Dr. Ambedkar, speaking to the Indian Constituent Assembly explained-
'‘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 the constitution will not be less sacred in the eyes of his opponents than in his own.’
Hardly had the Indian Constitution been promulgated when the Patna High Court held the Bihar Land Reform Act to be unconstitutional. Suddenly the Congress Party discovered that 'Constitutional Morality' was utterly immoral. Nehru opined that some nasty lawyers (he himself was a barrister) had kidnapped his lovely Constitution. How had that Ravana managed to abduct India's beautiful Sita? The answer is that the Courts had been given the right to interpret the Constitution. Nehru had forgotten to pack the Bench before promulgating his lovely Constitution. He said '“If the Constitution is interpreted by the Courts in a way which comes in the way of the wishes of the legislature in regard to basic social matters, then it is for the legislatures to consider how to amend the Constitution so that the will of the people as represented in the legislature should prevail.” (Vide Tripudaman Singh '16 Stormy days')
The barristocrat politicians had not considered that Judges might interpret the Constitution they had created in a manner they did not like. This made them very angry. They hadn't got rid of the Brits in order to come under the sway of the Judges.
Ambedkar, abandoning any pretense of 'Constitutional Morality' said '“the Supreme Court ought not to be invested with absolute power to determine which limitations on fundamental rights were proper”. In other words, Constitutions should look pretty and stay in the background while those in power did whatever they pleased in its name.
Thus Ambedkar supported the first Amendment while Shyama Prasad Mookherjee opposed it. Free Speech, it seems, was not a sacred cow- which at least had a Directive Principle in the Constitution to protect it.
Tripudaman Singh writes- 'On the matter of freedom of speech and expression, the home ministry, now led by Chakravarti Rajagopalachari, the keeper of Gandhi’s conscience and future guiding light of Indian liberalism, was one step ahead of the authoritarian curve. It recommended to the Cabinet Committee that the list of grounds to curb the right to free speech be expanded to include “public order” and “incitement to a crime”, and the expression “undermine the security of or tend to overthrow the State” be broadened to “in the interests of the security of the State”.
'To prevent the courts from adjudicating on what was or was not “reasonable”, Rajaji’s ministry recommended that the word “reasonable” be dropped altogether. The home ministry’s note concluded by suggesting that not only freedom of speech, but all other freedoms in Article 19 – freedom of movement, the right to reside in any part of the republic, the right to own property, etc – also be made subject to martial law, in addition to all the other grounds for restriction already written in the Constitution.'
The first Amendment to the American Constitution was about curbing the power of the State. India's first Amendment went in the opposite direction.
Ambedkar would later dismiss his contribution to the Indian Constitution as 'hack work'. Had he been insincere in his talk of 'constitutional morality'?
Let us look at what he actually said- '‘While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that 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. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.’
This seems strange. Nobody thought 'constitutional morality' was important. Few had every heard of it. A large number of people in India were Communists. They thought Constitutions were Bourgeois. The rest were Gandhians or Traditionalists of various stripes. They thought Constitutions were some Western fad.
The barristocrat politicians had not considered that Judges might interpret the Constitution they had created in a manner they did not like. This made them very angry. They hadn't got rid of the Brits in order to come under the sway of the Judges.
Ambedkar, abandoning any pretense of 'Constitutional Morality' said '“the Supreme Court ought not to be invested with absolute power to determine which limitations on fundamental rights were proper”. In other words, Constitutions should look pretty and stay in the background while those in power did whatever they pleased in its name.
Thus Ambedkar supported the first Amendment while Shyama Prasad Mookherjee opposed it. Free Speech, it seems, was not a sacred cow- which at least had a Directive Principle in the Constitution to protect it.
Tripudaman Singh writes- 'On the matter of freedom of speech and expression, the home ministry, now led by Chakravarti Rajagopalachari, the keeper of Gandhi’s conscience and future guiding light of Indian liberalism, was one step ahead of the authoritarian curve. It recommended to the Cabinet Committee that the list of grounds to curb the right to free speech be expanded to include “public order” and “incitement to a crime”, and the expression “undermine the security of or tend to overthrow the State” be broadened to “in the interests of the security of the State”.
'To prevent the courts from adjudicating on what was or was not “reasonable”, Rajaji’s ministry recommended that the word “reasonable” be dropped altogether. The home ministry’s note concluded by suggesting that not only freedom of speech, but all other freedoms in Article 19 – freedom of movement, the right to reside in any part of the republic, the right to own property, etc – also be made subject to martial law, in addition to all the other grounds for restriction already written in the Constitution.'
The first Amendment to the American Constitution was about curbing the power of the State. India's first Amendment went in the opposite direction.
Ambedkar would later dismiss his contribution to the Indian Constitution as 'hack work'. Had he been insincere in his talk of 'constitutional morality'?
Let us look at what he actually said- '‘While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that 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. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.’
This seems strange. Nobody thought 'constitutional morality' was important. Few had every heard of it. A large number of people in India were Communists. They thought Constitutions were Bourgeois. The rest were Gandhians or Traditionalists of various stripes. They thought Constitutions were some Western fad.
What Ambedkar probably meant was that his fellow 'barristocrats' were the sort of people who pretended to know the difference between a Grote and a goat. They would pay lip-service to 'constitutional morality'. However, the Constituent Assembly was itself a Legislature- albeit an indirectly elected one. How could it be trusted to specify 'details of administration' in a manner superior to succeeding Legislatures?
Perhaps Ambedkar meant that, unlike the Constituent Assembly, its successors would be directly elected on the basis of universal suffrage. But why assume that the restricted franchise would be necessarily superior in 'constitutional morality' than its more democratic successor?
If this was wisdom, surely greater wisdom would consist of importing guys named Grote or Acton or, better yet, Macaulay, to 'prescribe forms of administration'? Why not simply beg the Brits, on bended knees, to come back? After all, Democracy in Britain was more than a 'top-dressing'.
Mahendra Pal Singh writes- Raising the question whether we could presume such a diffusion of Constitutional morality, he stated: ‘Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.’5 He ended by stating: ‘In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution.’6 (Vide Mahendra Pal Singh)
Was Ambedkar just a hack who said stupid things? I think the answer is that he was a politician with an eye to his legacy. There was a 'Gandhian morality', based on satyagraha and pi-jaw, and a 'Socialist morality' based on the State grabbing the means of production by administrative fiat. Ambedkar wanted a 'Constitutional Morality' which could restrain both creating a space for his own people to come up. Yet, in the end, he conceded that the thing did not matter at all. A good constitution could be used by bad people to do bad things. A bad Constitution could be used by good people to do good things. The same thing could be said about morality. An immoral baker may make good bread and sell it a cheaper price so as to gain money to spend on his vices. A highly moral baker may be shit at making bread. Thus neither Constitutions nor Moralities matter. Only incentive compatible mechanisms do.
As Alexander Pope wrote long ago- 'For forms of Government, let fools contest/ Whatever is best administered is best.'
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