Rethinking Justice - An Innovative View On Constitutional Morality
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Category: Constitutional & Human Rights
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RETHINKING JUSTICE: AN INNOVATIVE VIEW ON
CONSTITUTIONAL MORALITY
Faizan Ahmad Agha, Hamdard Institute of Legal Studies and Research Jamia Hamdard
ABSTRACT
The phrase “constitutional morality” isn’t cited specially within the Indian constitution. Historian George is credited with growing the principle of constitutional morality in the 1800s. According to George, constitutional morality is the peaceful co-existence of freedom and restraint in democratic administration. The theory of constitutional morality is a relatively new development in the body of judicially created constitutional law in India. It has been used by the supreme court in significant judgements, and it refers to the idea that constitutional governance requires not only adherence to the Constitution's text but also a commitment to underlying constitutional values and principles.
Doctrines like basic structure and constitutional morality have been used to impose implied constitutional limits on the government, rooted in principles of the constitution that judges consider to be essential to its existence. This implies that judges can assess the legality of constitutional changes and government activities by checking that they do not contradict the "spirit, " "soul, " or "conscience, " of the Constitution. The court has emphasized that adherence to constitutional values and principles is necessary for maintaining a just and democratic society and that judges must use their discretion responsibly in applying these principles to specific cases.
The court has also clarified that the doctrine of constitutional morality does not give judges unlimited power to impose their values on society but rather requires them to interpret the Constitution in light of its underlying principles and values. In this paper, traces the history of constitutional morality, its humble beginning and eventual evolution. his paper also talks about its origin in India and its connection with the chairman of the drafting committee of the Indian constitution, Dr. B. R Ambedkar, Ambedkar's views on constitutional morality were rooted in his belief that adherence to constitutional values and principles was essential for maintaining a just and democratic society.
After which the paper scrutinizes the recent developments that have taken place in the Indian judiciary with regards to the doctrine and how the notion of constitutional morality made a comeback in our nation's jurisprudence. In this paper the researcher traces landmark cases like Naz Foundation, Navtej Singh Johar, and Joseph Shine, Sabarimala case and the recent same-
sex marriage case wherein the court held that constitutional morality serves as a check on popular morality and ensures that laws and government actions are consistent with enduring principles of justice and fairness. Keywords: Constitution, Constitution Morality, Supreme Court, Indian Jurisprudence.
RESEARCH QUESTIONS
1. How has the concept of constitutional morality evolved in Indian judicial history, and what role
has it played in significant supreme court judgements such as Naz Foundation, Navtej Singh Johar, and Joseph Shine?
2. In what ways did Dr. B.R. Ambedkar’s views on constitutional morality influence the drafting
of the Indian constitution and its subsequent interpretation by the judiciary? How does the doctrine of constitutional morality balance the need for adherence to constitutional principles with the restraints on judicial overreach, ensuring that judges go not impose their personal values on society?
INTRODUCTION
Indian constitutional law includes several judicially created tests that aren’t mentioned in the constitution, including the basic structure theory, the classification test, the old arbitrariness, and the new manifest arbitrariness tests. The doctrine of constitutional morality is a recent addition to this list of innovations created by the judges. The definition of constitutional has changed over time. George Grote, an English historian is created with creating the theory of constitutional morality. He interpreted the remark in the light of Greek history, Athenian democracy, and the threats it encountered. He defined constitutional morality as popular sovereignty that is governed by freedom and restraint. Grote defined constitutional morality as the public’s right to criticize public officials.
