1 What is Meant by the Philosophy of the Constitution?
Some people believe a constitution is only made of laws, and that laws are one thing while values and morality are quite another, so only a legalistic approach to the Constitution is possible, not a political-philosophy one. It is true that not all laws have a moral content, but many laws are closely connected to our deeply held values, for example a law prohibiting discrimination on grounds of language or religion is connected to the idea of equality, such a law exists because we value equality. So there IS a connection between laws and moral values, and we must look upon the Constitution as a document based on a certain moral vision.
1. Understand the possible meanings of terms used in the constitution, such as ‘rights’, ‘citizenship’, ‘minority’ or ‘democracy’.
2. Work out a coherent vision of society and polity conditional upon interpreting the constitution’s key concepts.
3. Read the Indian Constitution together with the Constituent Assembly Debates, to refine and raise to a higher theoretical plane the justification of the values embedded in it.
A political philosophy approach is also needed to arbitrate between varying interpretations of our core values. The Constitution’s ideals are debated and contested in legislatures, party forums, the press, schools and universities; they are variously interpreted and sometimes wilfully manipulated to suit short-term partisan interests. When different institutions interpret the same ideal differently, the Constitution’s own expression of that ideal carries considerable authority, so it must be used to settle the conflict. Our Constitution can perform this job of arbitration.
The 1947 Japanese Constitution is popularly known as the “peace constitution”. Its preamble states: “We, the Japanese people desire peace for all time and are deeply conscious of the high ideals controlling human relationship.” Article 9 of the Japanese Constitution states: “(1) Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. (2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained…” This shows how the context of making a constitution dominates the thinking of its makers.
2 Constitution: A Means of Democratic Transformation
One reason for having a constitution is to restrict the exercise of power, because modern states are excessively powerful and can turn against citizens even when created for their safety. Constitutions provide basic rules that check this tendency and prevent states from turning tyrannical, while also providing peaceful, democratic means for social transformation. For a previously colonised people, a constitution is the first real exercise of political self-determination.
First, the demand for a Constituent Assembly represented a collective demand for full self-determination, because only an Assembly of elected Indian representatives had the right to frame India’s constitution without external interference. Second, the Assembly is not just a body of people or able lawyers, rather it is “a nation on the move, throwing away the shell of its past political and possibly social structure, and fashioning for itself a new garment of its own making.”
This approach had the potential to change the theory of constitutional democracy altogether: constitutions exist not only to limit power-holders, but to EMPOWER those traditionally deprived of power, giving vulnerable people the strength to achieve collective good.
2.1 Why Go Back to the Constituent Assembly?
The chapter gives two reasons for going back to the Constituent Assembly debates.
1. Our world has not changed drastically. In America, the constitution was written in the late 18th century, so applying that era’s values to the 21st century would be absurd. But in India, the situation is different: the world of the original framers and our present-day world have not changed so drastically, in terms of our values and ideals we have not separated ourselves from the world of the Constituent Assembly. A history of our Constitution is still very much a history of the present.
2. We may have forgotten the reasons behind our practices. We may have forgotten the real point underlying several of our legal and political practices, simply because we began to take them for granted; these reasons have slipped into the background, though they still organise current practice. When the going is good, this forgetting is harmless. But when these practices are challenged or threatened, neglect of the underlying principles can be harmful. So, to grasp the value and meaning of current constitutional practice, we must remember and keep revisiting the political philosophy underlying our Constitution.
3 What is Our Constitution’s Political Philosophy?
This philosophy is hard to describe in one word, our Constitution resists any single label because it is liberal, democratic, egalitarian, secular, federal, open to community values, sensitive to the needs of religious and linguistic minorities as well as historically disadvantaged groups, and committed to building a common national identity. In short, it is committed to freedom, equality, social justice, and some form of national unity, with a clear emphasis on peaceful and democratic measures for putting this philosophy into practice.
Shankar’s cartoon of 26 January 1950, the day the Constitution came into force, says: “While all ideas unfold on this playfield, democracy is the ‘Umpire’.” In the new republic many ideas compete, but none may win by force; democracy applies the rules. This is the chapter’s point: the Constitution combines many values and puts them into practice by peaceful and democratic means.
4 Individual Freedom and Social Justice
The Constitution’s commitment to individual freedom did not emerge miraculously, but was the product of continuous intellectual and political activity of well over a century. As early as the beginning of the 19th century, Rammohan Roy protested against the curtailment of press freedom by the British colonial state, arguing that a state responsive to individual needs must permit unlimited liberty of publication. The infamous Rowlatt Act sought to deny freedom from arbitrary arrest, which the national movement opposed vehemently. For over forty years before the Constitution’s adoption, every single resolution, scheme, bill and report of the Indian National Congress mentioned individual rights as a non-negotiable value.
Try to decide for yourself which of the following rights are part of individual freedom: freedom of expression, freedom of religion, cultural and educational rights of minorities, equal access to public places. (Hint: some rights fall within individual freedom, others within community/social-justice rights.)
