There are two things you can do with a book. You can either keep it closed or open it and read it. Those who argue that the Indian Constitution is now our religious book could be referring to the book in either its closed or open state. In its closed state, our Constitution certainly has qualities that a religious book requires. It is large and bulky, its cover can be nicely decorated and it looks good on a pedestal. Like all religious books, the unopened Constitution serves well as a symbol of our civic religion. along with the Flag, the Emblem, the National Anthem and Bharat Mata. Like any symbol, it can take on the meaning we see in it. As long as we don’t try to open it and read it, the Book serves well as a symbol of the rule of law as a foundational principle of our Republic.
Now, I would like to clarify that despite the sarcasm you might have noticed in the previous paragraphs, I sincerely believe that the Constitution, in its closed form, does serve a useful religious purpose. I believe in nationalism, and nationalism does take on a religious aspect; we do need symbols that depict our national pride, and as a symbol, the Constitution does have a purpose.
I strongly object, however, to the idea of the Constitution as a religious book. Let me rephrase that: I strongly object to the idea of constitutions as religious books. I have many disagreements with our Constitution, but this essay is not about those. It is not the purpose of a constitution to serve as a guide to people’s morality.
People who follow religious books use them as guides to live their daily lives. They derive their sense of right and wrong from them and judge others by the standard of those books. They may also act to compel others to follow the precepts laid therein. I have heard arguments that now that we have a Constitution, it should supersede all previous religious edicts and that this is the only book that should guide our sense of right and wrong. This is deeply mistaken and reflects a misunderstanding of the purpose of constitutions.
The task of a constitution is to constitute the state, not the nation. It establishes the state and grants it certain powers. It designates the organs of the state and specifies the distribution of powers between them. It also clarifies the limits of the powers granted and establishes checks and balances to ensure that the organs of the state do not exceed their powers. It also recognizes a bill of rights for the people that act as a limit to the state’s powers over citizens. A constitution that grants the state certain powers does impose a reciprocal obligation on the people. If the government, exercising its lawful powers granted to it by the constitution, makes a law, citizens have an obligation to follow it. But from this, it does not flow that morality is coterminous with the law.
If a friend calls you over for lunch and when you do visit, he orders you out of his house and sends you back hungry, we can agree that he has behaved quite badly. You may feel entitled to retaliate by complaining about him in public, boycotting him and persuading others to do the same. You may find that religious books have something to say about his behaviour – refer to the parts that speak about how guests should be treated.
I hope you also agree that the Law’s say in this matter should be limited. It is his house, and he has a right to turn you out of it. You’d have a legal case against him if he were under contract to provide you with food, or his actions left you so hungry and cut off access to food to an extent that it endangered your life, but otherwise, his actions were awful, but lawful. You have a right to criticize him for his actions and take the retaliatory actions specified above, and he can’t stop your criticism on the grounds that his actions were lawful.
If you believe that the Law should involve itself in your friend’s behaviour and your reaction to it, you are giving it a role that we normally assign to God, a role that He’s able to perform only because he is omnipresent, omnipotent and omniscient. The state cannot be omni all those things in practice. It cannot be omniscient or omnipresent. A constitutional scheme that grants omnipotence to the state is not performing its basic role of limiting the powers of the state.
I hope that the above example disposes of the argument that the Law should intrude into the domain of morality. The reverse of this argument is that the boundaries of morality should expand till they cover everything that the Law allows. Recently, the remarks of a seer caused some controversy. He had made some unkind remarks about those who ate non-vegetarian food. Some of those who outraged over his remarks claimed that his remarks were unconstitutional. Why? Because the Indian Constitution recognized religious freedom, which included the freedom to eat what people chose to ate, by making comments criticizing some dietary choices the swamiji had violated constitutional morality.
The contradiction in the argument should be clear rather immediately. It is the same logical fallacy inherent in the question “Is it wrong to be judgmental?” The same constitution that protected the religious beliefs of the targets of the seer’s remarks also ought to protect his freedom of conscience and the right to express his beliefs. There is no way to recognize religious freedom at that level without circumscribing other freedoms of others. In practice, this is the only way to enforce the idea that the extent of morality is what Law allows.
There is a third interpretation of constitutional morality. This says that while constitutional morality ought not to be enforceable, but we should follow it in spirit. This means that we, and not just the state should practice secularism – not by enjoying the religious freedom that the state guarantees, but by doing the opposite of that – by keeping religion strictly private, by not wearing religious symbols, and so on. If that is the case, then presumably this should apply to all constitutional principles. Does it also apply to the idea of equality? Does loving your children more than that of others violate constitutional morality? Does having close friends violate it? If a company treats certain customers who pay extra as premium customers, does it violate the constitutional principle of equality?
The principle of equality actually means equality before the law. I am allowed to love my children and I am allowed to have friends. But if I am a public official, constitutional morality requires that in my actions as a public official, I treat them the same as other citizens. This is true for every constitutional principle. The constitution ought to function as a religious book for government officials. It lays down their Dharma. It is wrong to expand the definition of public officials to cover every action by a private citizen in public life.
For actions by private citizens, the boundaries drawn by a constitution are only the outer edges of what is morally permissible. Yes, the constitution overrides all religious books – if your religion says that it is permissible to kill apostates and the constitution says that killing is forbidden, the latter should prevail. But a constitution that uses this overriding power to intrude into every aspect of religious and personal life is no longer a constitution.