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Constitutional Morality

The document discusses the concept of constitutional morality in India. It notes that while constitutional morality is not defined, it generally refers to upholding the core principles of the constitution and going beyond literal interpretations to consider the spirit of the constitution. The document traces how the concept has evolved over time in India, with the Supreme Court invoking it to strike down laws seen as manifestations of popular morality. It discusses Ambedkar's views on constitutional morality and how he saw it as key to realizing the objectives of the Indian constitution. The researcher aims to further study constitutional morality, how it has developed, and debates around its use and implications for judicial overreach versus upholding constitutional values.

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Avi Ral
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93 views4 pages

Constitutional Morality

The document discusses the concept of constitutional morality in India. It notes that while constitutional morality is not defined, it generally refers to upholding the core principles of the constitution and going beyond literal interpretations to consider the spirit of the constitution. The document traces how the concept has evolved over time in India, with the Supreme Court invoking it to strike down laws seen as manifestations of popular morality. It discusses Ambedkar's views on constitutional morality and how he saw it as key to realizing the objectives of the Indian constitution. The researcher aims to further study constitutional morality, how it has developed, and debates around its use and implications for judicial overreach versus upholding constitutional values.

Uploaded by

Avi Ral
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as ODT, PDF, TXT or read online on Scribd
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Abstract:

The judiciary as an interpreter of constitution has effectively used the principle of


constitutional morality to overcome age old laws, which need to get reformed with changing
time and evolution of the society. The Court has applied different facets of this progressive
and transformative doctrine, in a number of cases some of which may possibly be counted
as the finest and seminal judgments. However, at the same time, many claim that the
application of this doctrine amounts to judicial overreach and is thereby pitting
“constitutional morality” against “societal/popular morality”. The doctrine came in for
heavy criticism after the Supreme Court’s Sabarimala judgment and became the subject
matter of discussion especially after the Attorney General of India criticized application of
Constitutional Morality doctrine as a “dangerous weapon”. Following this, the task of
defining ‘Constitutional Morality’ has been referred to a bench of seven judges of the
Supreme Court. Against this backdrop, it becomes crucial to understand what is meant by
the term ‘Constitutional Morality’ and what is the significance of this doctrine in the present
times, how the concept evolved over the period of time and how is it interpreted by the
Courts, what are the grounds on which the application of this doctrine is being criticised and
what principles should guide our approach towards constitutional morality in the future.
Through this research, I will attempt to answer these questions.

The constitutional morality (CM) is not defined anywhere, however, there are many
different notions on the same. What is Constitutional Morality and what significance does it
hold? It basically means adherence to the core principles of the constitution in a democracy
i.e. a moral obligation of an individual to uphold the constitutional values with utmost
dignity without any compromise and being faithful towards it. It thus goes beyond the literal
interpretation of the text of the constitution and dwells into the spirit of the constitution in
which both individual and collective interests of the society are satisfied. This doctrine is
still in its nascent stage in India and has been evolving over the period of time. In the recent
times, the doctrine has often been invoked by Supreme Court in India for striking down
laws which could be termed as manifestations of popular morality and in the process, has
acquired new meanings and interpretations. Safeguards and upholds the enforcement of rule
of law in the country: CM 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 reflecting an
action in an arbitrary manner. As the doctrine tends to question both the citizens as well as
the government, it promotes people to be an active participant of the system and fight the
inequalities and non-constitutional elements.
Interestingly, Ambedkar, the architect of the Constitution of India, is perhaps the first, who
has explicitly and vocally engaged in length with the phrase ‘constitutional morality’.
Without mentioning and shedding light on Ambedkar’s understanding of constitutional
morality, discussions on the subject would be incomplete. Ambedkar, while addressing the
Constituent Assembly in 1948, invoked, George Grotius, the English historian, to explain as
to what constitutional morality is, and what is its significance in a nation where democracy
was a top-dressing on the soil which is essentially undemocratic.
Ambedkar, drawing on the work of Grotius, formulate his understanding of constitutional
morality as “a paramount reverence for the forms of the Constitution”.
It was for the true realization of the objective of the Constitution, amidst staggering
inequality and inequity which India faced and the tensed political climate, that Ambedkar
used ‘constitutional morality’. Ambedkar, while addressing this sorry state, after a thorough
diagnosis, articulated that the panacea for this does not lie only in the constitution or the
government ruling the nation. For Ambedkar, constitutional morality was the answer to this
disparity in the society and if there exists congruency between the “form of the
administration” and “form of the “constitution” then, he hoped, we can get rid of it
gradually.
Also, the most striking facet of Constitutional Morality has been its innate transformative
nature. Through this, it has been ensured by the SC that no individual who is being
governed by the Constitution remains bereft in the realization of its fruit. Instructively, in
this light, Justice Chandrachud offered in the Sabarimala judgement (2018) that the Indian
Constitution “has a transformative character so that hitherto deprived and marginalized
citizens can enjoy their citizenship rights”.