Indian liberalism differs from classical western liberalism (which always privileges individual rights over social justice) in two ways, first, it has always been linked to social justice, the best example being the provision for reservation of Scheduled Castes and Scheduled Tribes, since the makers believed mere granting of the right to equality was not enough to overcome age-old injustice, so special measures like reserved legislature seats and reserved public-sector jobs were provided.
The first stream began with Rammohan Roy, who emphasised individual rights, particularly the rights of women. The second stream included thinkers like K.C. Sen, Justice Ranade, and Swami Vivekananda, who introduced the spirit of social justice within orthodox Hinduism; for Vivekananda, such a reordering of Hindu society could not have been possible without liberal principles. (K.M. Panikkar, In Defence of Liberalism, Bombay, Asia Publishing House, 1962)
5 Diversity, Minority Rights and Secularism
The Indian Constitution encourages equal respect between communities, which wasn’t easy: communities often have hierarchical relationships (as in caste), and when they see each other as equals, they tend to become rivals (as with religious communities). It would have been easy to ignore communities entirely, as most western liberal constitutions do, but this would have been unworkable and undesirable in India. Individuals everywhere belong to cultural communities (in France or Germany, for example, to a linguistic community), but India has more openly acknowledged the value of communities, and, more importantly, India is a land of MULTIPLE cultural communities: unlike Germany or France, we have several linguistic and religious communities. It was important to ensure no community systematically dominates others, making it mandatory to recognise community-based rights, such as religious communities’ right to establish and run their own educational institutions (which may receive government money), showing the Constitution does not see religion merely as a “private” matter.
5.1 Secularism: Principled Distance, Not Mutual Exclusion
Secular states are widely seen as treating religion as only a private matter, refusing it public or official recognition. Does this mean the Indian Constitution isn’t secular? No, though “secular” wasn’t initially mentioned, the Indian Constitution has always been secular. The mainstream western conception means “mutual exclusion”: both religion and state stay away from each other’s internal affairs, to safeguard individual freedom.
1. Rights of Religious Groups: inter-community equality is as necessary as equality between individuals, since a person’s freedom and self-respect depend directly on their community’s status, so the Constitution grants all religious communities rights such as establishing educational institutions; freedom of religion in India means the freedom of religion of both individuals and communities.
2. State’s Power of Intervention: separation in India could not mean mutual exclusion, because religiously sanctioned customs such as untouchability deprived individuals of basic dignity, and without active state intervention there was no hope of their dissolution. The state may help religious communities (e.g. aiding their educational institutions) or hinder them, depending on which promotes freedom, equality, and social justice.
In India, therefore, the separation between religion and state does not mean mutual exclusion but rather “principled distance”, a complex idea that allows the state to be distant from all religions so it can intervene or abstain from interference, depending on which better promotes liberty, equality and social justice.
1. Liberal individualism: our Constitution reinforces and reinvents forms of liberal individualism. This is an important achievement because it is done in a society where community values are often indifferent or hostile to individual autonomy.
2. Social justice without compromising individual liberties: the constitutional commitment to caste-based affirmative action shows how far ahead India was compared to other nations. Affirmative action programmes in the U.S. began only after the 1964 Civil Rights Act, almost two decades after they were constitutionally entrenched in India.
3. Group rights: against a background of inter-communal strife, the Constitution upholds group rights (the right to the expression of cultural particularity). The framers were ready to face the challenges of what, more than four decades later, came to be known as multiculturalism.
6 Universal Franchise, Federalism and National Identity
Two other core features, universal franchise and federalism, may also be regarded as achievements. Committing to universal franchise was no mean achievement, especially given the belief that India’s traditional hierarchies were near-impossible to eliminate, and that even stable Western democracies extended voting rights to women and the working class only recently. The Constitution of India Bill (1895), the first non-official attempt at drafting a constitution for India, declared that every citizen (anyone born in India) had a right to take part in the country’s affairs and be admitted to public office. The Motilal Nehru Report (1928) reaffirmed this conception of citizenship, reiterating that every person of either sex who has attained the age of twenty-one is entitled to vote for the House of Representatives.
“The Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule and in the full belief that the introduction of democratic government on the basis of adult suffrage will… promote the well-being…”
Alladi Krishnaswami Ayyar, CAD, Vol. XI, p. 835, 23 November 1949
6.1 Federalism: Asymmetric Federalism
By introducing the article concerning the North-East (Article 371), the Indian Constitution anticipates the concept of “asymmetric federalism”. Despite the Constitution’s unitary bias (a strong central government), there are important constitutionally embedded differences between the legal status and prerogatives of different sub-units, unlike the constitutional symmetry of American federalism. Under Article 371A, special status was accorded to the North-Eastern State of Nagaland, this article confers validity on pre-existing laws within Nagaland and protects local identity through restrictions on immigration. Many other States too benefit from such special provisions, and according to the Constitution there is nothing bad about this differential treatment. Although the Constitution did not originally envisage this, India is now a multi-lingual federation, each major linguistic group politically recognised and treated as equal, combining claims to unity with claims to cultural recognition.
