what’s a constitution
why should I care
how did it start
Running time: 29 mins (yikes?)
Hi! Welcome to Episode 1 of ‘Basic Structure’ – a friendly guide to the Indian Constitution.
Did you know the Indian Constitution is the longest written constitution in the world? Yep, as of today, it has 448 articles, 12 schedules, 5 appendices and its been amended 101 times!
Don’t you want to know why our Constitution is so long, what it contains? And why it matters to you? That’s the point of this podcast – we’ll read every line of the Constitution and talk about it! Are you ready?
In this episode, we’ll find out what a constitution is – how is it different from a law for example? Then I’ll move to to talk for a few minutes about why I think each of us should know the basics of the constitution. Lastly, we’ll discuss how the Constitution was written.
What is the Constitution?
The preface to the Constitution of India, which you can find on the Ministry of Law and Justice states: “Constitution is a living document, an instrument which makes the government system work.”
The Constitution is a rule-book for the country. It tells you what it means to be an Indian citizen, and what your rights and duties are, if you are a citizen here. It’s important to note here that the Constitution discusses how to deal with non-citizens, but we won’t discuss that point here.
Over and above this, the Constitution also is the rule book for how elections should be held, what the role of the Prime Minister, or the Cabinet is. What the President should do. What a court should do, etc.
Some of you may wonder, is the Constitution a law? What’s the difference between a law like say, the Income Tax Act, and the Constitution?
In a way, the Constitution is a law, but its a Supreme law, like the best of laws. All of the other laws have to follow the rules laid down in the COnstitution. To put it simply, say we are in a classroom setting, the Constitution is a teacher, the laws are class monitors, and the students are us – society.
So the teacher asks you to vote, and whoever wins the vote becomes the class monitor, the class monitors help enforce order in the class, but if the monitor bullies you, or you have a doubt about whether something can be done or not, you can check with the teacher.
So to give you an example: The Constitution will say you have a right to free speech – meaning you have the freedom to broadly say what you want, when you want, however you want. But, the Indian Penal Code, the IPC, will say, it’s an offence if you say something horrible. More specifically, Section 153(A) of the Indian penal code says if someone uses words to create any hatred between different communities, this person shall b punished and they may have to go to jail or pay a fine.
Now you could argue – hey wait a second, I have a right to free speech, but you’re saying if i cause hatred between communities you can jail me – how does that work?
It works in this fashion: The Constitution being the Supreme Law, sets out our rights, and the ways in which we can enjoy these rights. To ensure that our society functions properly, we need laws, and so our government which we elect, in elections every five years, passes certain laws. Now if a citizens feels that a particular law is restricting any right given under the Constitution, it can go to the court and say: Dear Judge, i think this law is restricting my right given to me by the Constitution – please check. Then, the judge will check and say: Oh yeah, this law is not a good law, and tell the Government, I’m disabling the law, you please pass a new one, or apply this law differently. And then its upto the Government to decide what to do.
This is one of the main functions of the Constitution – it sets down our rights, and checks against any abuse of our rights.
Another function of the Constitution is to put in place some rules for how our GOvernment functions – like for example, recently we had a Budget and the Finance Minister announced the Budget in Parliament right? Why did he do this? Why did he have to make a Budget? For that matter why do we have Parliament? All of these structures exist because our Constitution says you have to have them.
Makes sense? And through this podcast, I’ll read out all of these various parts of the Constitution, and hopefully we’ll be able to better understand the idea of India better.
Why does the Constitution matter?
I have this book in my library and it’s called ‘The Framing of India’s Constitution”, and in the preface the author talks about how there has been little concerted effort to disseminate constitutionalism and the nation’s values – and this to me, seems obvious in the events of the day.
Think of some of the questions that are discussed on television:
- Should we have a Uniform Civil Code?
- Can the Supreme Court ban Jallikattu?
- Should women be allowed to enter the Sabarimalai temple?
- Is reservation the best way to fix caste inequality in India? If yes, what about communities like the Patels and the Jats who are asking for reservation – how do we address these issues?
None of these have simple answers, yet in trying to resolve these questions, all of us will have to dig deep to figure out what kind of society we want to live in.
This is where the Constitution comes in.
The Constitution, or really any higher law, draws from philosophy to promotes ideals for how we should function, as a country, and as a society.
Not only is this seen in the way we are created, as a republic – but also in the words used to describe how the Indian people will be – words like justice, liberty, and equality don’t just mean that the State should treat us with fairness in all its actions, but that our conception of what justice is, is grounded in this framework that the Constitution provides. And without understanding what this type of justice looks like – why for example, does it place such emphasis on reservation or why it gave every single person the right to vote – without understanding what went into this indian conception of justice and liberty, it’s not productive to have debates on questions of public policy.
