CHAPTER 3 CONSTITUTIONAL DESIGN - WordPress
CHAPTER 3 o Nbe CEre Rpu TblishedCONSTITUTIONALDESIGNOVERVIEWnottWe noted in the previous chapter that in a democracy the rulers are notfree to do what they like. There are certain basic rules that the citizensand the government have to follow. All such rules together are calledconstitution. As the supreme law of the country, the constitution determinesthe rights of citizens, the powers of the government and how the governmentshould function.In this chapter we ask some basic questions about the constitutionaldesign of a democracy. Why do we need a constitution? How are theconstitutions drawn up? Who designs them and in what way? What arethe values that shape the constitutions in democratic states? Once aconstitution is accepted, can we make changes later as required by thechanging conditions?One recent instance of designing constitution for a democratic state isthat of the South Africa. We begin this chapter by looking at what happenedthere and how the South Africans went about this task of designing theirconstitution. Then we turn to how the Indian Constitution was made,what its foundational values are, and how it provides a good frameworkfor the conduct of citizens’ life and that of the government.40DEMOCRATIC POLITICS
3.1 DEMOCRATIC CONSTITUTIONSOUTH AFRICA“I have fought against white dominationand I have fought against blackdomination. I have cherished the ideal ofa democratic and free society in which allpersons live together in harmony and withequal opportunities. It is an ideal which Ihope to live for and to achieve. But ifneeds be, it is an ideal for which I amprepared to die.”This was Nelson Mandela, beingtried for treason by the white SouthAfrican government. He and sevenother leaders were sentenced to lifeimprisonment in 1964 for daring tooppose the apartheid regime in hiscountry. He spent the next 28 yearsin South Africa’s most dreadedprison, Robben Island.12S t rruggleuggle against apartheidapartheidttApartheid was the name of a systemof racial discrimination unique toSouth Africa. The white Europeansimposed this system on SouthAfrica. During the seventeenth andeighteenth centuries, the tradingcompanies from Europe occupied itwith arms and force, in the way theyoccupied India. But unlike India, alarge number of ‘whites’ had settledin South Africa and became thelocal rulers. The system of2noSign on Durban beachin English, Afrikaansand ZuluIn English it reads:‘CITY OF DURBAN Undersection 37 of the Durbanbeach by-laws, this bathingarea is reserved for the soleuse of members of thewhite race group’.John Mullen, Wikipedia, GNU Free Documentation License1A signboard emblematic ofthe tense relations of theapartheid era, 1953.South Africa History Onlineapartheid divided the people andlabelled them on the basis of theirskin colour. The native people ofSouth Africa are black in colour.They made up about three-fourthof the population and were called‘blacks’. Besides these two groups,there were people of mixed raceswho were called ‘coloured’ andpeople who migrated from India.The white rulers treated all nonwhites as inferiors. The non-whitesdid not have voting rights.The apartheid system wasparticularly oppressive for theblacks. They were forbidden fromliving in white areas. They couldwork in white areas only if they hada permit. Trains, buses, taxis,hotels, hospitals, schools andcolleges, libraries, cinema halls,theatres, beaches, swimming pools, o Nbe CEre Rpu TblishedNelson MandelaINCONSTITUTIONAL DESIGN41
national flag of the Republic of SouthAfrica was unfurled marking thenewly born democracy in the world.The apartheid government came toan end, paving way for the formationof a multi-racial government.How did this come about? Let ushear Mandela, the first president ofthis new South Africa, on this extraordinary transition:“ Historical enemies succeeded innegotiating a peaceful transition fromapartheid to democracy exactly becausewe were prepared to accept the inherentcapacity for goodness in the other. Mywish is that South Africans never give upon the belief in goodness, that theycherish that faith in human beings is thecornerstone of our democracy.”What would havehappened in SouthAfrica if the blackmajority haddecided to takerevenge on thewhites for all theiroppression andexploitation? o Nbe CEre Rpu Tblishedpublic toilets, were all separate forthe whites and blacks. This wascalled segregation. They could noteven visit the churches where thewhites worshipped. Blacks could notform associations or protest againstthe terrible treatment.Since 1950, the blacks, colouredand Indians fought against theapartheid system. They launchedprotest marches and strikes. TheAfrican National Congress (ANC) wasthe umbrella organisation that ledthe struggle against the policies ofsegregation. This included manyworkers’ unions and the CommunistParty. Many sensitive whites alsojoined the ANC