By Nikhil Asdude, TwoCircles.net
“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.” Dr B.R.Ambedkar
Dr. Babasaheb Ambedkar stood for the creation of an Egalitarian Utopia via the embodiment of principal traits of Constitutional Morality whose concept he borrowed from Historian Grotius.
It marks his hope in the Revolutionary Humanism, that he ought to achieve using the methodology of Social Revolution via modus-operandi of Ambedkarite Non-violence which has its edifice in Liberty, Equality and Fraternity enshrined in the Constitution and even upheld by the Hon. Supreme Court of India via its dictum of ” Basic Structure Doctrine” that emanated from Kesavananda Bharati Case (24th April 1973). This element of Constitutionalism ought to be ingrained and percolated in each of the pillars of Indian Democratic setup i.e Executive, Legislature and Judiciary and even going further also in the realm of Media as our ex-president Dr.Pranab Mukherjee had spoken of!
Dr.Ambedkar’s role in the crafting of the majestic document called Constitution of India is undisputed. His entire repertoire of works when keenly read invokes passion and inspiration among the Bahujan masses especially Dalits. With time, space and place Babasaheb is being read more and more globally owing to his humanistic writings which are modus operandi for the annihilation of any injustice be it Gender, Race, Ethnicity and so on and establish an egalitarian society which upholds Human Rights with social justice being its foundation!
But the sad part one realises that Babasaheb appears only during the end of history as (reluctantly) ‘Father of Indian Constitution’, but his role in the making of the democratic ethos and in making this nation that is based on the Buddhist pragmatism of Liberty, Equality and Fraternity was neglected. His work as a lawyer also called ‘Poor Man’s Barrister’ and being one of the pioneers of India’s Civil Rights Tradition. His work as a Lawyer still is very crudely documented with errors or omissions, but still, a tangibly compiled volume by Vijay B.Gaikwad. Thus opening another less looked multifaceted arena of Babasaheb’s persona!
Due process of Law
Babasaheb was fond of fourteenth Constitutional Amendment of the USA( 1868) which granted Rights of Equality to the Afro-Americans after the dastardly Civil War (1861-65). This Amendment along with Fifth Constitutional Amendment had the words ‘due process of law’ and even while drafting the provision of Constitution which now is Article 21, i.e protection of Life and Personal Liberty looked something like this as mentioned below, “… Nor shall any State deprive any person of life, liberty and property without due process of law.”
But the meeting of B.N.Rau with the Supreme court judge Frankfurter, who advised him that it could lead to catastrophe as evident in wide interpretations in cases like in Lochner v. New York, 198 U.S. 45 (1905), where the Supreme Court held that the Fourteenth Amendment protects a general right to make private contracts and that a state may not interfere with this liberty in the name of protecting the health of the worker thus unveiling Lochner era (1905-1937).
Then came cases like West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) where the Supreme Court upheld Washington’s state minimum wage law, effectively ending the Lochner era ideals of the right to private contract superseding a legislature’s economic regulatory abilities along with a formidable threat by the then-president Franklin Roosevelt to pack the Supreme Court with favourable judges to ensure passage and survival of his ‘New Deal’ legislation.
Thus after intense debate in the Constituent Assembly, Ambedkar left the decision on the will of the learned people of that Assembly by citing a Greek mythological story of Charybdis and Scylla. So.the new Article 21 looked thus, “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
During the discussion on Article 22 that delved with the degree of Constitutional protection against arbitrary arrest, Ambedkar after defending the clauses from Article 22(3) to Article 22 (7) and vigorous debate in September 1949, said,
‘I and my friends had been trying in some way to restore the content of the due process of law in its fundamentals without using the word ‘due process.’ Thus from the above-mentioned arguments, it could be devised that Article 22 was not to be a complete entity in itself (silos theory). It doesn’t exist in silos but with the whole ‘spirit of Constitution of India’.
Mindless Mind of Supreme Court
Though with the established idea of Framers of the Constitution along with its historical setup, the Hon. Supreme Court applied the ‘silos theory’ in its interpretation starting with A.K GOPALAN CASE (1950), ADM JABALPUR CASE (1976) and so on. With the Judicial Activism sprouting in the 1980s as Upendra Baxi says ‘Social Action Litigation’ (SAL) duly countered by Anuj Bhuwania in his ‘Courting the people(2017)’. The last nail in the coffin was the MANEKA GANDHI JUDGEMENT(1978) which upheld the principle of ‘due process of Law’ being inherent in Article 21 of the Constitution of India.
