Constitutional Morality

-Saumya Malhotra

ABSTRACT

The idea of constitutional morality was utilized in a vital case of Navtej Singh Johar which employed this idea in a revolutionary manner to strike down section 377 of the Indian Penal Code, 1840[1] and decriminalized homosexuality. However, this idea appears to have come under severe grievance with Sabarimala Temple case. There seems to be a settlement between a few of the legal scholars that the idea of constitutional morality remained to be understudied and there may be a consensus to be reached for outlining and applying this idea. The foundation for knowledge of this concept could be text of charter, constituent assembly debates and records of events that took place throughout the framing of the Indian charter. In absence of this concrete have a look at and consensus being reached in this vast concept of constitutional morality, there may be danger of popular morality being interpreted as constitutional morality.  

KEYWORDS

Constitutional Morality, Democracy, Constitution, Judgments, Citizens.

INTRODUCTION

Constitutional morality means the obedience of the core principles of the constitution in a democracy. Constitutional morality promises an inclusive and democratic political process in which both individual and collective interests of the society are satisfied. The term ‘morality’, used only four times in the Indian Constitution (twice in Article 19[2] and twice in the Right to Freedom of religion under Articles 25[3] and 26[4]), it continues to be appealed in the courts for many rights claim cases like surrogacy, speech, sexual orientation. The term ‘constitutional morality’ begun to be widely used quite late.

The earliest definition of constitutional morality was given by George Grote, he described it as supreme obedience to the various aspects of the constitution of the land. According to Grote, constitutional morality implies certain functions for both the citizens and the government which are listed below:

  • Respect the constitution and all forms of authority from which it derives its mandate.
  • Availability of right to free speech for the citizens to criticize and hold all those officials accountable for their constitutional duties.
  • It is the responsibility of public officials to act well within the sanctioned charge given to them by the Constitution.
  • People contesting for politics and their opposition should have respect for the Constitution.

The Morality of the Constitution in the modern sense means to maintain the moral inclinations imposed by the Constitution. It necessitates courts to look at the “spirit”, “soul” or “conscience” of the constitution. Dr. Ambedkar in the Constituent Assembly talked about acceptable approaches to policy making where the Constitution is silent or gives insight. Therefore, he was speaking of a way in which the essence should be unity in the approach, an effective process in mediating when there is a difference.

  • The constitution was made possible by constitutional morality that was free in its context.
  • Constitutional morality has been appeared as a paramount reverence for the constitution.
  • According to Dr. Ambedkar, the values of the Constitution can mean effective co-operation between the interests of diverse peoples and co-operative governance to resolve peacefully without conflict between the various parties working to achieve

their objectives at any cost.

The concept of Constitutional Morality is present in the constitution, particularly in the:

  • Preamble, Part III (fundamental rights)[5] , Part IV (Directive Principles of State policy)[6] and Fundamental Duties.

Elements of Constitutional Morality

Significance of Constitutional Morality

  • Enforcement of the Rule of Law- The constitutional morality basically means to bow to the principles of the Constitution and not to act in a way that would violate the rule of law. As this doctrine questions both citizens and the government, it encourages people to play an active role in the program and to fight inequalities and non-constitutional issues.
  • Promoting diversity, which helps to make society more involved- Constitutional morality is very important in a strong and diverse country like India with many diverse people with many different defeats: caste, religion, colors, sexual orientation, languages, gender, etc. Since ‘plurality’ is one of the critical principles of the constitutional morality, it recognizes this difference and diversity and promotes diversity, which helps to make society more involved.
  • Bring about a positive change in the society- The principle of constitutional morality can be used for reading down laws which are inconsistent with the obligatory time. For instance, in passing a law that prohibits Sati, right to life and dignity was passed on to the Indian widows who were earlier considered to be indications of bad luck. However, after the passage of this law, there has been a clear change in the public mindset which also led to the declaration of more rights to them such as those of remarrying and receiving education post their husband’s demise.
  • Embodying trust of people in the democratic institution-The doctrine of constitutional morality is also helpful for the friendly cooperation and coordination of all the people in promoting and reinforcing the democratic ideals of the nation. It strives for a greater friendliness amongst people to pursue constitutional ambitions which are not possible to be won without unity and team spirit. Thus, it points to the idea of broadcasting the trust of the people on democratic institutions.

Constitutional Morality and Basic Structure

Constitutional Morality came second after Basic Structure that came in 1973. The relationship of the two can be explained in the following:

  • The concept of Basic structure was being discussed, in Kesavananda Bharati Case[7], the judiciary defined its scope with new interpretations. No case so far had provided clear intensions regarding the concept of constitutional morality.
  • ‘Basic structure’ was used to nullify the constitutional amendments which went against the fundamental spirit of the constitution. Constitutional Morality on the other had emerged as an alternate of jurisprudential concept that was used to nullify ordinary legislations to avoid the weaking of the ‘basic structure’.

