There is much value in defining constitutional morality as a paramount reverence of forms and procedures; however, a mere reverence of procedure is insufficient, as evidenced by the judiciary slowly occupying a more and more powerful position within the State structure. Alongside a reverence of forms and processes, citizens must also imbibe the idea of representative and participatory institutions wherein there is a clear deference to democracy.
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IN a recent article in The Leaflet, it was argued that the “incessant rise of judicial sovereignty” and its role as the sole interpreter of constitutional morality, outlines the potential to “voice the concerns only of a select few, while entirely disregarding the plight of others”. Taking this argument further, I propose that measuring constitutional morality only as the Grotian invocation of “reverence for forms of the Constitution” is insufficient, and constitutional morality’s efficiency must be measured on the yardstick of democracy.
The author brought up academic Pratap Bhanu Mehta’s article ‘What is constitutional morality?’; therefore, I choose to do the same. Mehta discusses Dr B.R. Ambedkar’s invocation of English political radical and classical historian George Grote’s understanding of constitutional morality, and attempts to understand the meaning of constitutional morality for Dr Ambedkar, considering his social and political history, as well as his justification of the inclusion of administrative procedures within the Constitution. While considering the implications of including forms and procedure alongside general principles in the Constitution, I attempt to make a case for the significance of the former in protecting the latter.
The promises of the Constitution can hold no water if the terms of these promises can be amended without rhyme or reason in the absence of due process. When people look the other way because an instance of abuse of power or procedural violation leads to favourable results, there is an erosion of constitutional morality. I conduct two brief case studies to discuss this erosion seeping into the judiciary and the legislature in contemporary India, further illustrating why procedure has a rightful place in the Constitution.
The promises of the Constitution can hold no water if the terms of these promises can be amended without rhyme or reason in the absence of due process. When people look the other way because an instance of abuse of power or procedural violation leads to favourable results, there is an erosion of constitutional morality.
Although I argue that conforming with good procedure can lead to the achievement of substantive goals, this piece remains wary of the idea that procedure alone can safeguard substantive law. To that effect, I look at Dr Ambedkar’s other invocations of constitutional morality, and make a case for reframing the debate around constitutional morality as one which marries an adherence to forms and procedures with a deference to democracy.
Also read: The challenge of Constitutional Morality before the Supreme Court
Forms and processes over general principles— liberating citizens from the tyranny of power
Pope John Paul II, while discussing the philosophy of man, stated that subjectivity is a synonym for the irreducible in human beings. Subjectivity is the uniqueness which is inherent in a person, manifested through their lived experience and past actions. It is in people’s very nature to be subjective, and to view the world through their own lens, which is why I argue that the inclusion of forms and procedures in the Constitution is justified.
There is inherent subjectivity to how people understand general principles such as justice and equality. An upper caste man’s conception of equality would be different from a lower caste woman’s conception of the same. The subjectivity of general principles is worsened by law-making institutions being controlled by the financially and socially privileged sections of society.
Dr Ambedkar’s lived experiences were evidence of the same. It was his deep distrust of deification and populism that led to his inclination towards formalism and excessive codification of administrative details. Where general principles can be coloured by the interpretations of the popular sovereign, forms and procedures are, to some extent, objective.
The debate between forms and processes, and general principles can also be seen in the light of the means-versus-ends discourse, which essentially deals with the question of whether the ends justify the means. The answer depends on the society one lives in. In a populist, majoritarian State, the ends will justify the means; however, in a constitutional republic, the means are of paramount reverence and therefore indispensable. If constitutional forms become dispensable the minute the law-making institution does something the majority agrees with, the Constitution is rendered meaningless.
The Constitution is not an instrument for popular appeasement; we do not swear our allegiance to it for the ends it provides. It promises us fair process; that power cannot be exercised arbitrarily, whatever may be the ends to which it is exercised. Because forms and processes are not, at least when Dr Ambedkar imagined them, subject to the whims and fancies of people in power, they protect the citizens from the tyranny of unelected and unaccountable powers.
Denigration of Dr Ambedkar’s constitutional morality in the current system
However, just because forms and processes are not supposed to be subject to the whims and fancies of people in power, does not mean that they are not. Since the 1980s, there has been a shift within the judiciary from being means-oriented to ends-oriented. This approach was emboldened during the tenure of Chief Justice of India (CJI) Dipak Misra, and the boundaries between the judiciary and the other two branches of the State blurred even more so during the tenure of his successor, Chief Justice Ranjan Gogoi. This development has seen a clear deviation from Dr Ambedkar’s constitutional morality.
In a populist, majoritarian State, the ends will justify the means; however, in a constitutional republic, the means are of paramount reverence and therefore indispensable. If constitutional forms become dispensable the minute the law-making institution does something the majority agrees with, the Constitution is rendered meaningless.
