Is A Constitution Just?
While defining Constitution, the crucial questions are:
- How effective is a constitution?
- What makes it effective?
- What ensures that it has a real impact on the lives of people?
- Making a constitution effective depends upon many factors.
The answer to these questions lies in the
- Mode of promulgation.
- Substantive provisions of a constitution.
- Balanced institutional design.
Let us understand these points in details.
Mode of promulgation
This refers to how a constitution comes into being.
- Who crafted the constitution and how much authority did they have?
- In many countries constitutions remain defunct because they are crafted by military leaders or leaders who are not popular and do not have the ability to carry the people with them.
- The most successful constitutions, like India, South Africa and the United States, are constitutions which were created in the aftermath of popular national movements.
India’s Constitution was formally created by a Constituent Assembly between December 1946 and November 1949, it drew upon a long history of the nationalist movement that had a remarkable ability to take along different sections of Indian society together.
The Constitution drew enormous legitimacy from the fact that it was drawn up by people who enjoyed immense public credibility, who had the capacity to negotiate and command the respect of a wide cross-section of society.
The final document reflected the broad national consensus at the time.
Some countries have subjected their constitution to a full-fledged referendum, where all the people vote on the desirability of a constitution.
The Indian Constitution was never subject to such a referendum, but nevertheless carried enormous public authority, because it had the consensus and backing of leaders who were themselves popular. Although the Constitution itself was not subjected to a referendum, the people adopted it as their own by abiding by its provisions.
Substantive provisions of a constitution
It is the hallmark of a successful constitution that it gives everyone in society some reason to go along with its provisions.
- A constitution that, for instance, allowed permanent majorities to oppress minority groups within society would give minorities no reason to go along with the provision of the constitution.
- Or a constitution that systematically privileged some members at the expense of others, or that systematically entrenched the power of small groups in society, would cease to command allegiance.
- If any group feels their identity is being stifled, they will have no reason to abide by the constitution.
- No constitution by itself achieves perfect justice. But it has to convince people that it provides the framework for pursuing basic justice.
So, what would be the content of some basic rules in society, such that they gave everyone a reason to go along with them?
- The more a constitution preserves the freedom and equality of all its members, the more likely it is to succeed.
Balanced institutional design
Constitutions are often subverted, not by the people, but by small groups, who wish to enhance their own power.
Well crafted constitutions fragment power in society intelligently so that no single group can subvert the constitution.
Ways of intelligent designing of a constitution:
- Ensure that no single institution acquires monopoly of power.
- This is often done by fragmenting power across different institutions.
- The Indian Constitution, for example, horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary and even independent statutory bodies like the Election Commission. This ensures that even if one institution wants to subvert the Constitution, others can check its transgressions. An intelligent system of checks and balances has facilitated the success of the Indian Constitution.
- Strike the right balance between certain values, norms and procedures as authoritative, and at the same time allow enough flexibility in its operations to adapt to changing needs and circumstances.
- Too rigid a constitution, is likely to break under the weight of change.
- Too flexible a constitution, will give no security, predictability or identity to a people.
The Indian Constitution Is Described As ‘A Living’ Document.
Thus in determining a constitution’s authority, we should ask three questions:
- Were the people who enacted the constitution credible?
- Did the constitution ensure that power was intelligently organised so that it was not easy for any group to subvert the constitution?
- Does the constitution give everyone some reason to go along with it?
- Is the constitution the locus of people’s hopes and aspiration?
- The ability of the constitution to command voluntary allegiance of the people depends to a certain extent upon whether the constitution is just.
- What are the principles of justice underlying the Indian Constitution?
Debate Over Constitution Making In Nepal
Making a constitution is not always an easy and smooth affair. Nepal is an example of the complicated nature of constitution making. Since 1948, Nepal has had five constitutions, in 1948, 1951, 1959, 1962 and 1990. But all these constitutions were ‘granted’ by the King of Nepal. The 1990 constitution introduced a multiparty competition, though the King continued to hold final powers in many respects. For the last ten years Nepal was faced with militant political agitations for restructuring the government of the country. The main issue was the role of the monarchy in the constitution of Nepal. Some groups in Nepal wanted to abolish the institution of monarchy and establish republican form of government in Nepal. Others believed that it may be useful to shift to limited monarchy with a reduced role for the King. The King himself was not ready to give up powers. He took over all powers in October 2002.
Many political parties and organisations were demanding the formation of a new constituent assembly. The Communist Party of Nepal (Maoist) was in the forefront of the struggle for a popularly elected constituent assembly.
Finally, under pressure of popular agitation, the King had to install a government acceptable to the agitating parties. This government has stripped the King of almost all powers. Now, all the parties are trying to decide the manner in which a constituent assembly will be formed.
Bibliography : NCERT – Indian Constitution At Work