GS Notes

Polity Notes 02

15 min read

Constitutional Development, Constitution, and Constitutionalism

  • Democracy vs. Dictatorship

    • Dictatorship: This is a form of government where a single individual or a small group possesses absolute power without effective constitutional limitations. In historical monarchies, this was justified by the ‘Divine Right of Kings’. The ruler, or sovereign, is considered above the law (Latin: legibus solutus), and the populace are subjects with duties rather than citizens with rights. Political philosopher Thomas Hobbes in his work Leviathan (1651) argued for an absolute sovereign to prevent society from descending into a “war of all against all,” although his sovereign was a product of a social contract, not divine right. In a dictatorship, state power is pervasive and unaccountable.
    • Democracy: Derived from the Greek words demos (people) and kratos (rule), it signifies ‘rule by the people’. The core tenet is that political authority emanates from the people. The government is accountable through periodic, free, and fair elections. Its power is legitimate only as long as it enjoys the confidence of the electorate. The foundational principle of modern democracy is the ‘Rule of Law’, a concept extensively elaborated by A.V. Dicey in his work Introduction to the Study of the Law of the Constitution (1885). Dicey outlined three pillars: absence of arbitrary power, equality before the law, and the primacy of the rights of individuals.
    • Jawaharlal Nehru’s Vision: Nehru articulated that a constitution is more than a legal document; it is an embodiment of a nation’s ethos and aspirations. In his ‘Objectives Resolution’ speech to the Constituent Assembly on December 13, 1946, he laid out the philosophy that would guide the constitution-making process, emphasizing justice, liberty, equality, fraternity, and the protection of minorities, thereby defining the ‘soul’ of the nascent Indian nation.

  • What is a Constitution?

    • A constitution is the fundamental or supreme law of a country, establishing the framework and principal functions of the organs of government—Legislature, Executive, and Judiciary—and defining the principles governing the operation of those organs.
    • It delineates the relationship between the state and its citizens, establishing the rights of citizens that the state is obligated to protect, and the responsibilities of the state towards its people (e.g., Directive Principles of State Policy in India).
    • It also regulates the relationship between the different organs of the state, ensuring a system of checks and balances to prevent the concentration of power, a principle articulated by the French philosopher Montesquieu in The Spirit of the Laws (1748).

  • Reasons for a Written Constitution in India

    1. Ancient Nation, Young Country: India possesses a civilizational history spanning millennia but emerged as a modern nation-state only in 1947. This transition required a formal document to unify hundreds of diverse princely states and British provinces into a single political entity with a common set of rules and identity.
    2. Lack of Democratic Experience: For most of its history, India was governed by monarchical or imperial systems, followed by over two centuries of authoritarian colonial rule. The vast populace had no experience with electoral democracy or governance based on popular consent. A written constitution was necessary to provide a clear manual for democratic governance.
    3. Protection of Democratic Systems: The framers were acutely aware of how newly independent nations in the 20th century could slip into authoritarianism. A codified constitution with entrenched provisions (like the ‘basic structure’) was seen as a bulwark against majoritarianism and dictatorial tendencies.
    4. Implementation of Rule of Law: To prevent arbitrary rule and ensure that governance is conducted according to established legal principles, a written constitution is indispensable. It provides a single, authoritative source of law against which the actions of the government and individuals can be judged.
    5. Resolution of Conflicts: In a country of immense diversity—linguistic, religious, ethnic, and regional—a written constitution serves as a neutral arbiter. It provides mechanisms for resolving disputes between the Centre and States (Article 131), between different states, and between citizens and the state.
    6. Socio-Economic Conditions: At independence, India was marked by widespread poverty (over 80% below the poverty line) and illiteracy (literacy rate around 12%). This vulnerability could be exploited by demagogues. A written constitution guaranteed fundamental rights and established a framework for socio-economic justice, protecting the masses from potential political exploitation.
    7. This point reiterates the necessity of a written text to safeguard democratic principles like liberty, equality, and fraternity, which were alien to the traditional hierarchical social structure.