Judges have now started using their powers for substantive justice (or at least their perception of the same), forgetting the constitutional checks upon their power. Similarly, the functioning of the Parliament has slowly descended from the aspiration set by Dr Ambedkar’s constitutional morality to a warped version of the same.
The Constitution’s amendment procedure has now been utilised over a hundred times. Processes have constantly been amended by the Parliament.
While the basic structure doctrine developed by the Supreme Court has acted as a safeguard against clear violations of the constitutional form, the Supreme Court’s departure from Dr Ambedkar’s vision of constitutional morality has rendered even this doctrine incapable of protecting constitutional morality from the consequences of constitutional amendments.
I discuss this denigration by looking at two situations: (i) the tenures of CJI Misra and CJI Gogoi in the Supreme Court, and (ii) the 52nd Constitutional Amendment.
Within the Supreme Court
The judiciary’s evident failure at abiding by the separation of powers and the system of checks and balances goes against the ideal of a constitutional republic. These checks and balances are not mere inconveniences towards achieving substantive justice. The justification of means through the representation of ends as more important should not be condoned.
This justification was the guiding philosophy behind former CJI Misra’s tenure. A prominent example of this is the Navtej Singh Johar judgement in which, instead of first adjudicating the curative petitions filed against the Supreme Court’s decision in S.K. Koushal, CJI Misra listed Johar before the proceedings in Koushal attained finality. A simple procedural requirement, fundamental as it may be, was overlooked to meet ‘substantive justice’.
The judiciary’s evident failure at abiding by the separation of powers and checks and balances system goes against the ideal of a constitutional republic. These checks and balances are not mere inconveniences towards achieving substantive justice.
Similarly, separation of powers was conveniently neglected during the tenure of former CJI Gogoi to give decisions in favour of the Union government. As a Chief Justice, who was otherwise willing to sit after court hours to ensure the Ayodhya case was decided, Justice Gogoi was incredibly reticent in deciding on issues of electoral importance.
A challenge against the electoral bonds law that allowed for anonymous corporate donations (without any cap) to political parties was pending for the entirety of his tenure as CJI (which was a good thirteen months). When the case did come up, the Chief Justice noted that these “weighty issues” would require time and could not be concluded in a timely manner as required for the Lok Sabha elections.
Also read: Why the inordinate delay in SC’s hearing of FCRA and electoral bonds cases is of concern
Within the Parliament
In nearly 40 years of India’s experience with the anti-defection law, multiple limitations, or rather, failures, of the same have been identified. According to the Tenth Schedule of the Constitution, a legislator can be disqualified if they vote contrarily to a direction issued by their political party or even abstain from voting.
This has had four major impacts: (i) restricting the legislators from exercising their independent judgement with regard to policy decisions; (ii) making the legislator less accountable to the voter as they can easily defend their decisions with the Tenth Schedule compulsion; (iii) reducing the government’s accountability to the legislator; (iv) bolstering the tyranny of the powerful.
Mehta writes that the third element of constitutional morality is “its suspicion of any claims to singularly and uniquely represent the will of the people.” The issue herein was that if one claim were to be considered the correct claim, it would result in a monopolisation of power antithetical to the constitutional structure. However, the anti-defection law has unintentionally(?) done this very thing.
In the parliamentary system envisaged by the Constituent Assembly, legislators were expected to exercise their unbiased reasoning while deciding their position on any issue. The anti-defection law removes this freedom of choice and significantly reduces government accountability, since the legislator must vote according to party instructions on all major decisions.
In the parliamentary system envisaged by the Constituent Assembly, legislators were expected to exercise their unbiased reasoning while deciding their position on any issue. The anti-defection law removes this freedom of choice and significantly reduces government accountability, since the legislator must vote according to party instructions on all major decisions. It also gives the executive control over the Parliament, further disharmonising the checks and balances envisaged in the Constitution.
The Tenth Schedule’s constitutionality was challenged before the Supreme Court; however, the court upheld it to be constitutional, subject to judicial review on grounds of violation of constitutional mandate (among others).
Also read: Anti-Defection Law has Failed and Should be Scrapped
Forms and processes versus a substantive vision
The Supreme Court’s invocation of the violation of constitutional mandate (which is only vaguely defined within the judgement) as a ground for judicial review resonates with another trend witnessed within the judiciary— the reading in of multiple general principles within the phrase ‘constitutional morality’, marking a sharp deviation from how Dr Ambedkar imagined it.
The Delhi High Court, in Naz Foundation, distinguished, albeit unclearly, constitutional morality from popular morality. This difference was not based on forms and procedures constituting constitutional morality. Rather, it was termed a morality that is “derived from constitutional values”. In Johar, the Supreme Court held that if constitutionality were to be determined on the touchstone of morality, it would be constitutional morality and not prevalent social mores.
