How & Why India should have a new Constitution

The Constituent Assembly of India?was elected to frame the?Constitution of India. It was elected by the 'Provincial Assembly'. Following?India's independence?from the British rule in 1947, its members served as the nation's first Parliament as the 'Provisional Parliament of India'. It was conceived and created by?V. K. Krishna Menon, who first outlined its necessity in 1933 and enshrined it as a Congress demand.

Seats: 389 up to 1947 & 299 thereafter

Founded: 9th December, 1946, Disbanded 25th January, 1950

Why we need constitution in a democratic nation?

A constitution is crucial in a democratic nation as it establishes the principles and rules governing society. It ensures government is chosen by the people, protects fundamental rights, promotes justice and equality, and prevents abuse of power. It outlines government structure, specifies citizen rights and duties, fostering trust and coordination. A constitution is essential to protect individual rights, establish governance framework, uphold rule of law, provide stability, promote citizen participation, and safeguard against tyranny, ensuring accountability and guaranteeing fundamental freedoms.

How can we create a new constitution for India? Creating a new constitution for India can be approached through two avenues:

1.?????? Conventional Way: This method involves becoming part of the political system and utilizing the existing constitutional framework. The power to amend the constitution lies with the Parliament under Article 368. To enact a new constitution, one must ensure absolute majority in both the Lok Sabha and the Rajya Sabha. Additionally, for certain amendments, the assent of more than half of the state legislatures is required. This process is intricate and demanding. Furthermore, the new constitution must align with the fundamental principles of Indian society, as upheld by the Supreme Court.

2.?????? Non-Conventional Way: This approach necessitates a mass social revolution. In a democracy, citizens not only hold power but also bear responsibility towards the nation. If the populace collectively believes that a new constitution is imperative, they have the right to demand it. Even judicial authority cannot impede a widespread revolution. However, achieving this requires profound unity and focus, transcending divisions of caste, race, and religion. The success of such a social revolution hinges on its unwavering dedication to the country's advancement.

What India’s Lower House (Lok Sabha) will look like after 2026 Delimitation?

The biggest jump, as expected, will be in Uttar Pradesh, which already sends the largest number of MPs to Parliament. The southern states are likely to have a marginal rise, pushing them further back in terms of representation and electoral heft. The Women's Reservation Bill, once implemented, will redraw the electoral map of India. The census and delimitation exercise that will precede the implementation of reservation, is expected to increase the number of Lok Sabha seats from 543 to a whopping 753-846-888.?Lokshabha has sitting capacity of 888. There are different estimates for new Lokshabha post delimitation.

Why India needs new Constitution?

India's current constitution has come under scrutiny due to its historical origins and numerous amendments. Criticism arises from the fact that members of the Constituent Assembly weren't directly chosen by universal suffrage; instead, they were elected by provincial assemblies, which themselves weren't elected through universal suffrage. Rajeev Dhavan, in "The Constitution of India: Miracle, Surrender, Hope," contends that the Indian people had limited input into the constitution-making process, as they had no alternative but to accept it. Furthermore, the Constitution of India has undergone a significant number of amendments, totaling 105 as of August 15, 2021. This indicates a perceived need for constant adjustments, which may suggest underlying issues with the original document's comprehensiveness or adaptability to changing times and circumstances. Given these concerns, there is a growing sentiment that India may need a new constitution—one that reflects the will and aspirations of the entire populace through genuine participation and representation. A new constitution could address historical limitations, ensure broader democratic input, and potentially reduce the need for frequent amendments by laying down a more robust and flexible framework for governance.

India should consider adopting a new Constitution for several compelling reasons:

a)????? Modernization and Relevance: The current Constitution, largely based on the Government of India Act 1935, may no longer adequately reflect the needs, values, and aspirations of contemporary Indian society. A new constitution could ensure that India's governance framework is more closely aligned with present-day realities and challenges.

b)????? Inclusivity and Representation: A new constitution presents an opportunity to address historical injustices, ensure greater representation of marginalized communities, and promote inclusivity. By incorporating diverse voices and perspectives, a new constitution can foster a stronger sense of national unity and social cohesion.

