Article 370 has put us in a dilemma: Should we choose Constitution’s letter or its spirit?

After Modi govt's Article 370 move, a pure and abstract position on Constitution may not be sufficient to question the politics of the day.

File photo of the Constitution of India | Commons

The abrogation of Article 370 and the bifurcation of Jammu and Kashmir by Prime Minister Narendra Modi’s government has had a unique fallout – both its supporters and critics have taken up their causes in the name of Indian Constitution.

The BJP, which presents itself as the prime custodian of this ‘holy book’, has justified its move as one that achieves what it calls the constitutional ideal of national unity. But those who oppose the government’s move are also invoking the Constitution to describe the Kashmir policy as unconstitutional.

While this demonstrates the overwhelming centrality of the Constitution as a source of politics seven decades after Independence, its constant use in the realm of intense competitive politics has its limits.

In recent years, the term ‘constitutional morality’ has been invoked by anti-BJP legal activists and experts when opposing the aggressive and violent forms of Hindutva politics.

But Article 370 poses a unique dilemma – do we opt for a literal interpretation of the Constitution or do we acknowledge that the founding document can be a contested site as well?

After the game-changing move on Article 370 by the BJP, a pure and abstract constitutionalist position alone may not be sufficient to question the politics of the day.

Constitutional morality vs constitutional worship 

The Constituent Assembly debates show that the Indian Constitution was not envisaged as a sacred text something that Modi has repeatedly invoked as the primary emotion. Instead, it is seen as a source book that would help construct what B.R. Ambedkar had called constitutional morality. However, Ambedkar did not envisage constitutional morality as a form of constitutional worship, but as a political commitment to the spirit of the Constitution. He was also concerned about the appropriation of the Constitution by the political class in what he regarded as a highly undemocratic society.

Ambedkar was apprehensive about the possibility of legislative majoritarianism; and, precisely for this reason, forcefully argued for evolving a new kind of Constitution-driven rational belief system in politics.

He said:

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…that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. …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. In these circumstances, it is wiser not to trust the Legislature to prescribe forms of administration. 

Constitutional morality as political correctness

Political parties intentionally ignore the distinction Ambedkar makes between the provisions of the Constitution and the spirit of the Constitution. An overtly political interpretation suits the requirements of their electoral politics.

Immediately after the first Lok Sabha election in 1952, loyalty to the government (and not necessarily to the Constitution) became the instrument to measure an individual or a community’s nationalism and patriotism. So, constitutional morality began to be narrowly interpreted as political correctness.

The nation-building mission in the 1950s; socialism and eradication of poverty in the 1970s; the debate over secularism and communalism and the inclusion of the marginalised in the 1990s are relevant examples of how political parties deploy constitutional morality to create favourable coalitions.

It does not mean that India’s political parties are the only legitimate practitioners of the idea of constitutional morality. The non-party people’s movements of the post-1980 period – like environment protection, anti-dam protests, Dalit struggles, and the Adivasi movements – repeatedly invoked the Indian Constitution and its framework of rights to widen the scope of their demands.

These movements derive their intellectual resources from societal realities and local traditions, and link them to the liberal values enshrined in the Indian Constitution. Unlike the professional political parties, people leading these movements interpreted the spirit of the Constitution to critique the Indian state’s politics and its policies.

Fear of the political class

So, the way political parties invoke the Constitution is very different from the way grassroots movements do. Political parties, including the non-BJP opposition, remain uncomfortable with the grassroots organisations’ invocation of the Constitution – especially its spirit – because this goes against the established norm of how they conduct their politics.

The practice of constitutional morality by people’s movements actually offers us the possibility to make a crucial distinction between the Constitution as a law book of the state and Constitution as a source of political emancipation.

India’s political parties want citizens to believe that their interpretation of the Constitution is unquestionable and that they are its ultimate protector. On the other hand, people’s movements propose that the spirit of the Constitution is more important than its legal provisions. They want the Constitution to be interpreted as a culturally adaptable text, which is open to various humane and pro-people interpretations.

They stress upon the practice of constitutional morality, which makes it a concrete form of political action. The grassroots slogans like jal-jangal-jameen and sangharsh aur nirman are examples of this practice-oriented interpretation of constitutional morality.

It is ironic that the constitutional morality as practised by people’s movements to challenge the anti-people policies of the government has not been taken seriously.

Urban, English-educated liberals often invoke the spirit of the Constitution to make an argument against Hindutva politics. But theirs is an abstract formulation. They do not show any interest in the practice-oriented interpretation of constitutional morality. Their call to the judiciary to save the Constitution eventually forces them to take refuge in judicial activism.

This makes their critique of the BJP unconvincing, confused, and politically irrelevant. After all, the task of the judiciary is to offer a legal interpretation of the Constitution — not to suggest the appropriate mode of political practice.

It seems that the urban liberals do not understand the grassroots language of politics, which is committed to the praxis of the constitutional morality that Ambedkar had envisaged.

The author is associate professor at CSDS, and author of the new book titled Siyasi Muslims: A Story of Political Islams in India. Views are personal.