Political System: Constitution

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Political System: Constitution

Constitutionalism is the technique of striking the proper balance between establishing a system of government that has sufficient enabling authority and power to permit it to perform the necessary tasks, and restricting the government with a system of restraints to preclude the creation of a tyranny. If a country has a written constitution that does not act as an effective restraint on the exercise of arbitrary power by the government of the day, it cannot be said to serve as the backbone of constitutional government.

As the highest law in its land, the constitution sets out the rules to ensure fair competition between official contenders, vying for the authoritative allocation of scarce resources through control of political office. It establishes the framework within which competing individuals and groups can pursue their struggles for power in a stable, orderly manner. Every political system needs clearly understood rules to make, interpret, implement, and enforce public policy. The constitution does this by specifying the organs of government; their powers and limits in relation to one another and to citizens; procedures for formulating and executing laws and resolving conflicts among units and members of the political community; and the conditions under which a polity may be defended against internal and foreign foes. The constitutional relationship between the state and its citizens—a government elected by and accountable to the people, both government and citizens being subject to the rule of law—contains the key to the organizing principle of every political system.

The Constitution of India tries to strike a balance between the liberty of citizens, the authority of the state, and the cohesiveness of society. The key to the successful establishment of constitutional democracy in India may lie in the quality and gradualism of British tutelage. Prior to independence, India went through a fairly long gestation period of parliamentary democratic institutions. The principle of gradualism guided the widening of suffrage to new classes of citizens, the extension of the principles of elective government from local to national levels, and the deepening of power-sharing arrangements between elected representatives and appointed officials.

India inherited its basic organizational structure of government from the British Raj, including a unitary system of government, albeit with strong federal features. The Morley-Minto reforms of 1909 extended the elective principle to the provincial (state) legislative councils, extended a limited central legislative council suffrage, and introduced communal electorates. They also initiated a far-reaching debate on three constitutional issues: a further broadening of the suffrage, and if so, the principles on which this was to be done; the further extension of the elective principle to all members of legislative bodies; and the appropriate power-sharing arrangements between provincial and national governments. The Montagu-Chelmsford reforms of 1919 divided authority between central and state governments and legislative functions between two chambers. The suffrage was still limited, however, to property taxpayers, landholders, and men with educational qualifications, who together accounted for under 4 percent of the population in rural areas and 14 percent in municipal areas. The Government of India Act (1935) of the British Parliament provided the structural link from the 1919 reforms under British rule to the 1950 Constitution adopted after independence. Independent India also inherited some of the actual institutions of the British Raj, including central and provincial legislatures, the bureaucracy, the judiciary and the security services; and the conventions of parliamentary democracy, for example the requirement for the prime minister to be a member of the lower house of Parliament, and for his cabinet to resign if ever it loses a vote of "confidence" in that house.

The new Constitution of independent India, drafted by a specially convened Constituent Assembly, completed the democratization of politics begun by the British. Reflecting the Congress Party triumphs in the provincial elections of 1945, the Constituent Assembly was dominated by the Congress, which had led the struggle for independence. The president of the assembly was Rajendra Prasad, who later became the first president of India. The drafting committee was chaired by B. R. Ambedkar. Other influential personalities in the Constituent Assembly were Jawaharlal Nehru, Sardar Vallabhbhai Patel, and Maulana Abul Kalam Azad. Elected indirectly by the provincial assemblies in 1946, the Constituent Assembly aimed to set up a system of government that would facilitate social change and economic development within a democratic structure. The debates in the Constituent Assembly are a rich mine of information on the thinking and philosophy, the fears and hopes underlying the Constitution of India.

Divided into twenty-two parts of 395 articles, plus another eight schedules (since expanded to over 400 articles and a dozen schedules), the Constitution of India is among the longest in the world. It came into effect on 26 January 1950 and established a republic, with no hereditary rulers. The date of 26 January is celebrated every year with due pomp and ceremony as Republic Day. Under the terms of the Constitution, India is democratic, secular, federal, and republican. India has a representative and parliamentary system of government formed on the basis of elections held at prescribed intervals under the auspices of an independent electoral commission. Every adult citizen may vote in elections and seek public office. While some drafters of the Constitution had wanted a decentralized Gandhian state, most felt comfortable with the system of parliamentary democracy bequeathed by Britain. A distribution of powers between a federal center and component states, equally familiar from the colonial heritage, was regarded as the best institutional means of accommodating India's need for unity-in-diversity through appropriate power sharing on a geographical basis. The history of difficulties in neighboring Pakistan, which broke apart in 1971, and Sri Lanka, which has struggled with demands for greater autonomy by the Tamils, has vindicated the formula adopted by the Indian Constitution. Secularism was a logical corollary of the Congress Party's passionate rejection of the two-nation theory, by which Pakistan had been severed from India through partition-at-birth. The decision to become a republic was an assertion of freedom and independence from the British Crown. Nevertheless, India was allowed to remain a full member of the Commonwealth of Nations, through the creative formula of accepting the British "Crown" as a symbol of the free association of Commonwealth member-nations, and as such the head of the Commonwealth.

