TOWARDS A NEW CONSTITUTION
As protests
and struggles against apartheid had increased, the government realished that
they could no longer keep the blacks under their rule through repression. The
white regime changed its policies. Discriminatory laws were repealed. Ban on
political parties and restrictions on the media were lifted. After 28 years of
imprisonment, nelson mandela walked out of the jjail as a free man. Finally, at
the midnight of 26 April 1994, the new national flag of the Republic of South
Africa was unfurled marking the newly born democracy in the world. The
apartheid government came to an end, paving way for the formation of a
multi-racial government.
How did this
come about? Let us hear Mandela, the first president of this new south Africa,
on this extraordinary transition:
“Historical
enemies succeeded in negotiating a peaceful transition from apartheid to
democracy exactly because we were prepared to accept the inherent capacity for
goodness in the other. My wish is that South Africans never give up on the
belief in goodness that they cherish that faith in human beings is the
cornerstone of our democracy.”
After the
emergence of the new democratic South Africa, black leaders appealed to fellow
blacks to forgive the whites for the atrocities they had committed while I n
power. They said Jet us build a new South Africa based on equality of all races
and men and women, on democratic values, social justice and human rights. 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.
After two
years of discussion and debate they came out with one of the finest
constitutions the world has ever had. This consitiution gave to its citizens
the most extensive rigghts available in any country. Together, they decided
that in the search for a solution to the problems, nobody should be excluded,
no one should be treated as a demon. They agreed that everybody should become
part of the solution, whatever they might have odne or represented in the past,
The Preamble to the South African constitution (see page 50) sums up this
spirit.
“The
Constitution of South Africa speaks of both the past and the future. On the one
hand, it is a solemn pact in which we,
as South Africans, declare to one another that we shall never permit a
repetition of our racist, brutal and repressive past. But it is more than that.
It is also a charter for the transformation of our country into one which is
truly shared by all its people – a country which in the fullest sense belongs
to all of us , black and white, women and men.”
3.2 WHY DO WE NEED A CONSTITUTION?
The South
African example is a good way to understand why we need a constitution and what
do constitutions do. the oppressor and the oppressed in this new democracy were
planning to live democracy were planning to live together as equals. It was not
going to be easy for them to trust each other. They had their fears. They
wanted to safeguard their interests. The black majority was keen to ensure that
the democratic principle of majority rule was not compromised. they wanted
substantial social and economic rights. The white minority was keen to protect its
privileges and property.
After long
negotiations both parties agreed 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. They agreed that the property of the white minority. This compromise
was not easy. How was this compromise going to be implemented? Even if they
managed to trust each other. what was the guarantee that this trust will not be
broken in future?
The only way
to build and maintain trust in such a situation is to write down some rules of
the game that everyone would abide by these rules lay down how the rulers are
to be chosen in future. These rules also determine what the elected governments
are empowered to do and what they cannot do. Finally these rules decide the
rights of the citzen. These rules will work only if the winner cannot change
them very eeasily. This is what the South Africans did. They agreed on some
basic rules. They agreed on some basic rules. They also agreed that these rules
will be supreme, that no government will be able to ignore these. This set of
basic rules is called a constitution.
Constitution
making is not unique to South Africa. Every country has diverse groups of
people. Their relationship may not have been as bad as that between the whites
and the blacks in South Africa. But all over the world people have differences
of opinion and interests. Whether democratic or not, most countries in the
world need to have these basic rules. This applies not just to governments. Any
association needs to have its constitution. It could be a club in your area, a
cooperative society or a political party, they all need a constitution.
Thus, the
constitution of a country is a set of written ruels that are accepted by all people living together
ina country. 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 government. A constitution does many things.:
First, it
generates a degree of trust and coordination that is necessary for different
kind of people to live together:
Second, it
specifies how the government will be constituted, who will have power to take
which decision:
Third, it
lays down limits on the powers of the government and tells us whaat the rights
of the citizens are: and
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. After the War of
Independence against Great Britain, the Americans gave themselves a
constitution. After the Revolution, the
French people approved a democratic constitution. Since then it has become
a practice in all democracies to have a
written constitution.
MAKING OF THE INDIAN
CONSTITUTION
Like South
Africa, India’s Constitution was also drawn up under bery difficult
circumstances. The making of the constitution for a huge and diverse country
like India was not an easy affair. At that time 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. This was a traumatic
experience for the people in India and Pakistan.
At least ten lakh people were killed on both
sides of the border in partition related violence. There was another problem.
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 beign written, the future of th eocuntry did not look as
secure as it does today. The makers of the counstitution had anxieties about
the present and the future of the country.
THE PATH TO
CONSTITUTION
Despite all
these difficulties, there was one big advantage for the makers of the Indian
Constitution. Unlike South Africa, they did not have to create a consensus about
what a democratic India should look like. Much of theis consensus had evolved
during the freedom struggle. 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. There were sharp differences of opinion
within the freedom struggle about the path India should take after
Independence. Such differences exist even today. Yet some basic ideas had come
to be accepted by almost everyone.
As far back
as in 1928, Motilal Nehru and eight other Congress Leaders drafted a
constitution for India. In 1931, the resolution at the Karachi session of the
Indian National Congress Dwelt on how
Independent India’s constitution should look like. Both these documents were
committed to the inclusion of universal adult franchise, right to freedom and
equality and to protecting the rights of minorities in the constitution of independent
India. Thus some basic values were accepted by all leaders much before the
Constituent Assembly met to deliberate on the Constitution.
The
familiarity with political institutions of colonial rule also helped develop an
agreement over the institutional design. The British rule had given voting
rights only to a few/. On that basis the British had introduced very weak
legislatures. Elections were held in 1937 to Provincial Legislatures and
Ministries all over British India. These were not fully democratic governments.
But the experience gained by Indians in the working of the legislative
institutions proved to by very useful for the country in settin up its own
institutions and working in them. That
is why the Indian constitution adopted many institutional details and
procedures from colonial like the Government of India Act, 1935.
Years of
thinking and deliberation on the framework of th constitution had another
benefit. Out leaders gained confidence to learn from other countries, but on
our own terms. Many of our leaders were inspired by the ideals of French
Revolution. The practice of parliamentary democracy in Britain and the Bill of
Rights in the US. The socialist revolution in Russia had inspired many Indians
to think of shaping a system based on social and economic equality. Yet they
were not simply imitating what others had done. At each steep they were
questioning whether these things suited our country. All these factors
contributed to the making of our Constitution.