Constitutional Development

  • The constitutional evolution in India was not a sudden event but a gradual process under British rule, largely driven by the administrative needs of the British and the growing demands of the Indian nationalist movement.
    • Regulating Act of 1773: The first step by the British Parliament to control and regulate the affairs of the East India Company in India. It designated the Governor of Bengal as the ‘Governor-General of Bengal’ and established an Executive Council of four members to assist him. It also provided for the establishment of a Supreme Court at Calcutta (1774).
    • Indian Councils Act, 1861: A significant step towards administrative decentralization. It initiated the process of associating Indians with the law-making process by nominating some non-official members to the Viceroy’s expanded legislative council. It also introduced the ‘portfolio system’, first introduced by Lord Canning in 1859, which laid the foundation for the cabinet form of government. The separation of powers was rudimentary; it separated legislative functions from the purely executive ones within the Viceroy’s Council, but the Executive retained supreme control.
    • Indian Councils Act, 1892: It increased the number of additional (non-official) members in the Central and provincial legislative councils. It empowered the councils to discuss the budget and address questions to the executive, although supplementary questions were not allowed. It introduced a principle of limited and indirect election for filling up some of the non-official seats.
    • Indian Councils Act, 1909 (Morley-Minto Reforms): It expanded the legislative councils and enlarged their powers, allowing members to ask supplementary questions and move resolutions on the budget. It provided, for the first time, for the association of Indians with the executive Councils of the Viceroy and Governors. Satyendra Prasad Sinha became the first Indian to join the Viceroy’s Executive Council. Its most controversial feature was the introduction of a system of communal representation for Muslims by accepting the concept of ‘separate electorates’.
    • Government of India Act, 1919 (Montagu-Chelmsford Reforms): Its objective was the gradual introduction of responsible government. It introduced ‘dyarchy’ in the provinces by dividing provincial subjects into two parts—transferred (administered by the governor with the aid of ministers responsible to the legislative Council) and reserved (administered by the governor and his executive council). It also introduced bicameralism and direct elections in the country for the first time.
    • Government of India Act, 1935: This was a comprehensive and lengthy document that became the blueprint for the Constitution of India. It provided for the establishment of an All-India Federation (which never materialized), introduced provincial autonomy by abolishing dyarchy in the provinces, and provided for the establishment of a Federal Court (which was set up in 1937) and a Reserve Bank of India.

Making of the Constitution

  • The demand for a Constituent Assembly to frame a constitution for India was first articulated by M. N. Roy, a pioneer of the communist movement in India, in 1934. The Indian National Congress officially adopted this demand in 1935.
  • Formation: The Constituent Assembly was constituted in November 1946 under the scheme formulated by the Cabinet Mission Plan.
    • Composition: Its total strength was 389. Of these, 296 seats were allotted to British India and 93 seats to the Princely States. The British India seats were divided among the three principal communities—Muslims, Sikhs, and General—in proportion to their population. Members were elected indirectly by the members of the provincial assemblies, which themselves were elected on a limited franchise. The Princely States were to nominate their representatives. Thus, the Assembly was a partly elected and partly nominated body.
  • Working of the Assembly:
    • The first meeting was held on December 9, 1946. The Muslim League boycotted it, demanding a separate state of Pakistan.
    • Dr. Sachchidanand Sinha, the oldest member, was elected as the temporary President, following the French practice. On December 11, 1946, Dr. Rajendra Prasad was elected as the permanent President of the Assembly.
    • Post-Partition: After the acceptance of the Mountbatten Plan of June 3, 1947, for the partition of the country, the members of the Muslim League from the Pakistan areas withdrew. Consequently, the total strength of the Assembly came down to 299.
  • Other Functions Performed:
    1. It ratified India’s membership of the Commonwealth in May 1949.
    2. It adopted the National Flag on July 22, 1947.
    3. It adopted the National Anthem on January 24, 1950.
    4. It adopted the National Song on January 24, 1950.
    5. It elected Dr. Rajendra Prasad as the first President of India on January 24, 1950.
  • Process and Duration: The Assembly met for 11 sessions over 2 years, 11 months, and 18 days. The framers had gone through the constitutions of about 60 countries, and the total expenditure incurred was ₹64 lakh.
  • Major Committees: The Assembly worked through various committees.
    • Drafting Committee: Dr. B. R. Ambedkar (Chairman)
    • Union Powers Committee: Jawaharlal Nehru
    • Union Constitution Committee: Jawaharlal Nehru
    • States Committee (for negotiating with states): Jawaharlal Nehru
    • Provincial Constitution Committee: Sardar Vallabhbhai Patel
    • Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas: Sardar Vallabhbhai Patel
    • Rules of Procedure Committee: Dr. Rajendra Prasad
    • Steering Committee: Dr. Rajendra Prasad
  • Adoption: The Constitution of India was adopted on November 26, 1949. It contained a Preamble, 395 Articles, and 8 Schedules at the time of its adoption. The remaining provisions of the Constitution came into force on January 26, 1950.

