Akshika Kriti ( Central University of South Bihar)
Deepa Shree (Central University of South Bihar)
Sonam Kumari ( Central University of South Bihar)
Our society is in the midst of a revolution which reflects towards the solution of every problem via legality. The power to make the law is vested in legislative organ while accommodation of conflicting doctrine is difficult to achieve in legislative processes. The judiciary is not supposed to amount the legislation but the problems come to the court in the face of justifiable issue. Narrowly court cannot reach out to the reform of society but it can eradicate the inhumane activities and trace the morality. The term morality is always wrapped in the box of uncertainty because the term means differently in different approaches in different time. According to H.L.A Hart the law and morality are enormously intertwined and each borrowing from each other (Hart, 1961). There are various situations where there occurs the victory over the justice which fails to provide aims and objective of the legal system in our country. Thus, to meet the contemporary situations and decide upon controversial constitutional issues it is important to understand the abstract moral principle behind the given laws and constitutional morality.
Constitutional morality embraces within several spheres foremost of them is the adaptation of pluralistic and comprehensive society. The concept of constitutional morality provides an impulse to the organs of democracy to preserve the heterogeneous and inclusive society which cannot be altered by social morality. The role of judiciary gains more importance because it owed a duty to provide justice to the progressive and pragmatic society to overcome the injustice.
The supreme law, Constitution of India is an organic instrument which has holding capacity of the country which is known for its diversities and dynamism. In the progressive society, the workings of legal system depend upon the prevalent atmosphere and situations rather than upcoming future aspects. In the changing society, the mindset of people also changes with the time thus the judgment which served justice in past may not do the same in the present or future context. It is the way certain laws are held unconstitutional or validity of that particular law were struck down. The question arises in mind how the same law can depart from its earlier validation on several issues? It is the constitutional morality which is same and validates these typical changes which are necessary to serve justice with the changing time. Thus, it can be that said that the constitution is a living plant growing and surviving on the ground base of constitutional morality. The principle of constitutional morality fundamentally means to bow down to the adherence to concept and norms behind why the constitution is adopted. It aims at eradicating the act which does not coincide the core of the constitution and would become violative of soul principles such as rule of law and natural justice. It is very important to adhere with this concept of constitutional morality to step out the action which is reflecting towards the arbitrariness.
Judicially invented text is no novice to the Indian constitutional law. The “basic structure” doctrine, the “classification test”, the “arbitrariness” test and many more test which has no former classification and reference to the constitutional text. Likewise the recently invented doctrine of constitutional morality being added in the list which is also a judge-made innovation. In the historical implications, neither Grote nor Ambedkar would have intended that constitutional morality to be used by the court of law to test the government actions. It was advocated as the aspiration with a hope that would inculcate a love for Constitution which would be difficult for the constitution to be owed and obliterated by the political power. In the understanding of some, it is said that the defeat handed by Janta Party to the Indira Gandhi government which occurred at the ending period of the Emergency marked the rise of constitutional morality in the Indian electorate systems (Chandrachud, 2020: 01-03).
The word morality can be observed four times in our Indian Constitution, two times in Article 19 and twice in Right to religious Freedom under Article 25 and 26, which is invoked but the courts many times rights claiming cases like surrogacy, freedom of speech and sexual orientation. It was first used during Parliamentary debates by B.R.Ambedkar was later the concept was employed in an innovative approach by Judiciary. Court addressed how the constitutional morality is different from popular morality and the former lead the way of the court’s decision while interpreting the Constitution. There are features such as individual liberty, constitutional supremacy, parliamentary government and self-restraint, rule of law, equality towards justice, intolerance for the corruption which does not leave the morality aside in interpreting the constitution and providing enduring legitimate solution to constitutional law. The four traces of constitutional morality are envisaged which is the text of the constitution, Constitutional assembly debates, events that occurred during the framing of a constitution and several case law histories. It is the concept where past and present both played an important rule and its absence may serve grave injustice to the justice seekers.
It is not quite simple to understand the methodological reason to determine the endurance of working Indian Constitution but it reflects the true picture of how the project of constitutionalism was historically understood and adopted.
