Evolution Of Constitutional Morality In India
Author: LawSphereX
Category: Constitutional & Human Rights
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EVOLUTION OF CONSTITUTIONAL MORALITY IN INDIA
Procheto Dasgupta, Xavier Law School, St. Xavier’s University, Kolkata.
ABSTRACT
This research paper explores the evolution and application of constitutional morality in Indian Constitution and Indian Jurisprudence. The term constitutional morality was first used by Dr. B.R. Ambedkar who advocated that people in power must follow the principles enshrined in the Indian Constitution like Liberty, Equality and Fraternity. This paper highlights the application of constitutional morality has been highlighted in 21st Century judgments by Indian Courts specifically in cases like Naz Foundation Vs. Govt of NCT of Delhi (2009), Suresh Kumar Kaushal Vs. Naz Foundation (2013), Navtej Singh Johar VS. Union of India (2018), Justice K.S. Puttaswamy VS. Union of India (2017) which made right to privacy a fundamental right under Indian Constitution, Indian Lawyers Association VS. State of Kerala (2018) and last but not the least Joseph Shrine Vs. Union of India (2018).
INTRODUCTION
Constitutional Morality is the soul of the Indian Constitution and in plain and simple words is described adherence to the values and principles enshrined in the Indian Constitution. Values like Liberty which means freedom of thought, worship, belief, expression, faith and belief, freedom and personal liberty and a right to live in a dignified way. Equality which is mentioned in Article 14 of the Indian Constitution gives citizens the right to equality before law. Similarly, Article 19 guarantees freedom of speech and expression and Article 21 guarantees the right to life and dignity i. e. , the right to live a dignified life.
In multiple occasions, there has been a conflict between Constitutional Morality and Conservative Societal Norms which was clearly seen in the Sabrimala Verdict where women between ages of 10-50 were denied entry in temples in Kerala, solely on the reason they belonged to the menstruating age. I have highlighted multiple landmark judgments which highlight the application of constitutional morality. The case of Naz Foundation VS. Govt of NCT of Delhi (2009), 1 was a landmark judgment by the Delhi High Court which struck down Section 377 of the Indian Penal Code which criminalized homosexuality or consensual homosexual acts. This was in response to a petition was filed by Naz Foundation which argued that Section 377 was discriminatory and arbitrary in nature as it violated Articles 14, 15 and 21 of the Indian Constitution.
The Court held that the law, even if originally formulated to tackle non-consensual and coercive activities, was being used wrongly to attack a vulnerable community and did not have a place in a democratic country committed to constitutional rights. The Court underlined the fact that public morality in line with majority sentiments cannot override constitutional morality, which safeguards individual rights and dignity. It observed that where there is a clash between constitutional morality and social or popular morality, the former should override. While the expression "constitutional morality" was not yet strongly rooted, this ruling set the stage for its subsequent application in decisions such as Navtej Singh Johar. The ruling was a significant move toward acknowledging sexual orientation as a necessary aspect of individual identity and freedom.
However, the aforementioned ruling was overturned by the Supreme Court in the case of
1 2009 (6) SCC 712
Suresh Kumar Koushal Vs. Naz Foundation (2013)2, the Apex Court held that Section 377 was not violative of Articles 14, 15, or 21 of the Constitution, justifying that the LGBTQ+ community was a "minuscule fraction" of the population and that it was the job of the legislature and not the judiciary to modify the law. This ruling was a serious blow to LGBTQ+ rights in India and was roundly condemned for ignoring constitutional morality and basic rights like dignity, privacy, and equality. The ruling remained until it was reversed in Navtej Singh Johar v. Union of India (2018), where a Supreme Court Constitution Bench ruled that the rationale in Koushal was erroneous and reiterated that constitutional rights are not at the mercy of majoritarian sentiments. The theory of Constitutional Morality took a turn during the judgment of Justice K. S. Puttaswamy Vs.
Union of India (2017), 3whereby the Supreme Court recognized Right to Privacy as a fundamental right under Article 21 and forms an intrinsic part of life and liberty. It was in response to a PIL filed by Former Justice K. S. Puttaswamy who was a retired judge of the Madras High Court who challenged the constitutional validity of the Aadhar Scheme which involved collecting biometric data of the citizens and its use by the Government of India. The petitioners, among them being retired Justice K. S. Puttaswamy, contended that the biometric data mandatorily being linked with schemes and services was an infringement on the right of privacy of an individual. The matter gained relevance as the Supreme Court's previous judgments, most notably M. P. Sharma v. Satish Chandra (1954) 4 and Kharak Singh v. State of U. P.
(1962) 5whereby the Supreme Court had taken the view that the Indian Constitution did not specifically enshrine a right to privacy as a fundamental right. This left a very important constitutional question: Is the right to privacy a fundamental right under the Constitution of India?. This ruling unequivocally prioritized constitutional morality over social morality, holding that dignity and autonomy of the individual had to be paramount in a constitutional democracy. It specifically overruled earlier decisions which had minimized privacy and established a strong basis for several progressive decisions that followed, such as Navtej Singh Johar v. Union of India (2018).