SPECIFICATION OF BROAD FIELD OF STUDY

The researcher will majorly research on “Constitutional morality”, its meaning importance
and applicability. whether it may be applied by the judiciary to assess State actions which
are substantively unreasonable or violative of the spirit of the Constitution. This will
indirectly address the issue with usage of public morality by minimizing the possibility of
unreasonable decision making while simultaneously providing a space for public morality to
naturally evolve.
The research will initially cover the analysis of literature on “Constitutional morality” by
refering constitutional debates and further will trace how it has grown in India and other
counties and what all are recent trends.
The research will work upon and try to find answer follwing:
• The term has not been clearly defined by the SC, which leaves the scope of its subjective
interpretation by the individual judges.

• This top-down approach to morality can affect the possibility of organic emergence of the
solutions to the persisting ethical problems in society.

• Violates the principle of separation of powers: It establishes judicial supremacy over


parliamentary supremacy. Against the very principle of democratic government.
• It is claimed that the application of this doctrine amounts to judicial overreach and are
thereby pitting“constitutionalmorality”against“societal/popular morality”

IMPORTANCE AND RATIONALE OF THE STUDY

• Lack of literature and clarity on the concept of Constitutional Morality. It Encourages


judicial supremacy and activism by the courts. Hinders the organic and natural
development of the society. Creates distrust among public towards organs of the
State. Also acts as a counterpoise to public morality.
• Safeguards and upholds the enforcement of rule of law in the country: CM 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 reflecting an action in an
arbitrary manner. As the doctrine tends to question both the citizens as well as the
government, it promotes people to be an active participant of the system and fight the
inequalities and non-constitutional elements.
• Promoting and reinforcing the democratic ideals of the nation: The doctrine promotes
congenial cooperation and coordination of all the stakeholders, especially among
citizens and the state, to pursue constitutional ambitions. Thus, it points to the idea of
propagating the trust of the people on democratic institutions. Moreover, since the
concept places an obligation on the part of State authorities to conduct themselves in
accordance with the Constitution, it translates to the people respecting the authority
of the State, so long as they act within the bounds of the Constitution, and having the
constitutionally guaranteed right to vocally call out State authorities for their
transgressions.
• Bring about a positive transformation in the perception of societal or public morality:
The principle of constitutional morality can be used for reading down laws or statutes
which are inconsistent with the incumbent time. For instance, in passing a law
prohibiting Sati, right to life and dignity was passed on to the Indian widows who
were earlier considered to be harbingers of misfortune and ill-luck. However, after
the passage of this law, there has been a clear change in the public mindset which
also led to the promulgation of more rights to them such as those of remarrying and
getting educated post their husband’s demise. Promoting diversity, helping to make
the society more inclusive: Constitutional morality is specifically significant for a
vibrant and diverse country like India which has got a heterogeneous population with
so many further subclassifications: caste, religion, colours, sexual orientation,
languages, genders, etc. Since ‘plurality’ is one of the crucial ethos of the principle of
constitutional morality, it recognises this distinction and non-homogeneity and
promotes diversity, helping to make the society more inclusive.
• Akin to the basic structure doctrine: Together with basic structure doctrine, CM is
known as one of the ‘Constitutional Silences’. Like the basic structure test, it imposes
implied constitutional limits on the government and ensures that government’s
actions do not violate the spirit, soul or conscience of the Constitution.
• Moving towards achieving Constitutionalism: The concept of constitutional morality
urges the organs of the State to preserve the heterogeneous nature of the society.
Thus, it backs the efficacy of Akin to the basic structure doctrine: Together with basic
structure doctrine, CM is known as one of the ‘Constitutional Silences’. Like the
basic structure test, it imposes implied constitutional limits on the government and
ensures that government’s actions do not violate the spirit, soul or conscience of the
Constitution. Moving towards achieving Constitutionalism: The concept of
constitutional morality urges the organs of the State to preserve the heterogeneous
nature of the society. Thus, it backs the efficacy of

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