Diversity is something which makes India a unique country, where people practice different religion and there are various caste and communities. Caste and Religious community have however paralyzed our society therefore, transformation in the society is necessary to bring together all the people into one. Therefore, drafting the constitution and implementing as a common legal framework was an important step but it was not enough for the transformation. “It could not by itself conjure into existence the attitudes, dispositions and sentiments without which the transformation could hardly be effective (Béteille 2008: 40).”
The term constitutional morality for the first time used in the speech of Ambedkar titled “The draft constitution (Chakravarti 2019:3)” back to 1948. To defend the inclusion of structure of the administration in the constitution he quoted George Grote, “The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves (George2000:93).”
Grote wrote for Cleisthenes of Athens, he stated: “the great Athenian nobles had yet to learn the lesson of respect for any constitution (Meiggs2020)”. Cleisthenes’s contemporaries would pursue their own ruthless ambitions “without any regard to the limits imposed by law (ibid at 153)”. He further stated that we can protect democracy only when the citizens of Athens have a “passionate attachment” to their Constitution. Grotestated that it was important to “create in the multitude… that rare and difficult sentiment which we may term a constitutional morality (ibid at 154).”
According to Grote; constitutional morality means (i) every citizen should owe and respect the Constitution. (ii) the power given to authorities under which they act, should be obeyed by every citizen (iii) Every citizen should have freedom of speech where they could criticize the authorities acting in the discharge of their Constitutional duties. (iv)Public officials would have to act within the confines of the Constitution. (v) Every political party, it includes the ruling party and the opposition party should give respect to their law of the land. He further extended the meaning and said that “coexistence of freedom and self-imposed restraint, - of obedience to authority with unmeasured censure of the persons exercising it (ibid at 155).” He also meant authority cannot misuse its power it has to work according to the constitutional values. According to him, Constitutional morality was described as founded on a “constitutional culture”, which requires the “existence of sentiments and dedication for realizing a social transformation which the Indian Constitution seeks to attain it is stated in Government of NCT of Delhi v Union of India,(2018) 8 SCALE 72” Obeying and respecting the authorities who have been assigned the power to act by the constitution and criticizing them in case of wrongdoings or going against the constitutional mandate, limit their power so that they cannot misuse it is ‘constitutional morality’.
Emergence of Constitutional Morality can be traced in: -
1. The Constitutional Assembly Debates, (hereinafter CAD), through which we come to know the intention and objective of the lawmakers of the constitution.
2. Some of the Events like “sectarian violence” and “secessionist groups”, further led to the adoption of a secular, federal and democratic Constitution.
3. The preamble of our constitution, which objectifies that equality, justice and liberty, , should be protected.
4. Precedents as basis of interpretation of laws and statute.
CONSTITUTIONAL MORALITY AND CONSTITUTIONALISM
Constitutionalism is the idea in which manner the institutions of the government conduct themselves to reach the aim and objectives of the constitution. Our constitution has been emerged to be transformative and progressive in the sense that the interpretation of its provision is not limited to mere plain meaning or literal rule but with the changing time, it became the method to find out the true meaning which reflects the intention of the legislature. Transformative constitutionalism is the wider aspect which does not only includes rights and dignity of an individual but aims to propagate the fostering development of an atmosphere where each and every individual is bestowed with opportunities to grow socially, economically and democratic society. The constitutionalism is the core significance of working of institutions which are backed by the efficacy of constitutional morality, in absence of which constitutionalism will led to a farce.
Constitution is a project working for social revolution, which also means a political project to few others but it is dedicated to achieve the universal values, liberty, equality and fraternity. When the constitution was enacted it found a way to resolve prolonged debates and disputes over the norms and values. The foremost work of constitutionalism was a morality that surpasses the limit, values and disagreements on particular issues. The later aspects of constitutionalism reflect the ambition that the constitution would obey Indian needs which are free of a particular tradition and serve for law and values. Constitution serves for a variety of reasons; sometimes it endures because of beneath political consensus. In some matter, it is difficult to provide the sheer balance between societies overthrowing the elements of the constitution but in the same time, other society may reach an artistic settlement that does not enormously threaten the power of existing elite group but incorporated an aspiration of previously excluded groups. The prominent aim of upholding constitutional morality shall not prevent any branches of government from declaring that it could self-sufficiently represent the people. Constitutionalism seeks to achieve its objective through already existing methods of institution of governance. India holds a strong democracy having economic and social problems, indicates the strength of constitutional morality. Abuse of power is often another side of the same coin, needs a proper check and balance. During the darkest phase of democracy, when emergency as the abuse of power, Indira Gandhi retained a residual attachment to the Constitution. The response of the opposition government in the parliamentary model of democracy is expected to oblige constitutional morality. In India the same party’s response is very different when it is holding the office and serving as the opposition. The strength or weakness of constitutional morality in the present system must be viewed in the light of a cycle of escalating demands which may be from the people or the callous response of successive position holders to those demands. Providing safeguard in collective interest is always been an obligation imposed on all the pillars of democracy to stick with the goals of constitutionalism and constitutional morality.
