Constitutional Morality: Critical Analysis

INTRODUCTION

The Constitution of India, which is the world’s longest written Constitution, contains more or less all the notions which are relevant in representing the aims of India as a developing nation. However, there are certain concepts that have not been incorporated in the Constitution but are in practice. Constitutional Morality is one such principle. 

Meaning of Constitutional Morality

Constitutional morality can be defined as acting in accordance with the principles enshrined in the Constitution to maintain the rule of law in a democracy. Right to freedom, rule of law, freedom of choice, equality, due process of law and freedom of expression are some of the main elements of constitutional morality. However, it is to be noted that the term “constitutional morality” has not been expressly used in the Constitution.

The main sources of origin of constitutional morality are:

  1. The debates and deliberations that took place in the Constituent Assembly during the framing of the Constitution.
  2. The provisions given in the Constitution such as the Preamble, the Fundamental Duties, the Directive Principles of State Policy, etc.
  3. The precedents derived from various cases.
  4. The events that occurred when the Constitution was being framed.

The History of Constitutional Morality

Grote, a 19th century British historian, had given one of the first definitions of constitutional morality. According to him, it meant utmost devotion and compliance towards the principles of the Constitution. In India, the concept of constitutional morality was mentioned for the first time by Dr Ambedkar during his speech about the draft of the Constitution. He stated that the provisions for the administration of the government were incorporated in the Constitution instead of being framed by the legislature because India lacked constitutional morality. 

In Ambedkar’s opinion, constitutional morality meant effective cooperation between the citizens and the administration for resolving any conflict of interests without any confrontation.

However, post-1950, the doctrine of constitutional morality was rarely used. It was mentioned in passing in the case of Kesavananda Bharati v. State of Kerala when the Apex Court gave the doctrine of Basic Structure of the Constitution. Later on, in SP Gupta v. Union of India, also known as the first judge’s case, the term was again mentioned. In this case, it was stated that infringement of any convention, which is a constitutional practice but not a part of any legislation or even enforceable by the courts, should be regarded as a violation of constitutional morality.

Again, in NCT Delhi v. Union of India, the Court observed that constitutional morality means strict adherence to the constitutional principles. It also stated that the existence of a Constitution itself assured that both the citizens as well as the State will be bound by constitutional principles.

Recent Developments

Some of the recent landmark cases wherein the doctrine of constitutional morality was applied are:- 

  1. Navtej Singh Johar v. Union of India:- In this case Section 377 of the Indian Penal Code was partially struck down by the Supreme Court thereby decriminalising homosexuality. Former CJI Dipak Misra observed that instead of being influenced by popular opinion, the Court should follow the principles of constitutional morality, whose main aim is to make the society more inclusive. Moreover, while pointing out the difference between constitutional morality and public morality, Justice DY Chandrachud stated that the ideal of justice always prevails. In other words, constitutional morality outweighs public morality. The right to privacy, liberty and dignity were some of the grounds based on which the case was decided.
  2. Joseph Shine v. Union of India:- In this case, Section 497 of the Indian Penal Code was struck down by the Supreme Court. This section provided punishment only for men in cases of adultery and thus, the Apex Court held that the non-prosecution of women was violative of the fundamental rights given in the Constitution. The concept that women were owned by men or were belongings of men was held to be against the ideals of the Constitution. Here the respondents contended that adultery was derogatory to the institution of marriage. However, the Court was of the opinion that such arguments represented popular molarity, which is inconsistent with constitutional morality and has no role in determining the constitutionality of criminal laws.
  3. Indian Young Lawyers Association v. Union of India: In this case, the prohibition on the entry of women between the ages of 10 to 50 in the Sabrimala Temple was challenged. It was held that the Temple has no denominational character and thus the practice of banning the entry of women was not an essential religious practise under Article 25 of the Constitution. It was also stated that the word “morality” in Article 25 refers to constitutional morality and not public or popular morality.

Significance of Constitutional Morality

The significance of constitutional morality is as described below:-

  • Constitutional morality ensures the enforcement of the rule of law in the country and at the same time it also keeps up with the changing times and demands of the society.
  • It encourages greater unity and cooperation among the people in order to preserve the institution of democracy and achieve its ideals.
  • Constitutional morality helps change the perception of society by abolishing the laws and practices which are inconsistent with the present time. For example, a law banning the practice of Sati was passed and after this law was enacted, there has been a significant change in the mind set of the public towards widows.
  • Constitutional morality makes society more inclusive by recognising the diversity that exists in the society and providing the opportunity for reforms. For example, in Navtej Singh Johar v. Union of India, homosexuality was decriminalised which ensured equal rights for the LGBTQ community.

Criticism

There are some concerns regarding constitutional morality which are discussed below:-

  • There is no clear definition of the term constitutional morality and this has led to varied interpretation based on the individual’s perceptions.
  • Constitutional morality promotes judicial supremacy which results in the Judiciary intervening in the functioning of the legislature thereby violating the rule of separation of power.
  • This concept has granted unrestrained power to the judiciary, as a result contradicting opinions are being given by the judges in the same case, with both of them declaring constitutional morality as the reasoning. For example, in Indian Young Lawyers Association v. Union of India, one of the Judges was of the opinion that the ban on the entry of women was constitutional and on the other hand, the other judges were supporting the entry of women in the Sabrimala Temple.

CONCLUSION

Even though there are differences of opinion regarding the various aspects of constitutional morality, still it has been a significant guiding principle for achieving the ideals of the Constitution. However, proper definition and mechanism regarding constitutional morality are needed to avoid any misinterpretations and misuses.  

This article is written by Muskan Harlalka, a 2nd year law student from School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

BIBLIOGRAPHY

  1. Divya Aswani, Unveiling Constitutional Morality in India, Legal Bites (May 8, 2020), https://www.legalbites.in/unveiling-constitutional-morality-in-india/.
  2. Is ‘Constitutional Morality’ A Dangerous Doctrine?, Bloomberg | Quint (Dec. 19,  2019), https://www.bloombergquint.com/opinion/indian-judiciary-is-constitutional-morality-a-dangerous-doctrine-by-abhinav-chandrachud.
  3. J. Sai Deepak, Dr Ambedkar on constitutional morality, The Daily Guardian (Aug. 14, 2020), https://thedailyguardian.com/dr-ambedkar-on-constitutional-morality/.
  4. Md. Zeeshan Ahmad, The challenge of Constitutional Morality before the Supreme Court, The Leaflet (Mar. 26, 2020), https://migrate.theleaflet.in/the-challenge-of-constitutional-morality-before-the-supreme-court/.
  5. MK Narayan, Safeguarding Constitutional Morality, The Hindu (Dec. 23, 2019), https://www.thehindu.com/opinion/lead/safeguarding-constitutional-morality/article30383084.ece. 
  6. Ram Madhav, Cultivating Constitutional Morality, Open (Nov. 26, 2019), https://openthemagazine.com/essay/cultivating-constitutional-morality/.
  7. Surabhi Shukla,  Constitutional Morality in the Indian Constitution, University of Oxford (Mar. 12, 2018), https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2018/03-0.

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