Constitutional Design

Democratic Constitution in South Africa

Apartheid

Apartheid is a system of racial discrimination unique to South Africa imposed by

white Europeans. During the seventeenth and eighteenth centuries, the trading
companies from Europe occupied it with arms and force and became the local rulers.
The system of apartheid divided the people and labelled them on the basis of their
skin colour. The white rulers treated all nonwhites as inferiors. The non-whites did
not have voting rights and were forbidden from living in white areas. The blacks,
coloured and Indians fought against the apartheid system from 1950. The African
National Congress (ANC) was the umbrella organisation that led the struggle against
the policies of segregation. Nelson Mandela was one of the leaders amongst the
eight who were tried for treason by the white South African government. They were
sentenced to life imprisonment in 1964 for daring to oppose the apartheid regime in
the country.

Giving Rise to a New Constitution

As the protests and struggles against apartheid increased, the blacks could no
longer be kept under the rule of the government through repression. The white
regime changed its policies. Discriminatory laws were repealed. Ban on political
parties and restrictions on the media were lifted. Nelson Mandela was released after
28 years in the Robben Island Prison. The apartheid government came to an end on
midnight of 26 April 1994, paving the way for the formation of a multi-racial
government.

Following the emergence of the new democratic South Africa, 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. This constitution gave 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.

Why the Need for a Constitution?

Take the example of South Africa to see why we need the Constitution and what the
constitutions do. The oppressor and oppressed were planning to live together as
equals in the new democracy. Each section wanted to safeguard its interests and
wanted substantial social and economic rights. Through negotiations, both parties
came 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 and that the
majority would not take away the property of the white minority. How was this
compromise to be implemented? The only way to build and maintain trust in such a
situation was to write down some rules of the game that everyone would abide by.
These supreme rules that no government would be able to ignore are called a
constitution.

Every country has diverse groups of people. All over the world, people have
differences of opinion and interests. The 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 the government. Find what
constitutions do below:

 First, it generates a degree of trust and coordination that is necessary for different kinds
of people to live together.
 Second, it specifies how the government will be constituted and who will have the 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.
 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.

Making of the Indian Constitution

India’s Constitution was drawn up under very difficult circumstances. The country
was born through a partition on the basis of religious differences, and it was a
traumatic experience for the people of India and Pakistan. 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 written, the future of the
country did not look as secure as it does today.

The Path to the Constitution

One of the major advantages for the makers of the Indian Constitution was that
consensus about what a democratic India should look like had already evolved
during the freedom struggle. In 1928, Motilal Nehru and eight other Congress
leaders drafted a constitution for India, and In 1931, the resolution at the Karachi
session of the Indian National Congress dwelt on how independent India’s
Constitution should look. Both these documents included features such as Universal
Adult Franchise, the Right to Freedom and Equality, and to protect the rights of
minorities in the constitution of independent India. These basic values were accepted
by all leaders much before the Constituent Assembly met to deliberate on the
Constitution. That is why the Indian constitution adopted many institutional details
and procedures from colonial laws like the Government of India Act 1935. Many of
our leaders were inspired by the ideals of the French Revolution, the practice of
parliamentary democracy in Britain and the Bill of Rights in the US.

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The Constituent Assembly

The drafting of the constitution was done by an assembly of elected representatives

called the Constituent Assembly. Elections to the Constituent Assembly were held in
July 1946, and its first meeting was held in December 1946. Soon after, the country
was divided into India and Pakistan and the Constituent Assembly was also divided
into the Constituent Assembly of India and 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 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 six
decades ago?

 The Constitution does not reflect the views of its members alone. It expresses a broad
consensus of its time.
 The second reason for accepting the Constitution is that the Constituent Assembly
represented the people of India.
 Finally, the manner in which the Constituent Assembly worked gives 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. Every document
was presented, and every word spoken in the Constituent Assembly has been
recorded and preserved. These are called ‘Constituent Assembly Debates.’
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Guiding Values of the Indian Constitution

First, understand the overall philosophy of what our Constitution is all about. Read
the views of some of our major leaders on our Constitution and read what the
Constitution says about its own philosophy. This is what the preamble to the
Constitution does.

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
socioeconomic 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 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

A Constitution is not merely a statement of values and philosophy. It is mainly about

embodying these values into institutional arrangements. It is a very long and detailed
document. Therefore, it needs to be amended quite regularly to keep it updated.
Provisions are made to incorporate changes, known as constitutional amendments,
from time to time. Like any Constitution, the Indian Constitution also lays down a
procedure for choosing persons to govern the country. It defines who will have how
much power to make which decisions. And it puts limits to what the government can
do by providing some rights to the citizen that cannot be violated.

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