The paramount status of Indian Constitution, Constitutionalism and Constitutional morality must be nurtured in the growing society for serving the mankind on practical rather than theoretical provisions. The Constitution of India which is made to secure justice, social-economical and political to all its citizens conferring the right to life, liberty, equality, and dignity to all however generally women, particularly Hindu and Muslim women, children, LGBT group and SC/ST groups etc who are deprived of equality and justice. Facing discrimination and deprivation in a society due to socio-cultural and religious morality deep-rooted in Indian society. Even after many judicial pronouncements the duty of imposition of constitutionalism and constitutional morality is yet to be achieved.
CONSTITUTIONAL MORALITY AND RULE OF LAW
There are several elements of constitutional morality following which essence of Constitution shall never die; the rule of law is one of them. Other elements are namely individual liberty, right to equality, freedom of choice, preamble, freedom of expression, social justice, the procedure established by law and due process of law. Keeping the rule of law-abiding in all the institution of government may itself accomplish the objective of all other elements of constitutional morality. This principle lay down that law is above all and its supremacy is utmost important. It emphasizes the principle that each and every individual or cooperation or all the branches of the government are supposed to act as the law is supreme.
The Latin maxim ‘cessantrationelegis, cessatipsalex’, ’‘means when the reason for a law ceases, what the law itself ceases, is a rule of law (ibid )”. The rule of law is not explicitly enshrined in the text of the constitution but it is still the part of the constitution and its basic structure. It can be said that section 377 of the Indian Penal Code was the outcome of the Victorian era with its moral values. Constitutional morality is the soul of the Constitution which is found in the Preamble declares its ideal and aspirations. The traces if constitutional morality is also embedded in Part III of the Indian Constitution particularly which deals with the individual’s rights and liberty. The rationale for the prevalent section 377 which no longer hold the soul of the constitution has no reason for continuing in the law to be held constitutional. It was the Victorian morality which up bring that law whose relevance has disappeared with the passes of time. Furthermore, the notion of social morality which was inherited subjectively and the criminal law cannot be used to interfere unduly in matters of personal autonomy. The domains of morality and criminality are not coextensive. Neither these two are collectively punishable on earth by courts set up the State but elsewhere. Crime alone is punishable in the legal system which must not encroach the personal domain. Justice Nariman advocated that to confuse the one with the other is what causes the death knell of Section 377; it also applies to consenting homosexual adults.
