MAKING OF THE INDIAN CONSTITUTION
What is a constitution?
What are its functions?
What role doesitper formsociety?
How does a constitution relate to our daily
existence?
The first function of a constitution is to provide a set of basic rules allow for minimal coordination amongst members of a society.
Specification of decision making powers A constitution is a body of fundamental that principles according to which a state is constituted or governed. But what should these fundamentalrules be? And what makes-
them fundamental? Well, the first question-
you will have to decide is who gets to decide
what the laws governing the society should
be? You may wantruleX, but others may want
rule Y. How do we decide whose rules or
preferences should govern us? You may think
the rules you want everyone to live by are the
best; but others think that their rules are the
best. How do we resolve this dispute? So even before you decide what rules should govern this group you have to decide: Who gets to decide?
The constitution has provide an answer to this question.It specifies the basic allocation of power in a society. It decides who gets to decide whatthe laws will be. In principle, this
question, who gets to decide, can be answered
in many ways: in a monarchical constitution,
a monarch decides; in some constitutions like
the old Soviet Union, one single party was
given the power to decide. But in democratic
constitutions, broadly speaking, the people get
to decide. But this matter is not so simple,
Because even if you answer that the people
should decide, it will not answerthe question:
how should the people decide? For something
to be law, should everyone agree to it? Should
the people directly vote on each matter as the
ancient Greeks did? Or should the people
express their preferences by electing
representatives? But if the people act through
their representatives be elected? How many
should there be?
This is the function of the constitution. It
is an authority that constitutes government
in the first place.
In the Indian Constitution for example,
it is specified that in most instances,
Parliament gets to decide laws and policies,
and that Parliament itself be organised in a
particular mannerBefore identifying whatthe
law in any given society is, you have to
identify who has the authority to enact it. If
Parliament has the authority to enact laws,
there must be a law that bestows this authority
on Parliament in the first place.
Limitations on the powers of government
But this is clearly not enough. Suppose
you decided who had the authority to make
decisions. But then this authority passed laws
that you thought were patently unfair. It
prohibited you from practising your religion
for instance. Or it enjoined that clothes of
certain colour were prohibited, or that you
were not free to sing certain songs or that
people who belonged to a particular group
(caste orreligion) would always have to serve
others and would not be allowed to retain any
property. Orthat government could arbitrarily
arrest someone, orthat only people of a certain
skin colour would be allowed to draw water
from wells.
You would obviously think these laws
were unjust and unfair. And even though they
were passed by a government that had come
into existence based on certain procedures
there would be something obviously unjust
about that government enacting these laws.
Constitutions limit the power of government
in many ways. The most common way of
limiting the power of government is to specify
certain fundamental rights that all of us
possess as citizens and which no government
can ever be allowed to violate. The exact
content an interpretation of these rights varies
from constitution to constitution. But most
Constitutions will protect a basic cluster of
rights. Citizens will be protected from being
arrested arbitrarily and for no reason. This is
one basic limitation upon the power of
government. Citizens will normally have the
right to some basic liberties: to freedom of
speech, freedom of conscience, freedom of
association, freedom to conduct a trade or
business etc. and practice, these rights can be limited during times of national emergency
and the constitution specifies the
circumstances under which these rights may
be withdrawn.
So the third function of a constitution is to
set some limits on what a government can
impose on its citizens. These limits are
fundamental in the sense that government
may never trespass them.
Aspirations and Goals of a Society
Most of the older constitutions limited
themselves largely to allocating decision-
making power and setting some limits to
government power. But many twentieth
century constitutions, of which the Indian
Constitution is the finest example, also provide
an enabling framework forthe government to
do certain positive things, to express the
aspirations and goals of society. The Indian
Constitution was particularly innovative in
this respect.
Societies with deep entrenched
inequalities of various kinds, will not only
have to set limits on the power of government,
they will also have to enable and empower
the government to take positive measures to
overcome forms of inequality or deprivation.
For example, India aspires to be a society
that is free of caste discrimination. if this is
our society’s aspiration, the government will
have to be enabled or empowered to take all
the necessary steps to achieve this goal. In a
country like South Africa, which had a deep
history of racial discrimination, its new
constitution had to enable- the government to
end racial discrimination. More positively, a
constitution may enshrine the aspirations of a
society.The framers of the Indian Constitution,
for example, thought that each individual in
society should have all that is necessary for
them to lead a life of minimal dignity and
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