to oppose apartheidand played a leading role in thisstruggle. Several countries denounced apartheid as unjust andracist. But the white racist government continued to rule by detaining, torturing and killing thousandsof black and coloured people.A C T I V I T YMake a poster on the life and struggle of NelsonMandela.If available, read some portions of his autobiography, The Long Walk to Freedom, in theclassroom.To w a rrdsds a new cconstitutiononstitutionnewnottAs protests and struggles againstapartheid had increased, thegovernment realised that they couldno longer keep the blacks undertheir rule through repression. Thewhite regime changed its policies.Discriminatory laws were repealed.Ban on political parties andrestrictions on the media were lifted.After 28 years of imprisonment,Nelson Mandela walked out of thejail as a free man. Finally, at themidnight of 26 April 1994, the new42After the emergence of the newdemocratic South Africa, blackleaders appealed to fellow blacks toforgive the whites for the atrocitiesthey had committed while in power.They said let us build a new SouthAfrica based on equality of all racesand men and women, on democraticvalues, social justice and humanrights. The party that ruled throughoppression and brutal killings andthe party that led the freedomstruggle sat together to draw up acommon constitution.After two years of discussion anddebate they came out with one of thefinest constitutions the world hasever had. This constitution gave toits citizens the most extensive rightsavailable in any country. Together,they decided that in the search fora solution to the problems, nobodyshould be excluded, no one shouldbe treated as a demon. They agreedthat everybody should become partof the solution, whatever they mighthave done or represented in thepast. The preamble to the SouthAfrican Constitution (see page 50)sums up this spirit.DEMOCRATIC POLITICS
Wikipedia, GNU Free Documentation License o Nbe CEre Rpu TblishedThe South African constitutioninspires democrats all over theworld. A state denounced by theentire world till recently as the mostundemocratic one is now seen as amodel of democracy. What made thischangepossiblewasthedetermination of the people of SouthAfrica to work together, to transformbitter experiences into the bindingglue of a rainbow nation. Speakingon the South African Constitution,Mandela said:“The Constitution of South Africa speaksof both the past and the future. On the onehand, it is a solemn pact in which we, asSouth Africans, declare to one another thatwe shall never permit a repetition of ourracist, brutal and repressive past. But it ismore than that. It is also a charter for thetransformation of our country into onewhich is truly shared by all its people — acountry which in the fullest sense belongsto all of us, black and white, women andmen.”This image captures the spirit of South Africa today. SouthAfricans call themselves a ‘rainbow nation’. Can you guesswhy?CHECKYOURPROGRESSDoes the story of South African struggle for freedom remind you of the Indian national movement?Make a list of similarities and dissimilarities between the two on the following points:Nature of colonialismRelationship between different communitiesLeadership: Gandhi/ MandelaParty that led the struggle: African National Congress/ Indian National CongressMethod of struggleDO WE NEED A CONSTITUTION?tt3.2 WHYnoThe South African example is a goodway to understand why we need aconstitutionandwhatdoconstitutions do. The oppressor andthe oppressed in this new democracywere planning to live together asequals. It was not going to be easy forthem to trust each other. They hadCONSTITUTIONAL DESIGNtheir fears. They wanted to safeguardtheir interests. The black majoritywas keen to ensure that thedemocratic principle of majority rulewas not compromised. They wantedsubstantial social and economicrights. The white minority was keento protect its privileges and property.43
society or a political party, they allneed a constitution.A C T I V I T YApproach a club or cooperative society or union orpolitical party in your locality. Get a copy of theirrule book (it is often called Rules of Association)and read it. Are these rules in accordance withprinciples of democracy? Do they give membershipto any person without discrimination?nott o Nbe CEre Rpu TblishedAfter long negotiations both partiesagreed to a compromise. The whitesagreed to the principle of majority ruleand that of one person one vote. Theyalso agreed to accept some basicrights for the poor and the workers.The blacks agreed that majority rulewould not be absolute. They agreedthat the majority would not take awaythe property of the white minority.This compromise was not easy. Howwas this compromise going to beimplemented? Even if they managedto trust each other, what was theguarantee that this trust will not bebroken in future?The only way to build andmaintain trust