6.2 National Identity: Rejecting Separate Electorates
The Constitution constantly reinforces a common national identity, not incompatible with distinct religious or linguistic identities, and tries to balance both. Yet preference was given to common identity under certain conditions, as clarified in the debate over separate electorates based on religious identity, which the Constitution rejected. This rejection was NOT because separate electorates fostered difference between religious communities or endangered a simple notion of national unity, but because they endangered “a healthy national life”. Rather than forced unity, our Constitution sought to evolve true fraternity, a goal dear to the heart of Dr. Ambedkar.
“But in the long run, it would be in the interest of all to forget that there is anything like majority or minority in this country and that in India there is only one community…”
Sardar Patel, CAD, Vol. VIII, p. 272, 25 May 1949
The features above are “substantive achievements”. There are also two procedural achievements: (1) faith in political deliberation: many groups were not adequately represented in the Assembly, but its debates show the makers wanted to be as inclusive as possible; this open-ended approach shows a willingness to modify existing preferences, that is, to justify outcomes by reference not to self-interest but to reasons, and to recognise creative value in difference and disagreement; (2) a spirit of compromise and accommodation: not all compromises are bad, trading one value partially for another in open deliberation among equals is not objectionable, and the Assembly’s commitment to consensus rather than majority vote on the most important issues is equally commendable.
7 Criticisms
“…we wanted the music of Veena or Sitar, but here we have the music of an English band. That was because our constitution makers were educated that way. …That is exactly the kind of Constitution Mahatma Gandhi did not want and did not envisage.”
K. Hanumanthaiya, CAD, Vol. XI, pp. 616-617, 17 November 1949
It is true that the Constitution is modern and partly western, but it was never a blind borrowing; it was innovative borrowing. Besides, this does not make it entirely alien:
1. Modern ideas made our own: many Indians have not only adopted modern ways of thinking but made them their own; for them westernisation became a form of protest against the filth in their own tradition. Rammohan Roy started this trend and Dalits continue it to this day. As early as 1841, it was noticed that the Dalit people of northern India were not afraid to use the newly introduced legal system and bring suits against their landlords, using modern law to address questions of dignity and justice.
2. Alternative modernity: when western modernity interacted with local cultural systems, a hybrid culture emerged by creative adaptation, with a parallel neither in western modernity nor in indigenous tradition. It has the character of a different, alternative modernity. So, while drafting our Constitution, efforts were made to amalgamate western and traditional Indian values: it was a process of selective adaptation and not borrowing.
8 Limitations and Conclusion
These limitations are not serious enough to jeopardise the Constitution’s philosophy.
In the previous chapter the Constitution was described as a living document; it is these core features of the Constitution that give it this stature. Legal provisions and institutional arrangements depend on the needs of society and the philosophy it adopts. That commonly agreed vision emerged through our struggle for independence, and the Constituent Assembly stated, refined and gave it legal-institutional form, so the Constitution becomes its embodiment.
Many people say the best summary of this vision or philosophy is found in the Preamble, which makes a very humble claim: the Constitution was not “given” by a body of great men, it was prepared and adopted by “We, the people of India…”. More than five decades since, despite many disagreements, every politician and common citizen continues to share that famous vision: to live together and prosper together on the basis of equality, liberty and fraternity. Making the Constitution in 1950 was a great achievement, keeping alive its philosophical vision today may be an equally important one.
- Three things in a political philosophy approach: interpreting concepts, a coherent vision, reading with the CAD
- Five core features (the substantive achievements): liberal individualism (individual freedom), social justice, group rights (the right to the expression of cultural particularity), universal franchise, federalism
- The first three features as achievements: liberal individualism reinvented; social justice ahead of the U.S. (1964 Civil Rights Act, almost two decades later); group rights, ready for what was later called multiculturalism
- Two reasons to go back to the Constituent Assembly: our world has not changed drastically; we may have forgotten the reasons behind our practices, which is harmful when they are challenged
- Two procedural achievements: faith in political deliberation (reasons, not self-interest), spirit of compromise and accommodation
- Two answers to the “alien” charge: modern ideas made our own (Rammohan Roy, the 1841 Dalit suits); alternative modernity (selective adaptation, not borrowing)
- Three criticisms (unwieldy, unrepresentative, alien) versus three limitations (centralised unity, gender justice, socio-economic rights), two separate groups
- The Preamble is the Constitution’s philosophy’s best summary: “We, the people of India”
- Do I clearly remember the “voice” versus “opinion” distinction?
- Do I remember the difference between “principled distance” and “mutual exclusion”?
- Can I list the five core features separately, and say why the first three are achievements?
- Can I give both answers to the “alien document” criticism?
- Do I remember the three criticisms and three limitations, kept separate?
- Do I remember the real reason separate electorates were rejected?