Constitutional Morality- An Important Concept or Just a New Buzzword?

“A dive into the term “Constitutional Morality.”

“A paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the constitution will not be less sacred in the eyes of his opponents than his own.” B.R. Ambedkar’s reference to constitutional morality in the speech ‘The Draft Constitution,’ made in the constituent assembly debate of 4th November 1948, sought to accentuate the assembly members towards framing essential provision for preserving, protecting, and upholding the spirit of the constitution alongside the inclusion of a detailed layout for safeguarding the sustenance of the democratic norms envisaged in the constitution. Speaking in the light of the classicist ‘Grote,’ Ambedkar clarified the importance of including the detailed form of administration to prevent any form of perversion with the administrative setup and ultimately the travesty of the spirit of the constitution. Ambedkar’s constitutional morality, similar to that of Grote’s, limited itself bifacially to the definite power of the legislature in matters of administrative and constitutional changes and of individuals abiding by the constitution. Further, it also mandated definite freedom to the same entities.

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Constitutional Motility

Constitution as the supreme authority of the land subverts all the other legislation and laws within the state, and as per Article 13 of the constitution, in case of any inconsistency with the provisions enshrined in it, the laws are rendered void or ineffective to such extent of voidness. However, the question of what is constitutionally consistent or moral is arduous and somewhat vulnerable in adjudicating diverse sets of rights and the prevalence of one over the other. Under such circumstances, it becomes highly significant to interpret the provisions in a manner that the drafters would have foresighted. As a living document, the constitution is something that has to be interpreted in cognizance of the changes in society and reverting to its fundamental spirit. It is not entirely a code encompassing specific provisions and clauses that is to be blatantly interpreted as per the works cited. Instead, it is a composition of implied values and interests whose interpretation should be done considering and in the adherence of the bottom-line principles of constitutional values and further being faithful to the soul and not merely the body of the holy code. As stated in Pratap Bhanu Mehta’s remarks on the meta aims of the constitution, the primary goals of the constitution were to end the lengthy eternity disputes over norms, values, and ideologies and further not to restrict the supreme law by any form of tradition or practice despite the extent of its prevalence in the plural community. This is when the concept of constitutional morality comes into the picture.

Evolution and Significance of doctrine of “Constitutional Morality.”

Constitutional morality in its complete sense refers to the practice of constitutional norms that not only abides by the soul of the constitution but also embraces a commitment to an inclusive and integral democratic process functioning for the interest, satisfaction, development, and well-being of the individuals and the society as a whole. The concept of federalism, limitation, separation of power, equality and equity, the rule of law, natural justice, and transparency, including all the other prerequisites confined together, forms the concept of ‘constitutional morality. It encourages the recognition of plurality and diversity in the state and aspires towards integrating the dynamic societal norms and practices. Conclusively, it can be said that the judicial theory of constitutional morality regulates and implies the harmonious regulation of the governing and the governed, but in no manner would it mean to authorize the JudiciaryJudiciary with the authority of judicial overreach. It neither prioritizes majority morality nor public morality but focuses on reinstating a potent position of constitutional democracy and spirit into practice.

With its origin dating back to the era when the constitution as the supreme law of the state was a nascent concept, the notion of ‘constitutional morality has been subject to various changes, and the development of this ideology has been interlinked and adjoined with various other facets with the progress of the society. The constitution of India encompasses within itself several provisions that advocates for the protection and promotion of this doctrine. Beginning from the preamble and extending to Fundamental Rights, Directive Principles, Fundamental Duties, and almost every part of the constitution, the doctrine is embodied in the constitution’s core. For example, Article 19 of the constitution ensures both the ‘restraint’ and ‘liberty’ aspects of ‘Grote’s’ principle. It includes a wide range of fundamental human liberties to be practiced by the individuals and the governing bodies subject to certain exceptions. Articles 32 and 226 of the constitution helps in safeguarding such rights granted.

Further, the limitations of the definite state actions and separation of power within the constitution depict the constitutional goal of commitment towards constitutional morality. Statutes like the Right to Information Act,2005 ensure the transparency of government and administrative actions and embody the right to information among the nation’s citizens. Speaking about its evolution in the Indian Judicial realm, the term ‘constitutional morality, although a potent matter of discussion and deliberation in the constituent assembly debates, faded its potency for a few decades after the promulgation of the constitution.

The constitution is highly comprehensive and vast but not vast enough to accommodate provisions that could suffice holistic purposes or subsist with the dynamics of the society. In order to cope with such intricacies and changes, an element of flexibility has been included. Along with that, the legislature and the Judiciary have been provided the right to form and purposively interpret the constitution’s provisions in the best possible manner. The legislature’s abolition (like the sati system), amendments, and promulgation of specific practices, codes, acts, and customs are examples of such rights. On the part of the Judiciary, it is the right to interpret and ensure the implementation of such laws. In the early days, the Judiciary followed the literal way of interpretation of the constitution, and minimal emphasis was laid upon the aspect of social justice and restoration of coordination between the conflicting interests and ideologies of the society. However, the inclusion of the doctrine of ‘Constitutional Morality in the judgment was substantially observed in the case of “Kesavananda Bharti v. Union of India.”[1] In 1973 when the 13-judged Supreme Court bench passed the “doctrine of basic structure” and limited the legislature’s power to alter any provisions that formed the essential part of the constitution to protect the identity and ideals of the constitution. The doctrine of ‘constitutional morality was followed, and the legislature’s attempt to supersede the principle of separation and distribution of power was demolished.