In a case decided by the apex court in 2014, Manoj Narula v. Union of India, (2014) 9 SCC 1, the issue was raised that whether a person who had a criminal background or against whom charges had been framed in a criminal case involving moral turpitude could be prevented from becoming a minister of that State, though those functionaries and system would be well advised to consider excluding such persons from the Council of Ministers. In this context Justice Dipak Mishra, speaking for himself. Apart from that, Chief Justice Lodha and Justice Bobde referred to Dr. B.R. Ambedkar’s speech in the Constituent Assembly Debate on constitutional morality that it means to bow down to the norms of the constitution and any act must not be violative of rule of law or whatever is arbitrary in nature. He added that the “Commitment to the Constitution” “is a facet of constitutional morality” The aforesaid statement reveals that the constitutional morality is used as the synonym for the rule of law (ibid at 14-15)
ROLE OF LEGISLATURE AND EXECUTIVE IN UPHOLDING CONSTITUTIONAL MORALITY
Our constitution divided the state power into three wings which are also called the three pillars of democracy (Legislature, executive and judiciary). This division of power and non-interference into each other’s power is termed as “separation of power”. As we know that the duty of legislature is to make the laws and the duty of the executive is to implement the law and judiciary has to interpret the laws but if we look closely then we will see that the legislature is the real protectors of the constitution because the ministers appointed there are the representative of the people. If the main legislative body is dissolved then the constitution will die in every democracy around the world because the policies of providing welfare and well-being of a country lies in the hand of parliament. According to the observation of Max Weber it’s obvious that members of the parliament too face certain challenges like Charismatic leaders and powerful parties. They are mostly reduced to ‘well-disciplined lobby fodder’.Therefore, the executive body should also implement these values they should not act arbitrary, rather they should act as per the mandate of the constitution. This was the reason due to which Dr Rajendra Prasad addressed that it does not matter even if our constitution has defects, if we have those elected people who are capable enough to uphold the integrity of the nation because Constitution is like a machine which does not have life, it lives because of the people who control and make it workable. Therefore, what is needed is an honest people who have a strong vision and is capable of working towards the interest of the nation. Delivering justice is the main objective of the constitution. “The upholders of the Constitution should try to render justice to the last man on the street”.According to Rousseau, man is born free, but everywhere he is in chains, and according to Ambedkar these chains can be considered as social and economic chain similarly, for Mahatma Gandhi, these are moral chain. Therefore, the aim of the constitution is to get rid of that chain so that people enjoy justice, liberty and equality are the elements of constitutional morality, which was inspired by the French Revolution. It is not only the state it is also the society which has the responsibility to respect the liberty of each person and treat them equally. Therefore, to conserve the spirit of the constitution, not only the three pillars of democracy but also the people with dedication towards the integrity and the interest of the nation is required.” As according to Ambedkar “constitutional morality needs to be cultivated, it is not natural sentiment”.
ROLE OF JUDICIARY IN UPHOLDING CONSTITUTIONAL MORALITY
Constitutional morality is relatively one of the recent additions to the set of judicial innovations. The courts have rightly accepted that the concept we are concerned with shapes the contours of our noble fundamental rights and are the essence of the Constitution. However, the concept has meant different things at different point of times. It revolves around the noblest concepts of justice and rule of law. To the 19th Century British historian of Greece, George Grote, the existence of constitutional morality was “the vital condition of a government to be free and peaceable” (Choudhry 2016: 3). The observation of Dr. B.R. Ambedkar, the architect of present constitutional order, regarding constitutional morality was made at a critical stage in our social and political life, are of utmost significance not only for the backward sections of the society or the minorities, but for Indians of every caste, creed, sex etc.( Béteille 2008: 35-42). Constitutional morality is basically those higher ethical standards that constitute the core of policymaking and which demands that forms and processes associated with it be observed thoroughly and not merely confined to lip service - the spirit in which such provisions were enacted are as important as the words. The genesis of the concept can be traced from the Debates of Constitutional Assembly. Ambedkar; in his Annihilation of Caste quotes that “Constitutional morality is not a natural sentiment, it has to be cultivated” (Nath 2019). This concept primarily relates itself with the democratic form of government where it provides restrictions upon the power of State in dealing with citizens’ liberty. The supremacy of the standard and spirit of the Constitution and reference to the order of law are also necessary components in understanding the notion of constitutional morality. The most important goal of this concept is to turn towards constitutional methods in every action. “Sustaining Constitutional Morality and judicial consideration is crucial to ensure an individual his sacrosanct fundamental rights in the process of justice allocation.”(Scaria) Also, legislators are required to adhere to the noble standards of lawmaking. Independent and fearless judiciary is primarily the stakeholder for the uplifting of the ethos of the constitution and retention of the constitutional noble values, parliamentary democracy and fundamental rights of the citizens. “The innuendo of constitutional morality without judicial values and vice-versa are equally absurd” (ibid). Judiciary is supposed to act diligently because constitutional morality is an attitude to be enlightened and cultivated in the minds of every responsible citizen. It was held in Manoj Narula v. Union of India (2014) 9 SCC 1, that the utility of a democratic state will persist and achieve its ends where the people at large and the justice administering institutions are rigidly accompanied by the constitutional principles without opening the path of divergence and reflecting in action the primary concern to maintain institutional uprightness and the requisite constitutional moderation. “Commitment to the Constitution is an ingredient of constitutional morality” (ibid).
