Constitution: Why and How?

Written and reviewed by Subhra Gupta, Humanities faculty at UniDrill (M.A. Sociology, University of Delhi · 7 years teaching Humanities). Based on NCERT Political Science Class XI (Indian Constitution at Work), Chapter 1.

Why not just trust the people in charge?

Imagine a large group of people who differ in religion, profession, wealth, age and taste, and who must live together. Without agreed rules nobody knows what anyone else may do. Nobody can claim a right with confidence, because nothing says what a right is. And whoever happens to be in charge can change the rules whenever it suits them.

A constitution is the answer. It is a body of fundamental principles by which a state is governed. This chapter has two parts. The first explains why a society needs one. The second tells how India's Constitution was made and why it has authority.

Five jobs of a constitution

A constitution does five different jobs. If you can name them with one example each, you can answer most function questions.

Function 2 in more detail. A rule-maker needs authority. For Parliament to make laws there must first be a law that gives Parliament that power, and that law is the Constitution. In this sense the Constitution is what "constitutes" the government in the first place. A monarchy, a one-party state and a democracy all answer the question "who decides?" differently.

Function 3 in more detail. Even a legitimate government can make laws that are plainly unfair, such as banning a religion, forbidding people of a certain colour from using public wells, or arresting people arbitrarily. A constitution guards against this mainly by listing rights that government may not violate. These rights can be limited only in conditions the Constitution itself sets out, such as a national emergency.

Function 4 in more detail. Older constitutions mostly allocated and limited power. Many twentieth-century constitutions, with India as the standout example, also let the government take positive steps to overcome inequality and deprivation. The Preamble, the Fundamental Rights and the Directive Principles of State Policy support these steps. South Africa's constitution gives the state tasks such as protecting nature, preventing unfair discrimination and progressively securing housing and health care. Indonesia's requires the state to run a national education system and look after the poor.

Function 5 in more detail. People become a community by agreeing on how they will be governed. That agreement creates a political identity and defines the moral values a state may not break. Identity also depends on how a country links regions to the centre. In Germany, being ethnically German was once part of national identity. India's Constitution, by contrast, does not use ethnicity as a criterion for citizenship.

Pause and predict: a constitution says that no person can be arrested without being told the grounds, and the government cannot change this rule on its own. Which function is this?

Check your answer: function 3, limits on government. It is a boundary the government cannot cross, not a rule about who decides or a statement of a goal.

What gives a constitution its authority?

Many constitutions on paper have never worked. Others, like those of India, South Africa and the United States, have lasted. The chapter points to three reasons.

Promulgation and why it matters. Constitutions drawn up by military rulers or unpopular leaders have often failed. Those created after popular national movements have done better. Nepal shows the contrast. Its earlier constitutions were "granted" from above (1948, 1951, 1959, 1962 and 1990). A long struggle followed for a constituent assembly elected by the people. Nepal became a democratic republic in 2008 and adopted its new constitution in 2015.

Why balance matters. Constitutions are usually subverted not by the people but by small groups who want more power. Spreading power across institutions makes this harder. A constitution must also balance two opposite needs. If it is too rigid it breaks under the pressure of change. If it is too flexible it gives no security or identity. India's Constitution is called a living document because it manages to be firm in principle and open to change.

How was the Indian Constitution made?

Timeline.

Beyond the textbook. For the exam: adopted on 26 November 1949 and in force from 26 January 1950. In reality: 26 January was chosen with a purpose. On that day in 1930, the Indian National Congress had marked a declaration of Purna Swaraj, complete independence, which is why it was picked for the Constitution to take effect. Why it matters: it explains why two dates are celebrated, and why the Constitution is sometimes said to take effect on the anniversary of an earlier pledge of independence.

How the Assembly was composed. Members were elected indirectly by the Provincial Legislative Assemblies created under the Government of India Act, 1935, following the Cabinet Mission Plan. Seats were allotted in proportion to population, in the ratio of 1 for every 10 lakh people. Provinces under direct British rule elected 292 members and the Princely States had at least 93 seats. Within each province, seats were divided among Muslims, Sikhs and "general" in proportion to population, and each community elected its own members by proportional representation with the single transferable vote. Princely State members were chosen through consultation.

Two views. For the exam: the Assembly was a serious effort at representation. Members of all religions were included and the Assembly had 28 members from the Scheduled Castes. Its authority came from its representativeness and from its debates. Another reading: some scholars point out that the Assembly was not elected by universal adult suffrage, that its members came through an indirect, limited vote, and that one party held 82 per cent of the seats after Partition. They ask how far it could speak for everyone. The reply usually given is that the Assembly's wide consensus, its respect for minority concerns and its open deliberation gave its decisions their legitimacy.

The principle of deliberation. The Assembly's authority came not only from who sat in it but from how it worked. Members tried to reason in terms of the whole nation's interest rather than their own, and few disagreements were about protecting personal gain. This is called public reason: giving principled arguments others can examine, not just stating self-interest. The notable exception is universal suffrage, which passed with almost no debate. The right of all citizens above a certain age to vote, whatever their religion, caste, education, gender or income, was accepted as natural.

Procedures. The Assembly had eight major committees, usually chaired by Jawaharlal Nehru, Rajendra Prasad, Sardar Patel or B.R. Ambedkar. These leaders had disagreed in public but worked together. A committee drafted each part, then the full Assembly debated it. Decisions were usually reached by consensus and, when needed, by vote. Every question or concern was answered carefully and in writing, and the sittings were open to the press and the public. The Assembly met for 166 days over two years and eleven months.

Pause and predict: which provision of the Constitution was passed with almost no debate, and why do you think that happened?

Check your answer: universal adult suffrage. The nationalist movement had already accepted that every adult should have a vote, so the Assembly treated it as settled and spent its time on harder questions.

The nationalist inheritance and the Objectives Resolution

The Assembly did not begin from nothing. It drew on principles that the nationalist movement had built over decades. The best summary is the Objectives Resolution, moved by Nehru in 1946.

Liberty, equality and fraternity. In a speech on 25 November 1949, Ambedkar stressed that these ideals cannot be separated. Liberty cannot be divorced from equality, and neither can be divorced from fraternity. Without all three, none holds.

Borrowing with a purpose

The framers took good ideas from many constitutions and adapted them to Indian needs. They did not copy blindly. Each provision had to be defended as suitable for Indian problems. Ambedkar said, on 4 November 1948, that what is new in a constitution made so late is the variation that removes faults and fits the country's needs.

The Assembly spent a great deal of time on the balance among the Executive, Legislature and Judiciary. That work led to the parliamentary system and the federal arrangement.

Beyond the textbook. For the exam: match each country with its borrowed feature. In reality: "borrowing" in each case meant adaptation. The Directive Principles come from the Irish example but sit beside Fundamental Rights in a different design, and the federal system gives the Union more power than a classic federation does. Why it matters: it shows why the framers could defend a borrowed idea only if it suited Indian conditions.

Exam traps

60-second revision

Where this chapter connects

• Next: Rights in the Indian Constitution takes up function 3, the limits on government, through the Fundamental Rights and the Directive Principles.
• Related: The Philosophy of the Constitution explores the values behind the Preamble and the Objectives Resolution.
• Also see: Constitution as a Living Document explains how the Constitution balances firmness and change, and Federalism develops the federal arrangement with its strong centre and residual powers.