What is constitutional morality?
PRATAP BHANU MEHTA
THE phrase ‘constitutional morality’ has, of late, begun to be widely used. Yet the phrase rarely crops up in discussions around the Constituent Assembly. Of the three or four scattered uses of the phrase, only one reference has any intellectual significance. This is, of course, Ambedkar’s famous invocation of the phrase in his speech ‘The Draft Constitution’, delivered on 4 November 1948. In the context of defending the decision to include the structure of the administration in the Constitution, he quotes at great length the classicist, George Grote. The quotation is worth reproducing in full:
The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves.1
What did Grote mean by ‘constitutional morality’? Ambedkar quotes Grote again:
By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.
In Grote’s rendition, ‘constitutional morality’ had a meaning different from two meanings commonly attributed to the phrase. In contemporary usage, constitutional morality has come to refer to the substantive content of a constitution. To be governed by a constitutional morality is, on this view, to be governed by the substantive moral entailment any constitution carries. For instance, the principle of non-discrimination is often taken to be an element of our modern constitutional morality. In this sense, constitutional morality is the morality of a constitution.
There was a second usage that Ambedkar was more familiar with from its 19th century provenance. In this view, constitutional morality refers to the conventions and protocols that govern decision-making where the constitution vests discretionary power or is silent.
But Grote’s use of the term was different from these two uses, and more important for Ambedkar’s purposes. Ambedkar was making a series of historical claims about constitutionalism. Like Grote, he had little doubt that constitutional morality was rare. It was not a ‘natural sentiment’. The purpose of Grote’s History of Greece had been, in part, to rescue Athenian democracy from the condescension of its elitist critics like Plato and Thucydides, and argue that Athenian democracy had, even if briefly, achieved elements of a genuine constitutional morality.
For Grote, there were only two other plausible instances of a constitutional morality having been remotely realized: the aristocratic combination of liberty and self-restraint experienced in 1688 in England, and American constitutionalism. All other attempts at enshrining a constitutional morality had grievously foundered. For Ambedkar, this note of historical caution simply added to his worries about India. Democracy in India was only, as he put it, ‘top dressing on Indian soil, which is essentially undemocratic.’2 Our people have ‘yet to learn’ constitutional morality.
What are the elements of constitutional morality that Ambedkar is so concerned about? His invocation of Grote is meant not as a reference merely to historical rarity, but also as a pointer to the distinctiveness of constitutionalism as a mode of association. In both the 4 November 1948 speech and the final ‘Reply to the Debate’ on 25 November 1949, Ambedkar – amidst discussions of a whole range of substantive issues such as federalism, rights, decentralization, and parliamentary government – returns to elements of constitutional morality prefigured in his use of Grote. For him, the real anxiety was not ‘Constitution’ the noun, as much as the adverbial practice it entailed.
For Grote, the central elements of constitutional morality were freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under properly constitutional government. The most political expression of a lack of self-restraint was revolution. Indeed constitutional morality was successful only in so far as it warded off revolution. Ambedkar also takes on the explicitly anti-revolutionary tones of constitutionalism. In a strikingly odd passage, he says that the maintenance of democracy requires that we must ‘hold fast to constitutional methods of achieving our social and economic objectives. It must mean that we abandon the bloody methods of revolution. It means we must abandon the method of civil disobedience, non-cooperation and satyagraha.’3
In one stroke, both violent revolution and passive resistance are equated as exemplifying a kind of excess and lack of self-restraint incompatible with constitutional morality. The tacit equivalence he posits between satyagraha and violence has roots in Ambedkar’s experience of satyagraha as a form of coercion. It is a feature of constitutional morality that while government is subject to the full force of criticism, this criticism must, in some sense, be ‘pacific’ criticism.
Ambedkar dismisses an entire repertoire of political action used during the nationalist movement as being incompatible with the demands of constitutional morality, as he understood it. These forms of political action continue to be seen by many as essential to democracy, though it is doubtful that Ambedkar would have admitted them within the ambit of constitutional morality. But there is perhaps a deeper element at play in his ruling out satyagraha as incompatible with the basics of constitutional morality. And this in part springs from his understanding of the distinctiveness of constitutional morality.
For the second element of constitutional morality is the recognition of plurality in its deepest form. What is surprising is that Ambedkar turns out to be as, if not more, committed to a form of non-violence as Gandhi. For him, respecting constitutional forms is the only way in which a genuinely non-violent mode of political action can come into being. For the central challenge in a political society is the management and adjudication of differences – though what Ambedkar had in mind were more differences of opinion than of identity.
