Constitutional Morality

Introduction

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a topdressing on an Indian soil which is essentially undemocratic”[1]

-Dr. B.R. Ambedkar

The trajectory of social transformation that Ambedkar traced was divided into the following phases: the Vedic society and its degeneration into Aryan society; the rise of Buddhism and the social and moral transformation it set into motion; and finally, the counterrevolution and the rise of Brahmanism. Ambedkar drafted several documents which were to shape the constitutional developments in India. He remained a votary of constitutional democracy throughout. He also felt that certain core principles needed to inform not merely the institutional complex of governance but society at large.[2]

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top –dressing on Indian soil, which is essentially undemocratic.”[3]

In this regard he quoted the words of Grote ,the historian of Greece, who said what he means by constitutional morality thus: “A paramount reverence for the forms of 7 the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech ,of action subject only to definite legal control ,and unrestrained ensure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.[4]

Influenced by the political ideas of the Greek historian Grote, Ambedkar advocated the necessity of constitutional morality which meant “paramount reverence for the forms of Constitution …obedience to authority acting under and within these forms …” His main concerns were man, society, and state; however, he attached more importance to functions of society than the state. The ideas and ideals of John Dewey, Edwin R.A. Seligman, the Fabians, and the British Idealist had a deep impact on Ambedkar. His notion of liberty was avowedly that of the T.H. Green kind.[5]

Although he talked of equality before law and considered it as a major contribution of the British rule in India, he was not satisfied with this notion and advanced stronger notions such as equality of consideration[6], equality of respect and equality of dignity.[7]

Definition

The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflection able of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to   sustain   the   value   of   such   a   morality.   The   democratic   values   survive   and   become successful where the people at large and the persons in charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in   action   the   primary   concern   to   maintain   institutional   integrity   and   the   requisite constitutional   restraints.   Commitment   to   the   Constitution   is   a   facet   of   constitutional morality.[8]

The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive   society,   while   at   the   same   time   adhering   to   the   other   principles   of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.[9]

Therefore, constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual. 

Constitutional morality requires in a democracy the assurance of certain minimum rights, which are essential for free existence to every member of society. The Preamble to the Constitution recognises these rights as “Liberty of thought, expression, belief, faith and worship” and “Equality   of   status   and   of   opportunity.”   Constitutional   morality   is   the guarantee which seeks that all inequality is eliminated from the social structure and each individual   is   assured   of   the   means   for   the   enforcement   of   the   rights   guaranteed. Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes, and sections. 

The   invocation   of   constitutional   morality   must   be   seen   as   an   extension   of   Dr Ambedkar’s formulation of social reform and constitutional transformation. Highlighting the significance of individual rights in social transformation, he had observed:

“The assertion by the individual of his own opinions and beliefs, his own independence and interest—over and against group standards, group authority, and group interests—is the beginning of all reform. But whether the reform will continue depends upon what scope the group affords for such individual assertion.”

After the enactment of the Constitution, every individual assertion of rights is to be governed by the principles of the Constitution, by its text and spirit. The Constitution assures to every individual the right to lead a dignified life. It prohibits discrimination within society. 

The Idea of constitutional morality relates to a set of mandatory conditions to which agents in a constitutional setting must adhere.   The most important goal of constitutional morality was self-restraint and turning to constitutional methods for the resolution of claims.   This   turn   to   process   of   claims   resolution   meant   that   constitutional morality recognised pluralism in the deepest possible way, given the fact that India has diverse cultures and practices. Corollary of this belief of pluralist Indian society would mean that constitutional morality was against any claim to speak on behalf of popular sovereignty or to represent sovereignty, since such claims would be nothing less than usurping the concept of sovereignty. Therefore, the prime aim of constitutional morality was to prevent any branch of government from declaring that it could uniquely represent the people. In essence, Indian Constitution is a cosmopolitan constitution that imbibes universal principles of liberty, equality, and fraternity.

Applicability

In the Indian Constitution, the term ‘Constitutional Morality’ is not used in any of the Articles nor the concept is explained. However, the term ‘Morality’ finds place at four places in the Indian Constitution which are under Article 19 (2), Article 19 (4) (Right to Freedom), Article 25 (1) and Article 26 (Right to Freedom of Religion). The Supreme Court used the concept of Constitutional Morality as an aid in interpretation of individual fundamental   rights   provided   under   the   constitution   and   also   used   this   concept   for interpretation on the constitutional validity of the statutes. It would be a useful exercise to refer to some of the decisions and context in which the concept of Constitutional morality came up for consideration before the Supreme Court.

In Manoj Narula v. Union of India,[10]  the Supreme Court dealt with a point of great public importance as to the legality of the person with criminal background and/or charged with offences involving moral turpitude being appointed as ministers in Central and State Governments. Dealing with issue of corruption in politics, it was observed that:

The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the Debate, felt that the Constitution can live and grow on the bedrock of constitutional morality…… If men were angels, no government would be necessary. If angels were to govern men, neither   external   nor   internal   controls   on   government   would   be   necessary.   In   framing   a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions……..In a   democracy, the   people never intend to   be   governed   by   persons who   have criminal antecedents. This is not merely a hope and aspiration of citizenry, but the idea is also engrained in apposite executive governance. It would be apt to say that when a country is governed by a Constitution, apart from constitutional provisions, and principles constitutional morality and trust, certain conventions are adopted and grown.”

