Unveiling Constitutional Morality - The Pulse Of Judicial Conscience
Author: LawSphereX
Category: Constitutional & Human Rights
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UNVEILING CONSTITUTIONAL MORALITY: THE PULSE
OF JUDICIAL CONSCIENCE
Shivam Tripathi, Advocate Prasoon Kumar, Advocate Praveen Chhipa, A.G.M Legal Shriram General Insurance
ABSTRACT
The Constitution of India is regarded as the supreme law of the land and is often described as a “living document” due to its adaptability to changing societal needs. The constituent assembly, while drafting the Constitution, deliberately built in flexibility so that it could remain relevant over time. Foundational principles such as liberty, equality, fraternity, and justice are essential guides for all branches of government. The legislature uses these principles to craft laws, the executive ensures their implementation, and the judiciary interprets and enforces them. The judiciary, in particular, plays a crucial role in interpreting the Constitution to address contemporary issues. In some cases, courts have had to develop new doctrines to uphold justice, reflecting the evolving nature of the Constitution.
While the document is the longest written constitution in the world, it cannot foresee every challenge society may face, necessitating judicial creativity. One such innovative concept is “constitutional morality. ” Though the term is not explicitly defined within the Constitution, it has become a significant element in judicial decisions. It is understood as an evolving standard that reflects the Constitution’s core values, guiding the judiciary in safeguarding justice and fairness. Constitutional morality can be seen indirectly through various parts of the Constitution, including the Fundamental Rights (Part III), Directive Principles of State Policy (Part IV), the Preamble, and Fundamental Duties. To understand constitutional morality fully, one must look at its historical context and development over time.
Judges have interpreted the concept in different ways, shaping how it is applied to ensure justice in a dynamic society. The flexibility of this principle reflects the Constitution's ongoing relevance in modern legal and societal frameworks.
Introduction Indian Constitution is known to be the longest written Constitution among all sovereign states. The living and dynamic nature of this constitution has implanted and recognised a lot of new rights, doctrines and other concepts to enhance the livelihood of the mankind. One among these is the doctrine of Constitutional morality. It is one of the concepts which was discussed in the constituent assembly. It is a proud moment for all of us that the Indian Judiciary is recognising the relevance of doctrine of constitutional morality in our laws. Recognizing one of the developing concepts in today’s era clearly implies the nature of The Indian Constitution as the Living Law, which is always evolving and adopting the new concept. Constitutional morality refers to the principles and values enshrined in a nation's constitution that reflect the collective morality of its citizens.
1 In India, the concept of constitutional morality has played an important role in shaping the country's political, legal, and social landscape. One of the key features of India's constitution is its commitment to secularism and equality. The constitution guarantees equal rights and protections to all citizens, regardless of religion, caste, gender, or ethnicity. This principle of equality is a cornerstone of constitutional morality in India, and has been used by the courts and other institutions to challenge discriminatory laws and practices. Another important aspect of constitutional morality in India is the principle of rule of law. The constitution establishes an independent judiciary and provides for the protection of individual rights, such as the right to free speech, privacy, and due process.
The judiciary has used the principle of constitutional morality to strike down laws that are deemed to be violative of these rights, or that undermine the rule of law. However, there are also challenges to the implementation of constitutional morality in India. Despite the constitutional guarantees of equality and secularism, discrimination and prejudice remain prevalent in many parts of the country. In addition, political polarization and a lack of commitment to the rule of law by some elements of the government and society have led to
1 Abhinav Chandrachud, The Many Meanings of Constitutional Morality, SSRN (Jan. 18, 2020),
https://ssrn.com/abstract=3521665 (last visited August 18, 2024).
concerns about the erosion of constitutional morality. In conclusion, constitutional morality in India continues to be an important and evolving concept that plays a crucial role in shaping the country's political and legal landscape. While there are challenges to its implementation, the commitment to constitutional morality remains strong among many Indians, and is seen as essential to preserving the country's democratic and secular foundations. History of Constitutional morality The evaluation of the doctrine of constitutional morality could be traced from the Greek philosopher. Now according to the British Classicist George Grote, In his book ‘A History of Greece’ he signifies the importance of public sentiments that is to be the significant part of the Athenian Democracy.
