Constitutional Design

• Why do we need a Constitution?

  • Meaning: Supreme law of a country
  • Functions:
    • Generates trust and coordination
    • Specifies how government is formed and who has power
    • Lays down limits on government power
    • Expresses aspirations of the people for a good society

• Democratic Constitution in South Africa

  • The Struggle against Apartheid
    • Apartheid: System of racial discrimination by white minority
    • Imposed by Europeans; segregated blacks, whites, and coloreds
    • African National Congress (ANC) led the resistance
    • Nelson Mandela imprisoned for 28 years (Robben Island)
  • Towards a New Constitution
    • Protests and struggles grew; apartheid became untenable
    • 1994: Emergence of the new multiracial democratic country
    • Transition to democracy through reconciliation and compromise
    • Creation of one of the finest constitutions protecting minority rights

• Why do we need a Constitution in India?

  • Difficult Circumstances of Formation
    • Partition on religious lines (trauma and violence)
    • Integration of over 500 princely states
    • Future and unity of the nation looked insecure
  • The Path to the Constitution
    • Consensus evolved during the national movement
    • Inspiration from:
      • Ideals of the French Revolution
      • British parliamentary democracy
      • US Bill of Rights
      • Socialist revolution in Russia
    • Motilal Nehru Report (1928) and Karachi Resolution (1931) as precursors

• The Constituent Assembly of India

  • Composition
    • Elected members of provincial legislatures
    • First meeting: December 1946 (continued after Partition)
    • Dr. B.R. Ambedkar as Chairman of the Drafting Committee
    • Dr. Rajendra Prasad as President of the Assembly
    • Representation from diverse regions, communities, and ideologies
  • Working Style
    • Based on reason, consensus, and compromise
    • Detailed debate clause-by-clause over 114 days spread over 3 years
    • Adoption Date: 26 November 1949
    • Effective Date: 26 January 1950 (Republic Day)

• Philosophy of the Constitution

  • The Preamble
    • Soul of the Constitution
    • Key Values:
      • Sovereign: Independent supreme authority
      • Socialist: Wealth generated socially should be shared equally
      • Secular: Citizen has complete freedom to follow any religion
      • Democratic: Form of government where people enjoy equal political rights
      • Republic: Head of the state is an elected person, not hereditary
      • Justice: Social, economic, and political
      • Liberty: Freedom of thought, expression, belief, faith, and worship
      • Equality: Before law and of opportunity
      • Fraternity: Feeling of a-friendship and belongingness
  • Institutional Design
    • A living document subject to constitutional amendments
    • Separation of power into Legislature, Executive, and Judiciary