Judicial interpretations and judgments relating to “Constitutional Morality.”

The urgency and need to enforce ‘constitutional morality’ into behavioral aspects have recently been potently understood by the Judiciary. There are a series of judgments wherein the superior courts of the nation have upheld the doctrine. In the case of “Naz Foundation v. Government of Delhi.”[2], the court differentiated between the terms public morality/pluralistic morality and constitutional morality. It upheld that the popular majority was based upon “shifting and subjective notions of right and wrong and not the constitutional ideals .”Hence, it is the spirit and postulations of the constitution that shall be followed and not the societal norms. Earlier to this judgment, the courts followed the precedent established in the case of “State of Bombay v. R.M.D. Chambarbaugwala[3]wherein the court, based on widespread public opinion, had adjudged the exclusion of gambling from the protection granted under Article 19(1)(g) of the constitution. In the landmark case of “Government of N.C.T. of Delhi v. Union of India.”[4]‘Constitutional morality’ was established as the “second basic structure of the constitution by the ex-CJI, Justice Deepak Mishra. It was further reinstated that the same should be adhered to by the governing and the governed. Concerning the ideals of the constitution and keeping aside the notions of public morality, the Supreme court, in the case of “Navtej Singh Johar v. Union of India.[5]held Section 377 of I.P.C., which criminalized consensual sex between individuals of same-sex unconstitutional. Similarly, the Supreme Court headed by former C.J.I relies on similar premises. Deepak Mishra, in the case of “Joseph Shine v. Union of India[6]decriminalized adultery. These judgments portray the Significance of ‘constitutional morality in the contemporary period and the influence this doctrine carries in our judicial realm.

“Constitutional Morality”; significant or questionable

The Significance of this judicial doctrine is beyond any dilemma and should by no means be questionable. It prescribes constitutional supremacy and equality, ensures the elimination of discrimination and inequality of any form from the social milieu, and emphasizes reinstating every entity to an equal footing. The Significance of this doctrine can also be observed in the case of “Indian Young Lawyers’ Association v. Union of India.[7](Sabrimala Case) when a conflict between two of the fundamental rights granted by the constitution was observed. In the judgment, reinstating women’s right to religious freedom, equality, and right to worship was upheld, and the practice of banning the entry of women below certain ages was struck down as per the principles of constitutional morality. This doctrine is the perfect remedy for “Constitutional silence,” which points out the grey area of the constitutional provisions. The definition of this principle is not mentioned anywhere and is to be interpreted by the concerned authorities. This makes the ambit very wide and does not restrict the scope of subjective interpretation within which it can be applied. It thus acts as a mandate that aids in accomplishing the constitutional goals instead of being limited. Through the same principle, it becomes easier for the state to preserve the ideas of pluralism along with holistic inclusion.

There are certain critics of ‘constitutional morality as a judicial principle. It is believed that while advocating for separation and equal distribution of power, this doctrine itself authorizes unwarranted powers to the Judicial wing and ultimately hinders the separation of power. The probabilities of judicial overreach due to such doctrines and principles upsurge, which ultimately makes the basic principles of constitutional democracy vulnerable. The Attorney General of India, Mr. K.K. Venugopal described Constitutional Morality to be “dangerous”to the country. He stated that the Supreme Court is gradually turning out to be the “third Parliament Chamber” due to its excessive intervention in matters that are considered beyond its jurisdiction. Although such postulations and expression from eminent jurists may create a negative perception about the doctrine, we are still of the firm belief that ‘constitutional morality’ when applied as per the due process of law and with the fulfillment of hollow vessels that persist in the Judicial realm, would prove to be significant for the growth and protection of constitutional ideologies and principles.

Conclusion

We believe that considering ‘constitutional morality merely a contemporary buzzword would mean to act the fool. Although the Significance and practice of this doctrine have increased significantly in recent years, its framework was laid down in the early days of constitution drafting and assembly debates. Aspects of it have also been observed in various precedents established by the courts from time immemorial. ‘Constitutional morality’ has always been an intrinsic part of any constitutional or democratic system that aims to strive and abide by the ideals of their supreme land. The same is in the context of India, and the importance of this doctrine is equally significant.

Author: Bopsy Sharma,  A Student at Hidayatullah National Law University, Raipur, 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.

[1] “Keshvananda Bharati v. State of Kerala, (1973) 4 SCC 225”.

[2] “Naz Foundation v. Govt. of N.C.T. of Delhi, 160 Delhi Law Times 277.

[3]The State Of Bombay vs R. M. D. Chamarbaugwala, 1957 AIR 699.

[4]State (N.C.T. of Delhi) v. Union of India, (2018) 8 SCC 501.

[5]Navtej Singh Johar v. Union of India, A.I.R. 2018 SC 4321.

[6] Joseph Shine v. Union of India, 2018 SC 1676”.

[7]Indian Young Lawyers Association &Ors vs. The State of Kerala &Ors., (2019) 11 S.C.C.”

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