Constitutional morality in India

It is axiomatic that the State has to adhere to constitutional morality. The CAA, for instance, was proclaimed by many to be antithetical to constitutional morality. However, Dr. B R Ambedkar had a wider perspective on constitutional morality. For him, it was something “Indians” lacked. He was of the opinion that in India, democracy is “top dressing on Indian soil, which is essentially undemocratic.” He critically remarked in the Constituent Assembly that Indians are yet to learn constitutional morality.

Ambedkar made these statements in reply to the accusation that most of the Constitution is “borrowed” from the Government of India Act, 1935, especially the details of administration. He, while expressing remorse over including administrative details in the Constitution, explained that inclusion of such details is necessary for a population that is yet to learn constitutional morality as it is possible to run the administration against the “spirit of the Constitution” without changing the form of the Constitution in a society that lacks diffusion of constitutional morality.

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He further adds, “It [constitutional morality] has to be cultivated.” The Constitution is envisaged to also be a pedagogical tool to teach democratic values to the Indian population, which, according to Ambedkar, was undemocratic. The question that begs an answer is whether, 73 years after India became a republic, the Indian people have cultivated constitutional morality and democratic values.

More than penal provisions are needed to cultivate constitutional morality. The effect of constitutional morality on citizens is often outside the domain of the State. Constitutional morality in citizens is reflected in their interactions with members outside their community, in renting houses to members of a different religion, and in tolerating the dietary and clothing preferences of others. These aspects of a citizen’s personal life are outside the scope of statutory laws. Thus, a top-down approach might fail to cultivate constitutional morality in society.

PEW research titled Religion in India: Tolerance and Segregation provides substantive evidence to determine the attitude of the Indian people towards religious diversity and tolerance, a critical aspect of constitutional morality.

In India, as per the survey, religious communities believe that it is pertinent to stop inter-religious marriages. This statistic can be further reinforced by the growing fear-mongering about Muslim men tricking Hindu women into marrying them and converting them to Islam through deceit or fraud.

The PEW Survey also reflects the status of caste discrimination in India. India was in a precarious situation of caste discrimination when the Constitution was drafted; India has made significant progress since then. Dalit students not being allowed to drink water on their own from the school tap to the majority of scheduled castes/tribes and “other backward classes” (OBCs) saying that they have not experienced a lot of discrimination, with 82% of Indians saying that they have not experienced caste discrimination in the preceding year.

Further, a substantial majority of Indians also say that they are accepting of a Dalit neighbour. However, there are still incidents of Dalits being stoned for riding a horse on their wedding or manual scavenging being considered a “lower-caste” job.

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The survey also shows that most Indians only befriend those from their own community, even though most do not express concern about having neighbours from other communities. Similarly, approximately 80% of men and women believe that it is somewhat important to stop inter-caste marriages.

These statistics show that, despite significant progress in recognising diversity, inclusivity, freedom, and liberty of others, as well as other principles underlying the philosophy of the Constitution, there is still exist widespread sexism, casteism, and religious bigotry, which is antithetical to constitutional morality.

The Constitution of India, unlike the US Constitution, does not merely create the organs of the State and its powers. It instead lays down the philosophy of governance and the guiding principles for the polity and its members.

District administration and other bodies at the local level have an active role to play in cultivating constitutional morality with policies instead of laws. Even though child marriage and honour killing are punishable offences, these incidents happen with the acquiescence of the local political leaders and administration. Hence, a top-down approach must be implemented in making the public officials responsible for implementing these policies. However, the interface between the State and society must be bottom-up. For this, awareness and empowerment programmes are needed. Access to public services must be eased. At the state and Central levels, such policies must be broadly viewed as projects to cultivate constitutional morality instead of isolated programmes to tackle a specific social evil.

(The writer is a graduate of Ramaiah College of Law, Bengaluru.)