The   concept   of   constitutional   morality   and     social   morality   was   discussed   and holding that constitutional morality would prevails over social morality, the Supreme Court in  Navtej Singh Johar v. Union of India Ministry of Law [11]  partially struck down Section 377 of Indian Penal Code ( IPC ) and declared such provision unconstitutional in so far as it criminalized consensual sexual conduct between adult of same sex. There was reference to the decision in Suresh Kumar Kaushal & Anr v. Naz Foundation [12]  wherein the decision rendered by Delhi High Court in Naz Foundation v. Government of NCT of Delhi [13] was overturned. The prime contention in Navtej Singh Johar case was that in the Suresh Kaushal case the bench had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional   morality.   With   this   factual background concerning the concept of Constitutional Morality, the relevant observation of bench is extracted hereunder:

It is the concept of constitutional morality which strives and urges the organs of the State to maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a standardised philosophy throughout the society   would   violate   the   principle   of   constitutional   morality.  

Devotion   and   fidelity   to constitutional   morality   must   not   be   equated   with   the   popular   sentiment   prevalent   at   a particular point of time. Any asymmetrical attitude in the society, so long as it is within the legal and constitutional framework, must at least be provided an environment in which it could be sustained, if not fostered. It is only when such an approach is adopted that the freedom of expression including that of choice would be allowed to prosper and flourish and if that is achieved, freedom and liberty, which is the quintessence of constitutional morality, will be allowed to survive. In   this   regard, we   have   to   telescopically   analyse   social   morality   vis-à-vis constitutional morality. 

It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, small part of the society, then it is for the constitutional   courts   to   ensure,   with   the  aid   of  judicial   engagement   and   creativity,   that constitutional morality prevails over social morality.”

In   Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors (Sabrimala Temple case),[14] The concept of Constitutional Morality was applied in the majority view and as well in minority view. It appears that a critical note is taken on this decision for having applied the concept of Constitutional Morality for allowing (with majority opinion) and declining (with minority opinion) the relief in the writ petition.

The writ petition was preferred under Article 32 of the Constitution by seeking relief for   issuance of directions against the Government of Kerala, Devaswom Board of Travancore, Chief Tantric of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (for short, “the 1965 Rules”) framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for the safety of women pilgrims.

The majority opinion delivered by Hon’ble Justice Dipak Misra, CJI observed:

“The term “morality occurring in Article 25 (1) of the Constitution cannot be viewed with a ‟ narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. We must remember that when there is a violation of the fundamental rights, the term “morality  naturally implies constitutional ‟ morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution.

Having said so, the notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at   the   Sabarimala   temple   for   the   simple   reason   that   public   morality   must   yield   to constitutional morality.”

Concurring with the majority view, Hon’ble Justice Chandrachaud observed:

“Constitutional morality must have a value of permanence which is not subject to the fleeting fancies of every time and age. If the vision which the founders of the Constitution adopted has to   survive, constitutional   morality   must   have   a   content   which   is   firmly   rooted   in   the fundamental postulates of human liberty, equality, fraternity, and dignity. These are the means to secure justice in all its dimensions to the individual citizen. Once these postulates are accepted, the necessary consequence is that the freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental   notions   of   constitutional   morality.  

In   the   public   law   conversations   between religion and morality, it is the overarching sense of constitutional morality which has to prevail. A liberal Constitution such as ours recognizes a wide range of rights to inhere in each individual. Without freedom, the individual would be bereft of her individuality. Anything that is destructive of individual dignity is anachronistic to our constitutional ethos. The equality between sexes and equal protection of gender is an emanation of Article 15. Whether or not Article is attracted to a particular source of the invasion of rights is not of overarching importance for the simple reason that the fundamental principles which emerge from the Preamble, as we have noticed earlier, infuse constitutional morality into its content.”

Differing with the majority view, Justice Indu Malhotra in her minority opinion observed:

“11.5. The concept of Constitutional Morality refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the true meaning of the Constitution, and achieve the objects contemplated therein.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of   their   religion.   It   is   irrelevant   whether   the   practise   is   rational   or   logical.   Notions   of rationality cannot be invoked in matters of religion by courts.

11.7.   The   followers  of   this  denomination,  or   sect,  as  the   case  may   be,  submit   that   the worshippers of this deity in Sabarimala Temple even individually have the right to practise and profess their religion under Article 25 (1) in accordance with the tenets of their faith, which is protected as a Fundamental Right.

11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non-discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons  belonging   to  all   religions   in   a   secular   polity,   on   the  other   hand.  Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.”

Conclusion

Constitutional morality requires that the faith of the citizens in the constitutional courts of the country be maintained. If it were not for this faith, the constitutional framework of this country could be toppled. But Constitutional Morality as inconsistently flouted by the Supreme Court is turning its back on the values that it envisages. In so far as the path ahead is concerned, there are clearly two distinct ones that the Judiciary could lean or head towards. One where the judiciary utilizes Constitutional Morality to emancipate weaker sections of the society and expand constitutional principles to reach the marginalized and the oppressed, or intervene with the constitutionally vested authority of the legislature and executive and expand upon its own jurisdiction, thereby creating “Judicial tyranny”.