Criticism against Constituent Assembly

  • Not a Representative Body: Critics argue that the members were not directly elected by the people of India on the basis of universal adult franchise. The elections to the provincial assemblies of 1946, whose members in turn elected the Assembly, were based on a restricted franchise (based on property, tax, or education).
    • Counter-argument: While not directly elected, the Assembly’s composition was broadly representative. It included members from all sections of Indian society—Hindus, Muslims, Sikhs, Parsis, Anglo-Indians, Indian Christians, SCs, STs, including women from all these sections. The leaders enjoyed popular support, as evidenced by the results of the first general election in 1951-52.
  • Dominated by Congress Party: The Assembly was dominated by the Indian National Congress. The eminent British constitutional expert Granville Austin, in his classic work The Indian Constitution: Cornerstone of a Nation (1966), remarked that “the Constituent Assembly was a one-party body in an essentially one-party country… The Congress was the Constituent Assembly.”
    • Counter-argument: Austin himself noted that the Congress was a ‘broad church’, accommodating a wide spectrum of opinions and ideologies, from socialists to right-wing conservatives. The party made a deliberate effort to include non-Congress stalwarts like Dr. B.R. Ambedkar, Shyama Prasad Mukherjee, and others to ensure diverse viewpoints.
  • Time-Consuming: Critics have pointed out that it took nearly three years to frame the constitution.
    • Counter-argument: Given the unprecedented complexity of the task—framing a democratic constitution for a vast, diverse, and deeply divided country undergoing a traumatic partition—the time taken was justified. The framers engaged in extensive debates on every clause to build a robust consensus.

Important Features of the Indian Constitution

  • Written Constitution: The lengthiest written constitution in the world.
  • Parliamentary Democracy: A system where the executive is responsible to the legislature.
  • Federalism with a Unitary Bias: A federal structure with a strong central government.
  • Independence of Judiciary: An independent and integrated judicial system to protect the rule of law and fundamental rights.
  • Fundamental Rights: A set of justiciable rights guaranteed to all citizens.
  • Directive Principles of State Policy: Non-justiciable principles that are fundamental to the governance of the country.
  • Judicial Review: The power of the judiciary to examine the constitutionality of legislative enactments and executive orders.
  • Separation of Powers: A clear demarcation of functions among the legislature, executive, and judiciary.
  • Rule of Law: Supremacy of law and equality before the law.
  • Secularism: The state has no official religion and treats all religions equally.

Constitutionalism

  • Constitutionalism is the idea that government should be legally limited in its powers, and that its authority depends on observing these limitations. It is the antithesis of arbitrary rule. The core idea is ‘limited government’.
  • A country may have a constitution, but it may not necessarily practice constitutionalism (e.g., Nazi Germany). Constitutionalism is ensured through features like a written constitution, separation of powers, checks and balances, rule of law, an independent judiciary, and fundamental rights.
  • State Power vs. Citizen Rights (Zero-Sum Game): This analogy suggests that there is an inherent tension between the power of the state and the liberty of the individual. An increase in the state’s coercive power often corresponds to a decrease in individual freedom.
    • Example (UAPA): The Unlawful Activities (Prevention) Act allows the state to designate individuals as terrorists without a trial, placing the burden of proof on the accused to prove their innocence. This grants immense power to the state at the expense of an individual’s right to liberty and presumption of innocence.
    • Example (Preventive Detention): Article 22 of the Constitution permits the state to detain a person to prevent them from committing a crime. This is a significant power that curtails personal liberty, justified on grounds of national security and public order, but is subject to constitutional safeguards.