Thus, emphasizing the constitution’s limitations on public officials’ authority and their need to uphold it. He claimed that constitutional morality was invoked and realized in an ideal but fleeting state, particularly in relation to the Athenian democracy. He also made observations about the United States and England following the glorious revolution in his writing. 1 During a
1 Constitutional Morality, in Democracy And Its Institutions (2012) 75-98.
discussion in the constituent assembly, Dr. B. R. Ambedkar introduces the phrase for the first time in the Indian context to advocate for the inclusion of administrative provisions in the constitution. Ambedkar’s worry about the legislature and its authority was communicated through the world and its allusion. According to him, constitutional morality would entail the effective coordination of the numerous organizations working to achieve their goals at any cost and the administrative collaboration to resolve any conflicts between their competing. interests. He believed that the people of independent India still lacked a deep-seated understanding of democracy. 2 The supreme court made passing mentions of constitutional morality in its judgements in subsequent years in various contexts. In the Keshvananda Bharti v.
state of Kerela,3 two judges referred to constitutional morality but decided not to follow through. Another justice in SP Gupta v. President of India. 4 referred to a constitutional violation as a significant breach of constitutional morality. Justice S. B. Sinha used it in Islamic Academy of Education v. State of Karnataka5 and JusticeDeepika Mishra used it in Niranjan Hemchandra Sashittal v. State of Maharashtra. 6
GEORGE GROTE’S PERSPECTIVE ON CONSTITUTIONAL MORALITY
Grote originally mentioned the concept of constitutional morality in his book “A History of Greece “written in the late 1800s. According to Grote, constitutional morality is the peaceful co-existence of freedom and restraint and is an essential component of democratic governance.
He defined “constitutional morality “as A paramount reverence for the forms of the Constitution, enforcing obedience to the authorities acting under and within those forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts,- combined too with public confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the constitution will be not less sacred in the eyes of his opponents than in his own”7 Assessing the Glorious Revolution of 1688 and the background of England about constitutional 2 Pratap Bhanu Mehta, ‘What Is Constitutional Morality’ 615 Seminar (2010) https://www. indiaseminar. com/2010/615/615_pratap_bhanu_mehta. html accessed 20 May 2024.
3 AIR 1973 SC 1461.
4 AIR 1982 SC 149.
5 2002 8 SCC 481.
6 2013 (3) ABR 802.
7 George Grote", En.cyclopaedia Britannica, https://www.britannica.com/biOL'Taphy/Geon:re-Grote accessed 16May 2024.
morality, he observed that it was not an “intrinsic or natural attitude” and it is difficult to create and distribute it throughout a population, judging from historical experience. In addition to the previous remark, he added that constitutional morality was the indispensable requirement of a government that is both free and peaceful.8 In Grote’s notion of constitutional morality, citizens and constitutional bodies must co-exist in harmony for their obligations to fall within the purview of constitutional morality. The citizen must have autonomy and self-imposed restraint and be on an equal footing, the constitution must be obeyed, and authorities must operate within its bounds. This is the essence of Grote’s argument on constitutional morality.
THE MORAL FOUNDATION OF POLITICS BY JOHN STUART MILL
John Stuart mill developed a political ethics-focused understanding of constitutional morality while Grote viewed it via a historical- sociological perspective. In an essay published in 1861, mill discussed the origins of modern government and raised doubt about the capacity of constitutional law as an enforceable complex law, to prevent its various agencies from abusing their power over one another. 9 To solve the inadequacies of positive law, mill urged political actors and institutions to put moral duties above their public obligations. He referred to these duties as constitutional morality, “positive political morality” and the “ethics of representative government” constitutional morality, according to Mill consists of the unspoken laws and precepts “In the minds of the political actors and institutions, which modify the use that might otherwise be made of their powers”.
Grote positioned the citizen as the first subject of constitutional morality and through him, his leaders. Mill’s constitutional morality was exclusively applicable to political figures and organisations. Although one would contend that a political climate dominated by Mill’s constitutional morality would most likely have favourable second-order consequences on citizens, Mill was not primarily interested in the citizens on his rights. It is strange that Mill ignored this distinction given how much Grote’s work on representative Government impacted Mill. 10
8 George Grote Esq., Greece New York: Peter Fenelon Collier, 1899,
https://babel.hathitrust.org/cgi/pt?id=hvd.hw20pr&view=l up&seq=7 accessed 10 May 2024. 9 Mill, J. (2010) Considerations on Representative Government (Cambridge Library Collection - British and Irish History, 19th Century). Cambridge University Press. doi:10.1017/CBO9780511783128. 10 Leo Catana, Grote's analysis of Ancient Greek political thought: its significance. 27 British Journal For The History of Philosophy 2019 553.
