As per the old saying, the Constitution of India is a living document rather than a book containing words. It is a source of moral guidance to our courts in deciding various issues. The Indian Constitution is not unfamiliar with judicially crafted doctrines and tests. From time and again, we have seen a deliberate interpretation of the constitution rather than the literal one. There are numerous judicially devised innovations that are not explicitly mentioned in the Indian Constitution anywhere. Therefore, while reading the constitution one can find a culture of Invention-ism. “Doctrine of Constitutional Morality”is one of the recent additions in this category. It has been repeatedly invoked by the Supreme Court in India in various judgements.
WHAT IS CONSTITUTIONAL MORALITY?
Constitutional Morality means adhesion to the bottom-line principles enshrined in the constitution. It is not just restricted to following the constitutional provisions in their literal sense but includes an obligation to achieve a comprehensive and democratic political process in which both individual and collective interests of the society are satisfied. It provides an opportunity to evolve the entire personhood of every citizen for whom and by whom the constitution exists.
ELEMENTS OF CONSTITUTIONAL MORALITY
- Rule of Law
- Individual Liberty
- Right to Equality
- Freedom of Choice
- Preamble
- Freedom of Expression
- Social Justice
- Procedure established by Law
- Due process of Law
EVOLUTION OF DOCTRINE OF CONSTITUTIONAL MORALITY
The word “Morality” has been used in the Indian Constitution at various places (Articles 19, 25, and 26). In cases related to claiming of rights like sexual orientation, surrogacy, and speech, the courts continue to invoke the word, morality. The phrase ‘constitutional morality’ has been lately begun to be widely used.
The concept of constitutional morality was first put forward by the British Classicist, George Grote in the 19th century in his book titled “A History of Greece.” The author inspected the significance of a public sentiment which he expressed must be an intrinsic part of Athenian Democracy under Cleisthenes. He examined the passage of this social force from the people to those in power and its spreading amidst all the sections of the society, majority or minority alike. According to Grote, certain obligations are to be followed by the citizens as well as the authority for implying constitutional morality:
- All the citizens would adhere to and respect the constitution.
- No one would defy the authorities deriving their command from the constitution.
- All citizens would have unrestricted freedom of speech and expression to criticize and hold accountable the public officials carrying out their constitutional duties.
- All public officials would have to act well within the boundaries of the constitution.
- All the people contesting for political power and their oppositions would respect the constitution.
In Indian context, the phrase ‘constitutional morality’ was first proposed by Dr. B.R. Ambedkar in his speech “The Draft Constitution” addressed on 4 November 1948 in a parliamentary debate to instill morality in the constitution with its substantial significance and fruitfulness. While delivering the speech he said that constitutional morality is not a ‘natural sentiment’ and Indians have yet to learn it. According to Ambedkar, constitutional morality means the cordial interaction between the government and the citizens, including the peaceful resolution of contention faced from the latter and disputes arising between them without turning to aggressive revolutions and getting into any major conflicts. He put the burden of resolving the then and the still ongoing imbalance and inequality in the society not merely on the government or the Constitution but also on this belief system or the concept of constitutional morality. He believed that this concept can help in getting rid of the gap between the constitution and the form of administration in the country. Ambedkar believed that the in Indian society where democracy is hardly a ‘top-dressing’ on the soil and is mainly undemocratic in nature, constitutional morality holds paramount significance.
SUPREME COURT’S JUDGEMENTS AND CONSTITUTIONAL MORALITY
The concept of constitutional morality was scarcely used by the Apex court till 2010. But recently, in the year 2018, the phrase has been used in more than 10 reported cases by the Apex court. It was first mentioned in the very famous and celebrated case Kesavananda Bharati v State of Kerala[1]by the Supreme Court when it proposed the inception of the basic structure of the constitution. In the First Judge Case also known as S.P. Gupta v Union of India [2]it was found that violation of constitutional principles would result in ‘breach of constitutional morality.’
