LAW, JUSTICE AND GLOBALIZATION

REACTION PAPER

Submitted by: Submitted To:

Viksit Singh (80LLM22) Prof. Aniruddha

Jairam

REACTION PAPER ON ‘AMBEDKAR, B.R., SPEECH TO THE CONSTITUENT

ASSEMBLY OF INDIA, 4TH NOVEMBER, 1948’

NATIONAL LAW UNIVERSITY DELHI (INDIA)

2022
AMBEDKAR, B.R., SPEECH TO THE CONSTITUENT ASSEMBLY OF INDIA, 4 TH
NOVEMBER, 1948

In his speech on 4th November 1948, B.R. Ambedkar, in his role as the president of the
Drafting Committee responded to some of the major apprehensions raised by some of the
members of the Constituent Assembly with respect to the general modalities of the newly
framed Constitution of India. This speech, apart from being a testament to the oratory and
intellectual genius of Baba was also severely illuminating of the role of the state and the law
in matters of justice.

Ambedkar, at the very outset deals with concerns relating to the majority of the constitutional
provisions being lifted from the Government of India Act, 1935 and other constitutions/laws
from across the world. The making of the constitution being a comparative exercise was
under attack. Ambedkar, heftily defended the attack on a comparative approach to
constitution making by saying that we are at that stage of history where the scope of what a
constitution is to entail is generally delineated and all the constitutions in their main
provisions must look similar. Additionally, with regards to the lifting of the provisions from
the GOI Act, 1935, Ambedkar “makes no apologies” and his defense for including provisions
from the GOI Act, 1935, which related only to the details of administration is rather
interesting in as much as he starts by saying that “I agree that administrative details should
have no place in the Constitution”. However, in the next breath he evokes a defense for
including it nonetheless because it could be argued that the committee was cognizant of the
fact that substantial justice meted to the subjects (the constitution sought to govern) was
incomplete without ensuring procedural justice.

In this sense, he argued that granting of substantive/fundamental rights (simpliciter) in the

Constitution is not enough in a society like India where there is a severe lack of
Constitutional Morality [Ambedkar summoned Grote to delineate what he meant by
Constitutional Morality; which is that subjects’ ‘paramount’ obedience for the forms of
constitution is balanced by the State recognizing that the subjects’ action(s) could be
regulated only by ‘definite’ legal control]. How the lack of Constitutional morality ties in
with the idea of including the GOI Act, 1935 provisions (provisions relating to administrative
relations) in the Constitution is important to understand. Ambedkar explains this subliminally
by pointing out that substantive justice is intimately tied to the form(s) of administration as it
is “perfectly possible to pervert the constitution, without changing its form by merely
changing the form of the administration and to make it inconsistent and opposed to the spirit
of the constitution.” Ambedkar and the drafting committee recognized that at large the Indian
Society is “undemocratic” and adopting democratic principles would only amount to “a top-
dressing on Indian soil” and principles like constitutional morality need to be carefully
cultivated in order to promote a long-lasting culture of justice. Therefore, by not trusting the
legislature and rather setting up higher-order norms (by including them in the constitution
and the amendment process being more complex than ordinary laws) in regards to even the
administrative relations was a decision that could be lauded for being ethical and for
promoting setting up of healthy institutions. Ambedkar further substantiated this point by
responding to the critique that questioned as to why the systems of administration of the
ancient Indian polity were not paid heed to. Ambedkar says that conventional morality, which
required the replication of the village model throughout the country has no place in this
model because if it were to be thought critically, all the village system has promoted is
localism, ignorance, narrow-mindedness and communalism. The fact that this institution has
survived does not make it valuable but what also needs to be seen is on what plane has it
survived.

Eventually what Ambedkar envisions is this particular kind of Indian Society. The setting up
of strong institutions by suggesting the broad goals of the nation and also the administrative
forms would help cultivate constitutional morality, which if diffused uniformly in the society
would lead to a society where justice would be a habit. Attaining this habit of justice would
then render any changes in these procedural or administrative forms redundant because then
not one form or some specific form of administration would only lead to the attainment of
justice. To get to such a stage in the future where legality is the norm, Ambedkar places
reliance on the social and political factors. People (social factors) would of course be at the
center if such a reality is to fructify as they have to imbibe this feeling of constitutional
morality at large and one test that Ambedkar suggests for this is how the majority is treating
the minority. This diffusion amongst the people is not possible without the political, which
would be the political parties that people would set up and the allegiances to the values that
these parties would have. However, the natural question that then arises is where exactly does
the law come in, if the society where the goal is to make legality a habit is driven so heavily
by the social and the political. It is no doubt clear that the norms and the institutions will have
a role akin to disappearing ink because such norms and institutions could only be the starting
point and they would eventually succumb to the habit of justice as substantive justice could
only be achieved if there are no forms limiting it. Law in that case could be said to be akin to
the idea of “waiting room” that Dipesh Chakrabarty talks about in the sense that social and
the political would be kept in the waiting room by the ‘law’ (colonizer in the case of Dipesh
Chakrabarty’s idea of waiting room) before they accept constitutional morality, which is to
say that legality is a habit. The setting up of institutions and norms is done through the law.