According to the Grote2 formulation of the constitutional morality meant as followed: • that all citizens would respect and adhere the constitution • No own would disobey the authorities acting under the constitution. • All citizens would have the unrestrained freedom to criticise public officials acting in the discharge of their constitutional duties. • All public officials would have to act within the confines of the constitution. • All the contenders for the political power would respect the constitution and know that their drivers also respect same He introduced the term in the context of popular sovereignty, emphasizing the balance between freedom and self-restraint. Grote argued that constitutional morality involved a reverence for the constitutional framework and the right of citizens to hold public officials accountable.
This idea highlighted the limitations of governmental power and underscored the responsibility of public officials to respect and uphold constitutional principles. In essence, Grote viewed
2 Grote George, V History of Greece. (Harper & brothers, London, 1853).
constitutional morality as a guiding force that ensures both the state and its citizens operate within the framework of the law. In India, the concept gained significance during the Constituent Assembly debates, where Dr. B. R. Ambedkar, the principal architect of the Indian Constitution, invoked constitutional morality to justify the need for clear legislative and administrative powers. Ambedkar expanded on Grote's ideas by defining constitutional morality as the effective coordination between competing interests in society. He emphasized that it was the duty of the government to mediate these interests harmoniously without resorting to conflict. However, despite Ambedkar’s endorsement, constitutional morality did not receive significant attention during the drafting of the Constitution, nor did it feature prominently in the early legal discourse postindependence.
3 Following India’s independence, references to constitutional morality began appearing in judicial decisions, though the term was often invoked without much elaboration. In landmark cases like Kesavananda Bharati v. State of Kerala4 and S. P. Gupta v. Union of India5, judges mentioned the term, but it was not substantively analyzed. It was only in recent years that constitutional morality started gaining prominence in the Indian judiciary. The concept began to shape the interpretation of constitutional principles in cases that addressed fundamental rights and the balance of power. In the 2014 Manoj Narula v. Union of India case, Justice Dipak Misra revitalized Ambedkar’s concept, asserting that constitutional morality requires adherence to the Constitution’s norms and rejection of arbitrary or unlawful actions.
The judiciary's interpretation expanded the scope of constitutional morality, positioning it as an essential feature of the rule of law. This principle was further clarified in the NCT of Delhi v. Union of India case, where the Supreme Court equated constitutional morality with the very spirit of the Constitution, aligning it with the doctrine of basic structure. The Court emphasized that all constitutional functionaries must act in strict conformity with constitutional principles, fostering a culture of constitutionalism in governance. Thus, the evolution of constitutional morality in India reflects a shift from its limited historical origins to a broader, more dynamic interpretation. It has become an essential tool in 3 The Constitution and the Constituent Assembly Debates, 6th reprint, Lok Sabha Secretariat, New Delhi, 2014, at 38.
4 Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
5 S.P. Mehta v. Union of India, (2018) 12 S.C.C. 353 (India).
safeguarding democracy, ensuring that governance is continually guided by constitutional principles. 6 The doctrine has not only empowered the judiciary to protect fundamental rights but also transformed the legal landscape, allowing for social progress and justice in an everchanging society. 7 Judicial precedent and Constitutional Morality The doctrine of constitutional morality has significantly influenced landmark judgments by the Indian judiciary, particularly in cases where constitutional values override public or majoritarian morality. These rulings illustrate how constitutional morality serves as a vital tool in shaping societal norms in alignment with fundamental rights, often transcending popular sentiments. In Navtej Singh Johar v. Union of India (2018)8, the Supreme Court struck down parts of Section 377 of the Indian Penal Code, which criminalized homosexuality.
In delivering this judgment, former Chief Justice Dipak Misra emphasized that the judiciary should not be guided by majoritarian views but by constitutional morality. Justice Chandrachud further elaborated on the distinction between public and constitutional morality, affirming that the latter must always prevail, ensuring justice and equality. This case set a transformative precedent by recognizing the rights of the LGBTQ+ community and upholding human dignity, privacy, and freedom under Article 21 of the Constitution. Here, the court’s progressive approach aimed to transform societal morality into constitutional morality, highlighting the judiciary’s role in fostering inclusivity. Similarly, in Joseph Shine v. Union of India (2019)9, the Supreme Court declared Section 497 of the IPC, which criminalized adultery, unconstitutional.
