Constitution: Why and How?

We need a constitution for four interconnected reasons. First, it provides a basic framework of rules that allows a diverse society to coordinate — without these foundational rules, conflicting claims of authority and rights would paralyse collective life.

Second, it specifies how decisions are made and how power is distributed across legislature, executive, judiciary and the levels of federalism. This prevents the arbitrary exercise of power.

Third, it places explicit limits on what governments can do — through fundamental rights, judicial review, and procedural safeguards. This protects individual liberty against majoritarian or executive overreach.

Fourth, it expresses foundational ideals — for India, the Preamble's commitment to justice, liberty, equality and fraternity gives the polity its moral compass and direction.

Both Preambles share three crucial similarities. (1) Both invoke the people as the source of authority — South Africa's "We the people of South Africa" and India's "We, the people of India" both place sovereignty in the citizenry, not in any individual ruler or external power. (2) Both declare core values — both name justice, equality, freedom (or liberty), and the dignity of the individual. (3) Both express a forward-looking commitment — to build a society that overcomes past divisions and creates a shared future. The texts are written in the imperative voice of resolve, not the descriptive voice of report.

To say the Constitution is the "highest law of the land" means three things in practice. (1) Hierarchy: every other law — Acts of Parliament, state legislatures, executive orders, customary rules — must conform to it; any law inconsistent with the Constitution is void (Article 13). (2) Judicial review: the Supreme Court and High Courts have the power to strike down laws and executive actions that violate the Constitution. (3) Amendment difficulty: changing the Constitution requires a special procedure (Article 368) — usually two-thirds majority in Parliament, often with state ratification — making it harder to change than ordinary laws.

Four reasons explain this acceptance. First, the Constituent Assembly was broadly representative — 299 members drawn from all regions, religious communities, ideological positions and language groups of India.

Second, the deliberations were extensive and serious — 165 days of debate over nearly 3 years, with every clause subjected to argument, amendment, and consensus-building.

Third, the values written in the Constitution carried moral force drawn from the long freedom movement — particularly the Karachi Resolution of 1931 which had already articulated rights and duties.

Fourth, the institutional design has functioned — separation of powers, judicial review, fundamental rights, and federalism have for 75+ years successfully balanced diverse interests, giving the document continuing legitimacy.

While the Indian Constitution borrowed widely, several features distinguish it: (1) Length — it is the longest written constitution in the world (originally 395 articles, now 470+ after amendments). (2) Flexibility-rigidity balance — some provisions can be amended by simple majority, others require special majority, still others need state ratification. (3) Federal with unitary bias — strong centre with residuary powers, single citizenship, single judiciary. (4) Fundamental Rights AND Directive Principles — combining the US-style enforceable rights with Irish-style guiding principles. (5) Universal adult franchise from day one — granted to all citizens above 21 (later 18) regardless of literacy, property, or gender. (6) Detailed provisions for diverse communities — special provisions for SCs, STs, OBCs, religious minorities, linguistic minorities, and now PwBD.

The criticism rested on three grounds. (1) Indirect election — members were elected by provincial legislatures, themselves chosen on a limited franchise that excluded most Indians (only ~14% of the adult population could vote in 1946). (2) Class composition — members were overwhelmingly drawn from the educated, urban, professional class, with weaker representation from peasants, workers, and Adivasi communities. (3) Limited religious minority representation after Partition, especially of Muslim voices once the Muslim League withdrew. The chapter, however, offers a balanced defence: despite these limits, the Assembly's procedural inclusiveness, broad ideological spectrum (from socialists to conservatives), and serious deliberation gave the document its representative legitimacy.