This position was further elaborated in the Supreme Court’s Sabarimala temple entry judgment, wherein then Justice Dr D.Y. Chandrachud opined that morality under the Constitution was governed by constitutional principles founded on justice, liberty and equality, among other things. This gradual shift has seen substantive values and general principles being read into the understanding of constitutional morality.
There is no doubt that in a country as diverse as India, there is often little to no consensus on general, substantive values. How then, can we ensure that Dr Ambedkar’s procedural constitutional morality does not fall victim to the subjective constructions of substantive values at the hands of the powerful?
Dr Ambedkar’s procedural constitutional morality can be subject to the criticism that forms and procedures might guide us to a substantive end; however, just means do not guarantee a just end. Therefore, substantive values being read into the idea of adherence to constitutional forms and processes can ensure the legitimacy of the end while keeping the means constitutional.
However, drawing on Mehta’s piece, there is no doubt that in a country as diverse as India, there is often little to no consensus on general, substantive values. How then, can we ensure that Dr Ambedkar’s procedural constitutional morality does not fall victim to the subjective constructions of substantive values at the hands of the powerful?
Also read: B.R. Ambedkar’s timeless relevance
The way forward (?)
The solution could be found in Dr Ambedkar’s other works on democracy. For Dr Ambedkar, while habits of constitutional morality were important for maintaining a constitutional form of government, “the maintenance of a constitutional form of Government is not the same thing as a self-government by the people”. Democracy, or self-rule, requires more than just an allegiance to constitutional forms and processes. It also requires the dismantling of power from certain “permanently settled” classes.
Forms and processes, as well as institutions, are vulnerable to the ambitions of those in power, as can be seen from the above case studies. To quote Dr Ambedkar, “we built a temple for a god to come in and reside, but before the god could be installed, the devil had taken possession of it.” However, where Dr Ambedkar opined for a burning of the Constitution, I argue that, alongside a reverence of forms and processes, citizens must also imbibe the idea of representative and participatory institutions wherein there is a clear deference to democracy.
This reverence for forms and processes of the Constitution, along with a deference to democracy, requires that we revisit the institutions of accountability— horizontal, vertical, and social— in order to realise where we lack and where we must improve. Since most forms of horizontal accountability are in issue here, with the collapse of checks and balances in an executive-driven State, there must be greater stress on vertical and social forms of accountability. Vertical forms include, among others, the electoral mechanism.
One of the biggest tools of our democracy has been elections. A mobilising force that forms the central pillar of our political system, elections have long been coloured with claims of lack of transparency, violation of funding regulations, and strong-arming of citizens of India. This is the first institution that must be overhauled, for which recommendations by the Law Commissions and organisations dedicated to improving the electoral process must be given due weightage.
Social accountability requires greater community participation. One of the exemplar ways in which social accountability was sought to be increased was through the recognition of the right to information (RTI) and the implementation of the Right to Information Act, 2005.
Unfortunately, RTI activists have been subject to extreme violence, and according to a list maintained by the National Campaign for People’s Right to Information (NCPRI), over 200 activists have been threatened, 165 have been hurt and 96 have been killed since the implementation of the 2005 Act (although the NCPRI proposes that these numbers might be higher).
There need to be more robust mechanisms in place to allow for citizen politics and forms of accountability. A comparative that can be adopted within the Indian framework is from the United Kingdom’s Freedom of Information Act, 2000. In this Act, the name of the applicant is retracted in all communications regarding the information sought (either between government departments or in uploads available to the public), thereby giving them at least a veneer of privacy against aggressors.
Of course, deeper structural changes in the manner in which the State holds these aggressors accountable is required; however, privacy to RTI activists is a good start.
Also read: How to cultivate democracy in a soil that is essentially undemocratic: The Ambedkar way
What, then, is true constitutional morality?
Dr Ambedkar’s understanding of constitutional morality primarily deferred to the forms and processes of the Constitution. However, India lacked a habit of obedience to this ideal, and forms and processes proved to be fallible; this corruption of the Constitution’s earliest aspirations resulted in Dr Ambedkar’s renouncement of his affinity for procedure.
To conclude, I believe that there is much value in defining constitutional morality as a paramount reverence of forms and procedures; however, a mere reverence of procedure is insufficient, as evidenced by the judiciary slowly occupying a more and more powerful position within the State structure, following the beginning of the coalition government decades.
While I do not claim that my suggestions are a panacea to all the problems that currently plague our State, they do present some starting points from where change in this system should arise. To that effect, I make a case for a deference to the ideals of representative democracy, wherein the aim is not only to adhere to forms and procedures, but also to measure their efficiency against the yardstick of democracy.
