615 Pratap Bhanu Mehta, What is Constitutional Morality

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What is constitutional morality?PRATAP BHANU MEHTA

THE phrase constitutionalmorality has, of late, begun to bewidely used. Yet the phrase rarely crops up in discussionsaroundtheConstituentAssembly.Ofthethreeorfourscattereduses of the phrase, only one reference has any intellectualsignificance.This is,ofcourse,Ambedkars famous invocationof the phrase in his speech TheDraftConstitution, deliveredon4November1948.InthecontextofdefendingthedecisiontoincludethestructureoftheadministrationintheConstitution,hequotesatgreatlengththeclassicist,GeorgeGrote.Thequotationisworthreproducinginfull:

Thediffusionofconstitutionalmorality,notmerelyamongthemajority of any community, but throughout the whole is theindispensable condition of a government at once free andpeaceablesinceevenanypowerfulandobstinateminoritymayrender theworking of a free institution impracticable, withoutbeingstrongenoughtoconquerascendanceforthemselves.1

What did Grote mean by constitutional morality? AmbedkarquotesGroteagain:

By constitutional morality, Grote meant a paramountreverencefortheformsoftheconstitution,enforcingobedienceto authority and acting under and within these forms, yetcombinedwith thehabitofopenspeech,ofactionsubjectonlytodefinitelegalcontrol,andunrestrainedcensureofthoseveryauthoritiesastoalltheirpublicactscombined,toowithaperfectconfidenceinthebosomofeverycitizenamidstthebitternessofparty contest that the forms of constitution will not be lesssacredintheeyesofhisopponentsthanhisown.

In Grotes rendition, constitutional morality had a meaningdifferentfromtwomeaningscommonlyattributedtothephrase.Incontemporaryusage,constitutionalmoralityhascometorefertothesubstantivecontentofaconstitution.Tobegovernedbyaconstitutionalmorality is, on this view, to be governed by thesubstantive moral entailment any constitution carries. Forinstance,theprincipleofnondiscriminationisoftentakentobeanelementofourmodernconstitutionalmorality.Inthissense,constitutionalmoralityisthemoralityofaconstitution.

There was a second usage that Ambedkar was more familiar



with from its 19th century provenance. In this view,constitutionalmorality refers to the conventions and protocolsthat govern decisionmaking where the constitution vestsdiscretionarypowerorissilent.

ButGrotesuseof the termwasdifferent from these twouses,andmore important for Ambedkars purposes. Ambedkar wasmaking a series of historical claims about constitutionalism.LikeGrote,hehad little doubt that constitutionalmoralitywasrare. It was not a natural sentiment. The purpose of GrotesHistory of Greece had been, in part, to rescue AtheniandemocracyfromthecondescensionofitselitistcriticslikePlatoandThucydides,andarguethatAtheniandemocracyhad,evenifbriefly,achievedelementsofagenuineconstitutionalmorality.

For Grote, there were only two other plausible instances of aconstitutional morality having been remotely realized: thearistocraticcombinationoflibertyandselfrestraintexperiencedin1688 inEngland, andAmerican constitutionalism.All otherattempts at enshrining a constitutionalmorality had grievouslyfoundered.ForAmbedkar,thisnoteofhistoricalcautionsimplyaddedtohisworriesaboutIndia.DemocracyinIndiawasonly,as he put it, top dressing on Indian soil, which is essentiallyundemocratic.2 Our people have yet to learn constitutionalmorality.

What are the elements of constitutional morality thatAmbedkar is so concerned about? His invocation of Grote ismeantnotasareferencemerelytohistoricalrarity,butalsoasapointer to thedistinctivenessofconstitutionalismasamodeofassociation. Inboth the4November1948speechand the finalReply to the Debate on 25 November 1949, Ambedkar amidstdiscussionsofawholerangeofsubstantiveissuessuchasfederalism, rights, decentralization, and parliamentarygovernment returns to elements of constitutional moralityprefiguredinhisuseofGrote.Forhim,therealanxietywasnotConstitution the noun, as much as the adverbial practice itentailed.

