Tiêu đề 04. Constitutional design.pdf ✅

3 CHAPTER CONTENTS  Constitution and Why do we need it ?  South Africa’s struggle for independence and its drawing up the new constitution  Making of the Indian Constitution  Salient features of the Indian Constitution.  Importance of Constitution for a democratic country ➢ CONSTITUTION AND WHY DO WE NEED IT  What is Constitution : The set of basic rules according to which the government of a country runs is called a constitution. It deals with the relations of the Centre with the States., between one estate and the other, between the different organs of the government (like Legislative, Executive and Judiciary) and between the Government and its citizens and their rights and well-being.  Why do we need a Constitution ? We need a Constitution to achieve many things : 1. It specifies how the government will be constituted and who will have the power to take decisions. 2. It lays down limits on the powers of the government and guides it to respect the Fundamental Rights of the people. 3. It aims at the creation of a good society and gives expression to the aspirations of the people. 4. It generates trust and coordination among the different groups of people to live together. ➢ SOUTH AFRICA’S STRUGGLE FOR INDEPENDENCE AND ITS DRAWING UP THE NEW CONSTITUTION ➢ The drawing up of a common constitution for South Africa after its independence in 1994 is regarded as a marvel in the annals of world history. Mainly because two divergent types of people, the Whites and black - completely forgot their past hostile memories, showed a great deal of a maturity and agreed on certain common things. Their spirit of forgetfulness and compromises received a world-wide acclaim. Let us study the freedom struggle of the Blacks against the White oppressive regime and the drawing up of a common Constitution for their country. CONSTITUTIONAL DESIGN
 Freedom struggle in South Africa 1994 : South Africa was the last state of Africa to get her freedom in 1994. For a very long time, the minority government of the whites, committed many atrocities on the black people. It followed the policy of apartheid (or racial segregation) and kept the black people under its thumb. But ultimately, the good sense prevailed on white government of President F.W. de Klark. President F.W. de Klark agreed to hold elections on 27th April, 1994. As a result of these elections, Dr. Nelson Mandela won the elections and he became the First President of independent South Africa. How did the white Minority and the Black Majority agree to draw up a common Constitution for South Africa ? It was not an easy task for the two divergent people of South Africa - the White oppressor and the Black Oppressed ones - to draw up a common Constitution for the country when it became free in 1994. But both sides showed maturity and agreed on many compromises. 1. The Whites agreed to the principle of majority rule. 2. They also agreed to some basic rights for the poor and the workers. 3. The black agreed that majority rule would not be absolute. 4. They also agreed that the majority would not take away the property of the White Minority. ➢ MAKING OF THE INDIAN CONSTITUTION The making of the constitution for a huge and diverse country like India was not an easy affair. (i) The people of India were emerging from the status of subjects to that of citizens. (ii) The country was born through a partition on the basis of religious differences. Atleast ten lakh people were killed on both sides of the border in partition related violence. (iii) 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. (iv) 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: (i) Our national movement was not merely a struggle against a foreign rule. It was also a struggle to rejuvenate our country and to transform our society and politics. (ii) The familiarity with political institutions of colonial rule also helped develop an agreement over the institutional design. The experience gained by Indians in the working of the legislative institutions proved to be very useful for the country in setting up its own institutions. (iii) Many of our leaders were inspired by the ideals of French Revolutions, the practice of Parliamentary democracy in Britain and Bill of Rights in USA. So they incorporated some good points of the Constitution of these countries in the Indian Constitution.