The court ruled that the provision treated women as the property of their husbands, violating gender equality and the right to individual dignity. Once again, the court rejected the influence of public morality in determining the validity of laws, underscoring that such views must be subordinate to 6 Nupur Chowdhury, Privacy and Citizenship in India: Exploring Constitutional Morality and Data Privacy, 11 NUJS L. REV. 421 (2018).
7 S.S. Ray, As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the Country, The Wire, Apr. 3, 2020, https://thewire.in/law/constitutional-morality-coronavirus-lockdown (last visited Sept. 15, 2024).
8 Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
9 Joseph Shine v. Union of India, (2019) 3 S.C.C. 39 (India).
constitutional morality. The ruling dismantled archaic notions of male dominance, aligning legal standards with the progressive ideals enshrined in the Constitution. The Indian Young Lawyers Association v. State of Kerala10 (2018) case, commonly known as the Sabarimala judgment, represented another monumental instance where constitutional morality clashed with public morality. The court ruled that the exclusion of women aged 10-50 from the Sabarimala temple was unconstitutional, as it violated the principles of justice, liberty, equality, and fraternity. The court held that the "morality" referenced in Articles 25 and 26, which guarantee the right to religious freedom, should be interpreted as constitutional morality, not public morality.
However, this judgment sparked considerable debate, including a dissenting opinion by Justice Indu Malhotra, who argued in favor of preserving religious customs. This case demonstrated the tension between constitutional values and societal traditions, illustrating how constitutional morality pushes for reforms in deeply rooted cultural practices. In NCT of Delhi v. Union of India (2018)11, the Supreme Court reiterated the significance of constitutional morality in addressing the division of power between the central government and the Delhi government. The court ruled that the Chief Minister, not the Lieutenant Governor, was the executive head of Delhi. The judgment highlighted that constitutional morality is embedded in the constitutional norms and serves as the conscience of the Constitution.
This ruling underscored the necessity of adhering to constitutional principles in governance, particularly in a federal structure. 12 Constitutional Morality and Social Change Constitutional morality, though not explicitly defined in the text of the Constitution, has emerged as a guiding principle in the Indian judiciary’s efforts to safeguard fundamental rights and ensure democratic governance. It transcends the literal interpretation of the law, embedding itself in the essence or "spirit" of the Constitution. This doctrine plays a vital role in shaping a just and equitable society by balancing public morality and the values enshrined in the Constitution, such as liberty, equality, justice, and fraternity.
10 Indian Young Lawyers Ass’n v. State of Kerala, (2019) 11 S.C.C. 1 (India).
11 Gov’t of NCT of Delhi v. Union of India, (2018) 8 S.C.C. 501 (India).
Pratap Bhanu Mehta, Constitutional Morality, Seminar, Sept. 2010, https://www.indiaseminar.com/2010/615/615_pratap_bhanu_mehta.htm.
As a facet of the basic structure doctrine, constitutional morality empowers the judiciary to go beyond the narrow confines of legal provisions and uphold fundamental values. By doing so, it ensures that democracy functions not just by the letter of the law but also by the ethical and moral principles embedded within the Constitution. The judiciary, thus, becomes a protector of these principles, ensuring that laws and government actions align with the Constitution’s overarching vision of a just society. Despite its importance, constitutional morality presents certain challenges, particularly due to its vague and subjective nature. Because it is not clearly defined in the Constitution, its interpretation can vary significantly between judges, leading to inconsistent applications.
For example, in the landmark Sabarimala case13, Justice Chandrachud applied the doctrine of constitutional morality to strike down the ban on the entry of women of reproductive age into the Sabarimala temple, emphasizing equality and non-discrimination. Conversely, Justice Indu Malhotra, in her dissenting opinion, invoked the same doctrine to defend religious practices, arguing for the preservation of cultural traditions. This divergence illustrates the potential for subjective judicial interpretation, which can sometimes create confusion about what constitutional morality precisely entails. However, these differences in interpretation highlight the evolving nature of the doctrine. Constitutional morality is intended to be dynamic, adapting to changing social values and ensuring that the Constitution remains relevant in modern times.
