Constitution: Why and How?

2.1 Core concepts

Why do diverse individuals living in a single society — differing in religion, profession, ability, age, wealth and taste — need a constitution at all? Imagine a large, diverse group that must live together. Such a group needs basic rules to coordinate; without them everyone would be insecure, unsure of what other members could do to one another, and unable to claim rights with confidence (NCERT §"Why do we need a Constitution?", pp. 2–3). The first function of a constitution is to provide "a set of basic rules that allow for minimal coordination amongst members of a society" — rules that are publicly promulgated, known to all members, and legally enforceable so that citizens have the assurance that others will follow them (NCERT §"Constitution allows coordination and assurance", p. 3).

The second function is the specification of decision-making powers. A constitution must answer not just what the rules are but who gets to decide them. In principle, this question can be answered in many ways: in a monarchy a monarch decides; in the old Soviet Union one party did; in democracies, broadly speaking, the people decide — but even saying "the people decide" raises further questions (direct voting, or representatives elected in what way?). In the Indian Constitution, it is specified that "in most instances, Parliament gets to decide laws and policies, and that Parliament itself be organised in a particular manner" (NCERT §"Specification of decision making powers", pp. 4–5). If Parliament is to enact laws, there must first be a law that bestows that authority on Parliament — and this is precisely what the constitution does. It is the authority that "constitutes government in the first place".

The third function is to set limitations on the powers of government — limits that the government may never trespass. Even if a legitimate authority enacts laws that are obviously unjust (banning a religion, banning clothes of a certain colour, denying water from public wells to certain skin colours, arbitrary arrest), citizens would consider these unjust — so a constitution must constrain government authority itself. The most common way is to specify certain fundamental rights — freedom of speech, freedom of conscience, freedom of association, freedom to conduct trade or business — that no government may violate. These rights may be limited only during times of national emergency, under conditions specified by the constitution (NCERT §"Limitations on the powers of government", pp. 5–6).

The fourth function is to give expression to the aspirations and goals of a society. Older constitutions limited themselves to power allocation and limitation, but many twentieth-century constitutions — of which the Indian Constitution is "the finest example" — also empower the government to take positive measures to overcome inequality and deprivation. India aspires to be a society free of caste discrimination, so the government must be enabled to take steps towards that goal; South Africa's new constitution had to enable the government to end racial discrimination. The Indian Constitution's enabling provisions are supported by the Preamble, the Fundamental Rights, and the Directive Principles of State Policy (NCERT §"Aspirations and goals of a society", pp. 6–8). The Constitution of South Africa assigns many responsibilities — promoting conservation of nature, protecting persons from unfair discrimination, progressively ensuring adequate housing and health care — and that Indonesia's constitution similarly requires the state to conduct a national education system and look after the poor and destitute (NCERT box "Enabling provisions of the Constitution", p. 8).

The fifth function — "perhaps even most importantly" — is to express the fundamental identity of a people. People become a collective entity by agreeing to a basic set of norms about how one is to be governed. First, this constitutes one's basic political identity; second, the constitution defines the moral identity of a community by setting the values one may not trespass; third, some basic political and moral values are now shared across constitutional traditions. German identity was constituted by being ethnically German, and the German constitution gave expression to this; the Indian Constitution, by contrast, "does not make ethnic identity a criterion for citizenship" (NCERT §"Fundamental identity of a people", pp. 8–10). Different nations embody different conceptions of the relationship between regions and the central government — and this relationship constitutes the national identity.

What gives a constitution authority? Three factors. The first is the mode of promulgation — how the constitution came into being and who crafted it. Many constitutions remain defunct because they were crafted by military leaders or unpopular leaders. The most successful constitutions, "like India, South Africa and the United States, are constitutions which were created in the aftermath of popular national movements" (NCERT §"Mode of promulgation", p. 11). India's Constitution was formally created by a Constituent Assembly between December 1946 and November 1949, but it drew upon a long nationalist movement that had built up immense public credibility. Although it was never subjected to a referendum, it carried enormous public authority because it had the consensus and backing of leaders who were themselves popular (NCERT p. 12). The boxed "Debate over Constitution making in Nepal" contrasts this with Nepal, where five "granted" constitutions (1948, 1951, 1959, 1962, 1990) preceded a long struggle for a popularly elected constituent assembly; Nepal finally became a democratic republic in 2008 and adopted its new constitution in 2015 (NCERT box, p. 12).

The second factor is the substantive provisions of a constitution. It is the hallmark of a successful constitution that it gives everyone in society some reason to go along with its provisions. A constitution that systematically privileges some, that allows permanent majorities to oppress minorities, that entrenches the power of a few — would cease to command allegiance. "The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed" (NCERT §"Substantive provisions", pp. 12–13).