c)?????? Adaptability and Flexibility: While the current constitution has been amended multiple times to accommodate changing circumstances, a new constitution could be designed with built-in mechanisms for adaptability and flexibility. This would enable the legal framework to evolve more seamlessly in response to future developments.

d)????? Enhanced Democratic Principles: A new constitution could strengthen democratic principles by reinforcing the separation of powers, protecting fundamental rights, and promoting accountability and transparency in governance. It could also address shortcomings in the electoral system and institutional mechanisms.

e)????? Cultural and Spiritual Identity: India's rich cultural and spiritual heritage is not fully reflected in the current constitution, which was heavily influenced by colonial legal frameworks. A new constitution could incorporate these cultural dimensions, fostering a stronger sense of national identity and pride.

f)?????? Global Standing and Leadership: As India asserts itself on the global stage, a new constitution could signal the country's commitment to democratic principles, human rights, and good governance. It could enhance India's reputation as a progressive and forward-thinking nation.

In conclusion, while the decision to adopt a new constitution is a complex and consequential one, it is worth considering in light of India's evolving needs and aspirations. A new constitution has the potential to lay the groundwork for a more inclusive, adaptable, and democratic society, ensuring that India continues to thrive in the 21st century and beyond.

Need to re-look at New Constituent Assembly post 2024

In light of the evolving landscape of constitution-making worldwide, there arises a pressing need to re-evaluate the role and composition of a new constituent assembly in India post-2024. The constituent assembly, traditionally tasked with crafting or revising a constitution, has gained renewed significance in contemporary times. Unlike previous eras where constitutions were often imposed by victors, monarchs, or military regimes, today's constituent assemblies represent a more inclusive and participatory approach to constitution-making. However, the process of convening a constituent assembly must be examined within the broader context of constitution-making.

In recent history, opposition to the Indian Constitution has grown notably, particularly with the ascent of the Hindu right. The Venkatchaliah Commission, appointed by A.B. Vajpayee's government in 1998 to review the Constitution, faced staunch resistance, impeding the BJP-led coalition's efforts to implement its recommendations.

This opposition to the Constitution manifests in various forms, with figures like K. Sudarshan, former sar-sanghachalak of the RSS, advocating for its complete overhaul. Sudarshan argued that the Indian Constitution, based on Western values, should be replaced with one grounded in Indian holy texts, such as the Manusmriti. He contended that the Constitution's frequent amendments and alleged alignment with foreign principles were at the root of the nation's challenges.

Against this backdrop, the notion of reconvening a new constituent assembly post-2024 warrants serious consideration. Such an assembly could provide a platform for a comprehensive re-evaluation of India's constitutional framework, addressing concerns about its historical origins and ensuring alignment with contemporary values and aspirations. However, any such endeavor must navigate the complexities of political opposition and divergent ideological perspectives to forge a consensus-driven path forward for constitutional reform.

There’s a case for Bharat to embrace a new Constitution

Since 1947, India has made remarkable strides, breaking free from its colonial past while embracing its rich heritage. Recent legislative reforms in criminal justice reflect this evolving ethos, alongside endeavors like the Sengol project, symbolizing a reclaiming of forgotten traditions.

Amidst the backdrop of successful handling of crises like the COVID-19 pandemic and robust economic fundamentals, India stands poised at the brink of its next chapter. With a medium-term growth rate forecasted at 6.5-7%, there's optimism for the future. As we approach 100 years of independence, there's a shared aspiration to propel India into the league of 'developed' nations by 2047.

However, achieving this vision requires a comprehensive reevaluation, starting with the bedrock of our governance—the Constitution. Over the years, our Constitution has been amended numerous times, straying from its original intent. While the 1973 judgment protects its 'basic structure,' it's evident that a fresh perspective is needed.

A study by the University of Chicago Law School reveals that the average lifespan of written constitutions is just 17 years. Given that our current Constitution largely inherits from the colonial-era Government of India Act of 1935, it's time for a thorough reassessment.

Critical questions arise: How many states do we need? Is our current state configuration optimal for governance? What about the role of local bodies and the division between rural and urban governance? The Seventh Schedule, electoral reform, judicial appointments—all these aspects demand scrutiny.

