On 4th November, 1948, BR Ambedkar, the Indian Constitution’s principal drafter, delivered what would go on to become one of the most famous speeches of the Constituent Assembly Debates. Quoting Grote, the historian of Greece, Ambedkar invoked the idea of “constitutional morality”:
“a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms.”
Commentators have cited this passage to contrast Ambedkar’s faith in constitutionalism with his disavowal of revolutionary, “extra-constitutional” methods of bringing about political and social change. Two recent pieces, for instance, equate constitutional morality with a philosophy of moral “self-restraint”. While true enough in its own right, such a conclusion tends to obscure a crucial point: no account of Ambedkar’s constitutionalism is complete without an understanding of the uniquely revolutionary character of the Constitution itself, a character that has struggled to emerge in the six decades of its working, and is now at risk of being forgotten.
In the Indian Constitution’s fundamental rights chapter, three articles have been singled out for special attention by the Supreme Court:
- Article 14, which guarantees equality before law and equal protection of laws;
- Article 19(1), which guarantees the freedoms of speech and expression, association, assembly and movement, and occupation, trade or business; and
- Article 21, which guarantees life and personal liberty.
The Supreme Court has observed that these three articles constitute a “golden triangle”, standing
“between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power.”
This statement, however, is not entirely accurate.
What Articles 14, 19(1) and 21 protect against is the abyss of unrestrained State power. In the finest tradition of liberal philosophy, the rights to equality, to freedom, and to life, constitute a bulwark for the individual against the tyranny of the majority, exercised through the coercive arms of the State. They ensure that the great disparity in power between individual and State does not translate into oppression, domination, and erasure. They preserve every person’s bodily integrity and basic dignity against the arbitrary or vengeful actions of the State.
It is a noble story, and one that deserves to be told and retold. It is a story that has its origins in the Enlightenment, and in the French and American Revolutions of the late-Eighteenth Century, which firmly established the “rights of Man” (and subsequently, after substantial struggle, the rights of woman) against the despotic power of State and sovereign.
However, it is not the complete story of the Indian Constitution. The fundamental rights chapter has another “golden triangle”, which has gone relatively unnoticed and unexamined by the courts. It is within this triangle that the truly revolutionary potential of the Indian Constitution is contained, which at the time of framing marked a radical break with the established way of doing things, and constituted the heart of Ambedkar’s Constitution.
The three points of the triangle are Articles 15(2), 17 and 23.
- Article 15(2) prohibits any citizen from discriminating against any other citizen, on the basis of religion, caste, sex, race, or place of birth, with regard to access to shops, public restaurants, hotels, and place of public entertainment.
- Article 17 abolishes the practice of “untouchability” in any form.
- And Article 23 prohibits human trafficking, begaar, and similar forms of forced labour.
Each of these articles protects the individual not against the State, but against other individuals, and against communities. And at the heart of the triangle lies Ambedkar’s revolutionary insight: that the denial of human dignity, both material and symbolic, is caused not only by public power, but by private power as well – and the task of constitutionalism is not limited to satisfactorily regulating public power in service of liberty, but extends to positively guaranteeing human freedom even against the excesses of private power. The word “fraternity” is as old as the French Revolution; but it is in the Indian Constitution that it first acquired sense and meaning.
This triangle did not emerge out of Ambedkar’s imagination, but constituted the culmination of decades of political struggle. Deeply marked by his experiences of stigmatisation and social exclusion on the basis of his caste, in 1924, Ambedkar founded the “Bahishkrit Hitkarini Sabha”, whose very name – “Association for Upliftment of the Boycotted” – is suggestive of the central Dalit experience – that of exclusion and boycott, not by the State, but by the community (similarly, Ambedkar’s magazine was called Bahishkrit Bharat – “Boycotted India”). The Association’s first major public action was the famous Mahad Satyagraha of 1927. Under Ambedkar’s organisation, more than a thousand people marched to drink water from the Chavdar water tank in the Mahad Municipality, which had been kept off-limits to them by the resident caste Hindus. Following a riot and a ritual “cleansing” of the tank by the caste Hindus, Ambedkar tried again later that year. As Anupama Rao notes in her book, Caste Question, in handbills distributed before the second march (which, finally, was blocked by an injunction), Ambedkar specified that the untouchables had a right to take water from the tank. Thus, the vocabulary of rights entered the lexicon – a right to access, a right against the community. Nor was this restricted to access to physical goods: simultaneously, Ambedkar initiated the temple entry movement, famously stating that “the issue is not entry, but equality.” Equality, again, not merely in the eyes of law, but equality within the community: a right against exclusion, a right against segregation, a right to equal moral and material membership.