2 2014 (1) SCC 1
3 (2017) 10 SCC 1
4 1954 (1) SCR 1077
5 1964 SCR (1) 332
In Navtej Singh Johar v. Union of India (2018). 6 In this momentous judgment, the Supreme Court de-criminalized adult consensual same-sex relations and overruled the Koushal judgment. The Court ruled that Section 377 of the Indian Penal Code, which made "unnatural offenses" criminal, was unconstitutional to the extent that it was applied to consensual sex between adults in private. This ruling was a significant triumph for LGBTQ+ rights in India, holding that sexual orientation is a fundamental aspect of a person's right to privacy, dignity, and autonomy. It underscored the role of constitutional morality, stating that it has to govern judicial choices and cannot be relegated to societal or majority opinion.
The judgment cited the provisions under Articles 14, 15, 19, and 21 of the Constitution to guarantee that everyone, irrespective of sexual orientation, has a right to equality, non-discrimination, and individual liberty. The Court also borrowed from the Justice K. S. Puttaswamy v. Union of India (2017) ruling which identified the right to privacy as a fundamental right under Article 21 and extended the same to cover sexual orientation. By dismissing the contention that the LGBTQ+ population was a "minuscule fraction" of the population, the Court accepted the extensive harm inflicted by criminalizing same-sex relations. The judgment was a milestone in enforcing the rights of oppressed groups in India, establishing a precedent for equality and dignity under the Constitution. The case of Joseph Shrine Vs.
Union of India (2018), 7 was a watershed moment in Indian constitutional law, especially in the areas of gender justice and personal freedom. The matter was filed as a Public Interest Litigation (PIL) by Joseph Shine, a non-resident Keralite, questioning the constitutional validity of Section 497 of the Indian Penal Code, 1860. The section penalized adultery to the effect that a man who had consensual sexual intercourse with a married woman, without her husband's consent or connivance, would be liable to be punished. Most importantly, the law made the woman a passive victim, rather than an equal partner, and accorded to her husband a right of ownership over her sexuality. The petitioner argued that this provision was not just patriarchal and archaic but also violative of the constitutional guarantee of fundamental rights under Articles 14, 15, and 21 of the Constitution.
The Court held that the legislation was manifestly arbitrary, as it established a gender-based classification which was neither fair nor rational. It reinforced the idea that women were
6 2018 (10) SCC 1
7 2019 (3) SCC 39
inferior to their husbands and did not possess the ability to make independent choices in matters of intimacy. The Court also pointed out that a legislation which treats women differently or denies them autonomy is a violation of their dignity and right over liberty under Article 21. In addition, the provision was discriminatory under Article 14 (equality before the law) and violative of Article 15, which prohibits discrimination on grounds of sex. In rendering its verdict, the Court applied the doctrine of constitutional morality, stating that the Constitution inscribes values like individual dignity, liberty, and equality that need to inform judicial interpretation, particularly when faced with archaic societal norms. The Bench drew upon the Justice K. S. Puttaswamy (Retd. ) v.
Union of India (2017) ruling to point out the primacy of privacy and autonomy as inherent in the right to life, and the Navtej Singh Johar v. Union of India (2018) ruling to reaffirm that personal decisions regarding intimacy and sexuality are under the protection of the Constitution and cannot be brought within the reach of criminal law simply because they violate traditional moral sensibilities. The Joseph Shine judgment resoundingly debunked the colonial-era conception of morality ingrained in criminal law and represented a turning point towards the acknowledgment of women as equals with equal rights and agency. It reaffirmed that in a constitutional democracy, the law cannot be employed as a tool to impose patriarchal values or to control consensual adult relationships.
The judgment established a strong precedent for gender justice and underlined the judiciary's role in safeguarding personal freedoms from the burden of deeprooted social norms. Similarly, Shafin Jahan Vs. Asokan K. M. (2018),8 turned into an important case in Indian constitutional law for upholding the basic right of an adult citizen to decide freely in regard to matters of faith and matrimony despite societal or familial disapproval. The issue began when Akhila Ashokan, who was 24 years old from Kerala, freely accepted Islam as her religion and gave herself the name Hadiya. Thereafter, she was married to Shafin Jahan, a Muslim male, by way of an arranged marriage arranged by her Muslim community contacts. Her father, Asokan K. M. , opposed the decision, asserting that Hadiya had been brainwashed and coerced into conversion and marriage.
He filed a petition for habeas corpus before the Kerala High Court seeking custody over his daughter.
8 [2018] 4. S.C.R. 955
In a highly controversial verdict, the Kerala High Court ruled that the marriage was "null and void" and said that Hadiya was not capable of giving her own consent when in a fit mental state and essentially put her in her parents' guardianship. The order of the High Court was highly questionable on issues of personal freedom, religious freedom, and gender autonomy since it appeared to imply that an adult woman could not make decisions for herself in relation to issues of marriage and religion. Shafin Jahan subsequently went to the Supreme Court of India, contesting the nullification of his marriage and the restriction of his wife's freedom. The Supreme Court, in its last judgment, overruled the Kerala High Court's decision, categorically affirming Hadiya's freedom to choose her religion and spouse, and reinstating her marriage with Shafin Jahan.
