Why we need a constitution (in detail)
What is a constitution ? What are its functions ? What role does it
perform for a society ? How does a constitution relate to our daily
existence ? Just go through these basics. Answering these questions is not as difficult as you might
think.
Constitution allows coordination and assurance
Imagine yourself to be a member of a
reasonably large group. Further imagine that
this group has the following characteristics.
The members of this group are diverse in
various ways. They have different religious
allegiances: some are Hindus, some are
Muslims, some Christians and some perhaps
profess no religion at all. They are also varied
in many different respects: they
pursue different professions, have
different abilities, have different
hobbies, different tastes in
everything from films to books.
Some are rich and some are poor.
Some are old, some young.
Imagine further that members of this group are likely to
have disputes over various aspects of life: How much
property should one be allowed to own? Should it be
compulsory that every child be sent to school or should
the parents be allowed to decide? How much should this
group spend on its safety and security? Or should it build
more parks instead? Should the group be allowed to
discriminate against some of its members? Every question
will elicit a variety of answers from different people.
But,
for all their diversity, this group has to live together. They are
dependent upon each other in various ways. They require the
cooperation of each other. What will enable the group to live together
peacefully?
One may say that perhaps members of this group can live together
if they can agree on some basic rules. Why will the group need certain
basic rules? Think of what would happen in the absence of some
basic rules. Every individual would be insecure simply because they
would not know what members of this group could do to each other,
who could claim rights over what. Any group will need some basic
rules that are publicly promulgated and known to all members of
that group to achieve a minimal degree of coordination.
But these
rules must not only be known, they must also be enforceable. If
citizens have no assurance that others will follow these rules, they
will themselves have no reason to follow these rules. Saying that the
rules are legally enforceable gives an assurance to everybody that
others will follow these, for if they do not do so, they will be punished.
So The first function of a constitution is to provide a set of
basic rules that allow for minimal coordination amongst
members of a society.
Specification of decision making powers
A constitution is a body of fundamental principles according to which
a state is constituted or governed. But what should these
fundamental rules be? And what makes them fundamental? Well,
the first question you will have to decide is who gets to decide what
the laws governing the society should be? You may want rule X, but
others may want rule Y. How do we decide whose rules or preferences
should govern us? You may think the rules you want everyone to
live by are the best; but others think that their rules are the best.
How do we resolve this dispute? So even before you decide what
rules should govern this group you have to decide: Who gets to
decide?
The constitution has to provide an answer to this question. It
specifies the basic allocation of power in a society. It decides who
gets to decide what the laws will be.
In principle, this question, who
gets to decide, can be answered in many ways: in a monarchical
constitution, a monarch decides; in some constitutions like the old
Soviet Union, one single party was given the power to decide. But in
democratic constitutions, broadly speaking, the people get to decide.
But this matter is not so simple. Because even if you answer that the
people should decide, it will not answer the question: how should
the people decide? For something to be law, should everyone agree
to it? Should the people directly vote on each matter as the ancient
Greeks did? Or should the people express their preferences by electing
representatives? But if the people act through their representatives,
how should these representatives be elected? How many should there
be?
So The second function
of a constitution is to
specify who has the
power to make
decisions in a society.
It decides how the
government will be
constituted.
Limitations on the powers of government
Constitutions limit the power of government in many
ways. The most common way of limiting the power of
government is to specify certain fundamental rights that
all of us possess as citizens and which no government
can ever be allowed to violate. The exact content and
interpretation of these rights varies from constitution to
constitution. But most constitutions will protect a basic
cluster of rights. Citizens will be protected from being
arrested arbitrarily and for no reason. This is one basic
limitation upon the power of government. Citizens will
normally have the right to some basic liberties: to freedom
of speech, freedom of conscience, freedom of association,
freedom to conduct a trade or business etc. In practice,
these rights can be limited during times of national
emergency and the constitution specifies the
circumstances under which these rights may be
withdrawn.
So the third function of a constitution is to set
some limits on what a government can impose on
its citizens. These limits are fundamental in the
sense that government may never trespass them.
Aspirations and goals of a society
Most of the older constitutions limited themselves largely
to allocating decision-making power and setting some
limits to government power. But many twentieth century
constitutions, of which the Indian Constitution is the
finest example, also provide an enabling framework for
the government to do certain positive things, to express
the aspirations and goals of society. The Indian
Constitution was particularly innovative in this respect.
Societies with deep entrenched inequalities of various
kinds, will not only have to set limits on the power of
government, they will also have to enable and empower
the government to take positive measures to overcome
forms of inequality or deprivation.
So The fourth function of a constitution is to enable
the government to fulfil the aspirations of a society
and create conditions for a just society.
Food for thought
- The constitution makers have to address themselves to very different aspirations. Here is Nehru trying to balance between different visions and ideologies. Can you identify what these different groups stand for? Who do you think prevailed in this balancing act?
- The writing of the new Iraqi constitution after the collapse of Saddam Hussein's regime saw a lot of conflict between different ethnic groups in the country. What do these different people stand for? Compare the conflict depicted here with that depicted in earlier cartoons for the European Union and India.
- Countries of the European Union tried to create a European constitution. The attempt failed. Here is a cartoonist’s impression of this attempt. Does this always happen in any constitution making?