The only way of non-violent resolution amidst this fact of difference is securing some degree of unanimity on a constitutional process, a form of adjudication that can mediate difference. Unilaterally declaring oneself to be in possession of the truth, setting oneself up as a judge in one’s own cause, or acting on the dictates of one’s conscience might be heroic acts of personal integrity. But they do not address the central problem that a constitutional form is trying to address, namely the existence of a plurality of agents, each with his/her own convictions, opinions and claims.
Constitutional morality requires submitting these to the adjudicative contrivances that are central to any constitution – parliament, courts and so on. In the face of difference, the only point of unanimity that one can seek is over an appropriately designed adjudicative process. This is one reason, for example, why Ambedkar does not think socialism should be part of the constitution, even though equality is of paramount concern to him. What the parties have to agree to, as Ambedkar recognizes over and over, is an allegiance to a constitutional form, not an allegiance to a particular substance.
Therefore, constitutional morality requires that allegiance to the constitution is non-transactional. The essence of constitutional morality is that allegiance to the constitution cannot be premised upon it leading to outcomes that are a mirror image of any agent’s beliefs. A constitutional morality requires putting up with the possibility that what eventually emerges from a process is very different from what citizens had envisaged.
The third element of constitutional morality is its suspicion of any claims to singularly and uniquely represent the will of the people. This is most deeply manifest in Ambedkar’s hostility to any personification of political authority. In part what rendered satyagraha ominous, from a constitutional point of view, was not just its uncompromising character; it was also the fact that its agents saw themselves as personifying the good of the whole. Ambedkar is hugely suspicious of any form of hero worship – now a rather ironic fear in an age in which Ambedkar himself has been deified. But this suspicion of personification was part of a larger sensibility that formed a crucial element of his constitutional morality: he was suspicious of any claims to embody popular sovereignty. This may be a somewhat surprising claim to attribute to Ambedkar, and with him other architects of the Constitution. But the evidence of this is unmistakable.
Thus Ambedkar is very reluctant to see any branch of government, whether it be the legislature or the courts, or even the Constituent Assembly itself, as being able to claim authoritatively that it embodies popular sovereignty and can speak in its name. He is often suspicious of the legislature’s claim to do so (for instance, in his argument for why the form of administration should not be entrusted to the legislature). His defence of a relatively easy process of amending the constitution rests on a halfway compromise between, on the one hand, a radical Jeffersonianism that would subject the constitution to renegotiation at every generation and, on the other, a rigid constitution that would deeply entrench the present generation’s preferences.
In short, any appeal to popular sovereignty has to be tempered by a sense that the future may have at least as valid claims as the present. Indeed, it has to be said of the Constituent Assembly as a whole, that there is very little demagoguery in the name of popular sovereignty. Almost never is a claim advanced or defended on the ground that it somehow represents the will of the people. Often the discourse is more centred on the responsibility to the people. This is not simply because the Constituent Assembly was not elected by universal suffrage; nor was it simply a product of elitism trying to keep popular sovereignty at bay. It was rather because there was a deeper grasp of a political truth: any claims to speak on behalf of popular sovereignty are attempts to usurp its authority. No claim to represent popular sovereignty therefore, should ever be considered fully convincing; the chief purpose of constitutional government is to challenge governmental, or any other claims to represent the people.
One piece of evidence for this is Ambedkar’s defence of the parliamentary form of government because it embodies what he calls the principle of ‘responsibility’. By this he means that the executive will be subject to ‘daily assessment’. While elections will give an opportunity for the people to engage in what he calls ‘periodic assessment’, the arsenal of parliamentary democracy will facilitate daily assessment in the form of resolutions to no confidence motions, debates to adjournment motions, etc. Whether or not he was right about a parliamentary system of government is debatable, but it is deeply interesting that he sees parliament’s function as questioning any claims the government might make to embody popular opinion or sovereignty simply on account of its majority.
The function of parliament is not so much to represent popular sovereignty as it is to debate and constantly question government. But, paradoxically, this is to prevent government from claiming monopoly over popular will. There is not a single place in the debates where the protagonists raise the following questions: What form of democracy will best represent the will of the people? The predominant focus is on multiplying rather than on questioning claims to represent the people. Although someone like Nehru was occasionally impatient with institutions like the court, the subsequent contest between the judiciary and legislature can be seen as yet another exemplification of the Constitution’s impulse that there should be no singularly authoritative arbiter of either popular will, or constitutional interpretation.
