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Constitutional Design | Class 9 Civics

The chapter notes underline the importance of establishing a constitution. How are constitutions written? Who and how are they designed? What are the values that shape democratic state constitutions? Can we amend a constitution after it is adopted to reflect changing circumstances?

 

The Constitution of South Africa



Nelson Mandela and seven other leaders were sentenced to life imprisonment in 1964 for daring to oppose the apartheid regime in his country. Mandela was imprisoned for 28 years at Robben Island - the deadest prison of South Africa.



Struggle Against Apartheid



Apartheid was the name of a system of racial discrimination unique to South Africa.


This System was imposed by The White Europeans 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.




How did apartheid divide people on racial basis?


A large number of ‘whites’ had settled in South Africa and became the local rulers. All non-whites were treated as inferiors by the White rulers. The non-whites did not have voting rights. The apartheid system was particularly oppressive for the blacks.

The system of apartheid divided the people on the basis of their skin color. The native people of South Africa were ‘Blacks’. They made up about three-fourth of the population. There were also people of mixed races who were called ‘colored’ and people who migrated from India.


The blacks, coloured and Indians fought against the apartheid system since 1950.



What were the ways of racial discrimination in South Africa?



● The blacks were forbidden from living in white areas also they could work in white areas only if they had a permit.

● Segregation of Trains, buses, taxis, hotels, hospitals, schools and colleges, libraries, cinema halls, theatres, beaches, swimming pools, public toilets, was done.

● They could not even visit the churches where the whites worshipped.

● Blacks could not form associations or protest against the terrible treatment.


African National Congress


The African National Congress (ANC) was the umbrella organisation that led the struggle against the policies of segregation. They also organised protests and strikes.


The ANC 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.




Towards A New Constitution


As protests and struggles against apartheid started to increase, 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.

Nelson Mandela walked out of the jail as a free man after 28 years of imprisonment.


The new national flag of the Republic of South Africa was unfurled at midnight of 26th April 1994. The apartheid government came to an end, paving way for the formation of a multi-racial government.


Nelson Mandela became the first President of this New South Africa. 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.



A Common Constitution


A common Constitution was drawn by the party that ruled through oppression and brutal killings and the party that led the freedom struggle. It took two years of discussion and debate to make the constitution.


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.


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 sums up this spirit. The South African constitution inspires democrats all over the world. A state denounced by the entire world till recently as the most undemocratic one is now seen as a model of democracy.


The determination of the people of South Africa to work together, to transform bitter experiences into the binding glue of a rainbow nation is what made this change possible.




What is a Constitution?


The constitution of a country is a set of written rules that are accepted by all people living together in a country.


The Constitution is the supreme law that determines the relationship among people living in a territory and also the relationship between the people and government.



Why do we need a constitution? Case of South Africa


The South African example is a good way to understand why we need a constitution and what constitutions do.


● The oppressor and the oppressed in this new democracy were planning to live together as equals. They had to overcome years of distrust and also safeguard their interests.


What were the points of discussion and interest for the blacks in independent South Africa?


● The black majority was keen to ensure that the democratic principle of majority rule was not compromised. They wanted substantial social and economic rights.

● The blacks agreed that majority rule would not be absolute. They agreed that the majority would not take away the property of the white minority.


What did the white minority want from the new political order?


● The white minority was keen to protect its privileges and property. The whites agreed to the principle of majority rule and that of one person one vote. They also agreed to accept some basic rights for the poor and the workers.


Need for Constitution in South Africa


The only way to build and maintain trust in such a situation is to write down some rules of the game that everyone would abide by. These rules lay down how the rulers are to be chosen in future. These rules also determine what the elected governments are empowered to do and what they cannot do.


These rules decide the rights of the citizen. This set of basic rules is called a constitution.




Are constitutions only applicable to governments?


This applies not just to governments. Any association needs to have its constitution. It could be a club in your area, a cooperative society or a political party, they all need a constitution.


Features of the Constitution


● It generates a degree of trust and coordination that is necessary for different kinds of people to live together.