The third factor is balanced institutional design. Constitutions are often subverted not by the people but by small groups wishing to enhance their own power. Well-crafted constitutions therefore fragment power intelligently across institutions so no single institution acquires a monopoly. "The Indian Constitution... horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary and even independent statutory bodies like the Election Commission" (NCERT §"Balanced institutional design", p. 13). The Constitution must also strike the right balance between rigidity and flexibility: too rigid a constitution breaks under the weight of change; too flexible a constitution offers no security or identity. The Indian Constitution is therefore described as "a living document" because it strikes precisely this balance (NCERT p. 14).

How was the Indian Constitution made? The Constituent Assembly held its first sitting on 9 December 1946 and reassembled as the Constituent Assembly for divided India on 14 August 1947. Members were chosen by indirect election by the Provincial Legislative Assemblies that had been established under the Government of India Act, 1935, on the lines of the Cabinet Mission Plan. Under that plan, each Province and each Princely State (or group of States) was allotted seats proportional to population in the ratio of 1:10,00,000 — Provinces under direct British rule were to elect 292 members and Princely States were allotted a minimum of 93 seats. Seats in each Province were distributed among Muslims, Sikhs and "general" in proportion to their populations; members of each community elected their own representatives by proportional representation with single transferable vote. Princely-State representatives were selected by consultation (NCERT §"How was the Indian Constitution made?", pp. 14–15).

The composition of the Constituent Assembly after Partition: under the 3 June 1947 Partition plan, members from territories that fell under Pakistan ceased to be members of the Assembly; the membership was reduced to 299. The Constitution was adopted on 26 November 1949; 284 members were present on 24 January 1950 and signed the Constitution as finally passed; it came into force on 26 January 1950. The Constitution was framed against the "horrendous violence" of Partition, but the framers committed themselves to a new conception of citizenship in which religious identity would have no bearing on citizenship rights. Although the Assembly was not elected by universal suffrage, a serious attempt was made to make it representative — members of all religions were represented under the scheme; the Assembly had twenty-eight members from the Scheduled Castes; and the Congress dominated the Assembly with as many as eighty-two per cent of the seats after the Partition (NCERT §"Composition of the Constituent Assembly", p. 16).

The Principle of Deliberation. The authority of the Assembly came not only from the fact that it was representative but also from the procedures it adopted and the values its members brought to deliberations. Each member deliberated with the interests of the whole nation in mind; few of the disagreements could be traced to members protecting their own interests. "Only one provision of the Constitution was passed without virtually any debate: the introduction of universal suffrage", which meant that "all citizens reaching a certain age would be entitled to be voters irrespective of religion, caste, education, gender or income" (NCERT §"The Principle of Deliberation", p. 17). The Constitution drew its authority from "public reason" — members gave principled reasons rather than appeals to interest. "These debates deserved to be memorialised as one of the most significant chapters in the history of constitution making, equal in importance to the French and American revolutions" (NCERT p. 18).

The Assembly's procedures further reinforced public reason. The Assembly had eight major Committees, usually chaired by Jawaharlal Nehru, Rajendra Prasad, Sardar Patel or B.R. Ambedkar — leaders who had publicly disagreed with one another yet worked together. Each Committee drafted particular provisions which were then debated by the entire Assembly. Consensus was the usual mode, with voting where necessary; "every single argument, query or concern was responded to with great care and in writing." The Assembly met for one hundred and sixty-six days, spread over two years and eleven months, and its sessions were open to the press and the public (NCERT §"Procedures", pp. 18–19).

The inheritance of the nationalist movement is presented as the background consensus on which the Assembly drew. "Perhaps the best summary of the principles that the nationalist movement brought to the Constituent Assembly is the Objectives Resolution (the resolution that defined the aims of the Assembly) moved by Nehru in 1946" (NCERT §"Inheritance of the nationalist movement", p. 19). The Objectives Resolution committed to India being an independent, sovereign republic; a Union of erstwhile British Indian territories, Indian States, and other parts willing to join; territories forming the Union to be autonomous units exercising all powers except those vested in the Union; "all powers and authority of sovereign and independent India and its constitution shall flow from the people"; social, economic and political justice; equality of status and opportunity; fundamental freedoms of speech, expression, belief, faith, worship, vocation, association and action — subject to law and public morality; adequate safeguards for minorities, backward and tribal areas, and depressed and other backward classes; territorial integrity; and contribution to world peace (NCERT Objectives Resolution box, p. 20).