in such a situationis to write down some rules of thegame that everyone would abide by.These rules lay down how the rulersare to be chosen in future. Theserules also determine what theelected governments are empoweredto do and what they cannot do.Finally these rules decide the rightsof the citizen. These rules will workonly if the winner cannot changethem very easily. This is what theSouth Africans did. They agreed onsome basic rules. They also agreedthat these rules will be supreme,that no government will be able toignore these. This set of basic rulesis called a constitution.Constitution making is not uniqueto South Africa. Every country hasdiverse groups of people. Theirrelationship may not have been asbad as that between the whites andthe blacks in South Africa. But all overthe world people have differences ofopinion and interests. Whetherdemocratic or not, most countries inthe world need to have these basicrules. This applies not just togovernments. Any association needsto have its constitution. It could be aclub in your area, a cooperative44Thus, the constitution of a countryis a set of written rules that areaccepted by all people living togetherin a country. Constitution is thesupreme law that determines therelationship among people living ina territory (called citizens) and alsothe relationship between the peopleand government. A constitution doesmany things:First, it generates a degree of trustand coordination that is necessaryfor different kind of people to livetogether;Second, it specifies how thegovernment will be constituted,who will have power to take whichdecisions;Third, it lays down limits on thepowers of the government and tellsus what the rights of the citizensare; andFourth,it expresses theaspirations of the people aboutcreating a good society.All countries that have constitutionsare not necessarily democratic. Butall countries that are democratic willhave constitutions. After the War ofIndependence against Great Britain,the Americans gave themselves aconstitution. After the Revolution, theFrench people approved a democraticconstitution. Since then it hasbecome a practice in all democraciesto have a written constitution.DEMOCRATIC POLITICSThis is not fair!What was the pointin having aConstituentAssembly in India ifall the basics werealready decided?
3.3 MAKINGINDIAN CONSTITUTIONLike South Africa, India’sConstitution was also drawn upunder very difficult circumstances.The making of the constitution for ahuge and diverse country like Indiawas not an easy affair. At that timethe people of India were emergingfrom the status of subjects to thatof citizens. The country was bornthrough a partition on the basis ofreligious differences. This was atraumatic experience for the peopleof India and Pakistan.Atleast ten lakh people were killedon both sides of the border inpartition related violence. There wasanother problem. The British hadleft it to the rulers of the princelystates to decide whether theywanted to merge with India or withPakistan or remain independent.The merger of these princely stateswas a difficult and uncertain task.When the constitution was beingwritten, the future of the country didnot look as secure as it does today.The makers of the constitution hadanxieties about the present and thefuture of the country.like. Much of this consensus hadevolved during the freedom struggle.Our national movement was notmerely a struggle against a foreignrule. It was also a struggle torejuvenate our country and totransform our society and politics.There were sharp differences ofopinion within the freedom struggleabout the path India should takeafterIndependence.Suchdifferences exist even today. Yetsome basic ideas had come to beaccepted by almost everyone.As far back as in 1928, MotilalNehru and eight other Congressleaders drafted a constitution forIndia. In 1931, the resolution at theKarachi session of the IndianNational Congress dwelt on howindependent India’s constitutionshould look like. Both thesedocuments were committed to theinclusion of universal adult franchise,right to freedom and equality and toprotecting the rights of minorities inthe constitution of independent India.Thus some basic values wereaccepted by all leaders much beforethe Constituent Assembly met todeliberate on the Constitution.The familiarity with politicalinstitutions of colonial rule alsohelped develop an agreement overthe institutional design. The Britishrule had given voting rights only toa few. On that basis the British hadintroduced very weak legislatures.Elections were held in 1937 toProvincial Legislatures andMinistries all over British India.These were not fully democraticgovernments. But the experiencegained by Indians in the working ofthe legislative institutions proved tobe very useful for the country insetting up its own institutions and o Nbe CEre Rpu Tblished(1875-1950) born: Gujarat.Minister of Home,Information