After that, Justice A.P. Shah only recently in 2010 in Naz Foundation v. Government of NCT of Delhi [3] first used it in a contradictory manner to prominent acceptance and standards of morality. While evaluating the actions of the State, a criterion was set for the courts to neglect societal norms, limitations and stigmas to prevail. For example, in this case, while pondering upon the issue of decriminalization of homosexuality, then an offence under Section 377 of the Indian Penal Code (IPC), the Court took account of supporting the fundamental rights as protected by the Indian Constitution rather than society’s viewpoint with regards to the rightfulness of same-sex relationships. In Government of NCT of Delhi v Union of India [4] , Justice Dipak Misra associated constitutional morality to a ‘second basic structure doctrine.’ In the recent past, almost all the landmark judgements had constitutional morality as one of their pivotal essentials, be it Joseph Shine v Union of India [5]on adultery or the Navtej Singh Johar v Union of India [6] on homosexuality. As a matter of fact, in the Indian Young Lawyers Association v. State of Kerala [7] commonly known as the Sabrimala temple case, the Apex Court neglected the ‘Doctrine of Essentiality’ (the principle guarding the ‘intrinsic’ religious practices of a society) to support the primacy of constitutional morality.
IMPORTANCE OF CONSTITUTIONAL MORALITY
Doctrine of constitutional morality along with protecting and supporting the enforcement of rule of law in the nation also keeps up with the changing times, aspirations, and ideals of the society. Therefore, it is in no way unilateral and questions both the government as well as the citizens. It also highlights the requirement to maintain the trust of the citizens in the institutions of democracy because it allows the people to coordinate and cooperate to pursue constitutional ambitions that cannot be achieved without team spirit and unity.
Also, to read down the statutes and laws which are inconsistent with the current time and to bring a positive transformation in the perception of societal morality, constitutional morality is helpful. For example, by abolishing the Sati practice with the help of passing a law, right to life and dignity was passed onto widows who were earlier considered a portent of misfortune and bad omen. The doctrine also acknowledges diversity and plurality in a nation like India and promotes making the citizens and communities in the society more inclusive. For instance, providing a framework to reassert the rights of the LGBTQ community and all gender non-conforming people to their life, dignity, identity, and liberty.
CRITICISM OF CONSTITUTIONAL MORALITY
The phrase ‘constitutional morality’ has no explicit mention in the Constitution of India. Therefore, it has a loose and unrestricted meaning which leaves the purview of its subjective interpretation by individual judges to interpret its significance and apply in required circumstances. It also hinders the possibility of organic emergence of solutions to the existing ethical ills in the society because of the ‘top-down approach’ of morality. Further, it violates the basic principle of democracy which is the separation of powers between the three branches of the government i.e., the Executive, the Legislative, and the Judiciary. It establishes judicial dominance over parliamentary dominance. It is asserted that the implementation of constitutional morality promotes judicial overreach by pitting it against popular/societal morality.
CONCLUSION
The preamble of the constitution clearly mentions the kind of society we wish to establish which can only be achieved with the help of constitutional morality. It is a sentiment that should be cultivated in the minds of citizens as supporting constitutional morality is also a duty of individuals and not just of State or Judiciary. It is a legal mechanism to fight societal morality for the advancement of our nation and a reminder to courts to keep themselves free from societal norms and beliefs, no matter how rigid they are. Also, it holds the government accountable to examine the conscience and spirit of the Indian constitution. Therefore, it is rightly classified as a ‘second basic structure doctrine.’
[1] Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461.
[2] S.P. Gupta v Union of India, AIR 1982 SC 149.
[3] Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277.
[4] Government of NCT of Delhi v Union of India, (2018) 8 SCC 501.
[5] Joseph Shine v Union of India, AIR 2018 SC 4898.
[6] Navtej Singh Johar v Union of India, AIR 2018 SC 4321.
[7] Indian Young lawyers Association v. State of Kerala, 2018 SCC Online SC 1690.
Author: Radhika Jhanwar from U.P.E.S., Dehradun.
Juris Centre 