Preserving and perfecting the morality of the Constitution has progressed as the greatest challenge for the modern state in the present century. The constitution is primarily designed to defend the interests and needs of the citizens. “It is said that our Constitution is lengthy because we have not yet developed a culture of Constitutional morality” (Nandy& Ram 2013). Nowadays the use of the doctrine of Constitutional morality has proved to be much more significant in Constitutional interpretation than ever before. The concept, however, remained in the constitution since the times of Dr Ambedkar but in the dormant state. Also, the phrase ‘constitutional morality’ has been used by the Supreme Court in the Keshavananda Bharti and S. P. Gupta judgements. In Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461, the Supreme Court restricted the Parliamentary power so as to prevent it from violating the basic essence of the Constitution. The amending power of Parliament is not only obviously limited, but was limited to not modifying the basic structure and spirit of the Constitution. Similarly, in S.P. Gupta v. Union of India, (1982) 2 S.C.R. 365, Bhagwati J. on behalf of the Supreme Court of India rejected the government’s claim which was made for the protection against disclosure and thereupon gave a direction to disclose the documents containing the correspondence. Also, it was ruled that the notion of open government is originated from the right to know, which is implicit under Art. 19 (1) (a), in the freedom of speech and expression and a violation of a constitutional protocol, would “be a serious infringement of constitutional morality”.
Today, constitutional morality indispensably means two things: firstly, the antonym of popular morality, and secondly, the extract of the Constitution (Chandrachud: 2). It was Chief Justice A.P. Shah from the Delhi High Court who first drawn a dissimilarity between Constitutional Morality and popular morality. In this form, constitutional morality requires courts to disregard societal morals while testing the validity of government action (ibid).
For instance, in the landmark judgement of Naz Foundation v. Government of NCT of Delhi and Others, WP(C) No.7455/2001, while deciding the constitutional validity of Section 377 of the Indian Penal Code, the High Court of Delhi looked for the constitutional values and not for popular morals. Public morality is solely a contemplation of the moral and standardizing values of the majority of the population as expressed in the arrangement of enactment by the legislature, while Constitutional morality not merely embody the majority's values, but also “shapes and changes them as part of the social engineering aspect of our Constitution” (Sharma 2009). Naz Foundation’s distinction between the two concepts is nothing but morality that is in unison with the values of the constitution, and other that is not. The Apex Court in Navtej Singh Johar v. Union of India through Secretary Ministry of Law and Justice, WRIT PETITION (CRIMINAL) NO. 76 OF 2016 case, popularly known as LGBTQ case, partially struck down Section 377, which penalized gay sex and held that constitutional morality as a concept will prevail over social morality. The Supreme Court said, “Constitutional morality cannot be sacrificed at the shrine of social morality” (Ahmad 2020).
The concept was also dealt with in the case of State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501; in which Chief Justice Dipak Mishra ruled that constitutional morality and spirit, soul or ethics of the Constitution are synonymous and demonstrated constitutional morality as a governing idea that "underline the need to preserve the faith of people in the establishment of democracy” (Dristi IAS 2020). In this regard it was made clear that looking only on the formal provision will not serve the purpose of enactment, its undefined spirit and essence shall be looked into. Also, in the case of Manoj Narula v. Union of India, (2014) 9 SCC 1; the Supreme Court while dealing with the issue of corruption in politics ruled that:
"The Constitution of India is an organic instrument with capabilities of enormous vigor. It is a document made for an escalating society. Working of such a Constitution depends upon the prevailing atmosphere and conditions. Dr. Ambedkar had, all over the Debate, felt that the Constitution can live and grow on the substratum of constitutional morality......” (Nath 2019).
Similarly, in the case of Indian Young Lawyers Association & Ors v. The State of Kerala & Ors, WRIT PETITION (CIVIL) NO. 373 OF 2006 (Sabrimala Temple case) the Supreme Court was concerned with the question that whether a rule that barred menstruating women from entering a Hindu temple was unconstitutional. The majority ruled that the term ‘morality’ in Article 25 (1) and 26 of the Constitution need to be recognized as being synonymous with Constitutional morality and not popular morality. Stating in very unqualified terms that “Patriarchal notion can’t influence equality in devotion”, the Court allowed that the women of all age can enter the primitive shrine of Sabarimala Temple situated in Kerala (Devika 2018). The Court escaped the “doctrine of essentiality” to uphold the Constitutional morality. Also, Justice D Y Chandrachud ruled that this tradition also violated Article 17 of the women on the ground of purity.