Indeed, much of what we debate, legislate, and aspire to hinges on our constitutional framework. A few amendments won't suffice; we need to revisit the drawing board and start afresh. The preamble's ideals of socialism, secularism, democracy, justice, liberty, and equality must be reinterpreted in the context of contemporary India.

Ultimately, the call for a new Constitution isn't just about legal reform—it's a collective endeavor to redefine our national ethos and shape the destiny of 'We the People' as we march towards a brighter future.

As India continues to solidify its global presence and undergoes significant domestic transformations, the call for embracing new constitutional ideas becomes increasingly pertinent. However, this doesn't necessarily mandate a complete rewrite; rather, these innovations can be seamlessly integrated into the existing manuscript. After all, our Constitution is not just a legal document—it's a testament to the collective aspirations and ideals of "we, the people of India."

The Indian Constitution stands as the world's largest written constitution, a testament to our commitment to upholding the rule of law and preserving unity amidst diversity. It has evolved over time, adapting to the changing needs of society through numerous amendments. Our legislature, judiciary, and executive branches derive their authority from it, with elected representatives and judges pledging allegiance to its principles.

Yet, despite its resilience and adaptability, some argue for a new Constitution, citing parallels with the colonial-era Government of India Act 1935. They assert that our current Constitution, drafted largely by B.N. Rau with Dr. B.R. Ambedkar as chairman, inadvertently perpetuates colonial administrative structures. However, as India evolves into Bharat, characterized by a fundamental tectonic shift in identity, questions arise about the adequacy of the 1950 Constitution to reflect our contemporary ethos.

Indeed, the current constitution falls short in encapsulating India's rich cultural and spiritual heritage, which is intrinsic to our national identity. By clinging blindly to the past, we risk overlooking the opportunity to enshrine these unique dimensions in our Constitution. A document that embraces Bharat's civilizational values would foster a stronger sense of inclusivity and unity among our diverse populace, transcending religious, caste, and linguistic boundaries.

Proponents of retaining the current constitution may advocate for strategic amendments to better reflect India's cultural essence. However, the discrediting of terms like 'secularism' in contemporary discourse prompts us to rethink our constitutional framework altogether. Should we not redefine democracy in alignment with our Bharatiya ethos rather than adhere to Western models?

Fundamental questions about governance structure and representation also demand consideration. Is a parliamentary democracy the most suitable form of governance for us? Should we persist with the first-past-the-post electoral system? As we stand at this constitutional inflection point, we must move beyond superficial amendments and confront the consequences of our choices with courage and conviction.

In essence, the time for passive expedience has passed; we now stand at the threshold of meaningful change. It is imperative that we embark on this journey with clarity of purpose, mindful of our civilizational heritage and the aspirations of future generations. As we navigate these complexities, let us remember the immortal words of Winston Churchill: "In place of the old proverbial expedients, we are entering a period of consequences."

How should this be done?

Drafting a new Constitution demands meticulous planning and a commitment to upholding the sovereignty of the Constituent Assembly. The process must begin with a joint initiative from the legislative, executive, and judicial branches of government. However, once initiated, these bodies must cede a significant portion of their authority to the Constituent Assembly, which should be meticulously composed to ensure diverse representation.

The success of the 1946 Assembly, characterized by its lack of partisan bias, underscores the importance of including apolitical figures representing various segments of society. Such an assembly must be sovereign and independent, transcending the influence of Parliament and remaining impervious to judicial review.

Crucially, the Executive branch should abstain entirely from the drafting process to prevent immediate electoral concerns from shaping the constitution. Constitutions are designed for longevity and should reflect the collective will of the people rather than the short-term agendas of political parties.

The pitfalls encountered with the 1950 Constitution highlight the dangers of allowing political preferences to distort the drafting process. Amendments made between 1950 and 1980, often aligned with the preferences of the Congress Party and individuals like Jawaharlal Nehru and Indira Gandhi, compromised the document's integrity.

In essence, the drafting of a new Constitution demands a commitment to inclusivity, independence, and foresight. By prioritizing the long-term interests of the nation over immediate political gains, we can ensure the creation of a robust and enduring constitutional framework that truly reflects the aspirations of "We, the people of India."

CA Harshad Shah, Mumbai [email protected]