Simone Lawson
A constitution is the fundamental law that defines a country's character and government structure. The process of constitution-making involves drafting, consultation, and adoption. A constituent assembly, acting like a parliament, is responsible for creating and adopting a constitution. In India, the Constituent Assembly adopted a combination of the theory of fundamental law from the US and the theory of parliamentary sovereignty from the UK. The Indian Constitution, the supreme law of the country, came into force on January 26, 1950, and is the longest written national constitution in the world.
| Characteristics | Values |
|---|---|
| Who is responsible for drafting the constitution | The parliament, either a permanent or temporary one, is directly responsible for developing the wording of the constitution. |
| Who can suggest amendments to the constitution | A permanent or temporary assembly is provided with a draft of the constitution and conducts public consultations and seeks input from citizens and organizations before suggesting amendments to the document. |
| Who approves the final document | Approval of the final document can rest with the Assembly or a referendum may be required. |
| Who has the power to amend the constitution | Parliament can make, amend, or repeal any law, including constitutional laws. |
| Who ensures that legislation remains within constitutional limits | Judicial review by the Supreme Court and High Courts ensures that legislation remains within constitutional limits. |
| Who has the power to issue an ordinance when Parliament is not in session | The President |
| Who has the power to dissolve the House of Parliament | The President |
| Who has the right to participate in parliamentary proceedings but without voting rights | Ministers |
| Who referred to the Directive Principles as the 'life-giving provisions' of the Constitution of India | Dr. BR Ambedkar, Granville Austin, Jawaharlal Nehru |
| Who was the first Speaker of the Lok Sabha | G. V. Mavlankar |
| Who was the first person to address the first meeting held in the constitution hall | J. B. Kripalani |
| Who was the temporary president of the first meeting | Sachchidananda Sinha |
| Who was appointed as the president of the Assembly | Rajendra Prasad |
| Who was appointed as the vice-president of the Assembly | H. C. Mukherjee |
| Who was appointed as the constitutional legal adviser | B. N. Rau |
| Who were key figures in the assembly | B. R. Ambedkar, Sanjay Phakey, Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Vallabhbhai Patel, Kanaiyalal Maneklal Munshi, Ganesh Vasudev Mavalankar, Sandipkumar Patel, Abul Kalam Azad, Shyama Prasad Mukherjee, Nalini Ranjan Ghosh, Balwantrai Mehta |
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What You'll Learn
The role of the legislature in the constitutional process
In some countries, such as those with a parliamentary system, the legislature may have significant influence over the constitution-making process. For example, in the British parliamentary system, Parliament is supreme, and there is no formal written constitution restricting its power. This means that Parliament can make, amend, or repeal any law, including constitutional laws. However, in other parliamentary democracies, like India, Parliament's power to legislate is limited by the Constitution, and laws passed by Parliament can be challenged in courts on grounds of unconstitutionality.
The United States, with its system of separation of powers, provides another example of the legislature's role in the constitutional process. The US Constitution establishes a Legislative Branch consisting of the House of Representatives and the Senate, together forming the United States Congress. While the Executive Branch, through the President, may veto bills passed by Congress, Congress can override this veto with a two-thirds vote in both chambers. Additionally, Congress has the sole authority to enact legislation, declare war, and confirm or reject many Presidential appointments. The US Constitution also grants Congress substantial investigative powers.
In terms of constitution-making, the process can vary, but it often involves a Constituent Assembly, which acts like a parliament with the primary mandate of creating and adopting a constitution. This assembly may be elected to represent citizens and conducts extensive public consultations to ensure the legitimacy of the document. The legislature, as part of this assembly, contributes to drafting the constitution, seeking input from citizens and organizations, and suggesting amendments.
Overall, the legislature's role in the constitutional process is essential for ensuring that the constitution reflects the needs and concerns of the people and establishes a framework for the country's laws and government structure. While the specific functions may differ, the legislature's involvement contributes to the legitimacy and effectiveness of the constitution.
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The significance of public consultations
The process of adopting a constitution through parliament involves a small working group or government ministry that writes the constitution, conducts consultations, and submits a final draft to parliament for approval. This process includes public consultations, where input is sought from citizens and organisations to amend the document.
Public consultations are an essential aspect of the constitution-making process, as they ensure that the final document is legitimate and reflects the will of the citizens. They provide an opportunity for citizens to actively participate in the creation of the fundamental law that will govern their country. By seeking input from the public, the constitution-making body can develop a two-way feedback mechanism, giving due consideration to informed citizen input. The greater the extent of the consultations, the greater the legitimacy of the document will be among the citizens of a country.
Public consultations also assist in educating the public about the constitution and its implications. This educational aspect is crucial, as it enables citizens to understand the decisions reflected in the new or revised constitution. It also ensures that citizens are aware of their rights and the mechanisms for enforcing them. Additionally, public consultations can help address concerns about the political context that gave rise to the need for a new constitution, guiding principles, and the anticipated constitution-making process.