Thus, as observed above what Maneka Gandhi judgement(1978) has propounded i.e ‘Substantive Due Process of Law’ in the words of Gautam Bhatia, is indefensible as a matter of constitutional interpretation, unnecessary for achieving substantial safeguards on personal liberty, and damaging in other respects, then, perhaps, instead of granting it uncritically canonical status, it ought to be better understood as a well-intentioned but misguided, wrong, turn! The Maneka Gandhi Judgement (1978) can’t be defended on Constitutional Grounds and its defence till now has largely been vague and consequential punctuated with what if’s! It is incorrect and ought to be overruled. One doesn’t have to take refuge of vague and non constitutional grounds to haphazardly bring the dictum of ‘due process of law’ via Art.21 of Constitution of India but a resort to “Spirit of Constitution” which was envisaged by Dr.B.R.Ambedkar via his speeches and writings taking its crux from Constitutionality and Constitutional Morality based on pragmatism .Dr.Ambedkar had already anticipated the need of such substantive due process taking inspiration from the fourteenth Constitutional Amendment and thus while arguing the case of “due process of law” via the modes of Article 22 and ‘spirit of Constitution’ a major loophole can be plugged by reversing the Maneka Judgement and imbibing its very essence via Dr.Ambedkar’s methodology as explained above to rule out the the element of discretion and thus ideological assaults and individual biases which ultimately corrupt and assault the democratic Institutions.
Gender, Caste and pseudo-Vikas
Now applying this Constitutional Morality in the realm of Gender and especially Women Babasaheb spoke of Progress of Women as a litmus test for checking the Progression or degradation of Societal Morality. This progression of Society ought to encompass the Suppressed, Oppressed and Marginalised Strata of Society as Dr.Ambedkar always spoke while invoking H.Laski’s ‘Grammar of politics'(1936). Thus the progress of Society is not always judged by building of tangible entities like roads, skyscrapers, rails but by institution of principles of equity, equality thus taking the discourse ingrained in Art.142 of Constitution of India i.e ‘ Complete Justice’ and ensuring that each person has an equal opportunity to move up in the social ladder via material and spiritual elements.
Taking a cue from above tenets, Babasaheb especially stood for Annihilation of Caste which is brilliantly documented in his mammoth document published on 15th May 1936.
This project in the changing dynamics of time, space and place needs to be sped up by use of Institutional mechanisms like strengthening of quasi-judicial bodies like National Commission for Scheduled Castes (NCSCs) mentioned under Art.338 of Constitution of India, by giving them Powers of Prosecution to punish the perpetrators of Crimes against Dalits by suitable statutory powers is the crying need of hour. Laws like Prevention of AtrocitiesAct 1989 need not remain only on paper but ought to be implemented in the true spirit of the vision of Creation of Casteless society that has its base in State of Mind of the populace of India even today.
In the case of the SCs, they still are pegged by problems of Unemployment, lack of skills, poverty which act as a vicious circle which ought to be disrupted by timely interventions via skill development programmes, giving a fillip to creation of an entrepreneurial class which can serve an asset in achieving the goal of an egalitarian society. Along with this “knowledge being an Emancipation ” which Babasaheb always spoke of, this access to knowledge via Universities ought to be reasonable by more state support and curtailing the sprouting of private and self-financed universities which charge exorbitant fees which impacts access to education for the students from Marginalised Community.
Thus today on this day of 26th November 2019 when Women are denied Police protection for entry into House of God which is notorious for upholding Vedic and Later Vedic Injunctions, apathy of the state and being an accomplice in sustaining Bigotry and Third rate Mentality of biases society, Kashmir being kept in a State of Lawlessness of Law, State committing atrocities on Students for demanding a reduction in fees,judiciary reaching its lowest ebb when trying to coax the Hindutva and Hindu Nationalism, Liberals keeping mum on the ongoing events with their holy trait of ‘selective amnesia’ and so on and on!
Today taking note of Dr.Ambedkar’s warning that, “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life we will have inequality. In politics, we will be recognising the principle of one man one vote and one vote one value. In our social and economic life, we shall, because of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.”
The principle of adhering to Constitutional Morality can put a full-stop to the degradation of institutions that signify as well as epitomize democracy nullifying all the biases that have crept in via the Brahmanical codes of Conduct that dominate the Caste Hindu Majority of the Country and thus if not arrested in time shall lead the country to peril and make what we saw in Prayaag Akbar’s brilliant novel ‘Leila’. What is the need of the hour is reading and rereading of Dr.Ambedkar and to pay heed to his warnings by taking tangible actions akin one mentioned and explained minutely above to uphold and save Democracy and instill in the populace the essence of Constitutional Morality which shall be a mirror image of Social Morality and thus establish a Begumpura to use Sant Ravidas analogy, a Land where Justice, Liberty, Equality and Fraternity are the most cherished and nurtured ideals!
So today, when we mark the 70th anniversary of the enactment of the Constitution of India it is important to remember the principle of”Constitutional Morality” which Dr.Ambedkar stood for based on the edifice of Justice, Liberty, Equality and Fraternity in consonance with the Morals of Democratic Socialism, Secularism, and Republicanism. This day is also a stark reminder to every citizen of India that not only consciousness for rights need to be stressed upon but a sense of Fundamental duties also needs to be kept in mind when speaking of Constitution of India as noted by ace Lawyer Fali Nariman. To sum up Nibbana for people of India which is the ultimate aim of existence of all ought to be sought by taking refuge in Constitution of India and its tenets if it ought to institute the other facets of Democracy i.e Social and Economic Democracy. The final motive of such an exercise is to search a path for reclaiming Humanity via the Mahayana concept of Buddhism i.e Liberation via Emancipation for all which has Constitution and Constitutionalism as its heart and soul!
The author is currently pursuing a Masters in Law from the Tata Institute of Social Sciences.