andBroadcasting in the InterimGovernment. Lawyer andleader of Bardoli peasantsatyagraha. Played adecisive role in theintegration of the Indianprincely states. Later:Deputy Prime Minister.All sketches by Rajeev KumarVallabhbhaiatelJhaverbhai PPatelOF THEAbul Kalam Azad(1888-1958)born: Saudi Arabia.Educationist, author andtheologian; scholar ofArabic. Congress leader,active in the nationalmovement. OpposedMuslim separatist politics.Later: Education Minister inthe first union cabinet.A C T I V I T YttSpeak to your grandparents or some other eldersin your locality. Ask them if they have any memoryof partition or independence or the making of theconstitution. What were their fears and hopesabout the country at that time? Discuss these inthe classroom.T he path ttoo .Krishnamachari(1899-1974)born: Tamil Nadu.Member, DraftingCommittee. Entrepreneurand Congress leader. Later:Finance Minister in theUnion Cabinet.Despite all these difficulties, therewas one big advantage for themakers of the Indian Constitution.Unlike South Africa, they did nothave to create a consensus aboutwhat a democratic India should lookCONSTITUTIONAL DESIGN45
called the Constituent Assembly.Elections to the ConstituentAssembly were held in July 1946. Itsfirst meeting was held in December1946. Soon after the country wasdivided into India and Pakistan. TheConstituent Assembly was alsodivided into the Constituent Assemblyof India and that of Pakistan. TheConstituent Assembly that wrotethe Indian constitution had 299members. The Assembly adoptedthe Constitution on 26 November1949 but it came into effect on 26January 1950. To mark this day wecelebrate January 26 as RepublicDay every year.Why should we accept theConstitution made by this Assemblymore than fifty years ago? We havealready noted one reason above. TheConstitution does not reflect theviews of its members alone. Itexpresses a broad consensus of itstime. Many countries of the worldhave had to rewrite theirConstitution afresh because thebasic rules were not accepted to allmajor social groups or politicalparties. In some other countries, theConstitution exists as a mere pieceof paper. No one actually follows it.The experience of our Constitutionis different. Over the last half acentury, several groups havequestioned some provisions of theConstitution. But no large socialgroup or political party has everquestioned the legitimacy of theConstitution itself. This is an unusualachievement for any constitution.The second reason for acceptingthe Constitution is that theConstituent Assembly representedthe people of India. There was nouniversal adult franchise at thattime. So the Constituent Assemblycould not have been chosen directlyby all the people of India. It wasRajendra Prasad(1884-1963) born: Bihar.Chairman of the ConstituentAssembly. Lawyer, knownfor his role in theChamparan satyagraha.Three times the president ofCongress. Later: the firstPresident of India. o Nbe CEre Rpu Tblishedworking in them. That is why theIndian constitution adopted manyinstitutional details and proceduresfrom colonial laws like the Governmentof India Act, 1935.Years of thinking and deliberationon the framework of the constitutionhad another benefit. Our leadersgained confidence to learn fromother countries, but on our ownterms. Many of our leaders wereinspired by the ideals of FrenchRevolution, the practice ofparliamentary democracy in Britainand the Bill of Rights in the US. Thesocialist revolution in Russia hadinspired many Indians to think ofshaping a system based on socialand economic equality. Yet theywere not simply imitating whatothers had done. At each step theywere questioning whether thesethings suited our country. All thesefactors contributed to the making ofour Constitution.T he CConstituenonstituenssemblyonstituentt AAssemblyWho, then, were the makers of theIndian Constitution? You will findhere very brief sketch of some of theleaders who played an importantrole in making the Constitution.A C T I V I T YnottFind out more about any member of theConstituent Assembly from your state or regionwho is not mentioned here. Collect a photographor make a sketch of that leader. Write a shortnote on him or her, following the same style asused here: Name (year of birth-year of death),place of birth (by current political boundaries),brief description of political activities; role playedafter the Constituent Assembly.The drafting of the document calledthe constitution was done by anassembly of elected representatives46DEMOCRATIC POLITICSJaipal Singh(1903-1970)born: JharkhandA sportsman andeducationist. Captain of thefirst national Hockey team.Founder President ofAdivasi Maha Sabha. Later:founder of Jharkhand Party.H. C. Mookherjee(1887-1956)born: Bengal.Vice-Chairman of theConstituent Assembly.Reputed author andeducationist. Congressleader. Member of All IndiaChristian Council andBengal LegislativeAssembly. Later: Governorof West Bengal.