Just to be clear, I don’t think any of us comes to these questions from a position of complete ignorance, because I’m guessing most of you, like me, studied civics at some point and have a broad idea of … some constitutional rights, some governance.
But that’s not the point I’m making – I’m convinced that i) knowledge of the constitution helps non-experts articulate their demands better to politicians, and press for change meaningfully, and ii) knowledge of the constitution brings in nuance and sympathy to discussions facing our society today.
And this knowledge, it matters – it really matters actually – because the Constitution applies to every single act that you and I do as citizens. And we can change it. If we don’t like how a particular kind of justice is done, or how a particular group is treated, we can either say, look this law that hurts this group is against the Constitution, and we can change the effect of that law – or we can amend our Constitution to give this group the justice it deserves – its like magic! Really powerful magic.
In India, because our rights as individuals is codified, or written down in the Constitution – you and I can trace your ability to do, or not do something, to the Constitution first, and to society next. Can you think of a way in which we might want to give a certain group some justice? So think of something like homosexuality. Even if some parts of society disapprove of homosexuality – the most important thing is that the law and ultimately the Constitution gives individuals the right to love and be with anyone they choose, regardless of gender. If this legal protection is not there, then it doesn’t ultimately matter what your family thinks, or your friends think, you are never safe from the State. Scary right? We’ll discuss homosexuaity, and other issues in more detail when we discuss the Fundamental Rights in the upcoming episodes.
But you see the larger point I was trying to make? The wide-ranging effect that the State can have on you, makes it hard for you to ignore what the Constitution says and places your liberties at great peril if you do not constantly engage with questions that chip away at your rights in the interest of some hazy greater common good.
Voting is a great civic duty, but a knowledge of the Constitution keeps you safe in between elections – and we need more people than just a handful of lawyers and constitutional experts to weigh in on these matters – even these guys, maybe us guys, we come in with our own prejudices and biases on what justice should look like, and we speak for the vast majority of you, through our blogs and our tweets and our arguments in court. Are these the right arguments? I don’t know always, and I’m curious how the conversation would be different, if more people participated. Ultimately through the social contract, we are beholden to each other and our duty remains to be ever vigilant on behalf of each other – and for the good of each other.
And if you’ve ever felt like there is way too much confusion and fighting in society today, and you may not be able to pick the right side, or make the best argument, don’t worry. Doubts about how to move ahead as a society have always existed. In fact, the people who originally wrote, or as we drafted the Constitution – they too while writing it, were plagued by doubt and deep polarisation. Some issues that confused them included, the prohibition of alcohol, or reservation or whether we should give everyone the right to vote. They had some tough debates. These debates have actually been recorded, and they are called the Constituent Assembly Debates. I’ll keep referring to them as we move ahead, and you’ll start to understand why these Debates are so important in understanding the Constitution.
Now these members the people who drafted our constitution – didn’t just come together magically in one room to start. Elections were held in all of India, and elected representatives on the basis of a plan, had to come together to form an assembly, that could start discussing what a Constitution could look like. And this wasn’t without its unique challenges…
Lets talk about that in the next section!
This one’s a bit more technical? The various parts of the Constitution are called Articles, whereas the parts of a law, like the Indian Penal Code, are called Sections. Weird, right? If you’ve watched any movie with a police station scene or a courtroom scene, say in a murder or fraud case, you would have heard Section 300 of the IPC, or Section 420. In contrast, when you talk of the Right to Equality under the Constitution, you’ll hear it referred to as Article 14, not Section 14. So keep in mind as we discuss the Constitution, we will refer to its through Articles, and not Sections. There’s no legal rule or reason why this nomenclature is followed, it’s an example of a tradition that now enjoys universal use. Yeah weird.
How did it start
Today is the 4 of February, 2017, and a few days ago, India celebrated its 68th Republic Day! But turn the clock back, and imagine we are now in 1946.
For those of you not aware – the Constituent Assembly was a group of people elected from all across India, who came together to draft our Constitution.
Let’s spend some time talking about how the Constituent Assembly came into existence. In 1945, Lord Wavell, who was then the Viceroy (or Governor-General) of India, was tasked with presenting a structure for the independence and future government of India, in a manner which would be acceptable to both Congress and the Muslim League, which were the dominant political parties at this point. One key distinction was that instead of asking all the parties to nominate members to the Executive Council from all the communities, seats were reserved for members on the basis of religion and caste, and the plan apparently did not contain any guarantee of Indian independence or any mention of a future constituent assembly.
Now Lord Wavell invited the political leaders of the day to discuss the Plan at Simla on 25 June, 1945. Here, the Muslim League apparently insisted that only they had the right to appoint Muslims to the Executive Council, and the Congress could not nominate any Muslim member. I have not been as yet able to find multiple authoritative sources on this point, but whatever the reason, it is clear that the Congress and the Muslim League’s disagreements led to the Wavell Plan not being accepted.
