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RP-8032

THE LOST LEGACY OF THE DOCTOR

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
-Dr. B.R Ambedkar in his speech The Draft Constitution, delivered on 4 November 1948
Dr. B.R Ambedkar was an erudite scholar and had impeccable credentials as a humanist. No
doubt hailing from a low caste family he went through the usual path of discrimination and
abuse from the upper caste members but these ritual injustices shaped his outlook and
transmogrified him into a crusader of civil liberties. This above quotation is a testimony to
the fact that he was a vociferous champion of minority rights. Caste discrimination which
owes its allegiance to a deep-seated religious morality that gave a free ride to upper caste
members of Hindu religion to enjoy the exalted status of privilege and deny the same to
others from the lower bracket of caste hierarchy. Ambedkar a vocal critic of such social
malaise shares his misgivings regarding any imposition of religious morality on the State
subjects. The doctor invoked Grotes principle of Constitutional Morality as a tool of
adhesion that will glue people of all caste and creed. Naturally he stressed the importance of
minority rights and used the principles of constitutional morality as a bulwark to any kind of
violation of their rights.
The phrase Constitutional Morality is rarely used during the Constituent Assembly debates.
The term traces its origin to Grotes History of Greece where Grote discussed the aspects of
Athenian democracy which, for a brief period, perfectly blended the elements of
constitutional morality. Ambedkar raised the topic of constitutional morality during the
debates. Since then the phrase has lost much of its significance. Even the Supreme Court of
India in its judgments has rarely delved on this topic. Till date there are only six judgments of
Supreme Court where the phrase constitutional morality is mentioned. But it will be unfair
to apportion the blame solely to the court when our legislators have hardly shown any
1 Bhanu Pratap Mehta, What is Constitutional Morality? 56 India- Seminar (Nov, 2010). available at:
http://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.html.
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deference to values that our Constitution espouses. Ramchandra Guha, noted historian, states
that how elected legislators who take oath to the elected office havent seen the constitution
before in their entire lifetime till they place their hands on it. Apart from such ceremonial
gestures hardly our legislators strive hard to uphold the principles of constitutional morality.
The overarching theme of this essay tries to provide an insight into how this jurisprudence of
constitutional morality has progressed since the Constitution of India was adopted. Before
delving deeper its important to discuss whats the exact meaning of the term constitutional
morality?

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Decoding Constitutional Morality

For Grote,2 the central elements of constitutional morality were freedom and self-restraint.
Ambedkars account of constitutional morality may seem to put forth the additional elements:
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 helm of
constitutional forms.3 The British legal scholar A.V. Dicey emphasized that constitutional
morality supplemented legal rules in regulating the exercise of political power and limiting
the discretion of government officials.4 He further went on to add:
Constitutional law, as the term is used in England, appears to include all rules which directly
or indirectly affect the distribution or the exercise of the sovereign power in the state. The
one set of rules are in the strictest sense laws, since they are rules which are enforced by
the Courts. The other set of rules consist of conventions, understandings, habits, or practices
which, though they may regulate the conduct of the several members of the sovereign power
are not in reality laws at all since they are not enforced by the Courts. This portion of
constitutional law may, for the sake of distinction, be termed the conventions of the
constitution, or constitutional morality.
In a seminal paper titled, Constitutional Morality & the Rule of Law the authors stated that
Constitutional moralities (there are many possible such) can be understood as anticipated
norms of behaviour or even duties primarily on the part of individuals within our
constitutional institutions. The term morality has been used and referred to constitutional
morality with regard to these norms or duties principally because of the purpose they serve;
2 Ambedkar quotes Grote: By constitutional morality, Grote meant a paramount reverencefor the forms of
the constitution, enforcing obedience to authorityand acting under and within theseforms, 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. from his Speech Delivered on 25 November 1949 in The Constitution and
Constituent Assembly Debates, p. 174.

3 Id at 2.
4 Keith E. Whittington, The Status of Unwritten Constitutional Conventions in the United StatesU. Ill. L. Rev.
1847 (2013).

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they can be viewed as imposing an obligation on individuals and institutions to ensure that
the constitutional system operates in a coherent way, consistent with its basic principles and
objectives.5 The aforementioned paper encapsulated constitutional morality to a set of
principles that should be adhered within the framework of the Constitution.6
Ambedkar, a great visionary as he was, took a liberal view in construing the phrase. He tried
to contextualize the term in view of prevailing tensions in the Indian society marked by
fissures and cracks. He had apprehensions about Indian democracy7 which he had described
akin to top dressing on Indian soil, which is essentially undemocratic. He genuinely
believed in the power of constitution and the morals flowing from it. Any sort of morality be
it religious or public guided by caste or creed are not enough unite the otherwise divisive
country. Ambedkar genuinely believed that the morals emanating from the constitution are
needed to be imbibed in the consciousness of every Indians. Only this school of thought can
unite the country already divided on sectarian lines.

