Constitutional Design

Democratic constitution in South Africa

Why do we need a constitution?
Making of the Indian constitution
Guiding values of the Indian constitution
Democratic constitution in South Africa
This was Nelson Mandela, being tried for treason by the white South
African Government. He and seven other leaders were sentenced to
life imprisonment in 1964 for daring to appose the apartheid regime
in his country. He spent the next 28 years in South Africa’s most
dreaded prison, Robben Island.
▪ Apartheid : The official policy of racial separation and ill treatment of
blacks followed by the government of South Africa between 1948 and
1989.
▪ Treason : The offence of attempting to overthrow the government of the
state to which the offender owes allegiance.
Struggle against apartheid
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 ad 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 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 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.
Towards a new constitution
As protests and struggles against apartheid had increased, the
government realized 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 Discriminatory laws were repealed.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 media were lifted. After 28 years of imprisonment,
Nelson Mandela walked out of the jail as a free man. Finally, at the
midnight of 26th 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 information of a multi-racial government.
How did this came about? Let us hear Mandela, the first
president of this new South Africa on this extra-ordinary
transition:
“Historical enemies succeeded in negotiating a peaceful
transition from apartheid to democracy exactly because we
were prepared to accept inherent capacity for goodness in
the other. My wish is that South Africans never give up on
the belief in goodness, that they cherish that faith in
human beings is the cornerstone of our democracy.”
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.
 Constitution : Supreme law of a country, containing
fundamental rules governing the politics and society in a
country.
 After two years of discussion and debate they came out with one
of the finest constitutions the world has ever had. The 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 demon. They agreed that everybody should become the
part of the solution, whatever they might have done or represented
in the past. The preamble to the South African constitution sums
up the spirit.
 Preamble : An introductory statement in a constitution which
states the reasons and guiding values of the constitution.
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 the model of democracy. What made this change possible was the
determination of the people of South Africa to work together, to transform
bitter experience into the binding glue of a rainbow nation. Speaking on the
South African constitution, Mandela said:
“The constitution of South Africa speaks of both the past and the future. On
the one hand, it is a solemn pact in which we, as South Africans, declare to one
another that we shall never permit a repetition of our racist, brutal, and
repressive past. But it is more than that. It is also a charter for the
transformation of our country into one which is truly shared by all its people.-
a country which in the fullest sense belongs to all of us, lack and white, women
and men.”.
Why do we need a constitution?
The South African example is a good way to understand why we
need a constitution and what do constitutions do. The oppressor
and the oppressed in this new democracy were planning to live
together as equals. It was not going to be easy for them to trust
each other. They had their fears. They wanted to safeguard their
interests. 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 white
minority was keen to protect its privileges and property.
After long negotiations both parties agreed to a compromise. 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. 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 This compromise
was not easy. How was this compromise going to be
implemented? Even if they managed to trust each other, what
was the guarantee that this trust will not be broken in future?
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.
Finally these rules decide the rights of the citizen. These rules
will work only if the winner cannot change them very easily.
This is what the South Africans did. They agreed on some basic
rules. They also agreed that these rules will be supreme, that no
government will be able to ignore these. This set of basic rules is
called a constitution.
Constitution making is not unique to South Africa. Every
country has diverse groups of people. Their relationship may
not have been as bad as that between the whites and the blacks
in South Africa. But all over the world people have differences of
opinion and interests. Whether democratic or not, most
countries in the world need to have these basic rules. 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.
Thus, the constitution of a country is a set of written rules that are
accepted by all people living together in a country. Constitution is the
supreme law that determines the relationship among people living in a
territory(called citizens) and also the relationship between the people and
government. A constitution does many things
 First, it generates a degree of trust and coordination that is necessary
for different kind of people to live together;
 Second, it specifies how the government will be constituted, who will
have power to take which decisions;
 Third, it lays down limits on the powers of the government and tells
us what the rights of the citizens are; and
 Fourth, it expresses the aspirations of the people about creating a
good society.
All countries that have constitutions are not
necessarily democratic. But all countries that are
democratic will have constitutions. After the War of
Independence against Great Britain, the Americans
gave themselves a constitution. After the Revolution,
the French people approved a democratic
constitution. Since then it has become a practice in all
democracies to have a written constitution.
Making of the 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.
Atleast ten lakh people were killed on both sides of the border
in partition related violence. There was another problem. 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 was a
difficult and uncertain 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
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.
 Constituent Assembly : An assembly of people’s representatives
that writes a constitution for a country
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 and Legislatures and Ministries all over British
India. These were not fully democratic governments. But the
experience gained by Indians in the working of institutions proved
to the 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.
The Constituent Assembly
Who, then, were the makers of the Constitution? You will find Indian 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 the members. The Assembly adopted
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
fifty years 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 accepted
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 Constituent Constitution is that the
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 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 term to, the Assembly represented members from different
language groups, castes, classes, religions and occupations. Even if the
Constituent Assembly was elected by universal adult franchise, is composition
would not have been very different.
 Finally, the manner in which the Constituent Assembly worked give 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! The debates provide the rationale behind every provision of the
Constitution. These are used to interpret the meaning of the Constitution.
 Draft : A preliminary version of a legal document.
 Clause : A distinct section of a document.
Guiding values of the Indian Constitution
In this book we shall study the exact provisions of the
Constitution on different subjects. At this stage let the us
begin by understanding overall philosophy of what our
Constitution is all about. We can do this in two ways. We
can understand it by reading the views of some of our
major leaders on our Constitution. But it is equally
important to read what the Constitution says about its
own philosophy. This is what the preamble to the
Constitution does. Let us turn to these, one by one.
 This dream of an India that
The Dream and the Promise 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
criticized Mahatma Gandhi
and his vision. In his
concluding speech to the
Constituent Assembly he
stated his anxiety very
clearly.
The Dream and the Promise

Finally let us
turn to Jawaharlal
Nehru at the
stroke of midnight
on August 15 1947
:
Makers 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
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:
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. 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 inspirations from the
American model, most counties in the contemporary world
have chosen to begin their constitutions with a preamble.
Let us read the Preamble of our
Constitution very carefully and
understand the meaning of each
of its key words. The Preamble of
the Constitution reads like a
poem on democracy. It contains
the philosophy on which the
entire Constitution has been
built. It provides a standard to
examine and evaluate any law
and action of government, to
find out whether it is good or
bad. It is the soul of the Indian
Constitution
Institutional Design
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 for choosing persons to govern
the country. It defines who will have how much power to take
decisions. And it its limits to what the government can do by
providing some rights to the citizen that cannot be violated.