Tuesday, December 21, 2010

[ZESTCaste] What is constitutional morality? (Pratap Bhanu Mehta)

http://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm

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.

           Footnotes:

           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.


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