Table of contents

Introduction
Constitutional design refers to the process of creating a constitution
that outlines the framework for governance in a country.

• These rules are not just for the people but for the
government as well.
• They form the constitution, which is the foundation of every
democracy.
• In this chapter, Constitutional Design, we explore why
constitutions are essential and how they come into
existence.
• We will dive into questions like who creates these
constitutions, what values they represent, and how they can
adapt to changing times.
• Through the example of South Africa's journey to
democracy, we will see how constitutions can transform
nations.
• Finally, we'll turn our attention to the making of the Indian
Constitution and its guiding principles that shape the lives of
citizens and the functioning of the government.

Democratic Constitution in South Africa

• South Africa is a country located in the southern tip of
Africa. It has a rich and diverse culture.
• It consisted of 3 major groups whites, blacks and colored.

Population of South AfricaNow as you can see from this diagram.

There were very less white people in South Africa. They were
a minority there. However, for a long time, South Africa was ruled
by a minority white government that practiced a policy
of discrimination and oppression on the basis of race. This policy
was called apartheid.

• Mandela's Quote: Fought against white and black

domination, cherished ideal of a democratic and free society,
harmony, equal opportunities, willing to die for ideals.
• Trial and Imprisonment: Tried for treason by white South
African government, sentenced to life imprisonment
in 1964, opposed apartheid regime.
• Robben Island: Spent 27 years in South Africa’s
most dreaded prison, endured harsh conditions, remained
committed to ideals.

Struggle Against Apartheid

Signs of Apartheid

• Nelson Mandela was a key figure in South Africa’s fight

against racial segregation, known as Apartheid.
• He was jailed for 28 years (1964-1992) for his opposition to
the Apartheid government.
• After his release, Mandela became South Africa’s first black
President.
• Blacks, coloured, and Indians fought against apartheid
through protests, marches, and strikes; African National
Congress (ANC) led the struggle, included workers' unions,
Communist Party, and supportive whites.
• The South African people, of all colors, stood against the
Apartheid laws set by the white minority.
• By the 1980s, these laws began to be taken apart, leading to
change.
• In 1994, South Africa had its first election where everyone
could vote, regardless of race.
• The new constitution focused on healing from past struggles
and bringing people together.
• It set out to make South Africa a place of fairness, freedom,
and respect for everyone.
• Several countries denounced apartheid as unjust and racist,
but the white racist government continued oppressive rule
by detaining, torturing, and killing thousands of black
and coloured people.

The main features of this policy were as follows:

• All people were classified and separated on the basis of race.

• Each group had to live in a separate area.
• There were separate schools and universities, separate
shopping centers, and separate coaches in trains.
• Marriage between persons belonging to two races was
a criminal offense.
• There was a restriction on movement from one place to
another.
• Non-whites had no votes. They had no say in the governance
of the country.
• In short, the policy of apartheid denied human rights and
rendered the government of South Africa among the most
oppressive regimes in the world in the 20th century.

Towards a New Constitution

• The whites that oppressed people and the group fighting for
freedom that were the black, worked together to create a
new constitution.
• This constitution is considered one of the best in the world.
• It offers its people more rights than any other country’s
constitution.
• The constitution states that everyone should be included in
solving problems, without blaming or excluding anyone.
• It suggests that everyone has a role in making things better,
no matter their past actions or beliefs.
• The South African constitution is a source of inspiration for
people who believe in democracy around the world.
• South Africa has transformed from being known as
undemocratic to being a role model for democracy.
Nelson Mandela - Gandhi of South
Africa

Nelson Mandela

• Nelson Mandela led the fight against Apartheid as an ANC

leader.
• Imprisoned for 28 years, he was released in 1990.
• Apartheid laws were repealed, and South Africa held its first
democratic elections in 1994.
• Mandela became the nation's first black president.
• He promoted forgiveness, unity, and human rights.
• A collaborative effort created a globally admired constitution,
symbolizing democratic transformation.
Why do we need a Constitution?
• A Constitution is a set of written rules agreed upon by
everyone in a country.
• It is the supreme law that defines how citizens relate to each
other and to the government.
• The constitution serves several purposes:
1. It builds trust and coordination among diverse
people.
2. It outlines the structure of the government and
decision-making powers.
3. It sets boundaries on government power and
lists citizens’ rights.
4. It reflects the people’s desire for a just and good
society.

Constitutional Examples:

• The U.S. and French Constitutions arose after their

respective revolutions and wars, establishing democratic
governance.
• Most democratic countries have constitutions, and even non-
democratic countries require basic rules for governance.

Constitutions serve as the supreme law that governs the

relationship between people and their government.
Making of the Indian Constitution

Preamble of the Indian Constitution

• The making of the constitution for a huge and diverse
country like India was not an easy affair.
• 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. 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 and uncertain task.
• When the Constitution was being written, the makers of the
Constitution had anxieties about the present and the future
of the country.

The Path to Constitution

• Existing Consensus: Unlike South Africa, India already had a
broad agreement on democratic principles before drafting
the Constitution.
• Foundational Documents: Key documents, like the 1928
Motilal Nehru draft and the 1931 Karachi resolution, laid the
groundwork for universal adult franchise and minority rights.
• Colonial Experience: The experience with British legislative
institutions, especially the 1937 Provincial Legislature
elections, helped shape India's own governance structures.
• Global Inspiration: Indian leaders were influenced by global
ideals like the French Revolution and U.S. Bill of Rights but
adapted them to suit India's unique needs.
• Thoughtful Adaptation: Years of deliberation ensured that
the Constitution was not a mere imitation but a well-
considered document tailored for India.

