Constitutional Design

Apartheid was the name of a system of racial discrimination unique to South Africa. The white Europeans imposed this system on South Africa. During the seventeenth and eighteenth centuries, the trading companies from Europe occupied it with arms and force, in the way they occupied India. But unlike India, a large number of 'whites' had settled in South Africa and became the local rulers. The system of apartheid divided the people and labelled them on the basis of their skin colour. The native people of South Africa are black in colour. They made up about three-fourth of the population and were called 'blacks'. Besides these two groups, there were people of mixed races who were called 'coloured' and people who migrated from India.

The white rulers treated all non-whites as inferiors. The non-whites did not have voting rights. The apartheid system was particularly oppressive for the blacks. They were forbidden from living in white areas. They could work in white areas only if they had a permit. Trains, buses, taxis, hotels, hospitals, schools and colleges, libraries, cinema halls, theatres, beaches, swimming pools, public toilets, were all separate for the whites and blacks. This was called segregation. They could not even visit the churches where the whites worshipped. Blacks could not form associations or protest against the terrible treatment.

Since 1950, the blacks, coloured and Indians fought against the apartheid system. They launched protest marches and strikes. The African National Congress (ANC) was the umbrella organisation that led the struggle against the policies of segregation. This included many workers' unions and the Communist Party. Many sensitive whites also joined the ANC to oppose apartheid and played a leading role in this struggle. Several countries denounced apartheid as unjust and racist. But the white racist government continued to rule by detaining, torturing and killing thousands of black and coloured people.

As protests and struggles against apartheid had increased, the government realised that they could no longer keep the blacks under their rule through repression. The white regime changed its policies. Discriminatory laws were repealed. Ban on political parties and restrictions on the media were lifted. After 28 years of imprisonment, Nelson Mandela walked out of the jail as a free man. Finally, at the midnight of 26 April 1994, the new national flag of the Republic of South Africa was unfurled marking the newly born democracy in the world. The apartheid government came to an end, paving way for the formation of a multi-racial government.

How did this come about? Let us hear Mandela, the first president of this new South Africa, on this extraordinary transition:

After the emergence of the new democratic South Africa, black leaders appealed to fellow blacks to forgive the whites for the atrocities they had committed while in power. They said let us build a new South Africa based on equality of all races and men and women, on democratic values, social justice and human rights. The party that ruled through oppression and brutal killings and the party that led the freedom struggle sat together to draw up a common constitution.

After two years of discussion and debate they came out with one of the finest constitutions the world has ever had. This constitution gave to its citizens the most extensive rights available in any country. Together, they decided that in the search for a solution to the problems, nobody should be excluded, no one should be treated as a demon. They agreed that everybody should become part of the solution, whatever they might have done or represented in the past. The preamble to the South African Constitution (see page 28) sums up this spirit.

Despite all these difficulties, there was one big advantage for the makers of the Indian Constitution. Unlike South Africa, they did not have to create a consensus about what a democratic India should look like. Much of this consensus had evolved during the freedom struggle. Our national movement was not merely a struggle against a foreign rule. It was also a struggle to rejuvenate our country and to transform our society and politics. There were sharp differences of opinion within the freedom struggle about the path India should take after Independence. Such differences exist even today. Yet some basic ideas had come to be accepted by almost everyone.

As far back as in 1928, Motilal Nehru and eight other Congress leaders drafted a constitution for India. In 1931, the resolution at the Karachi session of the Indian National Congress dwelt on how independent India's constitution should look like. Both these documents were committed to the inclusion of universal adult franchise, right to freedom and equality and to protecting the rights of minorities in the constitution of independent India. Thus some basic values were accepted by all leaders much before the Constituent Assembly met to deliberate on the Constitution.

The familiarity with political institutions of colonial rule also helped develop an agreement over the institutional design. The British rule had given voting rights only to a few. On that basis the British had introduced very weak legislatures. Elections were held in 1937 to Provincial Legislatures and Ministries all over British India. These were not fully democratic governments. But the experience gained by Indians in the working of the legislative institutions proved to be very useful for the country in setting up its own institutions and working in them. That is why the Indian constitution adopted many institutional details and procedures from colonial laws like the Government of India Act, 1935.

Years of thinking and deliberation on the framework of the constitution had another benefit. Our leaders gained confidence to learn from other countries, but on our own terms. Many of our leaders were inspired by the ideals of French Revolution, the practice of parliamentary democracy in Britain and the Bill of Rights in the US. The socialist revolution in Russia had inspired many Indians to think of shaping a system based on social and economic equality. Yet they were not simply imitating what others had done. At each step they were questioning whether these things suited our country. All these factors contributed to the making of our Constitution.

