CHAPTER – 1.

CONSTITUTION: WHY AND HOW

Philosophy of the Constitution, Constitution as a Living Document

1
  A constitution is a body of fundamental principles according to which a state is
constituted or governed. It provides a set of basic rules that allow for minimal
coordination amongst members of a society that are legally enforceable.
 The constitution specifies the basic allocation of power in a society.
 It decides who gets to decide what the laws will be.
 In the Indian Constitution, it is specified that in most instances, Parliament gets to
decide laws and policies and that Parliament itself be organized in a particular
manner.
Functions of Constitution
 Parliament has the authority to enact laws that constitute a government in the 1st
Place.
 Specifies who has the power to make decisions in a society.
 To put Limitations on the government
 It decides how the government will be constituted.
 It specifies certain fundamental rights that all of us possess as citizens and which no
government can ever be allowed to violate.
 To enable the government to fulfil the aspirations of a society and create conditions
for a just society.

The features of the Indian Constitution as it stands today, are as follows:

 Lengthiest Written Constitution
 Blend of Rigidity and Flexibility
 Parliamentary Government
 Independent Judiciary
 A federal system with Unitary Features
 Secular State
 Universal Adult Franchise
 Emergency Provisions

2
Fundamental Identity of the People
 The people as a collective entity come into being only through the basic constitution.
 Constitutional norms are the overarching framework within which one pursues
individual aspirations, goals and freedoms.
 The constitution sets authoritative constraints upon what one may or may not do.
 It defines the fundamental values that we may not trespass. Hence, the constitution
also gives one a moral identity.
 Many basic political and moral values are now shared across different constitutional
traditions.
 Mode of Promulgation:
 The reason why in many countries the constitution remains defunct is that either the
constitution is drafted by the military leaders or by those leaders who were not
popular among the citizens.
 The major reason for the stringent constitutions is that the people or the makers of the
constitution lacked the ability to carry people with them.
 These countries had a constitution that was drafted in the aftermath of the popular
national movement. The fact that the nation faced the very challenges during the
movement helped the makers to create a well-structured document.

Provision of the Constitution:

 It gives everyone in society some reason to go along with its provisions
 It gives security towards the oppression of the minorities by the permanent majorities
of the constitution.
 Systematically privileged some members at the expense of others, or that
systematically entrenched the power of small groups in society, would cease to
command allegiance
 It preserves the freedom and equality of all its members
 The more a constitution preserves the freedom and equality of all its members, the
more likely it is to succeed.

3
Making of The Constitution
 In 1946, the Cabinet Mission Plan established the Constituent Assembly. The
assembly met for the first time on December 9, 1946, and was reconvened on August
14, 1947, as the Constituent Assembly for Divided India.
 Members were chosen through an indirect election process by members of the
Provisional Legislative Assemblies, which were established in 1935. On December
11, 1946, Dr. Rajendra Prasad was elected president of the constituent assembly.
 Balanced Institution Design
 The designing of a constitution to ensure that no single institution acquires monopoly
of power
 This is done by distributing powers across different institutions. Thus the Indian
constitution assigned different powers to different institutions:
 Legislature
 Executive
 Judiciary
 Also, to the statutory bodies like Election Commission.
This ensures that even if one institution tries to subvert the Constitution, others will be
able to check it.
 A constitution must strike the right balance between establishing certain values,
norms, and procedures as authoritative while also allowing for sufficient flexibility in
its operations to respond to changing needs and circumstances. A constitution that is
too rigid will likely break under the weight of change; on the other hand, a
constitution that is too flexible will provide no security, predictability, or identity to a
people.
Cabinet Mission Plan
 The British Prime Minister, “Clement Atlee” decided to send a mission to India for
the transfer of powers from the British Indian Government to Indian leaders.
Objectives:
 To obtain an agreement with the Indian leaders as to the framing of a constitution for
India.
 To formulate a constitution-making body (the Constituent Assembly of India).
 To establish an Executive Council with the support of the major Indian parties.
According to Cabinet Mission Plan:
 Each Province and each Princely State or group of States were allotted seats
proportional to their respective population roughly in the ratio of 1:10,00,000.
 The seats in each Province were distributed among the three main
communities; Muslims, Sikhs and General, in proportion to their respective
populations.
 Members of each community in the Provisional Legislative Assembly elected their
own representatives by the method of proportional representation with the single
transferable vote.
 The method of selection in the case of representatives of Princely States was to be
determined by consultation.