Three years later, at the First Round Table Conference in 1930, Ambedkar submitted a Memorandum to the Minorities Committee, demanding equal citizenship rights for the “Depressed classes”, and proposing an “anti-boycott” rule, which would punish whoever
“abstain[ed] from such social, professional or business relations as he would, having regard to such existing customs in the community which are not inconsistent with any fundamental right or other rights of citizenship declared in the Constitution, ordinarily maintain with such person.”
He quoted the State Committee Report, which, two years earlier, had observed that the boycott had both social and economic consequences, since it was used to prevent
“the Depressed Classes from using the commonly used paths and the stoppage of sale of the necessaries of life by the village Bania.”
Writing about his experiences as late as 1945, in What Congress and Gandhi Have Done to the Untouchables, Ambedkar reiterated this stand; and three years later, contemporaneous with the framing of the Constitution, in The Untouchables, he framed the unique experiences of exclusion:
“[Untouchability] is not a case of social separation, a mere stoppage of social intercourse for a temporary period. It is a case of territorial segregation and of a cordon sanitaire putting the impure people inside a barbed wire into a sort of a cage.”
The genesis of Articles 15(2) and 17, therefore, lie in Ambedkar’s experiences with a society where access to basic public goods, such as roads, water, the market, and religion, was mediated by community status. The objective of these articles was to transform that reality.
In the debates preceding the framing of Article 15(2), Ambedkar clarified that the word “shops” was not limited merely to the physical space of a shop, but extended to any provision of services – or, in other words, to any economic transaction. Article 15(2), therefore, prevented citizens or groups from leveraging their economic power and dominance to exclude others from accessing the basic necessities of life through the marketplace.
Similarly, in the debates surrounding Article 17, Ambedkar consistently refused to accede to demands for “narrowing down” the scope of the Article, or “defining” the word “untouchability” in any specific way. For Ambedkar, “untouchability” was not a term of art, but an entire set of experiences of exclusion, stigmatisation and segregation – once again, practiced by the community upon its members, with no intervention by the State.
And lastly, Ambedkar’s experiences were not limited to caste-based social and economic repression. As the founder of the Independent Labour Party in 1936, Ambedkar had repeatedly called for fair working conditions for labour, including fair wages and the right to strike. Article 23, therefore, is not limited to merely outlawing begaar – bonded labour – but “forced labour”. As Ambedkar well understood, “force” was not limited to crude physical compulsion, but included economic compulsion as well. In the Constituent Assembly Debates, it was he who famously called for “economic democracy”, instantiated by the principle of “one man, one value.”
Articles 15(2), 17 and 23, therefore, when taken together, constitute a blueprint for an egalitarian society, and the democratisation of relations not simply between individual and State, but between individual and community, and within individuals, where disparities of power threaten basic dignity.
In this, Ambedkar was prescient. Forty-four years later, the South African Constitution would imitate his example, and provide for what is called the “horizontal” application of rights; and other jurisdictions are slowly inching towards accepting this position, at least in limited ways.
A few outliers
The Indian Supreme Court, however, has tended to ignore Ambedkar’s golden triangle – with a few outliers.
In 1962, Chief Justice Sinha wrote a famous dissenting judgment, where he upheld a Bombay law that outlawed the practice of “excommunication”. Rejecting a legal challenge by the head of the Dawoodi Bohra clan, Chief Justice Sinha held that the purpose of Article 17 was to “do away with all that mischief” of turning an individual into a pariah, and thereby securing individual dignity and freedom of conscience.
Twenty years later, in PUDR v Union of India, Justice Bhagwati held that Article 23’s prohibition of forced labour included a guarantee of a minimum wage – since being compelled to take work at below the minimum wage due to economic circumstances and market conditions, was as much to be “forced” as being made to work at gunpoint.
And in 2011, Justice Sudershan Reddy invoked Ambedkar’s speech in the Constituent Assembly Debates to hold that the word “shops” in Article 15(2) included “schools” as well, since they were as much service providers as traditional shops.
These, however, are the exceptions. This is a pity. Whether it is the question of housing segregation, or the prohibition upon women from entering the Haji Ali Dargah and the Sabrimala Shrine, the struggle between individual and individual, and between individual and community, goes on.
Today, on his 125th birthday, we have greater need of Ambedkar’s Constitution than ever before – in its true, revolutionary, unrestrained sense.