ForGrote, the central elements of constitutionalmoralitywerefreedomandselfrestraint.Selfrestraintwasaprecondition formaintaining freedomunderproperlyconstitutionalgovernment.The most political expression of a lack of selfrestraint wasrevolution.Indeedconstitutionalmoralitywassuccessfulonlyinso far as itwardedoff revolution.Ambedkar also takes on theexplicitly antirevolutionary tones of constitutionalism. In astrikingly odd passage, he says that the maintenance ofdemocracy requires that we must hold fast to constitutionalmethods of achieving our social and economic objectives. Itmustmeanthatweabandonthebloodymethodsofrevolution.Itmeanswemustabandonthemethodofcivildisobedience,noncooperationandsatyagraha.3



Inonestroke,bothviolentrevolutionandpassiveresistanceareequated as exemplifying a kind of excess and lack of selfrestraint incompatible with constitutional morality. The tacitequivalencehepositsbetweensatyagrahaandviolencehasrootsinAmbedkarsexperienceofsatyagrahaasaformofcoercion.Itis a featureof constitutionalmorality thatwhilegovernment issubjecttothefullforceofcriticism,thiscriticismmust,insomesense,bepacificcriticism.

Ambedkardismissesanentirerepertoireofpoliticalactionusedduringthenationalistmovementasbeingincompatiblewiththedemands of constitutionalmorality, as he understood it. Theseforms of political action continue to be seen by many asessential to democracy, though it is doubtful that Ambedkarwould have admitted them within the ambit of constitutionalmorality. But there is perhaps a deeper element at play in hisruling out satyagraha as incompatible with the basics ofconstitutional morality. And this in part springs from hisunderstandingofthedistinctivenessofconstitutionalmorality.

For the second element of constitutional morality is therecognitionofpluralityinitsdeepestform.WhatissurprisingisthatAmbedkar turns out to be as, if notmore, committed to aform of nonviolence as Gandhi. For him, respectingconstitutional forms is theonlyway inwhichagenuinelynonviolent mode of political action can come into being. For thecentral challenge in a political society is themanagement andadjudication of differences though what Ambedkar had inmindweremoredifferencesofopinionthanofidentity.

The only way of nonviolent resolution amidst this fact ofdifference is securing some degree of unanimity on aconstitutional process, a form of adjudication that canmediatedifference.Unilaterallydeclaringoneself tobe inpossessionofthe truth, setting oneself up as a judge in ones own cause, oractingonthedictatesofonesconsciencemightbeheroicactsofpersonal integrity.But theydonot address the central problemthat a constitutional form is trying to address, namely theexistence of a plurality of agents, each with his/her ownconvictions,opinionsandclaims.

Constitutional morality requires submitting these to theadjudicative contrivances that are central to any constitution parliament,courtsandsoon.Inthefaceofdifference, theonlypoint of unanimity that one can seek is over an appropriatelydesignedadjudicativeprocess.This isonereason, forexample,whyAmbedkar does not think socialism should be part of theconstitution, even though equality is of paramount concern tohim.Whatthepartieshavetoagreeto,asAmbedkarrecognizesoverandover, is anallegiance to a constitutional form, not an



allegiancetoaparticularsubstance.

Therefore,constitutionalmoralityrequiresthatallegianceto theconstitution is nontransactional. The essence of constitutionalmoralityisthatallegiancetotheconstitutioncannotbepremisedupon it leading to outcomes that are a mirror image of anyagents beliefs. A constitutional morality requires putting upwiththepossibilitythatwhateventuallyemergesfromaprocessisverydifferentfromwhatcitizenshadenvisaged.

Thethirdelementofconstitutionalmorality is its suspicionofany claims to singularly anduniquely represent thewill of thepeople.ThisismostdeeplymanifestinAmbedkarshostilitytoanypersonificationofpoliticalauthority. Inpartwhat renderedsatyagrahaominous,fromaconstitutionalpointofview,wasnotjust its uncompromising character it was also the fact that itsagents saw themselves as personifying the good of thewhole.Ambedkar ishugely suspiciousof any formof heroworshipnowa rather ironic fear in an age inwhichAmbedkar himselfhasbeendeified.But thissuspicionofpersonificationwaspartof a larger sensibility that formed a crucial element of hisconstitutional morality: he was suspicious of any claims toembody popular sovereignty. This may be a somewhatsurprising claim to attribute toAmbedkar, andwith him otherarchitects of the Constitution. But the evidence of this isunmistakable.

Thus Ambedkar is very reluctant to see any branch ofgovernment,whether itbe the legislatureor thecourts,oreventhe Constituent Assembly itself, as being able to claimauthoritatively that it embodies popular sovereignty and canspeak in its name. He is often suspicious of the legislaturesclaimtodoso(forinstance,inhisargumentforwhytheformofadministration should not be entrusted to the legislature). Hisdefenceofarelativelyeasyprocessofamendingtheconstitutionrests on a halfway compromise between, on the one hand, aradical Jeffersonianism that would subject the constitution torenegotiation at every generation and, on the other, a rigidconstitutionthatwoulddeeplyentrenchthepresentgenerationspreferences.

Inshort,anyappeal topopularsovereigntyhastobetemperedbyasensethatthefuturemayhaveatleastasvalidclaimsasthepresent.Indeed,ithastobesaidoftheConstituentAssemblyasa whole, that there is very little demagoguery in the name ofpopular sovereignty. Almost never is a claim advanced ordefendedon theground that it somehow represents thewill ofthe people. Often the discourse is more centred on theresponsibility to the people. This is not simply because theConstituentAssemblywasnotelectedbyuniversalsuffragenor



was it simply a product of elitism trying to keep popularsovereignty at bay. It was rather because there was a deepergrasp of a political truth: any claims to speak on behalf ofpopularsovereigntyareattemptstousurpitsauthority.Noclaimto represent popular sovereignty therefore, should ever beconsideredfullyconvincing thechiefpurposeofconstitutionalgovernmentistochallengegovernmental,oranyotherclaimstorepresentthepeople.

One piece of evidence for this is Ambedkars defence of theparliamentaryformofgovernmentbecauseitembodieswhathecallstheprincipleofresponsibility.Bythishemeans that theexecutivewillbesubject todailyassessment.Whileelectionswillgiveanopportunityforthepeopletoengageinwhathecallsperiodic assessment, the arsenal of parliamentary democracywill facilitatedailyassessment in the formof resolutions tonoconfidence motions, debates to adjournment motions, etc.Whether or not he was right about a parliamentary system ofgovernmentisdebatable,butitisdeeplyinterestingthatheseesparliamentsfunctionasquestioninganyclaimsthegovernmentmightmake to embody popular opinion or sovereignty simplyonaccountofitsmajority.

Thefunctionofparliamentisnotsomuchtorepresentpopularsovereignty as it is to debate and constantly questiongovernment. But, paradoxically, this is to prevent governmentfromclaimingmonopolyoverpopularwill.Thereisnotasingleplace in thedebateswhere theprotagonists raise the followingquestions:Whatformofdemocracywillbestrepresent thewillof thepeople?The predominant focus is onmultiplying ratherthan on questioning claims to represent the people. AlthoughsomeonelikeNehruwasoccasionallyimpatientwithinstitutionslikethecourt,thesubsequentcontestbetweenthejudiciaryandlegislature can be seen as yet another exemplification of theConstitutions impulse that there should be no singularlyauthoritative arbiter of either popular will, or constitutionalinterpretation.

Itisaconcernforcriticismratherthanrepresentationofpopularwill that ties Ambedkar most closely to Grotes invocation ofconstitutional morality. After all, the burden of Grotes greathistory of Athenian democracy was to defuse the criticism ofAthens that popular sovereignty was a threat to freedom andindividuality.Oncepopular sovereignty or the authority of thepeoplehadbeeninvoked,whoelsewouldhaveanyauthoritytospeak?Grotedefusedthisanxietyinanovelway.Allegiancetoformsof constitutionwasnot to be confusedwithdeference topopular sovereignty. The claim by a government that itrepresented popular sovereignty did not, by itself, have anyauthority. Its claims and decisions could still be interrogated,censured and subject to unrestrained criticism. Indeed, whatAthenianconstitutionalpracticehadachievedwaspreciselythis:



the space for unrestrained criticism that was neverthelesspacific and bloodless and not silenced by claiming theauthorityofthepeople.

Thisaccountofconstitutionalmoralitymayseemtoemphasizethe formal elements: selfrestraint, respect for plurality,deferencetoprocesses,scepticismaboutauthoritativeclaimstopopular sovereignty, and the concern for an open culture ofcriticismthatremainsatthecoreofconstitutionalforms.Thesemay seem rather commonplace, butAmbedkar had little doubtthatthesubjectivity thatembodied theseelementswasrareanddifficulttoachieve.Ambedkargraspedsingularlythecoreoftheconstitutionalrevolution:itwasanassociationsustainednotbyacommonality of ends, or unanimityover substantiveobjectives(exceptatperhapsaveryhighlevelofgenerality).Itwasrathera form of political organization sustained by certain ways ofdoing things. Itwassustainednotsomuchbyobjectivesasbythe conditions throughwhich theywere realized.This was thecoreofconstitutionalmorality.

A constitution thus was not a relationship between concretepersons, but rather a relationship between abstract personaeboundtogetherbyabstractrules.It ispreciselythisabstraction,this distance from specific persons andwished for substantiveoutcomes that allowed a constitutional culture to emerge.Ambedkarwasapowerful and trenchantcriticofcaste. In thiscontext,castewasanimpedimenttoconstitutionalmoralityinavery specific way. It is the form of social existence thatpreventedtheemergenceofthoseabstractpersonaesocentraltoconstitutionalmorality.Itistheoneparticularitythatconstantlyundermines the formation of the self, central to constitutionalmorality.For constitutionalmorality requires various forms ofdissociation:theabilitytodissociateapersonfromtheirviewstheabilitytotrustsomeonedespitedeepdisagreementbasedontheknowledgethat there isasharedagreementonprocesses toadjudicate that disagreement. Caste identity, by its verycharacter,madesuchdissociationimpossible.

ForAmbedkar,without fraternity, equality and libertywouldbe no deeper than coats of paint.4Nowhere does AmbedkarmaketheargumentthattheConstitutionisaboutdistributionofpower among different castes. Caste embodies a principle ofsocial separation, and is, to use his phrase, antinational.5 Itsvery existence precludes an ability to abstract from onesidentity. It ensures that the relationship between groups isperpetually competitive.A constitutionalmorality, by contrast,requires both these features abstraction and agreement orcooperation. It requires the presumption that we are equal.However,that equality ispossibleonlywhen for constitutionalpurposes our caste identities do not matter. A constitutional



morality requires the sense that despite all differences we arepartofacommondeliberativeenterprise.

Buttherearestillseveralgoodreasonstounpackthereferencesto constitutionalmorality. First,we simply need to complicateour understanding of how our framers understood theConstitution. Formalism of a certain kind was central to theirimagination of the Constitution as a mode of association.Second,itisastrikingfactthatwhileAmbedkarrecognizedthecontradictions between the actual injustice and constitutionalaspirations,hedidnotcollapse theConstitution intoadoctrineof distributive justice. Implicit in his invocation of thecontradiction is a dualtrack conception of justice. There isconstitutional justice, definedby certain rights andprocedures.There is also substantive justice, embodied in debates overprivate property and the rival claims of socialism versuscapitalism.

In a way the constitutional discourse is caught between twoimpulses.Ontheonehanditwantstosaythatwecanriseabovetheseparticular disagreements andprovide a frameworkwherebothparties can contend the rights of thosewho build billiondollarhomescancontendwiththeclaimsofthosewhodemandmoreradicalformsofredistribution.OurConstitutionhasspacefor both socialists and capitalists or, to take another example,those who radically disagree over reservation. Constitutionalmorality is simply the conditions one subscribes to indeterminingtheoutcome,whateverthatmightbe.

On the other hand, we might feel that there is somethingunstable about the political psychology associated with thisdissociation of constitutional from distributive justice. Cancitizens really be committed to a framework that allows bothgoalsatonce:therightsofthebilliondollarhomeownerandacommitment to redistribution? In almost all his speeches,Ambedkarhimselfwrestleswiththistension:Canaconstitutionsurvive without a singular conception of distributive justiceunderlyingit?

In the final analysis, he pitches for constitutional morality, anallegiance to constitutional forms, rather than collapsing thedomains of constitutional and distributive justice. He doesntcheat by giving us the (false) assurance that the forms ofconstitutionalmoralitywill produce deep substantive equalitynordoeshecheatbysaying that substantiveequalitysimply isthe same thing as constitutional morality. No society has yetadequately negotiated the tension between the domain ofconstitutionalmoralityandthedomainofsubstantivejustice.Hewantedarevolution,butneverbecamearevolutionary.



The final reason for focusing on constitutional morality ishistorical.Whatwas the nature of the Constituent Assemblysachievement?ItisfairtosaythatitbecameasupremeexemplarofwhatAmbedkardefinedasconstitutionalmorality.This is asensibility that few analysts of the Constitution can recover.TheyareoftenfixatedontransactionalviewsoftheConstitution,measuring it by a yardstick of justice external to its purposes.Perhaps the frame of constitutional morality can direct ourattention to a crucial question: What kind of a politicalsensibilitywasrequiredtomakeaconstitutionpossible?

Constitutions not only allocate authority, define the limits ofpower or enunciate values. They also constitute our sense ofhistory and shape a sense of self. They often mark a newbeginning anddefine future horizons.Despite the centrality oftheConstitution to our social and political life, it has been illservedbyourhistorical imagination. Inaverymundanesense,with a handful of exceptions, there is no serious or deephistoriographyassociatedwithourConstitution,onethatcanputitinproperhistoricalandphilosophicalperspective.

ThepromulgationofIndiasConstitutionwasmadepossiblebya sensibility that few contemporary historians can recover.WhiletheConstitutionwasanextraordinaryworkofsynthesis,our historical imagination is given to divisiveness.There is nomorestrikingexampleofthisthanthewayinwhichmembersofthe Constituent Assembly have been divided up andappropriated, rather than seen in relation to each other.Ambedkar, Patel, Nehru, Prasad and a host of others are nowiconsinpartisanideologicalbattles,asiftodescribeAmbedkaras a Dalit, or Patel as protoBJP, or Nehru as a Congressmanexhaustsallthatneedstobesaidaboutthem.

The greatness of each one of them consists not just in thedistinctive points of view they brought together, but theirextraordinary ability to work together despite so manydifferences. Congress itself facilitated the entry of so manypeople with an antiCongress past into key roles in theAssembly.Ittakesawillfulhistoricalamnesiatoforgetthefactthat the men and women of the Assembly worked with anextraordinary consciousness that they needed and completedeachother.ThehistoriographyoftheConstituentAssemblyhasnotregardeditasanexemplarofconstitutionalmorality.Ithasratherassesseditonamuchmoreideologicalyardstick.

