WHETHER CONSTITUTIONAL MORALITY CAN BE UPHELD BY COURTS?

Authored By:

Gangesh Aggarwal

Gujarat National Law University

“The greatest of all the means for ensuring the steadiness of constitutions – but one which is nowadays generally neglected – is that the education of citizens in the spirit of their constitution. There's no profit in the best of laws, even when they are sanctioned by general civic consent, if the citizens themselves haven’t been attuned by the force of habit and therefore the influence of teaching, to the correct constitutional temper.”

-Aristotle

INTRODUCTION

Constitutional morality simply refers to sticking to the core and basic principles of the constitution of a country. It is not just confined to following the constitutional provisions in their literal sense but includes an assurance to a comprehensive and democratic political procedure in which both group and individual interests of the society are satisfied. The concept of Constitutional Moralitywas first brought up by the English classicist George Grotein “A History of Greece”(Grote, 2010), explaining the complex value of what the written constitution stands for. It is also understood as a moral responsibility of an individual to be faithful towards constitutional values and follow them with utmost integrity, without any kind of compromise. The constitution is the backbone of every nation which unites its people. It is one’s moral responsibility to maintain the dignity and integrity of the constitution, and respect it. It would likewise incorporate the morality which is intrinsic in the constitutional framework beyond what is truly expressed and written in the Constitution— that which each and every person is required to act according to constitutional norms, even if the same is not specifically mentioned in the black letter of the law. This is a part and parcel of constitutional morality. Without constitutional morality, the basic working of a constitution tends to become arbitrary, inconsistent, and capricious. One of the huge democracies in the world today, India, possesses one of the largest written constitutions across the globe. While stating the express provisions of governance, the Indian Constitution contains rights, limitations, and duties. In addition to the explicitly stated text of the Constitution, the sub-text and spirit of the constitution also add value and understanding to its implementation and functioning. The essence of constitutionalism that gives unchangeable features and acts as a moral compass in the context of constitutional morality, despite its simple and lucid appearance, attempts to explain the complex value of what the written constitution stands for. The term ‘Constitutional morality’ is a term that tries to preserve the ideals, thoughts, aspirations, and visions of the future that were considered important and unchangeable by the Constituent Assembly. The beginning of ‘constitutional morality’ can be seen in the constituent assembly debates themselves. BR Ambedkar, indeed, stated: “Constitutional morality is not just a natural sentiment. It must be developed. We should understand that our kin are yet to learn it.”

DR. AMBEDKAR’S PERSPECTIVE ON CONSTITUTIONAL MORALITY

Dr. B.R Ambedkar in one of the Constituent Assembly Debates, while explaining the concept of Constitutional Morality, quoted Greek historian George Grote and said: “By constitutional morality, Grote meant a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with 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 his own.”(Ambedkar, Constituent Assembly Debates)

Constitutional morality goes about as an effective coordination between the clashing interests of various individuals and regulatory participation. It attempts to determine the distinctions calmly with no conflicts among various gatherings that target accomplishing their goal at any expense. For Dr. Ambedkar, the moral fabric and the premise of the general public is that the administration and the administered must be solid. At the end of the day, public values, moral and social order, constitutional morality, and ethics of government officials, that comprise the essential standards of policymaking, must be sound and solid if democracy has to be taken further in the more drawn out run joined with progress and flourishing of its kin.

Accordingly, the extent of the meaning of Constitutional Morality isn't kept uniquely to sticking to constitutional arrangements truly, yet it additionally incorporates the confirmation to guarantee a definitive goal of the Constitution. It gives a socio-juridical situation that sets out a chance to divulge the whole personhood of each resident, for whom, and by whom the Constitution exists.