Its primary objective is to preserve the rule of law and protect individual rights from arbitrary state action. It also serves as a counterbalance to majoritarian or public morality, which can sometimes perpetuate discrimination or uphold outdated societal norms. As seen in judgments like Navtej Singh Johar v. Union of India14 (which decriminalized homosexuality) and Joseph Shine v. Union of India15 (which decriminalized adultery), the doctrine has been instrumental in driving progressive legal reforms that advance human dignity, gender equality, and individual freedoms. Nonetheless, for constitutional morality to be effectively applied as a tool for social change, there needs to be a clearer and more unified understanding of its scope. The subjective nature of the doctrine, while allowing flexibility, also risks creating legal uncertainty.
Therefore, it is crucial for the judiciary to develop a consensus on how constitutional morality should be
13 Supra note 10.
14 Supra note 8.
15 Supra note 9.
interpreted and applied across different cases. This would help in maintaining consistency in judgments and ensuring that the doctrine fulfills its role in advancing justice and equality. In conclusion, constitutional morality has proven to be a powerful mechanism for bringing about social change, often challenging traditional norms and fostering a more inclusive society. While its subjective nature poses interpretative challenges, its potential to transform public morality and align it with constitutional values makes it an essential doctrine in modern jurisprudence. As Indian society continues to evolve, constitutional morality will likely play an increasingly significant role in bridging the gap between legal provisions and the ethical ideals that underpin the Constitution.
Criticism and Challenges of Constitutional Morality While constitutional morality has emerged as a crucial doctrine in safeguarding fundamental rights and upholding the principles of the Constitution, it is not without criticism and challenges. These issues raise important questions about its application, interpretation, and potential consequences in the Indian legal framework. One of the primary criticisms of constitutional morality is the lack of clarity surrounding its definition. Unlike other well-established legal doctrines, constitutional morality is not explicitly defined within the Constitution, which makes its interpretation subjective. This ambiguity allows it to be used in various contexts, sometimes without a clear standard, leading to unpredictability in judicial decisions.
The absence of a precise framework raises concerns about how consistently it can be applied across different cases. 16 This uncertainty can also lead to concerns about judicial overreach. If constitutional morality is applied without clear limits or guidance, it risks encroaching on the domain of the legislature and the executive, thereby disrupting the principle of separation of powers. When judges use the doctrine to shape societal norms or policies, they may inadvertently assume the role of policymakers rather than interpreters of the law. Such judicial activism, while sometimes necessary to protect fundamental rights, can also result in undermining democratic processes by bypassing the elected representatives of the people. Inderjit Badhwar, Is the Constitution Moral? , India Legal (Jan. 12, 2019), https://www. indialegallive.
com/people/inderjit-badhwar/is-the-constitution-moral/ (last visited Aug. 20, 2024).
The subjective nature of constitutional morality is another challenge. Different judges may interpret the doctrine based on their own beliefs or perspectives, leading to varying outcomes in similar cases. For example, in the Sabarimala case, two judges invoked constitutional morality to justify opposite conclusions regarding the entry of women into the temple. This subjectivity not only creates confusion but also threatens the consistency and objectivity of the judiciary, making the doctrine vulnerable to individual biases. Additionally, there is the issue of lack of popular legitimacy. Constitutional morality, as interpreted by the judiciary, is not always in line with public morality or the will of the majority.
While this is often necessary to protect the rights of marginalized groups, it can also lead to a perception that the judiciary is imposing values on society without broad consensus. The doctrine, therefore, faces criticism for being undemocratic, as it may go against the majority's views and be seen as elitist or disconnected from popular sentiment. Another concern is the selective application of constitutional morality. There have been instances where the doctrine has been applied to specific issues or groups, while being ignored in other contexts. This selective usage undermines the principle of impartiality and raises questions about whether the judiciary is applying the doctrine consistently. If constitutional morality is not applied uniformly, it risks becoming a tool of convenience rather than a steadfast principle guiding judicial decisions.
In conclusion, while constitutional morality serves as an essential safeguard for justice and equality, it faces significant challenges in its application. The lack of clarity, potential for judicial overreach, subjectivity, limited popular legitimacy, and selective application are all valid concerns that must be addressed. For constitutional morality to function effectively in advancing justice and preserving the rule of law, there needs to be greater clarity and consistency in its use, along with a careful balance to ensure it does not undermine democratic processes or public trust in the judiciary. Critically Analysing Constitutional Morality Now one very important doctrine that comes into being is the constitutional morality.
