuine democratic State in India where political power has been transferred to the people, as a whole, and the Government is under their effective control. Such a State can only come into existence through a Constituent Assembly having the power to determine finally the constitution of the country.”
- The demand for a Constituent Assembly was for the first time authoritatively conceded by the British Government, though in an indirect way, in the ‘August Offer’ of 1940. The offer said that the framing of the new Constitution would primarily be the responsibility of the Indians.
- The Cripp’s proposal offered by Stafford Cripps in 1942 marked an advance over the August Offer. It proposed that making of the new constitution now rest ‘solely’ not merely ‘primarily’ in the Indian hands.
CABNINET MISSION PLAN
- After the Second World War, the Labor Party Government came to power in Britain and Clement Atlee became the Prime Minister. He sent a mission of three cabinet members to solve the constitutional deadlock in India.
- Members of the Cabinet Mission were: Pethick Lawrence (Secretary of State for India), Sir. Stafford Cripps (President of Board of Trade) and A. V. Alexander (First Lord of Admiralty).
- They came to India on March 24, 1946 and had prolonged negotiations with the leaders of different political parties but they couldn’t agree among themselves.
- Then the Cabinet Mission offered their plan known as the Cabinet Mission Plan on May 16, 1946.
Cabinet Mission Plan: Major Recommendations
- The Plan proposed the establishment of an Indian Union which consists of the British Indian territories and the Indian Princely states. This union government will have power over Defense, External Affairs and Communications only; the rest of the powers will be vested with the Provinces.
- The Provinces should be free to form groups with executives and legislatures, and each group could determine the provincial subjects to be taken in common. Three such Provinces were proposed by the Cabinet Mission, namely: Section A, B & C.
- Section A consists of Madras, Bombay, United Province, Bihar, Central Province and Orissa; Section B consists of Punjab, North West Frontier Province and Sindh; and Section C consists of Bengal and Assam.
- The Plan also recommended the formation of an ‘Interim Government’ until the new Constitution was framed. Jawaharlal Nehru was designated as Vice-President and he and eleven of his colleagues took oath of office on September 2, 1946.
- The major recommendation of the Cabinet Mission was to establish a Constituent Assembly to frame a Constitution for India.
- They also laid down in detail, the procedure to be followed to form the constitution-making body.
In modern times, framing of Constitution by a specially chosen or Commissioned or constituted body called a ‘Constituent Assembly’ has become a normal method ever since the making of the federal Constitution of the United States of America by a Philadelphia Constitutional convention of 1787
FORMATION OF THE CONSTITUENT ASSEMBLY
- The total strength of the Constituent Assembly was fixed at 389.
- Of these, 296 seats were to be allotted to British India and 93 to the Princely States.
- Out of 296 seats allotted to the British India, 292 members were to be drawn from the eleven governors’ provinces and 4 from the four chief commissioners’ provinces (one from each and they included Coorg, Delhi, Ajmer- Merwara and British Baluchistan).
- Each Province and Princely state (or groups of states in case of small states) were to be allotted seats in proportion to their respective population. Roughly, one seat was to be allotted for every million population.
- Seats allotted to each British province were to be decided among the three principal communities – Muslims, Sikhs and General.
- The representatives of each community were to be elected by the members of that community in the provincial legislative assemblies and voting was to be done by the method of proportional representation by means of ‘single transferable vote’.
- The representatives of princely states were to be nominated by the heads of the princely states.
- Thus, the members of the Constituent Assembly were partly elected and partly nominated.
- Moreover, the members were to be indirectly elected by the members of the provincial assemblies, who themselves were elected on a limited franchise.
ELECTIONS TO THE CONSTITUENT ASSEMBLY
- The elections to the Constituent Assembly were held in July 1946 under the supervision of the Reforms Office under Governor-General.
- Out of the 212 general seats, Congress won 203 seats. Additionally, Congress parties in Provincial legislatures elected some Muslims and Sikhs.
- In total, the Indian National Congress won 208 seats, the Muslim League 73 seats, and the small groups and the independent got the remaining 15 seats.
- Thus, the Congress had a majority of 69% in the Assembly. However, after the partition, the Congress majority jumped to 82%.