● It also specifies how the government will be constituted, who will have power to take which decisions.

● It lays down limits on the powers of the government and tells us what the rights of the citizens are.

● It expresses the aspirations of the people about creating a good society.





Making of Indian Constitution


Like South Africa, India’s Constitution was also drawn up under very difficult circumstances. The making of the constitution for a huge and diverse country like India was not an easy affair.


At that time the people of India were emerging from the status of subjects to that of citizens. The country was born through a partition on the basis of religious differences.


This was a traumatic experience for the people of India and Pakistan. At Least ten lakh people were killed on both sides of the border in partition related violence.


The British had left it to the rulers of the princely states to decide whether they wanted to merge with India or with Pakistan or remain independent.


The merger of these princely states was a difficult task. When the constitution was being written, the future of the country did not look as secure as it does today.


The makers of the constitution had anxieties about the present and the future of the country.


The Path to Constitution


● 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.

● 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. Sharp differences of opinion were there within the freedom struggle about the path India should take after Independence.

● 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.

● 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.

● The familiarity with political institutions of colonial rule also helped develop an agreement over the institutional design.

● 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.

● The experience gained by Indians in the working of the legislative institutions of a semi democratic government proved to be very useful for the country in setting up its own institutions and working in them.

● The Indian constitution adopted many institutional details and procedures from colonial laws like the Government of India Act, 1935.

● Many of our leaders were inspired by the ideals of the 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.



The Constituent Assembly


The drafting of 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. After the Partition, The Constituent Assembly was also divided into the Constituent Assembly of India and that of Pakistan.

● There were 299 members in the Constituent assembly. The Constitution was adopted on 26 November 1949 by the assembly but it came into effect on 26 January 1950 which is celebrated as the Republic Day of India.


Why should we accept the Constitution made by this Assembly more than fifty years ago?


● The Constitution expresses a broad consensus of its time not only the views of its members.

● Many countries of the world have had to rewrite their Constitution afresh because the basic rules were not accepted by 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.

● The second reason for accepting the Constitution is that the Constituent Assembly represented the people of India.

● The Constituent Assembly could not have been chosen directly by all the people of India as there was no Universal Adult Franchise.

● Assembly was elected mainly by the members of the existing Provincial Legislatures which ensured a fair geographical share of members from all the regions of the country.

● The Indian National Congress dominated the assembly, the party that led India’s freedom struggle.

● The Assembly had many members who did not agree with the Congress. 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.

● 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.

● More than two thousand amendments were considered. Several rounds of thorough discussion took place on the Draft Constitution.

● 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’ on paper of 12 bulky volumes!

● These debates provide the rationale behind every provision of the Constitution.





Guiding Values of the Indian Constitution


The Dream & the Promise


● The name missing from the sketches of the makers of the constitution is Mahatma Gandhi , as he was not a member of the Constituent Assembly but his Vision was followed by many members.


In his magazine Young India in 1931, he had spelt out what he wanted the Constitution to do:


● Dr. Ambedkar shared a dream to eliminate Inequality, who played a key role in the making of the Constitution.

● He often bitterly Criticised Mahatma Gandhi and his vision.

● In his concluding speech to the Constituent Assembly he stated his anxiety very clearly:


Philosophy of the Constitution


● Values that inspired and guided the freedom struggle and were in turn nurtured by it, formed the foundation for India’s democracy.

● The Constitution begins with a short statement of its basic values. This is called the Preamble to the constitution.

● Taking inspiration from the American model, most countries in the contemporary world have chosen to begin their constitutions with a preamble.


Institutional Design


● A constitution is not merely a statement of values and philosophy ,a constitution is mainly about embodying these values into institutional 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. Provisions were made to incorporate changes from time to time.

● These changes are called constitutional amendments.

● The Constitution describes the institutional arrangements in a very legal language. The Constitution is quite difficult to understand..

● It defines who will have how much power to make which decisions. And it puts limits to what the government can do by providing some rights to the citizens that cannot be violated.


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