(iv) They also got inspiration from the Constitution drafted by Moti Lal Nehru and eight other Congress leaders in 1928, and the outlines of the Indian Constitution prepared by the Indian National Congress at its Karachi session in 1931.  The Constituent Assembly : Composition of the Constituent Assembly- The Constitution of our country was framed by the Constituent Assembly which was constituted in 1946 under the provisions of the Cabinet Mission Plan. This Assembly had 389 members in all, mostly elected by the Provincial Assemblies and some nominated by the rulers of the native states. As a result of the partition of the country, its membership was reduced to 308 in 1947. However, this Assembly represented people of all shades and opinions, regions and communities. It included eminent persons like Dr. Rajendra Prasad, Pt. Jawaharlal Nehru, Sardar Patel, Maulana Azad, Dr. Ambedkar, K.M. Munshi, Rajagopalachari, Dr. H.C. Mukehrjee, Frank Anthony, Dr. H.P. Modi, Sardar Hukam Singh, Sardar Baldev Singh and many other. Thus this Constituent Assembly represented the people of all castes and creeds. Besides the Hindu, the Muslims and the Sikhs, there were Christians (like Dr. H.C. Mukerjee), Anglo-Indians (like Frank Anthony). Parsees (like Dr. H.P. Modi) etc. Women members like Sarojini Naidu, Durgabai Deshmukh and Renuka Rai also played an important part in the Constituent Assembly. In short the Constituent Assembly was the mirror of the nation.  Framing the Constitution : The Constituent Assembly started its work of framing the Constitution of India on December 4, 1946 much before the political turmoil and then the problem of the partition of the country, it seriously began its work after the independence of the country. It worked under the Presidentship of Dr. Rajedra Prasad. On 29th August, 1947, the Constituent Assembly appointed a Drafting Committee under the chairmanship of Dr. Ambedkar, one of the prominent intellectuals of the country. After a period of about six months, this Committee prepared a Draft Constitution of India by February, 1948. The Indian people were provided enough time to study and express their views on the Draft Constitution. Next, the Constituent Assembly met in November 1948 to consider the provisions of the Drafting Committee clause by clause. This work of second reading of the different clauses was completed by 17 October, 1949. Then began the third reading to give a final shape to the Constitution which was adopted on November 26, 1949. It then received the signatures of the President and was declared as passed. Thus it took about 2 years, 11 months and 18 days to prepare the Constitution of Free India but actually the Constituent Assembly only met for 166 days. But the Constitution came into force on January 26, 1950, because it was on this day of 26th January 1930, about twenty years ago, when Complete Independence was declared as the ultimate goal of the national movement in the Lahore Session of the Indian National Congress.
 Preamble of the Indian Constitution : Taking inspiration from the American model, most countries of the modern world have chosen to begin their Constitutions with a preamble. India has also done so. The preamble to the Indian Constitution incorporates all the guiding values inspired and nurtured by the Freedom Struggle. The Preamble to the Indian Constitution runs like this - WE THE PEOPLE OF INDIA, hereby solemnly resolved to constitute India into SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure to all its citizens : 1. JUSTICE, social, economic and political 2. LIBERTY of thought, expression, belief, faith and worship 3. EQUALITY of status and of opportunity; and to promote among them all 4. FRATERNITY assuring the dignity of the individual and the unity of the Nation ; IN OUR CONSTITUENT ASSEMBLY, this twenty-sixth day of November, 1949, do HEREBY ADOPT, Enact and Give to Ourselves this Constitution.  Importance of the Preamble to the Constitution of India : The Constitution of the Republic of India is introduced to us through a wisely formulated Preamble. It is an introductory part of the Constitution, though not a legal section of the Constitution. No one can sue the government in the Court of Law and can say that the government has not enforced the Preamble. Still it has great importance of its own because it shows the way the government ought to run and the kind of system the Constitution wishes to set up in India. It makes the intentions of our Constitution quite clear through the following point : 1. It declares India to be Sovereign Socialist-Secular, Democratic Republic. 2. It envisages justice - Social, Economic and Political - for all the citizens of the republic. 3. It would ensure all types of freedom necessary for the individual i.e., freedom of thought and expression, freedom of faith, freedom of belief and of worship, etc. 4. It would strive for equality of status and opportunity to all individuals and safeguard their dignity irrespective of their religious belief or sect. 5. It would promote a sense of brotherhood among the citizens. 6. Unity of the nation would be the hallmark of the efforts of the Government. Thus, we find that the Preamble to our Constitution is the real index to the provisions-to-come in the Constitution of the Republic of India. ➢ SALIENT FEATURES OF THE INDIAN CONSTITUTION The Constitution Assembly under the Presdientship of Dr. Rajendra Prasad framed the Indian constitution after a good deal of labour extending over to about three years and enacted it on 26th November, 1949. The new Constitution was, however, adopted on 26th January, 1950 when India was declared as a Sovereign Democratic Republic with Dr. Rajendra Prasad as its first President. All the ideals envisaged in the Preamble to the constitution of India, such as Sovereignty, Socialism, Secularism, Democracy, Republicanism, Justice, Liberty,