5 Id. at 2.
6 Id. at 2.
7 Id at 2.
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Diffusion of Constitutional Morality

Dr. Ambedkar pointed the importance of diffusion of constitutional morality for successful
working of a constitution. The question now is to what extent has this diffusion taken place.
The stakeholders of Indian Democracy State along with its organs (Legislature, Executive
& Judiciary) and the Citizens (includes Civil Society) have failed to adhere to constitutional
morals. Following examples will shed light over their abject failure.
Misuse of Ordinance Power:
The Doctrine of Colourable Legislation elucidates the principle that what cannot be done
directly cannot be done indirectly. Legislators now routinely subvert this principle by taking
the ordinance route. Article 123 of Indian Constitution bestows legislative power to the
executive to promulgate ordinances when the Parliament is not in session. It was argued in
DC Wadhwa v. State of Bihar that the legislative power of the executive to promulgate
Ordinances is to be used in exceptional circumstances and not as a substitute for the law
making power of the legislature.8 However, this provision has been blatantly misused by the
legislature for immediate political gains. Last year the Supreme Court delivered a landmark
judgment where it had ruled that a Member of Parliament or Member of Legislative
Assembly would be immediately disqualified if convicted by a court in a criminal offence
with a jail sentence of two years or more. 9 The Government of India, subject to pull and
pressure of coalition politics, came up with an ordinance to dilute this very judgment.
Subsequently it drew sharp criticism from intelligentsia and all quarters of the society that
finally led the Government to withdraw the ordinance. But as this leeway persists, in future
too the State can take such steps to usurp the authority of courts and encroach upon their
judicial powers. There is a clear indication of how the spirit of law can be violated even
though strictly following the letter of law. Another example is the frequent use of legislative
amendments as colourable legislations to bypass laws declared by the Supreme Court. The
various retroactive legislations in taxation statutes clearly laid bare how the legislature utterly
failed to follow the morals of Constitution.
8 DC Wadhwa v. State of Bihar, AIR 1987 SC 579.
9 Lily Thomas v. Union of India, AIR 2013 SC 2662.
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Public Morality Conundrum


In 2009 the Delhi High Court pronounced a watershed judgment regarding the civil liberties
of sexual minorities where it held Section377 of Indian Penal Code unconstitutional and thus
decriminalised homosexuality.10 Section 377 of IPC is a Victorian legislation and completely
anachronistic. United Kingdom which has bequeathed this colonial legacy to us has itself
abolished this law.
One of the contentious during the proceedings of the case was the apparent conflict between
constitutional morality and public morality. The Naz foundation case discussed the
compelling state interest test evolved in Gobind case and how this test was used in the
present context to justify keeping the elements of public morality intact by the state. 11 The
Court held that
Popular morality or public disapproval of certain acts is not a valid justification for
restriction of the fundamental rights under Article 21. Popular morality, as distinct from a
constitutional morality derived from constitutional values, is based on shifting and subjective
notions of right and wrong. If there is any type of morality that can pass the test of
compelling state interest, it must be constitutional morality and not public morality.12
This paradigm shift in the reasoning of the line of public morality and instead comparing it
with constitutional morality is the most significant feature of the judgment. Public morality
and constitutional morality might overlap in some areas of law but not necessarily in every
aspect. There can be divergence of views such as around the homosexuality debate but
ultimately its the constitutional morality that prevails. The clear and concise difference
between the above two is put forth below:
The essence of the distinction between public and constitutional morality is that public
morality is merely a reflection of the moral and normative values of the majority of the
population (as expressed by the legislature), while Constitutional morality not only reflects
10 Naz Foundation v. Government of NCT and Ors., 160(2009)DLT277
11 Gobind v. State of Madhya Pradesh and Anr., AIR 1975 SC 1378
12 Naz Foundation, supra note 1, at 7.
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the majoritys values, but also shapes and changes them as part of the social engineering
aspect of our Constitution.13
A constitution is itself a relationship between abstract personae bound together by abstract
rules. As constitution is a living organic document susceptible to changes in society, the same
can be attributed to constitutional morality that is also perceptible to changes around. The
expansive nature of constitution is therefore indispensable to tide over the tumultuous waves
of changes in the coming generations.
Notwithstanding such brilliant application of legal minds that went in to put the principles of
constitutional morality in a higher pedestal, the celebrations were short lived. In December
last year a division bench of Supreme Court set aside the judgment and turned the clock back
especially for sexual minorities.14 The most scathing part of the judgment was that the Court
refused to recognise the rights of sexual minorities and termed them as miniscule for whom
hardly any fundamental rights can be warranted. Such blatant disregard for constitutional
morality hit a new low as the violator here was the highest court of the land which is
considered as last bastion of fundamental rights of citizens. The quote by Ambedkar in the
beginning of the essay clearly enunciates how the rights of the minority are needed to be
protected at any cost for the diffusion of constitutional morality. Moreover the Supreme Court
opined that it is for the legislature to change the law as the law-making power is not vested
with the courts. Clearly the court missed the whole point of Article 141 of the Constitution of
India.15 This escapist attitude of the judges delivering the judgment raised the question where
judges are dictated by public morality rather than constitutional morality. As personal opinion
we believe that judges should preach only constitutional morality, so judges can moralize as
long as their source is Indian Constitution.
Grammar of Anarchy

13 Rohit Sharma, The Public And Constitutional Morality Conundrum: A Case-Note On The Naz Foundation
Judgment, 2(3) NUJS L. Rev. 445 (2009).