The Supreme Court has stretched this conception beyond imagination and has expanded the doctrine to include a mirage of ideals, sometimes even contradictory, as highlighted above, thereby creating a counterintuitive model in applying constitutional morality as a doctrinal concept.

The duty of the constitutional courts is to adjudge the validity of law on well established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.

It is the duty of lawyers worthy of the profession, not merely to defend constitutional guaranties before the courts for individual clients, but to teach the people in season and out of season to value and respect the constitutional rights of others, to value and respect the moral principles embodied in our constitutions, to value and respect the rights of per son and property, to respect and cherish the institutions we have inherited. What higher duty could engage us than to teach its sacredness and its permanence, in the lofty phrase of the Roman advocate, its eternity, and to preach to all classes the virtue of self-restraint and respect for the rights of others without which there can be no true constitutional morality.

Q & A

  1. What is Constitutional Morality?

In simplistic terms, Constitutional Morality could be defined as upholding the principles and the values of the Constitution and ensuring nothing is violative of the rule of law or reflection able of action in an arbitrary manner.

  1. Why is Constitutional Morality important?

Constitutional morality requires that the faith of the citizens in the constitutional courts of the country be maintained. If it were not for this faith, the constitutional framework of this country could be toppled.

  1. Why is it said that Courts have flouted this concept?

The Supreme Court has stretched this conception beyond imagination and has expanded the doctrine to include a mirage of ideals, sometimes even contradictory, as highlighted through the cases mentioned above, thereby creating a counterintuitive model in applying constitutional morality as a doctrinal concept.

  1. What should be done to preserve the sanctity of Constitutional Morality?

It must be ensured, by paying close attention to the text of the Constitution, its structure, the inter- relationship between its provisions and the historical context in which it was framed, we ensure that the morality that judges identify as belonging to the Constitution actually is Constitutional Morality, and not our own subjective desires that we have projected onto the document.

  1. Should we get rid of this concept of Constitutional Morality?

The concept itself holds great significance and is the bridge between the courts and the faith of the people in the judiciary, for without such faith, the judiciary would be rendered redundant in its pursuit of justice and equality.

References

  • BAWS Vol.13 Page Nos. 304, 305.                                                       
  • BAWS Vol.5, p- 403, 421.
  • Green T.H. – 1986 – Lectures on the Principles of Political Obligation and other writings – P. Harris and J. Morrow, Cambridge, Cambridge University Press.                                                                                 
  • Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors, WRIT PETITION (CIVIL) NO. 373 OF 2006                           
  • Manoj Narula v. Union of India, (2014) 9 SCC 1.                                 
  • Navtej Singh Johar v. Union of India Ministry of Law And another, Writ Petition (Criminal) No.76 of 2016.                                            
  • Naz Foundation v. Government of NCT Of Delhi and another, WP(C) No.7455/2001.                                                                                    
  • Suresh Kumar Koushal & Anr v. Naz Foundation & Ors., CIVIL APPEAL NO.10972 of 2013.                                                             
  • Valerian Rodirgus ,2002, The Essential Writings of B.R. Ambedkar, p-473, Oxford University.                                                                      
  • Valerian Rodirgus ,2002, The Essential Writings of B.R. Ambedkar, p-485, Oxford University.                                                                      
  • Writings and Speeches of Dr. Baba Saheb Ambedkar, Volume No.13 Page No.61.                                                                                         

[1] Writings and Speeches of Dr. Baba Saheb Ambedkar, Volume No.13 Page No.61.

[2] Valerian Rodirgus ,2002, The Essential Writings of B.R. Ambedkar, p-473, Oxford University.

[3] Valerian Rodirgus ,2002, The Essential Writings of B.R. Ambedkar, p-485, Oxford University.

[4] Valerian Rodirgus ,2002, The Essential Writings of B.R. Ambedkar, p-485, Oxford University.

[5] Green T.H. – 1986 – Lectures on the Principles of Political Obligation and other writings – P. Harris and J. Morrow, Cambridge, Cambridge University Press.

[6] BAWS Vol.13 Page Nos. 304, 305.

[7] BAWS Vol.5, p- 403, 421.

[8] Manoj Narula v. Union of India, (2014) 9 SCC 1.

[9] Navtej Singh Johar v. Union of India Ministry of Law And another, Writ Petition (Criminal) No.76 of 2016.

[10] Manoj Narula v. Union of India, (2014) 9 SCC 1.

[11] Navtej Singh Johar v. Union of India Ministry of Law And another, Writ Petition (Criminal) No.76 of 2016.

[12] Suresh Kumar Koushal & Anr v. Naz Foundation & Ors., CIVIL APPEAL NO.10972 of 2013.

[13] Naz Foundation v. Government of NCT Of Delhi and another, WP(C) No.7455/2001.

[14] Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors, WRIT PETITION (CIVIL) NO. 373 OF 2006.

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