It is evident to note in the present context that the concept we are concerned with is not limited to the minimal observance of the core principles of constitutionalism as derived from the literal text which the Constitution contains; rather it takes up within itself righteousness of a wide magnitude which escorts to bring about an inclusive society. It is further the result of incorporating constitutional morality that the spirit of constitutionalism trickle down and permeate through the mechanism of the State for the advancement of each and every individual citizen of the State as ruled in Navtej Singh Johar’s case.
In Joseph Shine v. Union of India, Writ petitions (criminal) no. 194 of 2017; the Apex Court upheld the constitutional morality by declaring Section 497 of the Indian Penal Code, dealing with adultery, unconstitutional. As per the existing state of law under the section in dispute a married woman could not bring forth a complaint under Section 497 IPC when her husband engaged in sexual intercourse with an unmarried woman; however, her husband could do so. Observing that “any system not treating a woman with dignity, equity and equality or committing discrimination invites a displeasure of the Constitution”(ibid), the Court held that Section 497 IPC and Section 198(2) CrPC violates Articles 14, 15(1) and 21 and therefore ultra vires the Constitutional spirit.
Also in Shayara Bano v. Union of India, (2017) 9 SCC 1; also known as Triple Talaq judgement, the Apex Court held talaq-e-biddat unconstitutional. The majority held that triple talaq is not an essential religious practice and is antagonistic of Article 14 of the Constitution hence liable to be quashed.
A Constitution Bench of the Apex Court in Common Cause v. Union of India, (2018) 5 SCC 1held that “right to die with dignity is a fundamental right” and allowed passive euthanasia and gave permission for the implementation of a living will of persons suffering from chronic diseases which cannot be cured and likely drop the person into a permanent vegetative state (Kunika 2018). The court recognized that right to have dignified death is an appendage of right to life under Article 21. On the similar points, the Apex Court in the case of Shafin Jahan v. Ashokan K.M., AIR 2018 SC 357; gave effect to the personal choice of a woman to marry a person practising a different religion. Further, the Court ruled that the firmness of our Constitution lies in the acceptance of the multiplicity and diversity of our culture. Affinity of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, is not in the control of the state. Courts as an apostle of constitutional freedoms must safeguard these freedoms (Goel 2019).
In Viacom 18 Media Private Limited & Ors. v. Union of India & Ors., Writ Petition(s)(Civil) No(s).36/2018, the Court granted permission for the live streaming of the proceeding of the Apex Court so as to “foster public confidence”. It is a case related to the ban on the broadcasting of the movie Padmavat, the Apex Court delayed the ban and held that it would be contrary to the constitutional principles and will violate the fundamental rights of the petitioners. The Hon'ble court protected the right to freedom of speech and expression as enshrined under Article 19(1) of the Constitution of India of the petitioners.
In K.S. Puttaswamy v. Union of India (Aadhaar-5 J.), (2019) 1 SCC 1; the court held that certain orders or circulars that made Aadhaar number mandatory was unconstitutional and hence liable to be struck down.
The case of Shreya Singhal v. Union of India, AIR 2015 SC 1523 is a landmark case which roams around the fundamental right of freedom of speech and expression. The Apex Court, in this case, struck down Section 66 of the Information Technology Act, 2000. The judgement was penned by Justice R.F. Nariman that Section 66 is not only unclear and arbitrary but that is also “unreasonably invades the right of free speech.” (Singh 2015)
Most recently in the landmark case of The Secretary, Ministry of Defence v BabitaPuniya and Others, AIR 2015 SC 1523; the Apex Court safeguarded the Constitutional Morality and proclaimed victory for women Army officers in their fight against gender discrimination as well as equal access to appointment and engagement in the service of Indian Army. Justice D Y Chandrachud and Justice Ajay Rastogi on behalf of Supreme Court proclaimed that:
“The time has come for a realization that women officers in the Army are not supplemented to a male-dominated institution whose presence must be “tolerated” within narrow confines.”(Para 57)
Constitutional morality with regard to the prevailing situation in the country demands a strong institution that will help citizens to realize their noble and inalienable rights. A complete lockdown for 1.3 billion people due to pandemic is certainly not an easy task. The noble concept we are concerned with, weakens in the case of complete lockup. The societal morality, institutional morality and political morality all submit to constitutional morality. The role of law administering institutions is crucial in this period. Constitutional morality demands that governance, and institutions that govern and affect us, meticulously follow its principles. To prevent the outspread of pandemic is what to me, the role of institutions in this unprecedented situation.
Thus, from the series of concurrent judgments, it is evident to note here that the concept of constitutional morality we are concerned with specifies the noble standards for institutions to survive, and the expectation of behaviour that will meet not only the text but the very soul of the Constitution (Chandrachud: 13). A high regard for Constitutional morality is a necessity to ensure smooth functioning of different branches of the State as well as peace and harmony in our Constitutional democracy (Nandy&Ram 2013). Devotion and fidelity to constitutional morality must not be equated with the popular sentiment of morality.
The concept along with its noble features, faced criticism too. Attorney General of India K. K. Venugopal, in his personal endowment, said that Constitutional morality is a “dangerous weapon” that he hoped it would “die at birth”. Union Law Minister Ravi Shankar Prasad had the same views; he said that the term ‘constitutional morality’ needs to be defined with clarity (Madiyal 2019). Similarly, Senior Advocate Abhishek Manu Singhvi, called Constitutional morality full of subjectivity, in his latest book, From the Trenches (2020), specifically with reference to the Sabarimala case (2018). “Further, Singhvi maintains that the approach of judiciary to Constitutional Morality varies from Judge to Judge like the proverbial ‘Chancellor’s foot’. Legally, their argument does not stand the test of the constitution.” (Ahmad 2020). Renowned Law Professor Upendra Baxi was extremely critical of the Apex Court’s recent judgement on Sabrimala issue. He argued that the ruling stands in violation of the issue of faith and all other settled principles and betrays the constitutional spirit.
Article 370, and after
Developments in our country seem to ‘singe’ without determining the basic structure of our constitution. Therefore, major steps needs to prevent further slides. Article 370 was diluted and the reason given for it was, it is a temporary provision but the reality lies in the fact that it was made for the specific purpose and therefore it required more detailed and precise look before being invalidated. Even if the end is justified the means was not appropriately looked upon. (The Hindu 2019: 14)
Play in Maharashtra
After the results of Maharashtra state Assembly, 2019, the drama which was enacted could have been avoided they would have adhered to the constitutional values. The alliance of BJP and Shiv Sena got the majority vote but because of their non-cooperation and issues of sharing the power, Maharashtra was under the rule of the president. Later, Shiv Sena, NCP and congress joined hand to constitute the government and President Rule was revoked. “The State also noticed inappropriate incidents such as confiscating of MLAs who were taken to safe places to avoid stealing in the event of a trial of strength in the Assembly. That the attempt to urge a BJP-led government did not succeed is less important than the fact that provisions of the Constitution and the position of constitutional office-bearers had been compromised.”(The Hindu 2019: 14)
Issue of Citizenship (Amendment) Act (CAA)
The recent Citizenship (Amendment) Act (CAA) is the blow on the name of equality and on the other side if we look it gives an opportunity to the refugees from Afghanistan, Bangladesh and Pakistan to gain Indian citizenship. It was earlier warned by the experts and researchers that If CAA is combined with NRC it will violate our constitution. But they were not paid any heed. There were no debate and discussion on the Bill passed on citizenship which was against the constitutional value. A deeper study was required as the state played no role it was on the discretion of the centre. There is a chance that if it is violative of Article 8 and Article 14 of the constitution then it might be held unconstitutional. (The Hindu 2019: 14)
The concept of constitutional morality is not alien to our country as there has been found the historical implications. The modern adaption of the concept envisaged the new development and importance of it. Although all the institutions play a crucial role in upholding the true essence of constitutional morality but judiciary is the stakeholder. Judiciary in various cases by resolving the confrontation and conflict to provide various right and equality demonstrated the noble values of constitutional morality as the need of time. Sometimes it is also considered to be as dangerous but there is a distinction between constitutional morality and its abuse. Using the tool with the abiding concept of constitutionalism and valuing the essence of the constitution, the constitutional morality suffices to meet the obstacles of the upcoming justice. Thus, Judiciary is the stakeholder of constitutional morality.
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