Who, then, were the makers of the Indian Constitution? You will find here very brief sketch of some of the leaders who played an important role in making the Constitution. The drafting of the document called the constitution was done by an assembly of elected representatives called the Constituent Assembly. Elections to the Constituent Assembly were held in July 1946. Its first meeting was held in December 1946. Soon after, the country was divided into India and Pakistan. The Constituent Assembly was also divided into the Constituent Assembly of India and that of Pakistan. The Constituent Assembly that wrote the Indian constitution had 299 members. The Assembly adopted the Constitution on 26 November 1949 but it came into effect on 26 January 1950. To mark this day we celebrate January 26 as Republic Day every year.

Why should we accept the Constitution made by this Assembly more than seven decades ago? We have already noted one reason above. The Constitution does not reflect the views of its members alone. It expresses a broad consensus of its time. Many countries of the world have had to rewrite their Constitution afresh because the basic rules were not acceptable to all major social groups or political parties. In some other countries, the Constitution exists as a mere piece of paper. No one actually follows it. The experience of our Constitution is different. Over the last half a century, several groups have questioned some provisions of the Constitution. But no large social group or political party has ever questioned the legitimacy of the Constitution itself. This is an unusual achievement for any constitution.

The second reason for accepting the Constitution is that the Constituent Assembly represented the people of India. There was no universal adult franchise at that time. So the Constituent Assembly could not have been chosen directly by all the people of India. It was elected mainly by the members of the existing Provincial Legislatures that we mentioned above. This ensured a fair geographical share of members from all the regions of the country. The Assembly was dominated by the Indian National Congress, the party that led India's freedom struggle. But the Congress itself included a variety of political groups and opinions. The Assembly had many members who did not agree with the Congress. In social terms too, the Assembly represented members from different language groups, castes, classes, religions and occupations. Even if the Constituent Assembly was elected by universal adult franchise, its composition would not have been very different.

Finally, the manner in which the Constituent Assembly worked gives sanctity to the Constitution. The Constituent Assembly worked in a systematic, open and consensual manner. First some basic principles were decided and agreed upon. Then a Drafting Committee chaired by Dr. B.R. Ambedkar prepared a draft constitution for discussion. Several rounds of thorough discussion took place on the Draft Constitution, clause by clause. More than two thousand amendments were considered. The members deliberated for 114 days spread over three years. Every document presented and every word spoken in the Constituent Assembly has been recorded and preserved. These are called 'Constituent Assembly Debates'. When printed, these debates are 12 bulky volumes! These debates provide the rationale behind every provision of the Constitution. These are used to interpret the meaning of the Constitution.

Some of you may have noticed a name missing from the sketches of the makers of the constitution: Mahatma Gandhi. He was not a member of the Constituent Assembly. Yet there were many members who followed his vision. Years ago, writing in his magazine Young India in 1931, he had spelt out what he wanted the Constitution to do:

This dream of an India that has eliminated inequality was shared by Dr. Ambedkar, who played a key role in the making of the Constitution but he had a different understanding of how inequalities could be removed. He often bitterly criticised Mahatma Gandhi and his vision. In his concluding speech to the Constituent Assembly he stated his anxiety very clearly:

Finally let us turn to Jawaharlal Nehru giving his famous speech to the Constituent Assembly at the stroke of midnight on 15 August 1947:

Values that inspired and guided the freedom struggle and were in turn nurtured by it, formed the foundation for India's democracy. These values are embedded in the Preamble of the Indian Constitution. They guide all the articles of the Indian Constitution. The Constitution begins with a short statement of its basic values. This is called the Preamble to the constitution. Taking inspiration from American model, most countries in the contemporary world have chosen to begin their constitutions with a preamble.

A constitution is not merely a statement of values and philosophy. As we noted above, a constitution is mainly about embodying these values into institutional arrangements. Much of the document called Constitution of India is about these arrangements. It is a very long and detailed document. Therefore it needs to be amended quite regularly to keep it updated. Those who crafted the Indian Constitution felt that it has to be in accordance with people's aspirations and changes in society. They did not see it as a sacred, static and unalterable law. So, they made provisions to incorporate changes from time to time. These changes are called constitutional amendments.

The Constitution describes the institutional arrangements in a very legal language. If you read the Constitution for the first time, it can be quite difficult to understand. Yet the basic institutional design is not very difficult to understand. Like any Constitution, the Indian Constitution lays down a procedure for choosing persons to govern the country. It defines who will have how much power to take which decisions. And it puts limits to what the government can do by providing some rights to the citizen that cannot be violated. The remaining three chapters in this book are about these three aspects of the working of Indian constitution. We shall look at some key constitutional provisions in each chapter and understand how they work in democratic politics. But this textbook will not cover all the salient features of the institutional design in the Indian Constitution. Some other aspects will be covered in your textbook next year.