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Constitutional Morality


Constitutional Morality
Constitutional Morality

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In the case of Navtej Singh Johar, the Supreme Court partially invalidated Section 377 of the Indian Penal Code, which criminalised "carnal intercourse against the order of nature." Central to the decision were the concepts of Constitutional morality and Social morality. The Court emphasised that Constitutional morality prevails over social norms. 


It articulated that if a constitutional court finds a provision to contravene constitutional morality, it must deem it unconstitutional, as the primary function of constitutional courts is to uphold the constitution.


Consequently, Section 377 IPC was deemed unconstitutional insofar as it criminalised consensual same-sex relations.


Another significant case discussing Constitutional morality was the Indian Young Lawyers Association case (Sabarimala Temple case).


A majority of four judges concluded that the term 'morality' in Article 25(1) of the Constitution should be interpreted as synonymous with constitutional morality. 


They ruled that women of all ages have the right to enter the Sabarimala Temple, and the practice of barring menstruating women from entering was unconstitutional, going against constitutional morality. 


However, Justice Indu Malhotra, in her minority opinion, argued that in a secular polity, Constitutional Morality implies harmonising Fundamental Rights, allowing every individual or religious denomination to practise their faith irrespective of its rationality. 


Hence, she upheld the practice of barring menstruating women from the temple under Article 25(1) protection.


The concept of constitutional morality has thus become pivotal in interpreting the Constitution and assessing the validity of statutes. However, Attorney General of India Sri K.K. Venugopal criticised the judiciary's reliance on constitutional morality, warning of its potential dangers. 


He expressed concerns about its uncertain implications, echoing the apprehension of India's first PM, Pandit Nehru, who feared the judiciary might become a third chamber of government.


Given the controversies surrounding the use of Constitutional Morality by the Courts, it's imperative to clearly define and understand this concept to avoid its misuse or misinterpretation in legal proceedings.

 
 

Dr. B.R. Ambedkar's Insights on Constitutional Morality


Dr. B.R. Ambedkar, during a Constituent Assembly Debate, elucidated the notion of Constitutional Morality by referencing the insights of Greek historian George Grote.


He emphasised Grote's perspective, which underscored a profound respect for constitutional principles, the observance of authority, adherence to legal norms, and the freedom to criticise authority while maintaining confidence in the sanctity of constitutional forms, even amidst partisan strife.


Ambedkar's discourse on constitutional morality arose during discussions on incorporating administrative details into the Indian Constitution, a practice borrowed from the Government of India Act, 1935.


While acknowledging that administrative minutiae should ideally not be enshrined in the Constitution, Ambedkar justified their inclusion by citing Grote's assertion that the widespread adoption of constitutional morality throughout society is essential for the peaceful functioning of a free and stable government.


He highlighted the interdependence between the form of administration and the constitutional framework, stressing that an administration must align with the spirit of the Constitution to prevent inconsistency and preserve its essence.


Ambedkar contended that constitutional morality is not an innate sentiment but a cultivated virtue.


He noted the imperative for Indian society to embrace and internalise this ethos, recognizing that democracy in India merely overlays an inherently undemocratic societal substrate.


Thus, he questioned whether India had sufficiently embraced constitutional morality to entrust legislative bodies with the discretion to delineate administrative specifics, as envisaged by Grote's ideal.

 
 

Nurturing Democratic Values and Individual Liberties


Given these circumstances, it is prudent not to entrust the Legislature with the task of prescribing administrative forms. This rationale justifies their inclusion in the Constitution.


Thus, an exploration of the concept of constitutional morality reveals its association with a parliamentary form of government, characterised by self-restraint and limitations on the state's authority to curtail citizen liberties. It signifies a commitment to individual liberty, constitutional supremacy, equality under the rule of law, and adherence to democratic values.


Essentially, the principle of constitutional morality entails adherence to constitutional norms and refraining from actions that undermine the rule of law or exhibit arbitrariness.


It serves as a guiding force in institution-building, requiring the development of traditions and conventions that uphold its values. 


Democratic values thrive when both the populace and institutional leaders strictly adhere to constitutional parameters, avoiding deviations and prioritising institutional integrity and constitutional constraints.


Commitment to the Constitution is an integral aspect of constitutional morality. Moreover, its scope extends beyond mere adherence to constitutional principles; it encompasses broader virtues, such as fostering a pluralistic and inclusive society while upholding other tenets of constitutionalism.


Through embodying constitutional morality, the values of constitutionalism permeate through the state apparatus, ultimately benefiting every citizen of the nation.


Hence, constitutional morality forms the essence of the Constitution, reflected both in its Preamble, which articulates its ideals and aspirations, and in Part III, particularly in provisions safeguarding individual dignity.


In a democratic setup, constitutional morality necessitates the assurance of fundamental rights essential for the free existence of every member of society.


The Preamble recognizes these rights as "Liberty of thought, expression, belief, faith, and worship" and "Equality of status and opportunity." 


It seeks to eradicate all forms of inequality from the social fabric, ensuring that every individual has the means to enforce their guaranteed rights.


Constitutional morality aims to foster a vibrant Indian democracy by promoting a sense of brotherhood among its diverse populace, spanning various classes, races, religions, cultures, castes, and sections.