Dr. AMBEDKAR’S DISCOURSE ON CONSTITUTIONAL MORALITY Ambedkar joined Columbia university in New York in 1913 when “constitutional morality” was fashionable in the United States. Ambedkar took “History 121” at Columbia university, which covered some aspects of Greek history. 11 It is possible that he encountered Grote’s writing in that course. Decades later, in 1948, in a speech at the constituent assembly, he began by saying that he agreed that “administrative details should not have any place in the constitution”. Then, using an excerpt from Grote’s history of Greece, he asserted that the constitution might be changed without being legally amended by altering the manner it was administered. This was because “the form of administration has a close connection with the form of the constitution.
” Only where people are saturated with constitutional morality, such as the one described by Grote the historian, can one take the risk of omitting from the constitution details of administration and leaving it to the legislature to prescribe them,” Ambedkar said. He quoted Grote as saying that Indians “have yet to learn it” and that constitutional morality was not a “natural sentiment. ” “Democracy in India is only a top-dressing on Indian soil which is essentially undemocratic,” he said. He concluded that it was better to not rely on the Legislature to impose administration forms in these situations. 12 It can be argued that Ambedkar never meant constitutional morality to become a weapon at the hands of the judges to administer justice.
In his speech, he used the concept to target a mundane concept related to administration and how it should be kept away from the hands of the legislators who will try to change it to suit their needs.
CONSTITUTIONAL MORALITY: A MODERN RENAISSANCE
The constitutionality of section 377 of the Indian penal code, which classified canal intercourse against the order of nature as a criminal offence, was challenged in the case of Naz foundation v. government of NCT of Delhi.13 The court referred to a judgement from European court of human rights in Norris v. republic of Ireland it was ruled that even though members of the public who view homosexuality as immoral may be shocked, offended, or troubled by other’s commission of private homosexual acts, this cannot on its own warrant the application of penal
11 Chandrachud, Abhinav, The Many Meanings of Constitutional Morality 2020,
https://ssrn.com/abst:ract=3521665 accessed 16 April 2024.
12 ibid [8].
13 Delhi Law Times 277.
sanctions when it is only consenting adults alone who are involved. The Delhi high court disregarded public morality as a compelling governmental interest that could justify restrictions placed on personal liberty as granted by Article 21 of the constitution. In contrast to constitutional morality, the Delhi high court held that popular morality is “based on shifting and subjective notions of right and wrong”. Chief justice shah held that the court must consider constitutional morality, not popular morality while assessing whether a law can be defended as advancing a “compelling state interest”. The court continued, “Dr. Ambedkar insisted strongly on this aspect of constitutional morality in the constituent assembly. ” “Popular morality or public disapproved of certain acts is not a valid justification for restriction of the fundamental rights under Article 21,” Delhi high court ruled.
The court further asserted that a compelling state interest the court must consider constitutional morality rather than public morality. The chief justice utilized constitutional morality as a tactic to oppose the majority’s transient sense of morality. Despite the permanence of a constitution, the Delhi high court has recognized the value of its flexibility by skilfully de-historicizing the idea of constitutional morality in order to further a larger social goal. The court cited Glanville Austin and stated that parts III and IV, which cover Fundamental Rights and Directive Principles of State Policy, including the fundamental commitments to the social revolution. These serves as the constitution’s conscience.
The goals of “social revolution” and “attempts to foster this revolution by establishing the conditions necessary for this achievement” are therefore used to explain constitutional morality. In the formulation of constitutional morality by chief justice shah, the court was viewed as a countermajoritarian institution. Its objective was to ensure that the constitution’s core principles prevailed over the fragile morality of the majority. Ambedkar used Grote’s view of constitutional morality as a rhetorical technique to support the inclusion of trivial features in the Indian constitution. Ambedkar may have agreed with chief justice shah’s argument that the Constitution must take precedence above moral standards, but he did not intend this to be the basis of constitutional morality.