4
 The Drafting Committee was entrusted with the responsibility to prepare the draft
constitution. Drafting Committee was set up on 29 August 1947. The constituent
assembly took 2 years, 11 months and 18 days to frame the constitution.

Objective Resolution
 The objective resolution was presented by Jawaharlal Nehru on 13 December 1946,
laying down the underlying principles of the constitution which later became the
Preamble of the constitution.
 The Objective resolution was adopted on 22 January 1947. The Indian Constitution
gave the institutional expression to equality, liberty, sovereignty and a cosmopolitan
identity based on the objective resolution.

Main points of the Objectives Resolution:

 India is a sovereign and self-governing nation. Former British Indian territories,
Indian States, and other areas outside of British India and Indian States wishing to
join the union will form India.
 Except for those assigned to or vested in the Union, all powers and functions of
government and administration shall be exercised by the territories that make up the
Union.
 The people will be the source of all sovereign and independent India's powers and
authority, as well as its constitution.
 All Indians shall be guaranteed and secured social, economic, and political justice;
equality of status and opportunities; and fundamental freedoms - of speech,
expression, belief, faith, worship, vocation, association, and action - subject to the law
and public morality.

5
  Minorities, backward and tribal areas, as well as the depressed and other backward
classes, all require adequate protection. In accordance with international law, the
Republic's territorial integrity, as well as its sovereign rights on land, sea, and air,
must be safeguarded.
 The land would willingly and fully contribute to the advancement of world peace and
human welfare.

Institutional Arrangements
 The Constituent Assembly spent a lot of time figuring out how to strike the right
balance between the executive, legislature, and judiciary.
 Adoption of the parliamentary form and federal arrangement, which would divide
governmental powers between the legislature and the executive on the one hand, and
the States and the federal government on the other.

Constitution is a living document

Why should the constitutions be amended?

It is not rare for countries to modify their constitutions in reaction to changing circumstances,
shifting social ideologies, or even political upheavals.
The Soviet Union had four constitutions in its life of 74 years. After the disintegration of the
Soviet federation in 1991, the newly formed Russian Federation adopted a new constitution
in 1993

The Indian Constitution - A living document

The Constitution of India was adopted on 26 November 1949. Its implementation formally
started on 26 January 1950. The constitution was questioned many times for its viability but
the makers of our constitution had framed a very robust Constitution; its basic framework is
very much suited to our country even today.

The Constitution makers were very farsighted and provided many solutions for future
situations.
Our Constitution accepts the necessity of modifications according to changing needs of
society. In the actual working of the Constitution, there has been enough flexibility of
interpretations. The political practice and judicial rulings have shown maturity and flexibility
in implementing the constitution.

The above factors have made our Constitution a living document rather than a closed and
static rulebook.
The provisions of the constitution would naturally reflect efforts to tackle the problems that
the society is facing at the time of the making the constitution. The constitution must be a

6
document that provides the framework of the government for the future as well. It has to be
able to respond to the challenges that may arise in the future.
The constitution will always have something that is contemporary and something that has
more durable importance:
A constitution is not a frozen and unalterable document the constitution is a framework for
the democratic governance of the society.
The constitution is a sacred document and that it is an instrument that may require changes
from time to time.
Our constitution is not a static document; it is not the final word about everything; it is not
unalterable.

The Constitution must be amended if so required. But it must be protected from unnecessary
and frequent changes. The Constitution is supposed to be ‘Flexible’ and ‘Rigid’ at the same
time. (Flexible means open to changes and rigid means resistant to changes.)
The framers of the Constitution were well aware that the document could have flaws or
errors; they understood that no document could be completely error-free. At the same time,
the Constitution was establishing a federal policy, which meant that the States' rights and
powers could not be altered without their assent.
Other aspects of the Constitution were so important to the spirit of the document that the
framers were eager to protect them from modification. These requirements had to be spelt out
in detail.
As a result of these factors, various methods of altering the Constitution have been proposed.
The Amending power of the constitution exists with the Parliament. It may in the exercise of
its constituent power to amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article.