Furthermore, public consultations allow for the inclusion of a diverse range of perspectives and ensure that the constitution-making process is not limited to a select few. By involving a broad range of participants, including professional organisations, campaigning bodies, experts, and citizens with sporadic interaction with government, public consultations promote inclusivity and representation. This accessibility is essential to ensuring that the final constitution reflects the values and needs of the entire population.
Overall, public consultations play a vital role in the process of adopting a constitution through parliament. They enhance the legitimacy of the document, promote citizen participation, facilitate education about the constitution, address concerns, and ensure inclusivity and representation. By conducting extensive public consultations, the constitution-making body can create a document that truly represents the interests and aspirations of the citizens it governs.
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The process of drafting the constitution
The process of drafting a constitution involves several steps and can occur under exceptional circumstances, such as a nation's independence or a political transition. While amendments to a constitution are more common, any changes to a country's fundamental laws must be made with caution.
Firstly, a Constituent Assembly, a body that acts like a parliament with the specific mandate of creating and adopting a constitution, is formed. This assembly is elected, but it is still essential to conduct extensive public consultations to ensure the constitution reflects the interests of the majority of citizens. The greater the extent of these consultations, the greater the legitimacy of the document.
The assembly is then provided with a draft constitution, which it must debate in detail. This draft can be prepared by a small working group, a government ministry, or an elected body of representatives. The assembly seeks input from citizens and organisations before suggesting amendments to the document. The drafting process should also involve seeking public input through consultations.
After the assembly has finalised the constitution, it must be approved. Approval can come from the assembly itself or through a referendum. Finally, the constitution is adopted, becoming the supreme legal document that outlines the fundamental laws and principles of the country.
In the case of the Indian Constitution, the Constituent Assembly was formed in 1946, and the drafting process took almost three years. The assembly debated and disposed of 2,473 amendments out of a total of 7,635. The final constitution was adopted with a declaration in its preamble, and it is now the longest written national constitution in the world.
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The role of a constituent assembly
A constituent assembly is a body that acts like a parliament but has as its main mandate the creation and adoption of a constitution. It is a body representing the people that is vested with "constituent power". Constituent assemblies differ in size and composition and in how their members are chosen. They also vary in their roles, although they must at least discuss and adopt a constitution.
The writing of a constitution often occurs under exceptional circumstances, such as the independence of a nation or after a revolution or political transition from one form of government to another. Amendments to a constitution are more commonplace, but any change to the fundamental law of a country must be done with great care.
The Constituent Assembly of India, formed in 1946, played a crucial role in drafting the Indian Constitution, ensuring it reflected the nation's diverse cultural, social, and political fabric. The Assembly approved the Constitution on November 26, 1949 (celebrated as Constitution Day), and it took effect on January 26, 1950 — a day now commemorated as Republic Day in India. Once the Constitution took effect, the Constituent Assembly became the Provisional Parliament of India.
Nepal had two Constituent Assemblies, the last one being elected after its predecessor failed to deliver a constitution, despite multiple extensions. It also served as the country's parliament. Finally, Nepal adopted a constitution with an 89% majority.
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The process of amending the constitution
The process of amending a constitution varies depending on the country in question. Below is an overview of the process in the United States and the United Kingdom, as well as a general outline of the process.
United States
The authority to amend the US Constitution is derived from Article V of the Constitution. Amendments can be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of the State legislatures. Once an amendment is proposed, the Archivist of the United States is responsible for administering the ratification process. An amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 out of 50).
United Kingdom
In the British parliamentary system, Parliament is supreme and there is no formal written constitution that restricts its power. Parliament can make, amend, or repeal any law, including constitutional laws.
General Process
The writing and amending of a constitution often occur under exceptional circumstances, such as a nation gaining independence or following a political transition. While amendments to a constitution are more commonplace than full rewrites, any change to a country's fundamental laws must be done with care. The process typically involves a small working group or government ministry writing the amendment and conducting consultations before submitting a final draft to parliament for approval. Extensive public consultations are often held to increase the legitimacy of the amendment with the citizens of a country. Once approved, the amendment may be ratified by an official such as the Archivist in the US, or a referendum may be required.
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Frequently asked questions
A constitution is the fundamental law upon which all other laws of a country are based and must conform. It is the written (sometimes unwritten) basic definition of the character of a country and the structure of the government in that country.
A Constituent Assembly is a body that acts like a parliament but has as its main mandate the creation and adoption of a constitution. It is a temporary institution that conducts extensive public discussions about the content of the constitution.
Parliament may have—or give itself—functions in relation to the constitution-making process and can debate the content of the constitution. The legislature or the executive is normally responsible for agreeing on the institutions and procedures for the process.
State legislatures cannot initiate any Bill or proposal for amendment of the constitution. They are associated with the process of amendment only through the ratification procedure laid down in Article 368, which relates to changes in the provisions mentioned in the proviso to Article 368.
Amending the constitution involves making changes to the nation's fundamental law or supreme law. The procedure for amendment is laid down in Part XX (Article 368) of the Constitution. This procedure ensures the sanctity of the Constitution and checks the arbitrary power of Parliament.