Ambedkar did not mean to imply that courts should not consider popular morality when determining whether a statute is constitutional when discussing constitutional morality. The supreme court of India overturned the Delhi High Court’s decision in Suresh Kumar Koushal v. Naz Foundation, it subsequently found favour with a larger bench of the supreme
court In Navtej Singh Johar v. Union of India. 14 The court ultimately ruled in favour of decriminalizing consenting same-sex sexual activity. The reasoning of Naz foundation judgement, according to which “morality” must be based on “constitutional values” rather than on prevailing or otherwise social standards, if the constitutionality of a law is supported by “morality” was proven correct. The content of constitutionality morality has taken on more clarity as a result of the main opinion written by Chief Justice Mishra and the concurring opinions of Justice Chandrachud and Justice Nariman. The supreme court referenced several renowned jurists to support its arguments in this historic decision. The court cited Bentham, who believed that the morality of society should not overly influence legislators.
The judgement also mentioned Hart, who avoided the specious generalization that the law must be strictly segregated from morality but made it clear that laws like section 377 impose a majoritarian view of right and wrong upon a minority in order to protect societal cohesion, are jurisprudentially and democratic impermissible. According to the court, John Stuart Mill also argued ve vehemently against the legalization of popular morality, who consider as an injury to themselves any conduct which they have a distaste for cannot direct the behaviour of others just because it goes against their own beliefs or views. The supreme court held that A Person’s sexual orientation is intrinsic to their beings. It is connected with their individuality, and identity.
A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality. The court’s decision in the case of INDEPENDENT THOUGHT V. UNION OF INDIA,15 came before Navtej Singh Johar. According to the second exception to section 375 of the Indian penal code, a man does not commit rape if he engages in sexual activity with his wife, if she is fifteen years of age or older. The court interpreted the clause and decided that as long as the wife was at least 18 years old, sexual activity between a man and his wife did not constitute rape. In reaching this conclusion, the court noted that constitutional morality prohibits the court from interpreting Exception 2 of section 375 IPC In a way that glorifies a custom or tradition that is no longer viable.
However, in this case, the apex court did not fully apply the constitutional morality doctrine, which serves as a counterbalance to popular morality. If it had, it might have decided that the second exception to section 375 of Indian penal code, which exempts married men from rape
14 AIR 2018 SC 4321.
15 2017 I0 SCC 800.
laws, is completely incompatible with constitutional morality. After all, why should the fact that a woman is a Man’s adult wife prevent a man from being charged with rape for forcing himself upon her? However, the court simply watered down the clause and eliminated the exemption insofar as it applied to married men who engaged in sexual activity with their wives under 18. IN JOSEPH SHINE V. UNION OF INDIA,16 the apex court invalidated section 497 of Indian penal code because only men were subject to the punishment for adultery. By ignoring public morality, this case demonstrates how the supreme court is leaning towards the idea of constitutional morality. The notion that the husband is the master of a woman, which had been portrayed in this law for a very long time, was disrupted by this judgement, which made it abundantly clear that a woman is not a commodity owned by a man.
The court held that the non-prosecution of woman for adultery violates certain fundamental rights and that the right to privacy also included the right to sexual privacy. According to justice Chandrachud, this section was based on the societal and sexual convention from the nineteenth century, which disregarded woman’s sexual agency and viewed a woman’s husband as her sole property. He disagreed with this idea and said, “it is not the common morality of the state at any time in history, but rather constitutional morality, which must guide the law. ” IN STATE (NCT OF DELHI) V. UNION OF INDIA,17 the supreme court was asked to determine how the constitution should divide power between the union government and the provincial government of Delhi.
In reaching his conclusions, chief justice Dipak Mishra, speaking for justice Sikri, justice Khanwilkar and himself, appeared to indicate that “constitutional morality “referred to the spirit of the constitution itself, something akin to the Basic structure doctrine. While interpreting the provisions of the constitution, constitutional courts must read the words in the document in the light of the spirit of the constitution. “Constitutional morality in its strictest sense of the term “, the chief justice Mishra held, implies strict and complete adherence to the constitutional principles as enshrined in various in various segments of the documents. “It requires functionaries to “cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the constitution.