14 Suresh Kumar Koushal and Anr. v. State of Madhya Pradesh and Anr. AIR 2014 SC 563
15 Law declared by Supreme Court to be binding on all courts. INDIAN CONST. art. 141.

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Ambedkar theorized an open culture of criticism that will be a check on various organs of the
government. Ambedkar further stressed the importance of constitutional methods to achieve
the objectives - critiquing the State or redressal of any kind of grievances. The doctor even
showed his disdain for both violent methods and passive resistance like civil disobedience
movement when it comes to censuring the State. The presence of constitutional methods
justifies no other kind of methods. But an exception can be carved out here in the wake of
Delhi gangrape case. The heinous crime not only shocked the conscience of the country but
exposed the failure of the entire society regarding gender rights. The subsequent conviction
and passage of new laws following strong protest all over the country to some extent
assuaged a few. But this exception shouldnt become the norm.
Sadly, the revered statesman must be turning in his grave if he has witnessed the present
scenario. The tools of protest have undergone several modifications. A Chief Minister of State
along with his party followers sits on a Dharna16 and brings the entire city to a halt. Creative
artists face threats from religious hooligans over the latters violation of religious
sentiments.17 Vandalism and destruction of public property have now become order of the day
and no more elicit any sharp reactions.
But the pertinent point here is how the State has responded to it. The State has shown halfhearted measures to curb any such lawlessness. Moreover these law-breakers enjoy
considerable patronage from legislators and are out of bounds from the reach of law.
Ironically the principle architect of the Constitution, Ambedkar similarly drew ire from the
radical right wing organizations when he authored his most The Annihilation of Caste and
nobody came forward to publish it. As a result he self published the book and it went on to
become his immediate classic. Therefore, Ambedkar knew that an open culture of criticism is
vital for smooth functioning of Indian Democracy.
Cult of Personality Worship
Ambedkar quoting John Stuart Mill to lay their liberties at the feet of even a great man, or to
trust him with power which enable him to subvert their institutions" cautioned on any form of
16 Atul Dev, The politics of populism or misplaced notions of polity, The Sunday Guardian, February
1, 2014
17 Ananya Vajpeyi, The Triumph of the Hindu Right: Freedom of Speech and Religious Repression in Modis
India, 93(5) Foreign Affairs J. 150-156 (2014).

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cult of personality worship. He regarded this as an essential feature of constitutional morality.
In the Indian context this forewarning assumes much significance. Indian masses being
plagued by illiteracy and superstition (during that period of time) are prone to get trapped in
this form of worship which may eventually lead to degradation of democracy. He was a
sceptic about any power being wrested on a sole individual.
In the present scenario Ambedkars ominous remarks holds true. Ironically, the same
Ambedkar who was against any form of cult worship had been turned to a demigod by
political parties. His ideology and thoughts are being twisted to subserve their political
interest. The country averted a tide of crises when this same practice of personality worship
led to emergency. The emergence of dynastic politics ad nauseam is just an offshoot of such
practices.

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Concluding Remarks

... I feel, however good a Constitution may be, it is sure to turn out bad because those who
are called to work it happen to be a bad lot. However bad a Constitution may be, it may turn
out to be good if those who are called to work it, happen to be a good lot.
Ambedkar prophetic words rang true during the period of emergency in 1970s. The attempted
subversion of entire constitution and the gridlock in different organs of the State was a dark
phase in Indian Democracy. Truly, how good the constitution maybe it can be violated by
machiavellian forces of state. So there should be an underlying deeper philosophy stemming
from the Constitution itself that can be the moral fabric guiding the country. In the celebrated
Keshavnanda Bharti case the theory of basic structure was propounded to save some parts of
the constitution from any transgression. While the basic theory coalesced important
constitutional provisions in a protective cage, the rest remains in perennial danger.
There is absolutely no doubt that Indian Democracy has faced several challenges in the past
but its ability to hold forth and evolve proved naysayers wrong. But the question here is on
what kind of democracy are we living? Is it just a political democracy? The doctor singled
out the importance of social democracy incorporating the values of liberty, equality and
fraternity as beacon of true democracy. Sadly, on the social democracy front we have
achieved moderate success.
Is the time now ripe to take forward the basic structure theory? Is there a need to revisit the
principles of constitutional morality, finely attune them to remove the societal ills? Now
thats for the court to ponder upon as the court has proved to be ultimate harbinger of change.
But surely it will be a fitting tribute to the man whose immense contribution to safeguard the
fundamental rights of the countrymen can never be forgotten.

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