Constitutional Morality

Introduction :

The judiciary as an interpreter of constitution has effectively used the principle of constitutional morality to overcome age old laws, which need to get reformed with changing time and evolution of the society. The Court has applied different facets of this progressive and transformative doctrine, in a number of cases some of which may possibly be counted as the finest and seminal judgments. However, at the same time, many claim that the application of this doctrine amounts to judicial overreach and is thereby pitting “constitutional morality” against “societal/popular morality”. The doctrine came in for heavy criticism after the Supreme Court’s Sabarimala judgment and became the subject matter of discussion especially after the Attorney General of India criticized application of Constitutional Morality doctrine as a “dangerous weapon”. Following this, the task of defining ‘Constitutional Morality’ has been referred to a bench of seven judges of the Supreme Court. Against this backdrop, it becomes crucial to understand what is meant by the term ‘Constitutional Morality’ and what is the significance of this doctrine in the present times, how the concept evolved over the period of time and how is it interpreted by the Courts, what are the grounds on which the application of this doctrine is being criticised and what principles should guide our approach towards constitutional morality in the future. Through this document, we will attempt to answer these questions.

What is Constitutional Morality and what significance does it hold?

The constitutional morality (CM) is not defined anywhere, however, there are many different notions on the same. 

It basically means adherence to the core principles of the constitution in a democracy i.e. a moral obligation of an individual to uphold the constitutional values with utmost dignity without any compromise and being faithful towards it.

It thus goes beyond the literal interpretation of the text of the constitution and dwells into the spirit of the constitution in which both individual and collective interests of the society are satisfied.

This doctrine is still in its nascent stage in India and has been evolving over the period of time. In the recent times, the doctrine has often been invoked by Supreme Court in India for striking down laws which could be termed as manifestations of popular morality and in the process, has acquired new meanings and interpretations.

Significance of the doctrine:-

Safeguards and upholds the enforcement of rule of law in the country: CM basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflecting an action in an arbitrary manner. As the doctrine tends to question both the citizens as well as the government, it promotes people to be an active participant of the system and fight the inequalities and non-constitutional elements.

Promoting and reinforcing the democratic ideals of the nation: The doctrine promotes congenial cooperation and coordination of all the stakeholders, especially among citizens and the state, to pursue constitutional ambitions. Thus, it points to the idea of propagating the trust of the people on democratic institutions.

Moreover, since the concept places an obligation on the part of State authorities to conduct themselves in accordance with the Constitution, it translates to the people respecting the authority of the State, so long as they act within the bounds of the Constitution, and having the constitutionally guaranteed right to vocally call out State authorities for their transgressions.

Bring about a positive transformation in the perception of societal or public morality: The principle of constitutional morality can be used for reading down laws or statutes which are inconsistent with the incumbent time. For instance, in passing a law prohibiting Sati, right to life and dignity was passed on to the Indian widows who were earlier considered to be harbingers of misfortune and ill-luck. However, after the passage of this law, there has been a clear change in the public mindset which also led to the promulgation of more rights to them such as those of remarrying and getting educated post their husband’s demise.

Promoting diversity, helping to make the society more inclusive: Constitutional morality is specifically significant for a vibrant and diverse country like India which has got a heterogeneous population with so many further subclassifications: caste, religion, colours, sexual orientation, languages, genders, etc. Since ‘plurality’ is one of the crucial ethos of the principle of constitutional morality, it recognises this distinction and non-homogeneity and promotes diversity, helping to make the society more inclusive.

Akin to the basic structure doctrine: Together with basic structure doctrine, CM is known as one of the ‘Constitutional Silences’. Like the basic structure test, it imposes implied constitutional limits on the government and ensures that government’s actions do not violate the spirit, soul or conscience of the Constitution.

Moving towards achieving Constitutionalism: The concept of constitutional morality urges the organs of the State to preserve the heterogeneous nature of the society. Thus, it backs the efficacy of Constitutionalism in the true sense.