IMPORTANCE OF CONSTITUTIONAL MORALITY

In 1846, when Richard Grote, wrote about the rise and fall of Athenian democracy, he explained that the dispersal of the idea of ‘constitutional morality’ throughout society is a prerequisite for a stable, integrated, and peaceful society. The morality here includes the acceptance of the universality of human rights by both state and its people. Some of the worst carnages have occurred when society and states prioritized the views of the bulk of those seemed to be superior. It's in recognition of this, and following the horrific atrocities of World Wars 1 and a pair of states across the world in 1948 committed themselves to the Universal Declaration of Human Rights. The Preamble and provisions of the Declaration contains the idea of ‘constitutional morality’. The African Charter on Human and Peoples’ Rights also, requires states to protect human rights, which are an essential requirement for liberation and the abolition of all forms of discrimination, including colonialism, Zionism, and apartheid. These ideas were further incorporated into post-independence constitutions, signaling an occasion from an oppressive past. In this context, the enshrinement of constitutional rights is aimed toward making a just, fair, and humane society.

What might be considered as morally wrong by society doesn't naturally get perceived as lawfully off-base. Historically, the standard was demanded in looking for conduct predictable with the longstanding satisfactory guidelines limiting the activity of sovereign force by its operators in a very society set up by law. This was valid inside a national domain where the forms were left to a great extent unwritten however dictated by institutional arrangements like ‘Constitutional conventions’, from which disparagements were disapproved of. This was summoned to deal with the heart of those specialists of the sovereign inside the nonappearance of lawfully restricting commitments moulding them to act with a certain goal in mind. Since they were delicate to such companion pressure, consistent with the non-restricting conventions and norms might be ensured.


CONSTITUTIONAL MORALITY IN THE INDIAN CONTEXT

There is a good need for constitutional morality as having a written constitution should ideally minimize our reliance on such abstract constitutional conventions and therefore the must invoke constitutional morality to deal with the conscience of the agents of the sovereign. Concerns about the longer term of democracy and democratic traditions are, no doubt, growing across the globe. In quite a few democracies, moreover, one also can perceive a decrease in democratic freedoms and a trend in favour of illiberal populism. India was previously looked at as if it would be considered an exception to the current, being protected by defenders found in the Constitution — the merchandise of a Constituent Assembly that consisted of not only the most prudent legal minds but also of compassionate individuals who embraced the best human values and ethics.

The strength or weakness of constitutional morality in today’s India has to be understood in the light of a cycle of increasing demands of the individuals and the insensitive response of successive governments to those demands. In a parliamentary democracy, the duties and obligations of constitutional morality are expected to be equally adhered to by the government and the opposition. In India, the same political party responds to these obligations very differently when it is in power and when it is out of it. This has contributed greatly to the popular perception of our political system as being amoral.


CONSTITUTIONAL MORALITY AND JUDICIAL VALUES

Can an enforceable constitutional right be claimed or can a law be announced unconstitutional by courts because it is since it is in conflict to the standards of constitutional morality? If yes, then should courts be permitted to turn into the referees of the principles of constitutional morality?

The fundamental issue lies in the truly flighty and questionable nature of the word 'morality'. As has more than once been seen, this term is exposed to such changed and emotional translation that while it may be utilized in an amazingly dynamic and helpful way, it is additionally exposed to extraordinary abuse.

The concept of constitutional morality, if used in excess, may not be able to serve its inherent purpose- Some general participants expressed their concerns regarding judges depicting their own or popular morality under the veil of constitutional morality. The concerns and objections seem to be pressing but at the same time, they also point towards why it is necessary to locate and identify the content and framework of constitutional morality as otherwise there is a grave danger of this concept being ignorantly and dangerously misused in the court of law.

The standard and definition of each man’s morality is completely different. Therefore, for courts to enter into a realm of determining constitutional rights on the basis of constitutional morality could be viewed as the court's serious incursion into the legislature’s rights and powers. It also can hardly be in denial that the Supreme Court’s judgments within the recent past are progressive and skewing towards providing citizens with greater liberties.

