The making of a Constitution is essentially making choices under constraints. Upstream constraints are imposed on the drafting body by the convening authority before it begins with its deliberations. The upstream part has two characteristics- the convening of the assembly and the election of the delegates. The members of the Indian Constituent Assembly were not elected based on universal franchise. In 1945-46 provincial elections were held. The Provincial Legislatures then chose the representatives of the Constituent Assembly. In the constituent assembly, the interests of political parties are often decisive in shaping electoral laws and various parts of the machinery of government, our Constituent Assembly was dominated by the Congress party. An important stage in the process for making a constitution is what takes place before the start of the formal process. Like the interim arrangements leading to the process for the final constitution. This stage is often critical in influencing decisions in the later stages. Before the formation of the Constituent assembly, an interim administration headed by Jawaharlal Nehru was in place, but it could only operate under the directions of the Viceroy and the British Government.
To constitute a drafting body, it first needs to be convened, and its members need to be selected. How these processes are conducted—and, in particular, by whom—define the cosmos of possible outcomes that the constitution-making body is likely to produce, which are referred to as upstream constraints. New constitutions usually arise in stormy weathers, ours had faced partition, after-effects of 2nd World War, divided princely states, etc. which fostered passion like the idea of national unity. The external constraints invite procedures based on threat-based bargaining or simply bargaining of notions like national unity, unity in diversity, etc.
The anticipation of final-stage gatekeepers leads to downstream constraints. Downstream constraints restrict drafters at an earlier stage as they are aware that their document will be put in the public domain for public approval. In India, there was no referendum or ratification process, however, political leaders were associated with their party politics which might have led them to behave the way the party ideology was. Ultimately the draft has to be in the public domain, therefore criticisms and counter-criticism in the press, in turn, shape the nature of the consensus which works as a downstream constraint. Although a constituent assembly is popularly thought of a representing the entire nation, however, with regards to upstream constraints, due to the picking of members from the election winners of provincial assemblies, most of the Indians have already become losers as no representation, no participation, or even one can argue where is “we” in “we the people of India” in the process.
The main constraint was figuring out how to accommodate opposing groups who see themselves as different in the same state through constitutional means and not leading to India of many Partitions. The difficulties in making a constitution that fulfils the aspirations of all which can adequately recognize the diversity of the state, and the demands accompanying such recognition, and constraints placed on the drafters as they seek to respond to the demands of their constituency, after all, they were political leaders. The discussions within the Constituent Assembly were influenced by the opinions expressed by the public as the arguments were reported in newspapers and were publicly debated. Publicity may lead to grandstanding, as political party members seek to mobilize their supporters. One can argue that it may lead to mass polarization. Thus, the desire to be publically approved formed the downstream constraint.
Initially, the British government had imposed constraints on the constituent assembly to protect Muslim rights, but those were lifted once Britain decided to establish Pakistan. After this, the constituent assembly was free to expand the scope and orientation of the constitution. However, Jon Elster used the phrases “upstream” and “downstream” constraints to show that no constitution-making body is ever totally sovereign and can be free in its decision-making. The politics at the time of making of constitution have constrained the parameters of how the new constitution respond to the demands in the diverse and divided nation. Substantively, these constraints affected several issues—from taking a strong stand on religion reforms, women’s rights, and minority issues to the system of government. To conclude, the constitution that can be created by the Constituent Assembly is often not the constitution that is actually made. What we see today could have been a different Constitution, had it been all free of constraints, but again, all freedom is just an illusion.
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