7
1. Simple Majority
There are many articles in the Constitution, which mention that these articles can be amended
by a simple law of the Parliament. No special procedure for amendment is required in such
cases and there is no difference at all between an amendment and an ordinary law. These
parts of the Constitution are very flexible.
The wording ‘by law’ indicates that these articles can be modified by the Parliament without
recourse to the procedure laid down in Article 368. Many other articles of the Constitution
can be modified by the Parliament in this simple manner.
2. Simple Majority in Both Houses Separately
Similar to the method mentioned above, this way requires the article to be modified by
passing in both the houses by a simple majority.
3. Special Majority
It requires special majority of the Parliament and the consent of half of the State legislatures.
All amendments to the Constitution are initiated only in the Parliament.
Besides the special majority in the Parliament, no outside agency like a constitution
commission or a separate body is required for amending the Constitution

What is Special Majority in the Amendment procedure?

Amendment to the Constitution requires two different kinds of special majorities:
Those voting in favour of the amendment bill should constitute at least half of the total
strength of that House.
Secondly, the supporters of the amendment bill must also constitute two-thirds of those who
actually take part in voting.
Both Houses of Parliament must pass the amendment bill separately in this same manner
(there is no provision for a joint session). For every amendment bill, this special majority is
required.

The basic principle behind the amending procedure is that it should be based on broad
support among the political parties and parliamentarians.
Does the president have the power to send an amendment for reconsideration?

The President has no powers to send it back for reconsideration in an amendment bill. These
details show how rigid and complicated the amending process could have been. Only elected
representatives of the people are empowered to consider and take final decisions on the
question of amendments. In the case of constitutions, which are very difficult to amend, they
are described as rigid.

8
Ratification by States
For some articles of the Constitution, a special majority is not sufficient. When an
amendment aims to modify an article related to the distribution of powers between the States
and the central government, or articles related to representation, it is necessary that the States
must be consulted and that they give their consent.
The Constitution has ensured this by providing that legislatures of half the States have to pass
the amendment bill before the amendment comes into effect.
The provisions about fundamental rights are also protected in this way
The Constitution of India can be amended through large-scale consensus and limited
participation of the States.
Why Have There Been So Many Amendments?
There is always criticism about the number of amendments. It is said that there have been far
too many amendments to the Constitution of India. On the face of it, the fact that ninety-three
amendments took place in fifty-five years does seem to be somewhat odd.
Amendments are not only due to political considerations.
Barring the first decade after the commencement of the Constitution, every decade has
witnessed a steady stream of amendments. This means that irrespective of the nature of
politics and the party in power, amendments were required to be made from time to time.
Are the amendments because of the inadequacies of the original Constitution? Is the
Constitution too flexible?
The anti-defection amendment (52nd amendment), this period saw a series of amendments in
spite of the political turbulence. Apart from the anti-defection amendments (52nd and 91st),

9
these amendments include, the amendment bringing down the minimum age for voting from
21 to 18 years, the 73rd and the 74th amendments, etc.
In this same period, there were some amendments clarifying and expanding the scope of
reservations in jobs and admissions.
After 1992-93, an overall consensus emerged in the country about these measures and
therefore, amendments regarding these measures were passed without much difficulty (77th,
81st, and 82nd amendments).
What are some controversial amendments of Indian constitution?
In particular, the 38th, 39th and 42nd amendments have been the most controversial
amendments so far. These three amendments were made in the background of an internal
emergency declared in the country from June 1975. They sought to make basic changes in
many crucial parts of the Constitution.

What was 42nd Amendment?

It was an attempt to override the ruling of the Supreme Court given in the Kesavananda case.
Even the duration of the Lok Sabha was extended from five to six years. The Fundamental
Duties were added to the constitution by this amendment act.

The 42nd amendment also put restrictions on the review powers of the Judiciary. This
amendment made changes to the Preamble, to the seventh schedule of the Constitution and to
53 articles of the Constitution.

Short Questions
1. What do you understand by the preamble of the constitution?
2. What did the Crips mission say about the Indian Constitution?
3. Why does the state need to be interfered into religious matters?
4. Who opposed the ban on the freedom of press at the beginning of the 19th century?
5. What were the suggestions given by the Nehru Report regarding universal suffrage?
6. Who was the permanent chairman of the Constituent Assembly?
7. How much time was taken by the Indian constitution to be framed?
8. Why is constitution important?
9. What will happen, if there is no basic rules and regulations in the society?
10. Write two functions of the Constitution.
11. Write two ideals of objective resolution presented by Nehru in 1946.

10
11