Institutional arrangements. The Assembly spent a lot of time evolving the right balance among the Executive, the Legislature and the Judiciary, leading to the adoption of the parliamentary form and the federal arrangement. The framers were not averse to borrowing from other constitutions — they took the best available everywhere in the world and made it their own. But this was not slavish imitation: each provision had to be defended on grounds that it was suited to Indian problems and aspirations. Ambedkar himself, addressing the Assembly on 4 November 1948, said that the new things in a constitution framed so late in the day "are the variations made to remove the faults and to accommodate it to the needs of the country" (NCERT CAD Vol. VII, p. 21). The famous schematic on "Provisions adapted from constitutions of different countries" (p. 22) lists the British Constitution (First Past the Post; Parliamentary Form of Government; the idea of the Rule of Law; institution of the Speaker and her/his role; Law-making procedure); the United States Constitution (Charter of Fundamental Rights; Power of Judicial Review and independence of the judiciary); the Irish Constitution (Directive Principles of State Policy); the French Constitution (principles of Liberty, Equality and Fraternity); and the Canadian Constitution (a quasi-federal form of government — a federal system with a strong central government — and the idea of Residual Powers).

2.2 Definitions to memorise

2.3 Diagrams / processes to remember

• Cartoons referenced: "European Constitution / The Feuding Fathers" by Patrick Chappate (p. 5), Shankar's cartoon "4 December 1949" showing Nehru balancing different visions and ideologies (p. 7), "Iraqi Constitution" by John Trever (p. 9), and "Castle of Cards" by Ares illustrating the fragility of the Iraqi Constitution (p. 14). Each is used to illustrate the difficulties of constitution-making.
• Box: "Provisions adapted from constitutions of different countries" (p. 22) — schematic listing borrowings from British, US, Irish, French and Canadian constitutions; memorise the country → provision mapping.
• Photograph of Rajendra Prasad and B.R. Ambedkar greeting each other (p. 18), with Rajendra Prasad's tribute to Ambedkar's leadership of the Drafting Committee (CAD, Vol. XI, p. 994, 26 November 1949).
• Photograph of B.R. Ambedkar presiding over a discussion in the Constituent Assembly, with his quote (CAD, Vol. VII, p. 37, 4 November 1948) defending borrowing as justified when variations are made to "remove faults and to accommodate it to the needs of the country" (p. 21).
• Ambedkar's box on liberty–equality–fraternity (CAD, Vol. XI, p. 979, 25 November 1949) — "Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity..." (p. 15).
• Process flow: Cabinet Mission Plan → indirect election by Provincial Legislatures (1946) → first sitting 9 Dec 1946 → Partition 3 June 1947 + Assembly reduced to 299 → reassembly for divided India 14 Aug 1947 → adoption 26 Nov 1949 → signing 24 Jan 1950 → enforcement 26 Jan 1950.
• "Check your progress" matrix on p. 10: maps Indian/other constitutional provisions to one of the five functions (limitations / specifying decision-makers / identity / aspiration / coordination).

2.4 Common confusions / NTA trap points

• Adoption vs. enforcement dates: 26 November 1949 (adopted) vs. 26 January 1950 (came into force) — NTA frequently swaps these.
• The Constituent Assembly was elected indirectly by Provincial Legislative Assemblies, not by universal adult suffrage; the only provision adopted without much debate was universal suffrage itself.
• The Indian Constitution was never put to a referendum; do not confuse it with the South African or other constitutions that were referred to a popular vote.
• "Directive Principles" come from the Irish Constitution; "Fundamental Rights / Judicial Review" come from the US Constitution — students mix these up regularly.
• "Residual Powers" and "quasi-federal form" come from the Canadian Constitution — not the US (US is dual federalism).
• "Liberty, Equality, Fraternity" come from the French Constitution — though widely associated with the French Revolution as well.
• "Parliamentary form / Speaker / Rule of Law / FPTP / Law-making procedure" come from the British Constitution.
• First sitting of the Constituent Assembly: 9 December 1946 (for undivided India); reassembly for divided India: 14 August 1947 — not 1947 first sitting or 1949 first sitting.
• The Assembly had 28 members from Scheduled Castes and Congress had 82 per cent of seats after Partition — both are favourite recall traps.
• Provinces were to elect 292 members; Princely States were allotted a minimum of 93 seats — totalling roughly 385 before Partition. After Partition, the number was 299.
• The Objectives Resolution was moved by Nehru in 1946, not by Ambedkar or Rajendra Prasad.
• The Assembly had eight major Committees — not five or ten.
• Nepal had five granted constitutions (1948, 1951, 1959, 1962, 1990) before adopting its republican constitution in 2015 — distractor for "first constitution".

2.5 Key constitutional borrowings / events table