Constitutional morality, means the morality that
16 2019 3 SCC 39.
17 2018 8 SCC 501.
has inherent elements in the constitutional norms and the conscience of the constitution.” Justice Chandrachud also discussed constitutionality morality in terms of the constitution’s spirit in his concurring opinion, he observed that “constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the constitution it specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the constitution. “He referred to the basic structure doctrine and held that secularism is both part of the Basic Structure of the Constitution and Constitutional morality. IN THE SABRIMALA CASE18, the apex court considered whether forbidding women between the ages of 10 to 50 from entering Hindu temples was constitutional. The constitution’s Article
25 and 26, which grants the fundamental rights to profess, practice, and propagate a religion, to
create and maintain religious institutions, etc. , are subject to various restrictions, including morality. The issue was whether the ban on outsiders entering temples could be justified as being in line with morality. Chief justice Mishra and justice Khanwilkar concluded that the restrictions were unconstitutional was unconstitutional and answered this question in the negative. They reasoned that the word “morality” used in Article 25 and 26 of the constitution must refer to constitutional morality, not popular morality. In his concurring opinion justice Chandrachud further articulated his opinion on constitutional morality. He found that the “four precepts” found in the preamble of the Indian constitution justice, liberty, equality and fraternity are the foundation of constitution morality. He then added the secularism tenet to this.
These founding ideals “must govern our constitutional notions of morality” he insisted. He came to the conclusion that constitutional morality must have a value of permanence that is not susceptible to the passing whims of each period and generation. Over the last few years, constitutional morality has become an essential concept in Indian legal jurisprudence; judges are using it to uphold the rights of the citizens. The concept is used to give the uttermost importance to the constitution of India and what it stands for. It is now used as a tool by liberal justices to protect people from both the popular morality of the society that discriminates against them and arbitrary executive actions of the government. IN SUPRIYO @SUPRIYA CHAKRABORTY & Anr. V UNION OF INDIA19 This case is closely associated with the principle of constitutional morality, especially within the context of
18 Indian Young Lawyers Association & Ors v. State of Kerela & Ors WP(C) 689/2018
19 Supriyo @ Supriya Chakraborty & Anr. V. Union of India WP(C)1011/2022
LGBTQIA+ rights and the recognition of same-sex marriage in India. In this case, petitioners argued that excluding LGBTQIA+ individuals from marriage laws, specifically the Special Marriage Act (SMA), violated their fundamental rights beneath the constitution of india inclusive the right to equality, dignity and personal liberty guaranteed under article 14,15,19 &
21 they emphasized the constitutional morality supports the inclusion of LGBTQIA+ human
beings in marriage laws to ensure equal protection and non-discrimination. The petitioners contented that the SMA’S exclusion of same-sex couples is arbitrary and lacks a rational basis, thereby failing the test of constitutionality. They argued that recognizing the right to marry for LGBTQIA+ couples would uphold constitutional morality by promoting inclusivity and protecting individual rights against societal prejudice. The supreme court’s decision in this case highlighted that while the right to marriage is not explicitly a constitutional right, it is deeply connected to the fundamental rights to life and personal liberty. The court recognized the importance of constitutional morality, which obliges the state to foster a Pluaristic and inclusive society, respecting the rights of all individuals regardless of their sexual orientation or gender identity.
The majority opinion however, maintained that the recognition of same-sex Marriages should be addressed by the legislature rather than the judiciary. This underscores the complex interplay between constitutional morality and legislative action in evolving social norms and right recognition in India.
SUGGESTIONS
Indian constitution is a flexible evolving document, it is very dynamic and new dimensions emerge as time passes and society undergoes crisscross progress. The phrase “constitutional morality” which refers to respect for difference, has seen a renaissance in Indian jurisprudence over the past decade. It is now used to describe the contemporary identity of the Indian constitution as well as the ancient legacy of a pluralistic society. It emphasizes the importance of adherence to constitutional values and principles which are essential for maintaining a just and democratic society. It also allows judges to impose implied constitutional limits on the government, rooted in principles of the constitution that judges consider to be essential to its existence. Throughout history, constitutional morality has meant various things.
