This article has been written by Aashika Aggarwal pursuing BBA-LLB (H) from Amity University, Gurgaon
The term Constitutional morality can be defined as a moral responsibility of an individual to be faithful towards constitutional values and uphold them with utmost integrity, without any compromise. In 2018, the Supreme Court has passed historical judgments that underly Constitutional morality and on Constitutional day of November 26, there was a debate on Constitutional morality between the Supreme Court and the government of India.
As indicated by Dr. Ambedkar, constitutional profound quality would mean successful co-ordination between the clashing interests of various individuals and the authoritative collaboration to determine them agreeably with no encounter among the different gatherings working for the acknowledgment of their finishes at any expense. It established ethical quality has been viewed as central worship for the Constitution. Established ethical quality gives a principled comprehension to unfurling crafted by the administration. It indicates standards for organizations to endure and a desire for conduct that will meet the content as well as the spirit of the Constitution. It additionally makes overseeing organizations and agents responsible. Constitutional morality is scarcely a new concept. It is written largely in the Constitution itself like in the Section of Fundamental Rights (article 12 to 35), Directive Principle of State Policy (article 36 to 51), Preamble, and Fundamental Duties.
Constitutional morality involves adherence to noble principles enshrined in the Constitution of India. Constitutional morality gives adherence to the core principles of constitutional democracy. While the word morality has been used only four times in the Indian Constitution (twice in article 19 and twice in right to religious freedom under article 25 and 26), and it continues to be invoked by the Supreme Courts in many rights claim cases like surrogacy, speech, and sexual orientation, etc.
Constitutional morality can use laws and forms to impact and change the persisting social morality. For example- for abolishing the practice of Sati by legislation, the right to dignity and life was passed on to widows which later on affected the perception of the practice in the society.
Constitutional morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the Constitution, a juridical scenario providing an opportunity to unfold the full personhood of every citizen, for whom and by whom the Constitution exists. It specifies norms for institutions to survive and an expectation of behavior that will meet not just the text but the soul of the Constitution as well.
The scope of Constitutional morality is not limited only to following the Constitutional provisions but it is so broad that it includes a commitment to the inclusive and democratic political process in which the individual and collective interests are satisfied.
The judiciary as an interpreter of the Indian Constitution has effectively used Constitutional morality to overcome age-old social ills which have continued on the ban of popular morality. Some of the recent judgments wherein the doctrine of progressive realization and Constitutional morality are applied are as follows under:-
- Decriminalization of homosexual activity
- Opening of Sabarimala temple to women of all age groups
- Ban on triple talaq as it discriminated against women
Constitutional morality recognizes plurality and diversity in society and tries to make individuals and communities in society more inclusive in their functioning by constantly providing the scope for improvement and reforms.
A five-judge bench of the Supreme Court of India in the case of NAVTEJ SINGH JOHAR V. UNION OF INDIA deployed this framework to reaffirm the rights of LGBTQ and all gender-conforming people to their dignity, life, liberty, and identity. Chief Justice of India, DIPAK MISRA set out four cardinal corners of the Constitution: individual autonomy and liberty; equality sans discrimination; recognition of identity with dignity; right to privacy.
Sources of Constitutional Morality
- Text of the Constitution especially the preamble which lays down the broad objectives of liberty, equality, justice, and fraternity for the constitution.
- The constitution assembly debates as it enables us to understand the minds of our Constitution makers.
- Events that took place during the framing of the Constitution especially the sectarian violence and secessionists groups enabled us to adopt a secular federal and democratic Constitution.
- Previous case laws history also helps us in better interpretation of the critical situation.
Thus, the Constitutional morality balances popular morality and acts as a threshold against an upsurge in mob rule.
The doctrine of Constitutional morality is used in the course of judicial review. According to this the interpretation of law should be based on the values given in the Constitution, i-e, according to the spirit of the Constitution and not on the wordings of the Constitution.
Elements of Constitutional Morality
- Rule of law
- Individual liberty
- Right to equality
- Freedom of choice
- Freedom of expression
- Social justice
- The procedure established by law
- Due process of law
In the case of PUTTUSWAMY V. UNION OF INDIA, the nine-judge bench unanimously declared that the right to privacy is a fundamental right upholding the Constitutional value of individual liberty.
Impact of Constitutional Morality
- Curtailed encroachment on judicial autonomy
- Strengthened judicial supremacy and institutional independence
- Protects against arbitrary practices
- Regulates majoritarianism
- Promotes Constitutional values and philosophy
Problems with Constitutional Morality
- Promoting judicial supremacy over parliamentary supremacy
- Violative of the principle of separation of powers
- Violates the very principle of democratic government
- Leads to judicial domination
Constitutional morality is a sentiment to be cultivated in the minds of a responsible citizen. Upholding Constitutional morality is not just the duty of the judiciary or state but also of individuals. The preamble of the Constitution explicitly mentions the type of society we wish to establish; it is only through Constitutional morality it can become reality. It creates awareness among the common public regarding their rights which are protected by the Constitution of India.
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