It is a concern for criticism rather than representation of popular will that ties Ambedkar most closely to Grote’s invocation of constitutional morality. After all, the burden of Grote’s great history of Athenian democracy was to defuse the criticism of Athens that popular sovereignty was a threat to freedom and individuality. Once popular sovereignty or the authority of the people had been invoked, who else would have any authority to speak? Grote defused this anxiety in a novel way. Allegiance to forms of constitution was not to be confused with deference to popular sovereignty. The claim by a government that it represented popular sovereignty did not, by itself, have any authority. Its claims and decisions could still be interrogated, censured and subject to unrestrained criticism. Indeed, what Athenian constitutional practice had achieved was precisely this: the space for unrestrained criticism that was nevertheless ‘pacific and bloodless’ and not silenced by claiming the authority of the people.
This account of constitutional morality may seem to emphasize the formal elements: self-restraint, respect for plurality, deference to processes, scepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism that remains at the core of constitutional forms. These may seem rather commonplace, but Ambedkar had little doubt that the subjectivity that embodied these elements was rare and difficult to achieve. Ambedkar grasped singularly the core of the constitutional revolution: it was an association sustained not by a commonality of ends, or unanimity over substantive objectives (except at perhaps a very high level of generality). It was rather a form of political organization sustained by certain ways of doing things. It was sustained not so much by objectives as by the conditions through which they were realized. This was the core of constitutional morality.
A constitution thus was not a relationship between concrete persons, but rather a relationship between abstract personae bound together by abstract rules. It is precisely this abstraction, this distance from specific persons and wished for substantive outcomes that allowed a constitutional culture to emerge. Ambedkar was a powerful and trenchant critic of caste. In this context, caste was an impediment to constitutional morality in a very specific way. It is the form of social existence that prevented the emergence of those abstract personae so central to constitutional morality. It is the one particularity that constantly undermines the formation of the self, central to constitutional morality. For constitutional morality requires various forms of dissociation: the ability to dissociate a person from their views; the ability to trust someone despite deep disagreement based on the knowledge that there is a shared agreement on processes to adjudicate that disagreement. Caste identity, by its very character, made such dissociation impossible.
For Ambedkar, without fraternity, ‘equality and liberty would be no deeper than coats of paint.’4 Nowhere does Ambedkar make the argument that the Constitution is about distribution of power among different castes. Caste embodies a principle of social separation, and is, to use his phrase, ‘anti-national’.5 Its very existence precludes an ability to abstract from one’s identity. It ensures that the relationship between groups is perpetually competitive. A constitutional morality, by contrast, requires both these features – abstraction and agreement or cooperation. It requires the presumption that we are equal. However, that equality is possible only when for constitutional purposes our caste identities do not matter. A constitutional morality requires the sense that despite all differences we are part of a common deliberative enterprise.
But there are still several good reasons to unpack the references to constitutional morality. First, we simply need to complicate our understanding of how our framers understood the Constitution. Formalism of a certain kind was central to their imagination of the Constitution as a mode of association. Second, it is a striking fact that while Ambedkar recognized the contradictions between the actual injustice and constitutional aspirations, he did not collapse the Constitution into a doctrine of distributive justice. Implicit in his invocation of the contradiction is a dual-track conception of justice. There is constitutional justice, defined by certain rights and procedures. There is also substantive justice, embodied in debates over private property and the rival claims of socialism versus capitalism.
In a way the constitutional discourse is caught between two impulses. On the one hand it wants to say that we can rise above these particular disagreements and provide a framework where both parties can contend; the rights of those who build billion dollar homes can contend with the claims of those who demand more radical forms of redistribution. Our Constitution has space for both socialists and capitalists or, to take another example, those who radically disagree over reservation. Constitutional morality is simply the conditions one subscribes to in determining the outcome, whatever that might be.
On the other hand, we might feel that there is something unstable about the political psychology associated with this dissociation of constitutional from distributive justice. Can citizens really be committed to a framework that allows both goals at once: the rights of the billion-dollar home owner and a commitment to redistribution? In almost all his speeches, Ambedkar himself wrestles with this tension: Can a constitution survive without a singular conception of distributive justice underlying it?
In the final analysis, he pitches for constitutional morality, an allegiance to constitutional forms, rather than collapsing the domains of constitutional and distributive justice. He doesn’t cheat by giving us the (false) assurance that the forms of constitutional morality will produce deep substantive equality; nor does he cheat by saying that substantive equality simply is the same thing as constitutional morality. No society has yet adequately negotiated the tension between the domain of constitutional morality and the domain of substantive justice. He wanted a revolution, but never became a revolutionary.
The final reason for focusing on constitutional morality is historical. What was the nature of the Constituent Assembly’s achievement? It is fair to say that it became a supreme exemplar of what Ambedkar defined as constitutional morality. This is a sensibility that few analysts of the Constitution can recover. They are often fixated on transactional views of the Constitution, measuring it by a yardstick of justice external to its purposes. Perhaps the frame of constitutional morality can direct our attention to a crucial question: What kind of a political sensibility was required to make a constitution possible?