Constitutional Morality and Basic structure

Constitutional morality is the latest in the series of various silences of the Constitution, of which Basic Structure was the first in 1973. The relationship between them can be explained on following lines:

 

• While, the concept of Basic structure was empathetically discussed at length, in Keshvanada Bharathi case and the judiciary continues to define its scope and characteristics with new interpretations, no constitutional case has so far provided clear interpretations regarding the concept of constitutional morality.

 

• The concept of ‘basic structure’ is mostly used to nullify the constitutional amendments which go against the fundamental spirit of the constitution. Constitutional morality on the other hand has emerged as an alternative jurisprudential concept that can be used to nullify ordinary legislations to avoid weakening the sanctity of the ‘basic structure’ concept. 

Concept of Constitutionalism in India

• In any democratic country like India, Constitutionalism is the manner in which the institutions of the Government conduct themselves to achieve the very objective of the Constitution.

 

• Constitutionalism renders political and ideological aspirations that connotes to the philosophical soul of the Constitution with a primary objective to transform the society progressively and inclusively.

 

• It thus not only includes the recognition of the rights and dignity of individuals but also propagates the fostering and development of an atmosphere wherein every individual is bestowed with adequate opportunities to develop socially, economically and politically, thus dissuading the society from indulging in any form of discrimination.

• The concept of constitutional morality was propounded by the British Classicist named George Grote in the 19th century in his book “A History of Greece.” 
• He described CM as a “paramount reverence for the forms of the Constitution” of the land.
• It essentially implied a “co-existence of freedom and self-imposed restraint”. It means that while citizens would respect the Constitution and obey Constitutional authorities, they would also have the freedom to criticize those Constitutional authorities, and Constitutional authorities would have to act within the limits imposed by the law.

• In Indian context, the word Constitutional Morality was first propounded by Dr. B.R. Ambedkar in November 1948 in parliamentary debate with respect to the details of administration included in the draft constitution.
• Ambedkar, drawing on the work of Grote, formulated his understanding of constitutional morality as an effective coordination between conflicting interest of different people and the administrative cooperation to solve those issues or conflicts amicably without indulging in any major confrontations or resorting to violent revolutions.
• According to him, constitutional morality was the answer to the existing disparity in the society and the doctrine primarily translated to respect among stakeholders in a republic for Constitutional democracy as the accepted form of governance and administration.

• The term ‘Constitutional Morality’ is not found in Indian Constitution. Nevertheless, we find mention of the word “morality” in conjunction with “public order” in the constitution at various places.
• For instance, fundamental rights available under Articles 19(1)(a), 19(1)(c), may be reasonably limited by the State on grounds of “public order, decency or morality” and those under articles 25(1) and 26 are “subject to public order, morality and health”.

• Post-1950, the concept lay in a somewhat dormant state. Though, it was used in passing reference twice, by the Supreme Court in the Keshavananda Bharti and First Judges case, a.k.a. S.P. Gupta v. Union of India.
• It was the first time in 2010, in Naz Foundation v. Government of NCT of Delhi when the term was used in an antithetical manner to popular acceptance and standards of morality. In this form, a precedent was set for the courts to disregard societal norms, stigmas and limitations while assessing the actions of the State.
• For instance, in this case, while deliberating upon the issue of decriminalisation of homosexuality, then a criminal offence under Section 377 of the Indian Penal Code (IPC), the Court took into cognizance the ideal of upholding the constitutional principles rather than society’s perception with regards to the legitimacy of same-sex relationships.
• The trend continued, as judges started giving the rationale of constitutional morality in many landmark judgements thereafter. This has led to an understanding in which constitutional morality essentially means two things in the present era: a counterpoise to popular/social morality and as a reincarnation of the doctrine of basic structure and thereby evaluating and analysing the soul, conscience or the spirit of the constitution.

• To protect the rights of LGBTQ community, the apex court passed a judgement which partially struck down Section 377 of IPC which made “carnal intercourse against the order of nature” (including Homosexuality) a crime.