LANDMARK JUDGEMENTS

Navtej Singh Johar vs. Union of India

On 6th September, 2018, Section 377 of the Indian Penal Code was partially stuck down by five- judge Bench, it decriminalised same sex-relations between consulting adults. LGBTQ community’s people are now legally allowed to engage in consensual intercourse. Section 377 still remains applicable in the cases of non-consensual intercourse, with minors or bestiality.  

The judgments collectively cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against the basis of their sexual orientation and/or gender identity, violating Articles 14[8] and 15[9] of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21[10]. Finally, they got to know that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19 (1)(a).[11]

Indian Young Lawyer’s Association vs. State of Kerala

This case is also known as Sabarimala Temple Entry Case. The court gave its verdict on 28th September 2018. There was a 4:1 majority that held the temple’s practice of excluding women is unconstitutional. The practice violated Article 25(1)[12]– fundamental right to freedom of religion of the female worshippers. The Rule 3(b)[13] of the Kerala Hindu places of Public Worship Act allowed Hindu group to exclude women from worshipping in public places and it was known be a ‘custom’. The Rule 3(b) was also struck down by the court as it was held unconstitutional.

Joseph Shine vs. Union of India (2019):

The supreme court struck down Section 497[14] of The Indian Penal Code which made adultery a crime for a man, but the women shall not be punished as ab abettor. It upheld the right to gender equality and the right to equality.

Criticism of Constitutional Morality

  • Lack of clarity and definition: Since there is no explicit reference to the term ‘constitutional morality’ in the Indian Constitution and no fixed definition is given to constitutional morality. it is left to individual judges with different perspective to interpret the meaning of this doctrine and apply it where necessary.
  • Encourages judicial activism: promoting democracy through constitutional morality ​​promotes the judicial activism, leading to interference in the functions of the legislature. This, in turn, violates the fundamental law of democracy, namely, the separation of powers between the judiciary, the legislature and the executive.
  • Creates distrust among public towards the State: The imposition of constitutional ethics by the Court which is an independent body can instill and promote common mistrust in society in relation to Legislature and Executive.
  • Described as “Dangerous”: Mr. K.K. Venugopal, the Attorney General of India described Constitutional Morality as “Dangerous” for the country. He said that the Supreme Court is transforming into “third Parliament Chamber”.

CONCLUSION

It can be concluded that both Ambedkar and Grote did not see the Constitutional Morality as a tool to combat or resolve government action; rather, they equate it with the people’s willingness to commit to the pursuit of constitutional purposes. However, almost seventy years after Dr. Ambedkar delivered his Constituent Assembly speech in 1948, many different interpretations were put in place by various scholars and judges. The two definition of Constitutional Morality includes: first, the legal process against popular morality and the reminder that the courts must keep themselves free from the beliefs of the society and their opinions. Second, it helps to hold the government accountable by helping the courts to examine the spirit and conscience of the Indian Constitution.

Image Source: https://images.app.goo.gl/2ZDU7VbQvfeycpTVA


[1] Section 377 in The Indian Penal Code, URL: https://indiankanoon.org/doc/1836974/

[2] Article 19 of The Constitution of India, URL: https://indiankanoon.org/doc/1218090/

[3] Article 25 of The Constitution of India, URL: https://indiankanoon.org/doc/631708/

[4] Article 26 of The Constitution of India, URL: https://indiankanoon.org/doc/1858991/

[5] Article 12-35 of The Constitution of India, URL:  https://www.mea.gov.in/Images/pdf1/Part3.pdf

[6] Article 36-51 of The Constitution of India, URL: https://www.mea.gov.in/Images/pdf1/Part4.pdf

[7] Kesavananda Bharati Case URL: https://indiankanoon.org/doc/257876/

[8] Article 14 of The Constitution of India, URL: https://indiankanoon.org/doc/367586/

[9] Article 15 of The Constitution of India, URL: https://indiankanoon.org/doc/609295/

[10] Article 21 of The Constitution of India, URL: https://indiankanoon.org/doc/1199182/

[11] Article 19(1)(a) of The Constitution of India, URL: https://indiankanoon.org/doc/1142233/

[12] Article 25(1) of The Constitution of India, URL: https://indiankanoon.org/doc/86224/

[13] The Rule 3(b) of the Kerala Hindu places of Public Worship Act, URL:http://www.bareactslive.com/KER/ker080.htm#3

[14] Section 497 of The Penal Code, URL: https://indiankanoon.org/doc/1833006/

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