Constitutions not only allocate authority, define the limits of power or enunciate values. They also constitute our sense of history and shape a sense of self. They often mark a new beginning and define future horizons. Despite the centrality of the Constitution to our social and political life, it has been ill-served by our historical imagination. In a very mundane sense, with a handful of exceptions, there is no serious or deep historiography associated with our Constitution, one that can put it in proper historical and philosophical perspective.
The promulgation of India’s Constitution was made possible by a sensibility that few contemporary historians can recover. While the Constitution was an extraordinary work of synthesis, our historical imagination is given to divisiveness. There is no more striking example of this than the way in which members of the Constituent Assembly have been divided up and appropriated, rather than seen in relation to each other. Ambedkar, Patel, Nehru, Prasad and a host of others are now icons in partisan ideological battles, as if to describe Ambedkar as a Dalit, or Patel as proto-BJP, or Nehru as a Congressman exhausts all that needs to be said about them.
The greatness of each one of them consists not just in the distinctive points of view they brought together, but their extraordinary ability to work together despite so many differences. Congress itself facilitated the entry of so many people with an anti-Congress past into key roles in the Assembly. It takes a willful historical amnesia to forget the fact that the men and women of the Assembly worked with an extraordinary consciousness that they needed and completed each other. The historiography of the Constituent Assembly has not regarded it as an exemplar of constitutional morality. It has rather assessed it on a much more ideological yardstick.
The ability to work with difference was augmented by another quality that is rarer still: the ability to acknowledge true value. This may be attributed to the sheer intellectualism of so many of the members. Their collective philosophical depth, historical knowledge, legal and forensic acumen and sheer command over language is enviable. It ensured that the grounds of discussion remained intellectual. Also remarkable was their ability to acknowledge greatness in others. It was this quality that allowed Nehru and Patel, despite deep differences in outlook and temperament, to acknowledge each other. Their statesmanship was to not let their differences produce a debilitating polarization, one that could have wrecked India. They combined loyalty and frankness. Even as partial a biographer of Nehru as S. Gopal conceded that what prevented the rupture was their ‘mutual regard and Patel’s stoic decency.’6
The third sensibility so many leaders of the Constituent Assembly carried was a creative form of self-doubt. They were all far more self-conscious that they were taking decisions under conditions of great uncertainty. Was it that easy to know what the consequences of a particular position were going to be? They also understood their mutual vulnerabilities. Nehru’s answer to Patel’s worry that Nehru was losing confidence in him was that he was losing confidence in himself. And anyone who has read the tortured last pages of The Discovery of India will understand how much Nehru meant it. Much of the cheap condescension of posterity heaped upon these figures would vanish if we could show as much self-awareness and a sense of vulnerability as our founding generation did. Many of them made mistakes of judgment. But one has the confidence that they were more likely to acknowledge their mistakes than most of those who comment upon them. They embodied the central element of a constitutional morality: to treat each other as citizens deserving equal regard, despite serious differences.
The fourth sensibility which we have lost sight of is the importance of form. We are all instinctive Marxists in the sense that we think of institutions, forms and laws as so many contrivances to consolidate power. But this was a generation with a deep sense that forms and institutions are not merely instrumental for an immediate goal; they are the enabling framework that allows a society the possibilities of self-renewal. Forms also allow trust to be built; they give a signal that power, even when it seeks to do good, is not being exercised in a way that is arbitrary. This is exactly why the members took the Assembly and its deliberations seriously.
The fifth feature of their sensibility is a sense of judgment. This is a very intangible political quality. Part of it is the ability to deliberate in a way that takes on board all the relevant considerations, and does not make politics hostage to a single mission. Another is the ability to judge one’s own power and place in relation to others and the public at large. This gives a better sense of when to compromise and when to press a point, when to curb one’s ego and when to project power.
The Constitution was made possible by a constitutional morality that was liberal at its core. Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.
1. For easy access to the two Ambedkar speeches referred to in this text, see the selection, The Constitution and the Constituent Assembly Debates. Lok Sabha Secretariat, Delhi, 1990, pp. 107-131 and pp. 171-183.
The quotation from Grote that Ambedkar uses can be found in a reissue of George Grote, A History of Greece. Routledge, London, 2000, p. 93.
2. Ambedkar, ‘Speech Delivered on 25 November 1949’ in The Constitution and Constituent Assembly Debates, p. 174.
3. Ibid., p. 174.
4. Ibid., p. 181.
5. Ibid., p. 181.
6. S. Gopal, Nehru. Vol II. Harvard University Press, Cambridge, p. 308.