Constitutional Morality

What is constitutional morality?

Constitutional morality refers to the adherence to the values, principles, and ideals enshrined in the constitution of a country.

• It involves interpreting and implementing the constitution in a manner that upholds its core principles and propels the objectives of the constitution.
• This entails specific obligations to both citizens and authority:
  • Respect for the constitution and all authorities derived from it.
  • Citizen’s right to free speech, enabling them to criticise and hold officials accountable in performing their constitutional duties.
  • Mandated authorities and public officials must act within the bounds of their constitutional responsibilities.
  • Political contenders and their opposition must hold the constitution in reverence.

Origin of Constitutional Morality in India

• During the constituent assembly debates, Ambedkar pointed that, Constitutional morality should be cultivated as the constitution transforms the fundamentally undemocratic Indian society towards a society that live by constitutional values.

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Some key constitutional provisions from which the doctrine of constitutional morality has evolved:

1. Preamble of the Constitution: The Preamble sets out the ideals and aspirations of the Constitution. It emphasizes values such as justice, liberty, equality, and fraternity, which form the foundation of constitutional morality.
2. Fundamental Rights (Part III): The Fundamental Rights, especially Articles 14 (Right to Equality), 19 (Freedom of Speech and Expression), and 21 (Right to Life and Personal Liberty), are instrumental in shaping the concept of constitutional morality. These rights ensure that government actions and laws are in line with fundamental principles of justice and fairness.
3. Directive Principles of State Policy (Part IV): The Directive Principles of State Policy contain guidelines for the government to follow while formulating policies. These principles, especially those related to social and economic justice, play a significant role in promoting the values of constitutional morality.
4. Article 32 (Remedies for Enforcement of Fundamental Rights) and Article 226 (Power of High Courts to issue certain writs): These articles empower the judiciary to safeguard and enforce constitutional rights, ensuring that governmental actions adhere to constitutional morality.
5. Article 51A (Fundamental Duties): Introduced by the 42nd Amendment, this article emphasizes the duties of citizens towards the nation and the importance of upholding constitutional values, contributing to the concept of constitutional morality.

Some sources from which the doctrine of constitutional morality has evolved

1. Basic Structure Doctrine: While not explicitly mentioned in the Constitution, the Basic Structure Doctrine, developed by the Indian judiciary, establishes that certain core principles of the Constitution cannot be altered or amended, thus safeguarding the fundamental features of the Constitution and upholding constitutional morality.
2. Constitutional Conventions and Practices: Over time, certain unwritten constitutional conventions and practices have emerged that reinforce the values of constitutional morality. These include principles of parliamentary democracy, rule of law, separation of powers, and judicial independence.
3. Judicial Interpretation: Landmark judgments by the Indian judiciary, such as the Kesavananda Bharati case, the Maneka Gandhi case, and the Minerva Mills case, have played a pivotal role in shaping the doctrine of constitutional morality by interpreting and applying constitutional provisions in a manner that upholds democratic principles and fundamental rights.

Evolution of Constitutional Morality in India

India’s journey towards establishing and upholding constitutional morality has been shaped by numerous landmark judgements those progressively defined and expanded the scope of constitutional morality while addressing various socio-political issues.

1. Vishakha v. State of Rajasthan (1997): In the absence of legislation, the court formulated guidelines to prevent sexual harassment at the workplace, showcasing how constitutional morality can fill gaps in the law to address societal issues.
2. Shayara Bano v. Union of India (2017): The court struck down the practice of “triple talaq” (instant divorce) among Muslims as unconstitutional. The judgment underscored the importance of gender equality and dignity, reiterating that constitutional morality prevails over personal laws that infringe upon fundamental rights.
3. Navtej Singh Johar v. Union of India (2018): While Decriminalizing consensual same-sex relationships by scrapping Section 377 of IPC, The court observed that majoritarian and popular views cannot dictate constitutional rights and it will have to vanquish prejudice, embrace inclusion and ensure equal rights.
4. Entry of women to Sabarimala (2018): The Supreme court said that exclusion of certain age group of women was against the constitutional morality and  violates right to freedom of religion which is given under the article 25 of the Indian constitution.
5. Joseph Shine v. Union of India(2018): Decriminalised the offence of adultery by striking down Section 497 of the IPC on the grounds that it violated Articles 14, 15 and 21 of the Constitution. The court held that the law was archaic, arbitrary and paternalistic, and infringed upon a woman’s autonomy, dignity, and privacy.

Significance of Constitutional Morality: Indian Context

• Constitutional morality perspective ensures that the constitution’s provisions are interpreted and implemented in a manner that upholds democratic values, justice, equality, and the fundamental rights of citizens.
• Constitutional morality is fundamental to Dr. BR Ambedkar vision of the constitution as a transformative tool capable of abolishing long-established inequalities, securing justice, and ensuring dignity for all citizens.
• It acts as a touchstone when forming a judicial decision related to matters in conflict with Public Morality, which refers to the general beliefs, morals and values of society as a whole.
• Constitutional morality is a doctrine from which judicial activism can draw credibility.

The problem with constitutional morality

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• Lack of clarity and definition: There is no explicit mention of the term ‘constitutional morality’ in the Constitution of India and there is no objective definition. It solely depends upon the consensus of individual judges to interpret and apply this doctrine in specific situations.
• Potential for Conflict: Divergent interpretations of constitutional morality by different branches of government could lead to conflicts and disputes, threatening the separation of powers:
• Triggering public distrust towards parliament: Being  an unelected and autonomous body, court’s imposition of constitutional morality can instill and encourage a general distrust among citizens towards the legislature and the elected executive.
• Undermining Executive Authority: If the judiciary frequently intervenes in executive decisions based on their interpretation of constitutional morality, it may limit and weaken the executive’s ability to govern.
• Disrupting Legislative Processes: Judicial imposition of policies without sufficient input from the elected representatives, potentially undermining the role of the legislature.
• Lack of Accountability: If the judiciary becomes the sole arbiter of constitutional morality, it could diminish the accountability of elected officials and they might avoid taking difficult decisions fearing judiciary will step in based on their own interpretation.

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Challenges in Practicing Constitutional Morality

• Lack of Awareness and Education: Limited understanding of constitutional principles among citizens can lead to a disconnection between constitutional ideals and societal practices.
• Political Advantages: Political interests may at times overshadow constitutional principles, undermining constitutional morality, especially when the judicial solutions are in contrast with popular beliefs.
• Social Inequalities: Deep-seated societal inequalities pose hurdles to the effective implementation of constitutional morality.
• Communalism in Politics: Constitutional moral values are often undermined while taping political advantages through majoritarian dominance, religious prejudices and stereotypes, and political mobilisation along religious lines

Measures for Effective Realization of Constitutional Morality

• Educational Initiatives: Promote constitutional literacy and education to empower citizens with a deeper understanding of their rights and responsibilities.
• Judicial Independence: Uphold the judiciary’s independence to ensure it can safeguard constitutional morality, even in the face of political pressures.
• Free press and public discourses aids constitutional morality as watchdogs and critics of constitutional values
• Public Awareness Campaigns: Engage in campaigns to raise awareness about constitutional values, encouraging public discourse on critical issues.
• Transparent Governance: Ensure transparency, accountability, and adherence to constitutional norms in governance and policy making.
• Inclusive Lawmaking: Enact and amend laws in line with constitutional morality, reflecting evolving societal needs.
• Uniform Civil Code can bring people under same personal laws and which can arouse a sense of adherence to constitutional values irrespective of religion or caste.