It has been compared to legal principles, equality, and anti-corruption conventions.
Constitutional morality reflects the idea that justice takes precedence over all other ideas of social acceptance in the struggle for existence. Any nation would crumble without the foundation of democracy, which helps to build and safeguard. It is a guarantee that all Disparities will be removed from society’s social structure and that each person will have access to the means of enforcing their guarantee rights. It aims to revitalize our democracy by fostering a spirit of fraternity among the diverse populace from various classes, religions, cultures, castes and sections. The Supreme Court has defended the doctrine of constitutional morality as an indispensable element of constitutional governance.
The court has emphasized that adherence to constitutional values and principles is necessary for maintaining a just and democratic society, and that judges must use their discretion responsibly in applying these principles to specific cases. The court has also clarified that the doctrine of constitutional morality does not give judges unlimited power to impose their own values on society, but rather requires them to interpret the constitution in light of its underlying principles and values. In the recent years, the judiciary has established the progressive and historical precents where this doctrine has been applied, particularly in cases involving gender justice, institutional propriety, social uplift and the prevention of majoritarianism and other similar evils.
The court have used the doctrine of constitutional morality to serve as a check on” popular morality” which is often based on transient or subjective values and may not be consistent with the principles of the constitution. by upholding constitutional values and principles, courts can ensure that laws and government actions are not based solely on popular opinions or transient moral standards, but rather on enduring principles that are essential for maintaining a just and democratic society. Empirically speaking, justice Mishra and Chandrachud, the former a retired chief justice and the latter the current chief justice, have been primarily responsible for the court’s recent interests in developing the doctrine of constitutional morality. Additionally, other judges have contributed, most notably Nariman and Malhotra.
But as of now, not many judges are on board with the plan to make constitutional morality a tool for constitutional interpretation. In its brief modern history, constitutionality morality has significantly impacted Indian discourse on morality, propriety, and civic responsibility, as well as public law and public institutions. Several significant state actors have discussed constitutional morality in a variety of ways. However, the concept is still very new and relatively not that well-defined. It can be said
it is very similar to the “Basic Structure Doctrine” In terms of the power it gives to the judges while deciding cases; judges need to conduct deeper jurisprudential analysis to establish constitutional morality as a theoretical concept with a more well-defined connotation, that is universally accepted in the terminology of Indian constitutional law.
CONCLUSION
Constitutional morality, as conceptualized by George Grote and later interpreted within the Indian context by Dr. B. R. Ambedkar, represents the harmonious coexistence of freedom and restraint, essential for democratic governance. Its significance in Indian jurisprudence has been particularly pronounced in recent landmark Supreme Court cases such as Naz Foundation, Navtej Singh Johar, and Joseph Shine. These cases highlight the court's role in safeguarding fundamental rights against transient societal morals and reinforcing principles of justice and fairness. Constitutional morality serves as a vital counterbalance to popular morality, ensuring that laws and government actions align with the enduring values embedded in the Constitution rather than fluctuating public sentiments.
This doctrine underscores the necessity of adhering to constitutional principles to maintain a just and democratic society, emphasizing the judiciary's responsibility to interpret the Constitution in light of its core values. Ambedkar's insights reflect a deep understanding of democracy's fragility in India, advocating for a robust constitutional framework to protect against legislative overreach. The Supreme Court's application of constitutional morality has evolved, increasingly being used to uphold individual rights and challenge discriminatory laws. The notion has been pivotal in cases involving gender justice, social equality, and institutional integrity. While the concept remains relatively nascent and underdefined, its impact on Indian constitutional discourse is undeniable.
For constitutional morality to mature into a universally accepted doctrine within Indian law, it requires further jurisprudential refinement and broader judicial endorsement. Through this evolution, constitutional morality can continue to play a crucial role in fortifying India's democratic fabric against the caprices of popular morality and governmental arbitrariness.
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