As the name itself clearly says that when judiciary refers to the constitution, when there is idea of reference to morality it does not mean the popular morality or majoritarian morality list. Now
let us see the case of Navtaj singh johar17 where the Supreme court has made the constitutional morality to prevail over the popular morality. If we are following the popular morality than it won’t be just on the part of the marginalised section or the minority people. The idea of Constitutional morality is praised as it is against the idea of the popular morality, and it is in consonance in harmony with the kind of principle mentioned under the constitution. The constitutional morality is almost important to make a diverse society. The Constitution of India is the living document and a source of moral guidelines to our court in deciding various issues The Indian courts have devised many judicial crafted inventions that is not mentioned in constitutional text.
The doctrine of constitutional morality was invoked by the Supreme court in numerous landmark judgments including Keshwanand Bharti18 judgment, the first case and well in the recent Navtej johar19 and Sabarimala20 cases. The term Constitutional morality is not defined anywhere in constitution. Adding to the definition of constitutional morality in the case of Sabarimala21 Former Chief Justic of India Dipak Mishra states that the magnitude of the constitutional morality is not confined to the provisions which are written in the constitution rather it inferences within itself with the sprit or ideology behind the formation of the constitution of a wide magnitude, so that it includes a pluralistic and inclusive society. The constitutional morality not only includes the expressed articles, but it also includes the sprit of the constitution.
22 Now according to the article of the Pratap Bhanu Mehta23 where is articulate the purpose of the constitution. He talks about the two main aims of the constitution. Constitutional morality extends beyond the literal text of the Constitution; it is woven into the fabric of its spirit. The doctrine ensures that democracy safeguards basic rights for all members of society, functioning as a counterbalance to public morality. As a facet of the basic structure doctrine, constitutional morality empowers the judiciary to interpret the "spirit" and "soul" of the Constitution, advancing beyond purposive and literal interpretations to protect fundamental
17 Supra note 8.
18 Supra note 8.
19 Supra note 8.
20 Supra note 10.
21 Supra note 10.
22 Nakul Nayak, Constitutional Morality: An Indian Framework, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 354–387, https://doi.org/10.1093/ajcl/avad029.
23 Supra note 12.
values. 24 However, the doctrine has its challenges. Constitutional morality is not explicitly defined in the Constitution, which raises concerns about its subjective application. The ambiguity surrounding the doctrine has led to varying interpretations by different judges, contributing to inconsistency in its usage. For instance, in the Sabarimala case, while Justice Chandrachud invoked constitutional morality to strike down the ban on women’s entry, Justice Indu Malhotra used the same doctrine to argue in favour of religious customs. This divergence in interpretation highlights the potential risk of the doctrine being applied based on individual judicial perspectives rather than a clear, unified standard.
Despite these concerns, the objective of constitutional morality remains clear: to preserve the rule of law and ensure that actions align with constitutional provisions without arbitrariness. While the doctrine has fostered a progressive legal framework, there is a pressing need for greater clarity and consensus on its scope and application. Constitutional morality should serve as a touchstone for upholding justice and equality, but it must also be consistently interpreted to avoid confusion and ensure its continued relevance in a rapidly evolving society. One of the possible drawbacks of this doctrine of constitutional morality could be the subjectivity of the judges. That means it might be differing through judges to judges because it gave too much power to the courts to interpret.
CONCLUSION
It could be recapitulated that B. R Ambedkar did not want that the constitutional morality to be medium of combating and solving the government action, but it is to make the people to act according to the spirit of the constitution. Constitutional morality is the second basic structure of our Indian Constitution. This doctrine of constitutional morality will give the judges some room to fill the gap of ambiguity, it will also provide the judge to act in accordance with the spirit of law rather going with the popular morality or majoritarian morality. Judiciary is always taking an upper edge over the legislature through the crafting of new doctrines like a Constitutional Morality which is itself frustrating the purpose of the spirit of Ram Madhav, Cultivating Constitutional Morality, Open (Nov. 26, 2019), https://openthemagazine.
com/essay/cultivating-constitutional-morality/ (last visited Aug. 18, 2024).
constitution which was discussed the Constituent Assembly. According to the rule of law, where there is a discretion there increases the chance of arbitrariness. So, in this situation when the constitutional morality would be interpreted there might be chances of arbitrary decisions by the courts. So, to curb the arbitrariness of the judge while making use of the doctrine of constitutional morality there should be a limited use of this doctrine and also there should be some restrictions to it through the judicial activism.