THE CONSTITUTION

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What is the Constitution?

The Constitution is a document or set of documents which include fundamental principles according to which  a state is governed. It allows for harmonious sustenance of the society.

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Need of the constitution:

• Constitution allows for coordination and assurance:

  • It provides a set of basic rules that allows for minimal coordination among the members of society.

  • It allows diversity, as in India to live in harmony and peace with each other, respecting each other's culture and traditions.

  • However, this minimum coordination needs that the laws must be known to people and must be enforceable in order to ensure citizens that others will follow these rules.

• Specification of decision making power:

  • Constitutions answer the question of who should govern the country, by specifying basic allocation of power in the society.

  • It provided the specification of the constitution of the governing bodies.

  • It further demarcates rule and responsibility.

• Limitation on the power of government:

  • The constitution put the limits on the power of government to ensure that the laws enacted are just and fair.

  • It further sets a limit on what a government can impose on citizens and these limits are fundamental in the sense that government cannot trespass them.

    • For example: fundamental rights prevent arbitrary detention etc.

• Aspirations and goals of society:

  • The Constitution enables and empowers the government to do positive things which are required by the society for its welfare.

  • The purpose is to overcome inequality and deprivation or create condition for just society

  • They are well depicted in the Preamble, Fundamental Rights and Directive Principle of State Policies (DPSPs).

• Fundamental identity to people:

  • National identity: The constitution of India gives one form of collective identity by agreeing to basic norms and principles.

  • Moral identity: The constitution provides an overarching framework within which one pursues individual aspirations and goals and freedom, sets authoritative constraints and defines fundamental value that one may not trespass.

  • Ethnic Identity: Some constitutions of the world gave expression to ethnic identity like Germany whereas Indian Constitution does not provide for ethnic identity.

CONSTITUTION IS A LIVING DOCUMENT: 

The term living document implies that the Constitution of India keeps on responding to the situation and circumstances that occurs from time to time. This  is the reason for its durability. It does not need to be created every time, whereas some other Constitutions of the world such as the USSR were made for four times in the time span of 76 year.

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           Thus, despite so many changes in society the constitution continues to work effectively because of the ability to be dynamic, to be open to interpretations and ability to respond to the changing situation.

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Supremacy of Parliament:

      Parliament is expected to have an upper hand as it represents the people of the country. However, the constitution provides powers to the Parliament,  thus the supremacy of parliament has to operate in the framework that is created by the Constitution.

Contribution of  Judiciary in durability of constitution so far:

• Judiciary ensured throughout that all the measures taken for interest of backwards section must be within the framework provided by the constitution.

• It ensures the pro-people measures should not bypass legal procedure as they can be used as an excuse to do bigger wrong.

• Aim of the judiciary is to maintain checks and balances on the use of arbitrary power.

• In Keshavananda Bharati case, the judiciary introduced the doctrine of  basic structure: It says a mere text of law is less important than the social circumstances and aspirations that have produced that law or document. Thus, it tried to balance letter and spirit.

EFFECTIVENESS OF CONSTITUTION:

The effectiveness of the Constitution depends upon the Triad of who enacted the constitution, distribution of power intelligibly, and just the nature of the Constitution.

The Triad:

• Who crafted the constitution?

  • The prospects of the success of the constitution depends upon the authority of people who enact the constitution.

  • Factors in Indian constitution:

    • Framers of Indian constitution enjoyed immense public credibility, had the capacity to negotiate and command the respect of a wide cross section of society.

    • They were chosen by the people of the country itself.

• Substantive provisions of the constitution:

  • It had to convince people that it provides the framework for pursuing basic justice.

  • It gives every society some reasons to walk along it. This is the hallmark of the successful constitution.

    • For example: A constitution promoting/allowing minority oppression will not be accepted by a certain section of society. This is one of the reason for the unacceptance of Nepal constitution.

• Balanced institutional design:

  • Institutions are often subverted by some powerful groups. The role of a constitution is to ensure the existence of  well crafted institutions so that no single institution acquires monopoly and power remains fragmented in the society.

  • Indian constitution draws a sketch of horizontal distribution of power across different institutions like legislature, executive judiciary and individual organizations like CAG.