Following the failure of the Simla Conference, the British government sent the Cabinet Mission to India in 1946 with the intention of formulating proposals for the formation of a government that would lead to an independent India.
During this time, elections were conducted in provincial legislative assemblies or what we would call State Legislatures today. It was these elected members who formed the Constituent Assembly, and from among these members were chosen the Interim Government of India – which was formally established on 2 September, 1946.
Or think of it this way: Say the Constituent Assembly is like a new startup. A bunch of people want to create something. They have to create it, but they have no details about what they actually want to create – just a broad idea. And they are not all necessarily friends or from the same college or whatever – they are a bunch of people who won some election, then they were all put in a room and told – ok now create this.
And not all of these startup founders shall we say, like each other. Some of them have legitimate grievances with each other. And they dont want to work together. And they want to walk out – but their VC funders are like – no way, you have to launch your product by this date, and it has to be a great and most important product and you can’t make a mistake because this could affect the lives and futures of millions of people.
So much pressure right? This was basically our Constituent Assembly. Now remember I told you the Assembly was made up of elected members from various parts of India right? Up until this point, there had been tremendous resistance from the Muslim League to accept some of these developments, to join the Assembly, and participate in the drafting. Some of you may also remember there was tension between the Muslim League, the Congress and the British Government on the Hindu-Muslim question, and on the issue of partition. At this time, there were also been riots and large scale violence, especially in Bengal, between Hindus and Muslims
After much discussion, the Viceroy convinced Mr. Mohammad Ali Jinnah to join Constituent Assembly. On October 26, 1946 , 5 Muslim League nominees took the oath to become a part of the Constituent Assembly.
The first step towards the drafting of the Constitution thus began in an atmosphere of communal clashes and uncertainty, and deep mistrust, and it was under these fraught circumstances that the Constituent Assembly met for the first time on the 9th of December, 1946.
Now on the 9th – 12th December, the Assembly discussed mundane matters of attendance, and rules for how the Committee would function, and a broad framework for how to move ahead with the drafting. Certain members of the Assembly, including the members of the Muslim League had not attended any of the sessions so far, and there was confusion about whether the House should move ahead with its work, and if so in what manner.
There was also some doubt about the ambit and depth of the Assembly – what could it actually do?
On Friday, the 13 of December 1946, Jawaharlal Nehru stood up to speak, and he said wanted to introduce a Resolution, and wanted all of the Constituent Assembly Members to vote on it: He said,
“Governments do not come into being by State Papers. Governments are, in fact the expression of the will of the people. We have met here today because of the strength of the people behind us and we shall go as far as the people not of any party or group but the people as a whole-shall wish us to go.”
“And I wish this House, if I may say so respectfully, should consider this Resolution not in a spirit of narrow legal wording, but rather to look at the spirit behind that Resolution. Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion.”
That’s a wondeful line no?
Words are magic things often enough? Its true right becuase we use words to write poeetry, create fuction, in a way create magic. And he says: ven the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion. – wow. It must have been a very important Resolution for Nehru to have spoken in such a heartfelt manner about what he wanted everyone to consider. What was the resolution – what did it want to achieve? And why was it so important to Nehru that the Assembly adopt it? Tune in to the next episode, to find out!
Also in the next episode, we’ll talk briefly talk about the how Constituent Assembly went about drafting the Constitution – and then move on to examining something called the Preamble to the Constitution. The preamble is like a preface or an introduction to the Constitution, but it’s a very important part of the Constitution because the words in the Preamble – define how our country will be, somewhat like a list of ingredients in a recipe! I promise it’s going to be super interesting – so do join in!
Here’s our last Fun Fact for today – The room that the Constituent Assembly met in, was then called the the Constitution Hall and is now known as the Central Hall of Parliament. The Central Hall of Parliament is designed to be circular in shape. The dome is 98 ft. (29.87 metres) in diameter. At present, the Central Hall is used for holding Joint Sittings of the two Houses. The President of India addresses the Joint Sitting of both Houses, the Lok Sabha and the Rajya Sabha at the commencement of the first session of each year, including on this year in 20167. I’ve dug a photo of what the Hall looks like! Take a look!
You’ll find the text of the podcast, with all the references and links on my blog www.sowmya.co and general conversation on twitter at @basic_structure.
Let me know if you enjoyed this episode, and what else you’d have liked to hear. I’d also really appreciate your feedback on this podcast, as its my first time doing this – and I’m all ears for suggestions on how to make it better. You can also send me any questions you have – and I’ll try and answer them in the next episode.
Speaking of which: the next episode should be out next weekend – and I hope to have one podcast up a week – ambitious but that’s me!
P.s. I have to thank @nandu and @jimanish and @karthikb351 for listening to an early version of this podcast and giving me some great feedback (SPEAK SLOWLY). ❤ thanks!