G. Durgabai DeshmukhDurgabaiConstituent Assembly worked in asystematic, open and consensualmanner. First some basic principleswere decided and agreed upon. Thena Drafting Committee chaired by Dr.B.R. Ambedkar prepared a draftconstitution for discussion. Severalrounds of thorough discussion tookplace on the Draft Const
CHAPTER 3 CONSTITUTIONAL DESIGN OVERVIEW We noted in the previous chapter that in a democracy the rulers are not free to do what they like. There are certain basic rules that the citizens and the government have to follow. All such rules together are called constitution. As the supreme law of the country, the constitution determines
Part One: Heir of Ash Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter 18 Chapter 19 Chapter 20 Chapter 21 Chapter 22 Chapter 23 Chapter 24 Chapter 25 Chapter 26 Chapter 27 Chapter 28 Chapter 29 Chapter 30 .
TO KILL A MOCKINGBIRD. Contents Dedication Epigraph Part One Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Part Two Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter 18. Chapter 19 Chapter 20 Chapter 21 Chapter 22 Chapter 23 Chapter 24 Chapter 25 Chapter 26
DEDICATION PART ONE Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 PART TWO Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter 18 Chapter 19 Chapter 20 Chapter 21 Chapter 22 Chapter 23 .
Constitutional Commentary 1998 Inculcating Constitutional Values: A Review Essay Of: Constitutional Law. by Gerald Gunther & Kathleen M. Sullivan and Constitutional Law. by Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, & Mark V. Tushnet. William K. Kelley Follow this and additional works at:https://scholarship.law.umn.edu/concomm
2. Peter W.Hogg- Canadian Constitutional Law. 3. Ivor Jennings- The Cabinet Government. 4. A.H.Birch - Representative and Responsible Government 5. Colin Howard- Australian Federal Constitutional Law 6. Wade and Phillips - Constitutional Law and Administrative Law. 7. Tressolini- American Constitutional Law. 8.
About the husband’s secret. Dedication Epigraph Pandora Monday Chapter One Chapter Two Chapter Three Chapter Four Chapter Five Tuesday Chapter Six Chapter Seven. Chapter Eight Chapter Nine Chapter Ten Chapter Eleven Chapter Twelve Chapter Thirteen Chapter Fourteen Chapter Fifteen Chapter Sixteen Chapter Seventeen Chapter Eighteen
18.4 35 18.5 35 I Solutions to Applying the Concepts Questions II Answers to End-of-chapter Conceptual Questions Chapter 1 37 Chapter 2 38 Chapter 3 39 Chapter 4 40 Chapter 5 43 Chapter 6 45 Chapter 7 46 Chapter 8 47 Chapter 9 50 Chapter 10 52 Chapter 11 55 Chapter 12 56 Chapter 13 57 Chapter 14 61 Chapter 15 62 Chapter 16 63 Chapter 17 65 .
HUNTER. Special thanks to Kate Cary. Contents Cover Title Page Prologue Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12 Chapter 13 Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter
