Making Sense of Constitutional Morality

Reflections on the Quest for a Unified Definition

Course: Interpretation of Statutes

Course Instructor: Prof. Satya Prateek
Program: BBA LL.B. (Hons.)
Section: A
Contributors:
Arshia Sekhri (19010115)
Avinash Kotval (19010129)
BLV Sreshta (19010913)
Chaitanya Kishore Sunkara (19010143)
Deah Rose Neeliyara (19010154)
Introduction

There has been considerable judicial and academic deliberation on the true meaning of the
term ‘constitutional morality’. There have been multiple contested definitions of what the
term entails – leading to fears of the true extent of its usage by Courts. This is best illustrated
by the comments made by the ex-Attorney General of India, Mr. K.K. Venugopal, who, while
advancing a word of caution against is dangerous usage, stated that he hopes “constitutional
morality dies”.1 However, in any attempt to define the term in present-day context, it is
cardinal to note and consider Dr. B.R. Ambedkar’s views on constitutional morality. In his
piece ‘What is Constitutional Morality?’2, Pratap Bhanu Mehta highlighted Ambedkar’s
views on this matter, which in turn were inspired by the British historian George Grote. In
this reflection paper, we argue that in a modern-day understanding of constitutional morality,
restricting the ‘true meaning’ of constitutional morality as the one Ambedkar propounded is
insufficient, owing to a fundamental shift in our goal as a democratic nation.

Ambedkar on Constitutional Morality

Dr. Ambedkar is most notable for introducing the term constitutional morality in the context
of the Indian Constitution. However, to understand his version, it is essential to analyse other
commonly used definitions of constitutional morality. The first common understanding of
constitutional morality is that it entails the substantive elements of the constitution –
principles like non-discrimination, equality, and fraternity.3 Legal ‘evolutionists’ like Breyer
J.4, may consider such a form of constitutional morality as useful guidance while making
judge-made law. A second understanding of constitutional morality, per Mehta, consists of
how decisions are to be made where the Constitution grants discretionary powers, or is silent
about matters.5 The third understanding, and the one relevant to us and important for
Ambedkar, is Grote’s understanding of constitutional morality.6 It involves a “paramount
reverence for the forms of

1
Ananthakrishnan G, SC has taken more powers than any apex court… hope Constitutional morality dies
with birth: A-G, THE INDIAN EXPRESS (Dec. 9, 2018), https://indianexpress.com/article/india/sc-has-taken-
more- powers-than-any-apex-court-hope-constitutional-morality-dies-with-birth-a-g-k-k-venugopal-5484988/
2
Pratap Bhanu Mehta, What is Constitutional Morality?, WE THE PEOPLE (Nov. 2010), https://www.india-
seminar.com/2010/615.htm.
3
Id.
4
James E. Rogers College of Law, U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation
on the Constitution (2009), YOUTUBE (Jan. 25, 2019), https://www.youtube.com/watch?v=jmv5Tz7w5pk.
5
Supra note 2.
6
Supra note 2.
2
the constitution”7, with authority empowered and operating within them.8 This idea of Grote’s
Constitutional morality was of prime importance for Dr. Ambedkar, as there was an air of
uncertainty about whether the citizens of this new country would accept the newly drafted
constitution. Therefore, he recognised that the notion of unwavering allegiance to the forms
of the constitution was necessary. He used Grote’s formalistic view on constitutional morality
as a rhetorical method to justify why seemingly prosaic details about government
administration had been incorporated into India’s Constitution.

Analysis

Ambedkar’s views on constitutional morality – as one that puts forth an unwavering

allegiance to the forms of the constitution – is one of considerable merit and certainly cannot
be ignored. However, it is to be noted that during the Constitutional Assembly Debates,
Ambedkar’s foresight was restricted to the establishment of constitutional democracy in
India. It was important to the drafters of the Constitution that the people place their trust in it
– and to this extent, Ambedkar’s rendition of constitutional morality made that the eventual
goal. However, seventy years later, as the world’s ‘largest’ democracy, it is argued that our
goals as a democratic nation have reoriented from establishment to sustenance and growth. In
this light, reflecting on Mehta’s work highlighting the essential elements of Ambedkar’s
constitutional morality, it is argued that in any attempt to attain a holistic understanding of the
term, overlaps with the substantive content of the constitution are inevitable. Parallel to this,
limiting our notion of constitutional morality to what Ambedkar has put forth leads to two
important issues to be reflected on. Firstly, a notion of constitutional morality must be
accommodative of non- coercive civil disobedience. Secondly, any allegiance to the forms of
the constitution attained by disassociating ourselves from our identity could be problematic
for minorities of all kinds in their fight for equality.

On Civil Disobedience

The author presents Ambedkar’s position on constitutional morality as a rejection of both

violent revolution and passive resistance, including Mahatma Gandhi’s method of civil

7
GEORGE GROTE, A HISTORY OF GREECE 93 (Routledge 2000).
8
Id, supra note 2.

3
disobedience, or satyagraha.9 The author notes that Ambedkar’s rejection of satyagraha was
based on his experience of it as a form of coercion. Additionally, his understanding of the
existence of diverse agents with their individual convictions, opinions, and claims adds on to
such a stance.10 Per Mehta, Ambedkar was of the opinion that only if we secure some
unanimity in our understanding and confidence in constitutional processes can we mediate
differences. This, according to Ambedkar, is the only way to resolve political differences in a
non-violent manner.11 Further analysis shows that Ambedkar’s objectives and goals that he
wished to achieve were at odds with the milieu conducive to civil disobedience. Ambedkar
followed a top-down approach, starting with the supremacy of the constitution, flowing
thereon to the people. An allegiance to the constitution is what unites the country, which at
the time was far from being the Union of States it is today, but rather a loose union of
hundreds of princely states and territories. In contrast, civil disobedience flows bottom-up,
from the citizens to the institutions, as opposed to Ambedkar’s top-down approach.

It may be argued that Ambedkar’s stance on civil disobedience is somewhat idealistic. While
he acknowledges the historical importance of civil disobedience in India’s nationalist
movement under Gandhi’s leadership, it is unlikely that this principle will completely
disappear from the country’s collective imagination.12 The association of civil disobedience
with Gandhi and his particular attention to maintaining civility in civil disobedience also
gives it a special appeal to those who seek to engage in similar acts of protest. 13 Despite its
potential to conflict with legal principles, civil disobedience remains an important part of
India’s political culture and continues to influence political discourse and actions. Any
contemporary imagination of constitutional morality cannot simply dispose of an idea so
central to our democracy.

Furthermore, civil disobedience is not necessarily at odds with the idea of constitutional
morality, as envisaged by Grote. In Grote’s formulation, constitutional morality includes
principles such as “citizens’ respect for the Constitution; obedience to authorities acting
within the Constitution, and the right to criticise public officials without restraint”.14 However,
through a pragmatic lens, we can deduce that a society harmoniously satisfying all these
principles at

9
Supra note 2.
10
Supra note 2.
11
Supra note 2.
12
Andre Béteille, Constitutional Morality, 43(40) ECONOMIC AND POLITICAL WEEKLY 35, 41-42 (2008).

4
13
Id.
14
GROTE, supra note 6.

5
all times is difficult to achieve. A society wherein all public officials act within the confines
of the constitution, and all politicians respect the Constitution – while an eventual idyllic
goal, is fairly utopic. Civil disobedience can act as a tool to realign any deviations from the
principles fundamental to Grote’s constitutional democracy, and to ensure that democracy
still functions properly. Crucially, civil disobedience can “inhibit departures from justice and
correct them when they occur.”15

Additionally, Ambedkar’s belief in resolving political differences purely through

constitutional mechanisms faces considerable problems vis-à-vis accessibility for multiple
groups of people, including minorities. The judicial system, presently, often involves a
lengthy and complicated adjudication process which can take years. The fundamental issue of
accessibility is magnified by the perverse majoritarianism that exists in the political system.
This is seen where those in power contest the causes propagated by the minority.
Constitutional mechanisms of redressal often fail to redress concerns held by such
minorities.16

In such cases, American philosopher John Rawls proposes incorporating three justificatory
conditions in the presence of a civil disobedience movement. 17 Even with its presumed
potential to destabilise societies, Rawls says that civil disobedience can be said to be justified
and valid. Firstly, such movements must target serious and long-standing injustices which are
incongruent with the widely accepted notions of justice. Secondly, they must be a last resort
if prior constitutional measures undertaken, including by others, have been unable to bring
about any change. Finally, civil disobedience must preferably be undertaken through
coordination among the minority groups to organise and participate in the movement. 18 It is
argued that following Rawl’s justificatory conditions enables civil disobedience to be a part
of constitutional democracy without disrespecting constitutional forms – as it is utilised as a
last resort due to the manner in which our democracy realistically works.

15
JOHN RAWLS, A THEORY OF JUSTICE 336 (Harvard University Press 1999).
16
Id. at 328.
17
RAWLS, supra note 24 at 326-9.
18
RAWLS, supra note 24 at 326-9.
6
On Substantive Overlaps

As stated previously, Ambedkar’s constitutional morality does not incorporate the substantive
content of the constitution within its ambit. To do so is a debateable argument. As Abhinav
Chandrachud argues, such an outlook may lead to constitutional morality becoming a “second
basic structure doctrine”.19 Mehta advances an argument against such an inclusion of
substantive content by arguing for a delineation of a person from their identity, which would
lead to them having an allegiance to the forms of the constitution, rather than what they
perceive is or should be its substantive contents. While acknowledging that caste as a concept
forces a person to be connected to their identity, Mehta argues that implementing
Ambedkar’s constitutional morality requires a level of delineation. However, it is useful to
reflect that constitutional morality may have overlaps with the substantive contents of the
constitution. Such overlaps, in turn, allow those people who, owing to their identities, are
excluded from the substantive protections of the constitution. By incorporating its substantive
content into constitutional morality, we can enable the often ‘othered’ classes of people to
sustain an allegiance to the forms of the constitution.

In understanding the interplay between constitutional morality, the substantive protection of

the constitution, and the role of identity, it is useful to look at constitutional morality as “a
secondary, derivative morality”.20 For an unwavering allegiance to the constitution – for our
understanding of the concept to be meaningful, it is essential that there be some internal
morality vis-à-vis the Constitution. Taking this path of analysis, we see that the substantive
elements of the constitution must have some bearing on what we finally conceive
constitutional morality to be.

Prima facie, an allegiance to the constitution may seem the best way to accommodate
plurality. However, diversity may be one of the hallmarks of Indian society, as noted by
Mehta21, discrimination is an inherent part of society as well. This may arguably make
constitutional morality as propounded by B.R Ambedkar superficially egalitarian. It is
difficult to appreciate

19
Abhinav Chandrachud, The Many Meanings of Constitutional Morality, Social Science Research Network
(SSRN) (Jan. 18, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3521665 at 2.
20
BRUCE P. FROHNEN & GEORGE W. CAREY, CONSTITUTIONAL MORALITY AND THE RISE OF QUASI-LAW 113
(Harvard University Press 2016).
21
Supra note 2.
7
how for people, who are constantly being discriminated on the basis of their identity – for
example, their gender, sexuality or caste, an allegiance to the forms of the constitution would
sustain. Constitutional forms or processes which turn a blind eye to these differences is
incompatible with any contemporary understanding of constitutional morality.

Ambedkar’s proposition of not including substantive content of the constitution as a part of

constitutional morality may not be the ideal way forward. This is because, in contemporary
usage, some Courts have found the substantive content of the constitution to be within the
morality of the constitution. Multiple landmark decisions help in illustrating this. For
instance, in Indian Young Lawyers Association v. State of Kerala22 (the Sabarimala case),
where women of menstruating age were prohibited from entering the Sabarimala temple, the
court relied on the substantive content of Articles 15 and 17 of the Constitution to extend the
constitution’s morality to protect the female gender against discrimination and unfair
treatment. Further, in Naz Foundation v. Govt. of NCT of Delhi 23 and Navtej Singh Johar v.
Union of India24, the Court used the principles enshrined under Articles 14, 15 and 16 of the
Constitution to uphold the rights of sexual minorities, stating that such an understanding is in
consonance with constitutional morality. These cases show how the substantive content of the
constitution is vital for serving the purpose that constitutional morality entails to serve.

Jurists have compared the law to be a fractal of sorts – with the precise boundaries of legality
difficult to map and fact-dependent.25 Even on a case-to-case basis, when a judge attempts to
draw such a fractal boundary to determine if a particular scenario involves a breach of the
law, constitutional morality consisting of substantive elements would serve as valuable
guidance. It would aid judges in their endeavour to determine such fractal contours.

When we talk about minorities of any kind – it is important to note that people may be
minorities of multiple types based on the identities they choose to identify with. For such
people to have an allegiance to the constitutional process – to the forms of the constitution, it
is essential that people do not falter in their allegiance to the constitution’s internal morality.

22
Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1 (India).
23
Naz Foundation v. Govt. of NCT of Delhi, 160 DLT 277 (2009) (India).
24
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321 (India).
25
Andrew Morrison Stumpff, The Law is a Fractal: The Attempt to Anticipate Everything, 44 LOYOLA U.
CHI. L. J. 649, 655-656 (2013).

8
When minorities are excluded from the substantive protections provided by the constitution, it
is difficult for them to sustain a Panglossian allegiance to the forms of the Constitution.

Therefore, all these cases show how the substantive content of the constitution is vital for
serving the purpose that constitutional morality entails to serve.

Conclusion

Through this reflection paper, we argue that in a holistic understanding of constitutional

morality, an unwavering allegiance to the forms of the constitution may co-exist with its
substantive content. In fact, as argued above, it is often necessary for these versions of
constitutional morality to co-exist. Only if we incorporate substantive ideals of the
constitution into any idea of constitutional morality can an allegiance to its forms exist.

***