The Constituent Assembly

First Constituent Assembly

• The Constitution of India was framed by a Constituent

Assembly set up under the Cabinet Mission Plan, of 1946.
• The assembly consisted of 389 members representing
provinces (292), states (93), the chief commissioner
provinces (3) and Baluchistan (1).
• Formation: The Constituent Assembly was formed to draft
the Indian Constitution. Elections were held in July 1946, and
its first meeting was in December 1946.
• The assembly held its first meeting on December 6, 1946. It
elected Dr. Rajendra Prasad as its Chairman. 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 members.
• The Assembly adopted the Constitution on 26 November
1949 but it came into effect on January 26, 1950. To mark
this day we celebrate January 26 as Republic Day every year.
Why should we accept the Constitution made by the Constituent
Assembly more than 50 years ago?

• The Indian Constitution represents the collective agreement

of many people at the time, not just a few individuals.
• It has been respected and upheld, unlike some countries that
had to completely rewrite their constitutions.
• No significant group or political party has ever questioned
the legitimacy of the Constitution itself, which is quite
remarkable.
• The Constituent Assembly was not directly elected by all
citizens due to the absence of universal suffrage but was
elected by members of the Provincial Legislatures.
• This ensured a diverse representation from various regions,
languages, castes, classes, religions, and occupations.
• The assembly worked in an orderly and transparent manner,
agreeing on fundamental principles.
• A committee headed by Dr. B.R. Ambedkar was responsible
for drafting the Constitution.
• They meticulously discussed the draft, considering over two
thousand amendments.
• The discussions were meticulously documented in
the ‘Constituent Assembly Debates,’ which span 12 volumes.
• These debates provide detailed explanations for each part of
the Constitution and assist in its interpretation.

Guiding Values of the Indian Constitution

The Dream and the Promise
There were many members who followed the vision of Mahatma
Gandhi. This dream of an India that has eliminated inequality was
shared by Dr. Ambedkar, who played a key role in the making of the
Constitution, but his vision of removing inequalities from India was
different from Gandhiji's.
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.
Given below are the values embedded in the Preamble of the Indian
Constitution.

• We, the People of India: The Constitution has been drawn up

and enacted by the people through their representatives, and
not handed down to them by a king or any outside powers.
• Sovereign: People have the supreme right to make decisions
on internal as well as external matters. No external power
can dictate the Government of India.
• Socialist: Wealth is generated socially and should be shared
equally by society. The government should regulate the
ownership of land and industry to reduce socio-economic
inequalities.
• Secular: Citizens have complete freedom to follow any
religion. But there is no official religion. The government
treats all religious beliefs and practices with equal respect.
• Democratic: A form of government where people enjoy equal
political rights, elect their rulers and hold them accountable.
The government is run according to some basic rules.
• Republic: The head of the state is an elected person and not
a hereditary position.
• Justice: Citizens cannot be discriminated against on the
grounds of caste, religion and gender. Social inequalities have
to be reduced. The government should work for the welfare
of all, especially of the disadvantaged groups.
• Liberty: There are no unreasonable restrictions on the
citizens in what they think, how they wish to express their
thoughts, and the way they wish to follow up their thoughts
in action.
• Equality: All are equal before the law. The traditional social
inequalities have to be ended. The government should
ensure equal opportunity for all.
• Fraternity: All of us should behave as if we are members of
the same family. No one should treat a fellow citizen as
inferior.

Institutional Design

1. The makers of the Indian Constitution wanted it to reflect

the people’s hopes and societal changes.
2. They didn’t view the Constitution as something that couldn’t
be changed, so they allowed for amendments.
3. 104 amendments have been made to the Constitution so far.

The process for making amendments is divided into three

categories:
(i) First category: Amendments need a simple majority in Parliament
and the President’s approval.
(ii) Second category: Amendments need a special majority—two-
thirds of Parliament members present and voting—followed by
the President’s assent.
(iii) Third category: These amendments are tough to pass. They
require the special majority plus approval from at least 50% of
the state legislatures.
Difficult Words
1. Apartheid: A policy or system of segregation or
discrimination on grounds of race, which was formerly
practiced in South Africa against non-white citizens.
2. Constituent Assembly: A body composed of members
elected to draft or adopt a new constitution or reform an
existing one.
3. Universal Adult Suffrage: The right of citizens in a given
society who are entitled to vote in an election to do so;
typically, this term refers to all adults, without regard to race,
sex, belief, or social status.
4. Preamble: An introductory statement in a document that
explains the document's purpose and underlying philosophy.
5. Sovereign: Possessing supreme or ultimate power. In the
context of a country, it means independent and having the
right to govern itself.
6. Secular: The principle of separation of the government from
religious institutions.
7. Socialist: In the context of the Indian Constitution, it refers
to an economic system where the government or the public
as a whole has ownership and control of the means of
production and distribution of goods.
8. Republic: A state in which supreme power is held by the
people and their elected representatives, and which has an
elected or nominated president rather than a monarch.
9. Fraternity: A group of people sharing a common profession
or interests, which in the context of the constitution, reflects
a sense of brotherhood and mutual support within a society.
10. Amendments: Changes or additions that are made to a
constitution or a law.
11. Bill of Rights: A formal declaration of the legal and civil
rights of the citizens of any state, country, federation, etc.
12. Judiciary: The judicial authorities of a country; the system
of courts that interprets and applies the law in legal cases.
13. Multi-party System: A system of government in which
multiple political parties have the capacity to gain control of
government offices, independently or in coalition.
14. Parliamentary Democracy: A form of government in
which the executive derives its legitimacy from its ability to
command the support of the legislature, typically a
parliament, to which it is accountable.
15. Constitutional Monarchy: A system of government in
which a monarch (king or queen) acts as the Head of State
within the parameters of a constitution.