Prelims Pointers

  • The idea of a Constituent Assembly for India was first proposed by M. N. Roy in 1934.
  • The Constituent Assembly was formed under the Cabinet Mission Plan of 1946.
  • Total strength of the Constituent Assembly was initially 389, which came down to 299 after partition.
  • The first meeting of the Constituent Assembly was held on December 9, 1946.
  • Dr. Sachchidanand Sinha was the temporary (interim) President of the Constituent Assembly.
  • Dr. Rajendra Prasad was elected as the permanent President of the Constituent Assembly.
  • The ‘Objectives Resolution’ was moved by Jawaharlal Nehru on December 13, 1946.
  • The Chairman of the Drafting Committee was Dr. B. R. Ambedkar.
  • The Chairman of the Union Powers Committee was Jawaharlal Nehru.
  • The Chairman of the Provincial Constitution Committee was Sardar Vallabhbhai Patel.
  • Satyendra Prasad Sinha was the first Indian to join the Viceroy’s Executive Council.
  • The Government of India Act, 1919, introduced ‘dyarchy’ in the provinces.
  • The Government of India Act, 1935, provided for provincial autonomy.
  • The National Flag was adopted by the Constituent Assembly on July 22, 1947.
  • The Constitution of India was adopted on November 26, 1949.
  • The Constitution came into full force on January 26, 1950.
  • The time taken to frame the constitution was 2 years, 11 months, and 18 days.
  • The original constitution contained a Preamble, 395 Articles, and 8 Schedules.

Mains Insights

  • Continuity and Change: The Colonial Legacy on the Indian Constitution (GS Paper II)
    • Cause-Effect: The administrative and legislative framework established by the British, particularly the Government of India Act of 1935, served as the structural blueprint for the Indian Constitution. This was a pragmatic choice to ensure administrative continuity.
    • Historiographical Viewpoint: Some historians argue this reliance on colonial structures meant that the ‘ruler’s law’ and a powerful bureaucracy (the ‘steel frame’) were retained, perpetuating a colonial state-citizen relationship. Others, like Granville Austin, contend that Indians adapted these structures to serve democratic ends, transforming institutions of colonial control into instruments of a welfare state.
  • Constituent Assembly: A Contested Legacy (GS Paper I & II)
    • Debate: Was the Constituent Assembly a truly sovereign and representative body? It was not directly elected by universal suffrage and was convened under the authority of the British Cabinet Mission Plan.
    • Analysis: Despite its origins, the Assembly acted as a fully sovereign body after Indian independence on August 15, 1947. Its representative character derived not from the electoral process but from the diverse backgrounds and ideologies of its members, who acted in the national interest. The extensive debates and accommodation of diverse viewpoints underscore its democratic and consensual nature.
  • Constitutionalism vs. Majoritarianism in Contemporary India (GS Paper II & IV)
    • Core Issue: The essence of constitutionalism is to place limits on state power to protect individual and minority rights. In a democracy, this acts as a check on potential majoritarian tendencies where the will of the majority could trample upon the rights of minorities.
    • Modern Context: Recent debates over laws like the Citizenship (Amendment) Act (CAA), the abrogation of Article 370, and the use of laws like UAPA raise critical questions about the balance between national security/legislative majority and the principles of constitutionalism, secularism, and individual liberty. Upholding ‘Constitutional Morality’, a term used by Dr. Ambedkar, becomes crucial for functionaries to protect the spirit of the constitution against popular pressures.
  • The Constitution as a Social Revolution Document (GS Paper I)
    • Perspective: The Indian Constitution is not merely a political document; it is a social one. As Granville Austin argued, the framers aimed to bring about a social revolution.
    • Evidence: The provisions for Fundamental Rights (especially Articles 15, 17, 23, 24 against discrimination, untouchability, and exploitation) and Directive Principles of State Policy (promoting social and economic justice) were designed to dismantle the hierarchical and oppressive traditional social order and build a modern, egalitarian society.

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