Constitutional Morality & Indian Courts in 21st Century

Introduction

Neither Grote nor Ambedkar intended for courts to employ constitutional morality to determine the legality of government action. It was a goal to them, a desire that citizens would instill a love for the Constitution, making it impossible for the Constitution to be erased by the political powers of the day. According to this interpretation, the defeat dealt to the Indira Gandhi administration by the Janata Party at the conclusion of the Emergency heralded the growth of constitutional morality among the Indian voters. Decades after Ambedkar’s November 1948 speech, constitutional morality has meant different things at different times. It has been linked to constitutional conventions, anti-corruption initiatives, equality, and the rule of law. However, two new interpretations of constitutional morality are particularly intriguing.

Constitution

To begin, constitutional morality is the adversary of popular morality, and it serves as a reminder that while determining constitutional matters, courts must reject popular morals. This is an ordinary proposition in terms of constitutional doctrine. If you told a judge she had to resolve a case according to the law and the Constitution, not the talking heads on television, media commentators, and tabloids, she would answer, “but of course!” There is nothing “dangerous” about this articulation of constitutional morality, in the words of Attorney General Venugopal. This paper is an examination of the said doctrine in light of the Indian Cases and analysis put forth by the Hon’ble Apex Court time to time.

Constitutional Morality & Its Philosophical Approach

The Hon’ble Supreme Court was asked in State (NCT of Delhi) v. Union of India to determine how authority is to be divided between the national government and the provincial government of Delhi under the Constitution. In reaching his conclusions, Chief Justice Dipak Misra appeared to infer, speaking for Justice Sikri, Justice Khan wilkar, and himself, that “constitutional morality” meant the spirit of the Constitution itself – something close to the fundamental structure concept. “In interpreting the provisions of the Constitution,” Chief Justice Misra remarked, constitutional courts must read the language in the text “in light of the spirit of the Constitution.”[i]Constitutional morality in its strictest sense,” he claimed, “implies strict and complete adherence to the constitutional principles as enshrined in various sections of the document.[ii] It requires constitutional officials to “cultivate and develop a spirit of constitutionalism in which every action they take is governed by and strictly adheres to the basic tenets of the Constitution.[iii] “Constitutional morality,” he said, “means the morality that is inherent in constitutional norms and the conscience of the Constitution.” In his concurring opinion, Justice Chandrachud also mentioned constitutional morality in terms of the Constitution’s spirit. “Constitutional morality”, he argued, “requires filling in constitutional silences to enhance and complete the spirit of the Constitution.[iv]It specifies norms for institutions to survive,” he continued, “as well as an expectation of behaviour that meets not just the text but the soul of the Constitution.[v] He pointed to the fundamental structure concept and said that secularism was part of the Constitution’s basic structure as well as constitutional morality. Justice Chandrachud emphasised this formulation of constitutional morality in his concurring judgement in the Sabarimala temple case.[vi]He discovered that constitutional morality was anchored in the “four precepts” listed in India’s Constitution’s Preamble: Justice, Liberty, Equality, and Fraternity. He added the notion of secularism to this. “These founding principles must govern our constitutional notions of morality,” he argued.[vii] He concluded that constitutional morality “must have a value of permanence which is not subject to the fleeting fancies of every time and age.[viii]

In KantaruRajeevaru v. Indian Young Lawyers Association,[ix] the Supreme Court resolved to send the subject of how to interpret constitutional morality to a bigger bench of at least seven Supreme Court justices. The term “constitutional morality” had not been defined in the Constitution, and the “contours of that expression” needed to be “delineated,” according to the court, “lest it becomes subjective”.[x]

In his dissenting opinion, Justice Nariman, on the other hand, restated the spirit-of-the-Constitution concept of constitutional morality. He discovered that constitutional morality was “nothing more than the values instilled by the Constitution, which are contained in the Preamble read with various other parts, particularly Parts III and IV thereof.[xi]He said that it had been clarified in multiple Supreme Court Constitution Bench decisions and had reached the level of stare decisis. This view of constitutional morality is analogous to the fundamental structure doctrine. Textually, there is no limit to the constituent authority of India’s Parliament, which can change or repeal any article of the Constitution based on the plain language of the Constitution.However, in the fundamental Structure decision, the Supreme Court ruled that there are implied restrictions on Parliament’s ability to change the Constitution, stating that Parliament cannot destroy the “basic structure” of the Constitution. Of course, what comprises the essential framework is open to court judgement throughout time. Similarly, the concept of constitutional morality articulated by the Supreme Court in the NCT of Delhi case and in Justice Chandrachud’s concurring judgement in the Sabarimala case postulates that a government’s actions can be tested not only by looking at the formal provisions of the Constitution but also by ensuring that they do not violate the Constitution’s “spirit”, “soul”, or “conscience”. This definition of constitutional morality, like the fundamental structural test, puts implicit constitutional constraints on the government, anchored in constitutional ideals that judges see as vital to the government’s existence.

Conclusion

In a democratic system, it is evident that the unelected judiciary possesses institutional authority to make decisions that may contradict the will of the majority. The second aspect of constitutional morality, however, holds greater fascination. It empowers judges to consider the ‘spirit,’‘essence,’ or ‘conscience’ of the Constitution when assessing the legality of government actions. Under this perspective, constitutional morality represents another fundamental structural concept, which carries neither more nor less risk than the first aspect. Admittedly, this interpretation of constitutional morality introduces ambiguity and vulnerability to the subjective value preferences and personal inclinations of individual judges. One may wonder, what prevents a court from ruling that communism aligns with the undefined ‘spirit’ of the Constitution or that the Constitution’s essence mandates India to be declared a Hindu state? On the other hand, much of constitutional doctrine remains open to interpretation. Terms like ‘arbitrariness,’‘manifest arbitrariness,’ and ‘reasonableness’ serve as empty vessels into which judges pour their own notions of what is right and wrong. At a certain level, all constitutional theories lack a definitive foundation; judges’ statements occupy constitutional spaces shaped by their own lived experiences. Those who argue against the problematic nature of constitutional morality in this formulation must also challenge theories such as the fundamental structure test, the tests for obvious arbitrariness and reasonableness, as well as other commonly used catchphrases in constitutional law.

Author: Kaustubh Kumar, 4th Year law student at the National University of Study and Research in Law, Ranchi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] State (NCT of Delhi) v. Union of India (2018) 8 SCC 501.

[ii]Id. ¶ 58.

[iii]Id.

[iv]Id. ¶ 63.

[v]Id. ¶ 302.

[vi] Indian Young Lawyers Association v. State of Kerala, (2018) SCC Online SC 1690.

[vii]Id. ¶ 189.

[viii]Id.

[ix] Review Petition (Civil) No. 3358 of 2018, majority judgment dated 14 November 2019.

[x]Id. ¶ 5(iii).

[xi]Id. ¶ 19.

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