The invocation of constitutional morality is an extension of Dr. Ambedkar's vision of social reform and constitutional transformation.


He underscored the significance of individual rights in driving societal change, emphasising the need for adherence to constitutional principles and the assurance of dignified living for all.



The concept of constitutional morality delineates a set of obligatory conditions for agents operating within a constitutional framework. Its primary objective is self-restraint and the recourse to constitutional methods for resolving disputes. 


This emphasis on procedural resolution acknowledges and respects India's rich cultural and societal diversity.


It rejects any assertion of exclusive representation of popular sovereignty, as such claims would undermine the essence of sovereignty. Therefore, constitutional morality aims to prevent any branch of government from monopolising representation of the people.

 
 

Insights from Landmark Supreme Court Cases


Although the term "Constitutional Morality" is not explicitly mentioned in any articles of the Indian Constitution, the concept of "Morality" appears in four instances: Article 19(2), Article 19(4) (Right to Freedom), Article 25(1), and Article 26 (Right to Freedom of Religion). 


The Supreme Court has employed the concept of Constitutional Morality to interpret individual fundamental rights enshrined in the Constitution and to assess the constitutional validity of statutes. Several landmark decisions have underscored the significance of Constitutional Morality before the Supreme Court.


In the case of Manoj Narula v. Union of India, the Supreme Court tackled the crucial issue of the legality of individuals with criminal backgrounds or charged with offences involving moral turpitude being appointed as ministers in Central and State Governments.


The court emphasised the dynamic nature of the Indian Constitution, designed for a progressive society. It highlighted Dr. 


Ambedkar's belief in the Constitution's capacity to evolve based on constitutional morality. Quoting from the Federalist Papers, the court emphasised the necessity of ensuring both external and internal controls on government, underscoring the importance of enabling government control while obliging it to restrain itself. 


In a democracy, the court affirmed, the populace does not intend to be governed by individuals with criminal antecedents.


This sentiment is deeply ingrained in executive governance and is upheld through constitutional provisions, principles of constitutional morality, and established conventions.


In the Navtej Singh Johar case, the Supreme Court delved into the juxtaposition of constitutional morality and social morality, asserting the primacy of constitutional morality over societal norms.


This pivotal case saw the partial striking down of Section 377 of the Indian Penal Code (IPC), deeming it unconstitutional insofar as it criminalised consensual same-sex relations among adults. 


The Court revisited the precedent set by the Suresh Koushal case, wherein the Delhi High Court's decision in the Naz Foundation case was overturned.


The crux of the matter lay in the perceived reliance on social morality by the bench in the Suresh Koushal case, which, in reality, necessitated an examination through the lens of constitutional morality.


Against this backdrop, the bench articulated that constitutional morality encourages the state's organs to uphold the heterogeneous fabric of society in multifaceted ways.


It cautioned against any attempt to impose a homogeneous societal philosophy, emphasising the need to resist popular sentiment or majoritarianism. 


Devotion to constitutional morality, the Court stressed, should not be conflated with prevailing popular sentiments at any given moment.


It advocated for an inclusive environment where asymmetrical attitudes within the legal and constitutional framework could not only coexist but also thrive.


This, the Court argued, is crucial for the flourishing of freedom of expression and choice, which are central tenets of constitutional morality.


In analysing social morality vis-à-vis constitutional morality, the Court emphasised the duty of constitutional courts to intervene when fundamental rights, tantamount to basic human rights, are infringed upon, regardless of the affected segment's size within society. 


It underscored the judiciary's role in ensuring that constitutional morality triumphs over social morality, employing judicial engagement and creativity to uphold constitutional principles and protect individual liberties.


In the Indian Young Lawyers Association case (Sabarimala Temple case), the application of Constitutional Morality was central to both the majority and minority viewpoints. This decision sparked considerable debate, as it employed Constitutional Morality to both permit (in the majority opinion) and deny (in the minority opinion) relief in the writ petition.


The petition sought directions to ensure the entry of female devotees aged 10 to 50 into the Lord Ayyappa Temple at Sabarimala, challenging certain customs and rules.


In the majority opinion delivered by Hon'ble Justice Dipak Misra, CJI, it was emphasised that the term "morality" in Article 25(1) of the Constitution must be construed broadly, encompassing constitutional morality when fundamental rights are at stake.


The opinion stressed that public morality should not impede constitutional morality, asserting that constitutional principles must prevail over societal norms.


Concurring with the majority, Hon'ble Justice Chandrachud underscored the enduring value of constitutional morality rooted in human liberty, equality, fraternity, and dignity.


He argued that religious freedom and the management of religious affairs must be subject to constitutional morality, ensuring justice for every individual.


In contrast, Justice Indu Malhotra, in her minority opinion, interpreted Constitutional Morality as the moral values underlying the Constitution's text.


She emphasised the need to protect religious liberties while balancing them with principles of equality and non-discrimination.


This case exemplifies the philosophical and juridical significance of constitutional morality, prompting reflection on its implications for parliamentary debate.


Dr. Ambedkar's words resonate, highlighting the potential of constitutional morality to foster democracy's core principles of liberty, equality, and fraternity when embraced collectively.

 
 

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