The Constitution prescribes four methods for its own amendment (Part XX). Some clauses may be amended by a simple majority of Parliament, in consultation with or at the request of the states. A second category of clauses may be amended by a simple majority in Parliament. A third group requires a majority of the total membership of each house plus a two-thirds majority of members of Parliament present and voting in each house. The final class of clauses, pertaining to state borders and rights, requires, in addition to the preceding, ratification by half the number of state legislatures. The Constitution has been amended around one hundred times, but without altering the "basic structure" of the system of government established in 1950, whose custodian is the Supreme Court of India.

The philosophy underlying the Constitution of India reflects attractions and aversion to aspects of Western liberal democracy and Soviet-style Marxism. During the struggle for independence, many leading personalities in the Congress Party, although Western-educated, had flirted with communist ideals. India's Constitution reflects this dual attraction and ambivalence. The Preamble declares India to be a sovereign democratic republic and proclaims the following goals: social, economic, and political justice; liberty of thought, expression, belief, faith, and worship; equality of status and opportunity; dignity of the individual; and unity of the nation. The simultaneous attraction of Western democracy and Soviet socialism is particularly apparent in the chapters on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV), respectively.

In some respects the Indian framers borrowed ideas from the U.S. Constitution, starting with the need for a written constitution. The functions of rule making, rule enforcement, and rule interpretation are separated into the three institutions of the legislature, the executive, and the judiciary. The U.S. influence is strikingly evident in the institution of the judiciary, including a Supreme Court as the final court, and the principle of judicial review. If constitutional government is to have practical and not merely theoretical meaning, then there must be an independent judiciary that can act as a check on the arbitrary exercise of legislative and executive power. If independent India was going to give meaning to the fine sentiments expressed in its Constitution—to protect minorities, to give practical content to the principles of equality of opportunity and equality under the law, to establish that democracy means that all votes have equal value and all officials as well as citizens are answerable for their actions in court—then the judiciary, led by the Supreme Court of India, would have to provide firm guidance. By and large it has done so. For the rule of law to prevail, the judiciary must be seen to be universal, impartial, and impersonal. Its task is to expand individual rights and state power simultaneously. The judiciary is also the final arbiter on what the Constitution itself means. Though the Constitution of India lacks the longevity of its U.S. counterpart, and reverence for it is perhaps diminished by the ease and frequency of its amendments. it nevertheless has proven to be remarkably resilient.

Ramesh Thakur

See alsoFederalism and Center-State Relations

BIBLIOGRAPHY

Austin, Granville. Working a Democratic Constitution: The Indian Experience. Delhi: South Asia Books, 2000.

Basu, Durga Das. Constitutional Law of India. 6th ed. Delhi: Prentice-Hall of India, 1991.

Chaube, Shibanikinkar. Constituent Assembly of India: Springboard of Revolution. Delhi: Manohar Publishers, 2000.

Grover, V. The Constitution of India. Delhi: Deep and Deep, 2002.

Hasan, Zoya, E. Sridharan, and R. Sudharshan, eds. India's Living Constitution: Ideas, Practices, Controversies. Bangalore: Orient Longman, 2002.

Joshi, Ram. The Indian Constitution and Its Working. Mumbai: Orient Longman, 1979.

Misra, Surya N., Subhas C. Hazary, and Amareshwar Mishra. Constitution and Constitutionalism in India. New Delhi: A.P.H. Publishing, 1999.

Palekar, S. A. Constitution and Parliamentary Democracy in Contemporary India. Jaipur: A.B.D. Publishers, 2002.

Saharay, H. K. The Constitution of India: An Analytical Approach. 3rd ed. Kolkata: Eastern Law House, 2002.