The three-judge Bench, presided over by then Chief Justice Dipak Misra and comprising Justices A. M. Khanwilkar and D. Y. Chandrachud, held that the selection of a partner, be it in marriage or otherwise is the sole prerogative of an adult person, and that courts cannot interfere with such a marriage on grounds of suspicion or conjecture unless there is concrete evidence of illegality, fraud, or coercion. The Court asserted that Article 21 of the Constitution ensures the right to life and personal liberty, which extends to the right to marry a person of one's choice and the right to freely practice any religion under Article 25.
The Court referred to the doctrine of constitutional morality, stating that the validity of individual choices had to be subjected to test not on the touchstone of social norms or the expectations of majoritarianism, but on the touchstone of constitutional values of dignity, liberty, and equality. The Shafin Jahan ruling is an important precedent that affirms the freedom of adult people, especially women, to exercise choice in their personal lives. It repudiated patriarchal tendencies that erode women's autonomy and asserted that the State and courts cannot overrule an adult's individual freedom just to meet social norms or family wishes.
The case went on to become a significant landmark in advancing constitutional safeguards in the context of religious freedom, gender justice, and individual autonomy, and remains a strong reaffirmation that constitutional morality should always override social morality in a contemporary democracy. The case of Indian Lawyers Association Vs. State of Kerala (2018), 9 represented a turning point in the history of constitutional morality and gender justice in India. The case followed a
9 [2018] 9 S.C.R. 561
petition contesting the time-honoured tradition that prevented women aged 10 to 50— menstruating years—from entering Sabarimala temple in Kerala, which was dedicated to Lord Ayyappa. The petitioners contended that the practice was unconstitutional since it discriminated on the basis of biological differences and violated women's fundamental rights under Articles 14 (equality), 15 (non-discrimination), 17 (abolition of untouchability), 25 (freedom of religion), and 21 (protection of life and personal liberty). The Travancore Devaswom Board, in charge of managing the temple, justified the prohibition on the grounds of indispensable religious practice, arguing that the goddess was celibate and that disallowing entrance to women between a certain age group was integral to the personality of the temple.
With 4:1 majority, the Supreme Court invalidated the ban, holding that the ban was illegal and women of all ages have a right to pray. Chief Justice Dipak Misra, speaking for himself and Justice A. M. Khanwilkar, stressed that constitutional morality should override patriarchal religious traditions. The Court held that the discrimination practised against women on the basis of their biological nature represented a kind of discrimination contrary to the dignity and autonomy afforded by Article 21. The Court also held that the exclusion of women is a kind of untouchability, invoking Article 17 in order to emphasize that such social exclusion, when adopted within the sphere of religion, reflects inequality and subordination. Justice D. Y.
Chandrachud, in his spirited concurring judgment, emphasized that patriarchybased customs could not override constitutional ideals, and concepts of purity and pollution as applicable to menstruation are sexist and need to be condemned. He asserted that gender has nothing to do with the right to pray, and the Constitution will not allow access to religious areas to be placed with obstacles based on sexist traditions. The ruling also greatly broadened the ambit of the essential religious practices test, holding that even where a religious practice has been determined to be essential to a religious denomination, it must nevertheless comply with constitutional values such as equality and non-discrimination.
Justice Indu Malhotra gave the only dissent, expressing the view that courts must not intervene in issues of faith unless there is a manifest breach of constitutional provisions and that the Sabarimala ban was an integral part of a religious denomination's practice. But the majority judgment held sway and opened the doors of the Sabarimala temple to women of all ages, thus upholding the primacy of constitutional values over religious orthodoxy.
CONCLUSION
In short, Constitutional Morality is the pillar of the Indian Constitution, maintaining that individual rights, dignity, and liberty are placed above religious and societal conventions. The role of the judiciary in enforcing Constitutional Morality has been instrumental in various flag cases like Naz Foundation, Joseph Shine, Shafin Jahan, and Sabarimala, where the courts placed paramountcy on constitutional tenets above majoritarian or conservative sentiment. These judgments reaffirmed the idea that the Constitution assures the protection of basic rights such as equality, privacy, autonomy, and freedom of choice, so that these rights are not left to the mercy of social or religious practices.
Finally, the safeguarding of individual freedom and dignity is most important in a constitutional democracy, and the decisions of courts must always affirm the values that are enshrined in the Constitution. The Sabarimala judgment therefore constitutes a strong affirmation of gender equality, individual freedom, and the vision of transformation of the Constitution, holding that customs and traditions have to give way to the ideals of liberty, equality, and dignity. It further entrenched the use of constitutional morality in resolving clashes between personal belief and basic rights, establishing a precedent for judicial safeguarding of progressive values in India's constitutional democracy.