Theability toworkwithdifferencewasaugmentedbyanotherquality that is rarer still: theability toacknowledge truevalue.Thismaybeattributedtothesheerintellectualismofsomanyofthe members. Their collective philosophical depth, historicalknowledge,legalandforensicacumenandsheercommandoverlanguage is enviable. It ensured that the grounds of discussionremained intellectual. Also remarkable was their ability to



acknowledgegreatnessinothers.ItwasthisqualitythatallowedNehru and Patel, despite deep differences in outlook andtemperament, to acknowledge each other. Their statesmanshipwas to not let their differences produce a debilitatingpolarization,onethatcouldhavewreckedIndia.Theycombinedloyaltyandfrankness.EvenaspartialabiographerofNehruasS. Gopal conceded that what prevented the rupture was theirmutualregardandPatelsstoicdecency.6

The third sensibility so many leaders of the ConstituentAssemblycarriedwasacreativeformofselfdoubt.Theywereallfarmoreselfconsciousthattheyweretakingdecisionsunderconditionsof great uncertainty.Was it that easy to knowwhattheconsequencesofaparticularpositionweregoingtobe?Theyalsounderstood theirmutualvulnerabilities.Nehrus answer toPatelsworrythatNehruwaslosingconfidenceinhimwasthathewaslosingconfidenceinhimself.AndanyonewhohasreadthetorturedlastpagesofTheDiscoveryofIndiawillunderstandhowmuchNehrumeantit.Muchofthecheapcondescensionofposterity heaped upon these figures would vanish if we couldshowasmuchselfawarenessandasenseofvulnerabilityasourfounding generation did. Many of them made mistakes ofjudgment.Butonehastheconfidencethattheyweremorelikelytoacknowledgetheirmistakesthanmostofthosewhocommentupon them. They embodied the central element of aconstitutionalmorality: totreateachotherascitizensdeservingequalregard,despiteseriousdifferences.

The fourth sensibility which we have lost sight of is theimportanceofform.WeareallinstinctiveMarxistsinthesensethat we think of institutions, forms and laws as so manycontrivances to consolidate power. But this was a generationwith a deep sense that forms and institutions are not merelyinstrumental for an immediate goal they are the enablingframeworkthatallowsasocietythepossibilitiesofselfrenewal.Formsalsoallowtrusttobebuilttheygiveasignalthatpower,evenwhenitseekstodogood, isnotbeingexercisedinawaythat is arbitrary. This is exactly why the members took theAssemblyanditsdeliberationsseriously.

Thefifthfeatureoftheirsensibilityisasenseofjudgment.Thisis a very intangible political quality. Part of it is the ability todeliberate in a way that takes on board all the relevantconsiderations, and does notmake politics hostage to a singlemission.Another is the ability to judge ones own power andplace in relation toothers and thepublic at large.Thisgives abettersenseofwhentocompromiseandwhentopressapoint,whentocurbonesegoandwhentoprojectpower.

TheConstitutionwasmadepossiblebyaconstitutionalmorality



that was liberal at its core. Not liberal in the evisceratedideologicalsense,butinthedeepervirtuesfromwhichitsprang:an ability to combine individuality with mutual regard,intellectualismwith a democratic sensibility, convictionwith asense of fallibility, deliberationwith decision, ambitionwith acommitment to institutions, and hope for a future with dueregardforthepastandpresent.

Footnotes:

1.ForeasyaccesstothetwoAmbedkarspeechesreferredtointhistext,seetheselection,TheConstitutionandtheConstituentAssemblyDebates.LokSabhaSecretariat,Delhi,1990,pp.107131andpp.171183.

The quotation from Grote that Ambedkar uses can be found in a reissue ofGeorgeGrote,AHistoryofGreece.Routledge,London,2000,p.93.

2.Ambedkar, SpeechDelivered on 25November 1949 inTheConstitutionandConstituentAssemblyDebates,p.174.

3.Ibid.,p.174.

4.Ibid.,p.181.

5.Ibid.,p.181.

6.S.Gopal,Nehru.VolII.HarvardUniversityPress,Cambridge,p.308.

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615 Pratap Bhanu Mehta, What is Constitutional Morality