In a democratic nation like India, the part of constitutional morality and judicial values accept heap measurements and results in a few outcomes in regards to poise and opportunity of the person. The values that are considered as basic by the Judiciary in administering justice are known as judicial values. The courts go about as the delegate between the individuals and different organs of the state and are consulted with the capacity to look at enactment and managerial actions. The ramifications of Constitutional Morality without Judicial Values and judicial values without Constitutional Morality are similarly aimless. Constitutional Morality is an estimation that must be developed and comprehended in the psyches of people however it must be advanced by a free legal executive typified with values, morals, and uprightness. Where judicial industriousness is questioned and judicial trustworthiness is addressed, Constitutional Morality can't be maintained. Constitutional morality and judicial values are both inseparably critical to deliver justice to the country. To maintain the honesty of law and constitution for the overall population interests, the constitutional morality ought to be enhanced by the judicial values.


Public Morality v/s Constitution Morality

There are various episodes in the judicial system of India where the constitution prevailed over public morality. In various decisions of the supreme court, the SC upheld constitutional morality. During the tenure of Hon’ble ex-chief Justice of India Deepak Mishra, he referred to the concept of constitutional morality as many as 17 times. Here are such recent judgments where SC displayed an exemplary tradition of upholding constitutional values on the supreme without compromising it to even a single percent.

● Section 377 case (Navtej Singh Johar v Union of India, 2018)- In this case, the SC upheld the rights of homosexuals decriminalizing homosexuality and held that S. 377 which criminalized ‘carnal intercourse against the order of nature’, was not constitutional. It was fought that S.377 disregarded the constitutional rights to privacy, equality, human dignity, freedom of expression, and protection from discrimination. The Supreme Court in Navtej Singh Johar case mostly struck down Section 377 of the Indian Penal Code (IPC) which made "carnal intercourse against the order of nature" a wrongdoing. The idea of Constitutional morality and Social morality was one of the central focuses in the choice and the court saw that constitutional morality will beat social morality. It was seen that while testing the constitutional legitimacy of the censured arrangement of law if a constitutional court is of the view that the reproved arrangement falls foul to the statute of constitutional morality, at that point the said arrangement must be pronounced as unconstitutional. In this way, Section 377 IPC was pronounced unconstitutional to the extent that it condemned consensual sexual lead between grown-up of same-sex.

● Sabrimala Temple case(Indian Young Lawyers Association v. Union of India, 2018)- In this case, the women were given their rights to enter the temple of Sabarimala. Previously, they were restrained on the basis of gender to enter the temple. It was a norm that menstruating women aged between 10-50 years of age were not allowed to enter the temple. But the SC upheld that this practice was absolutely unconstitutional and fundamental rights can not be snatched from an individual and a person has full rights to practice. The decision was rendered with a majority of four judges by concluding that the term 'morality' occurring in Article 25(1) of the Constitution needs to be understood as being synonymous with constitutional morality. The majority view held that women of all ages are entitled to enter Sabarimala Temple and the practice of prohibiting menstruating women from entering temples was held as unconstitutional and such practice was stated to be against constitutional morality. However, interestingly Justice Indu Malhotra giving her minority opinion concluded that Constitutional Morality in a common nation would infer the harmonization of the Fundamental Rights, which incorporate the right of each person, religious denomination, or faction, to practice their faith as per the principles of their religion, independent of whether the practise is rational or logical. Hence, it was opined that the practice of prohibiting menstruating age women from entering temples was held as constitutionally valid for being protected under Article 25 (1) of the Constitution.

● Triple Talaq case(Shayra Bano v. Union of India, 2017)- Triple talaq is a type of divorce practised in the Islam religion, where a Muslim can, pronounce the word ‘talaq’, which means divorce in English, three times and can end the marriage in such way. The pronouncement can be in oral or written form and in recent times, it can be in the form of electronic media such as SMS or e-mail. This practice was declared unconstitutional on the pretext of violating the rights of the Muslim women as such a practice was not on humanitarian ground and Muslim women always remained in fear because of such practice.

● S. 497-Adultery case(Joseph Shine v Union of India, 2018)-Likewise, anachronistic law under Section 497 which made it a culpable offence for a person to have sex with a 'spouse' of another man without the assent of such man was held to be unconstitutional on the underside that considering infidelity from the point of perspective on guiltiness was a retrograde advance which it existed just “for him to have responsibility for the sexuality of his better half, for the benefit of the husband,” and “aimed at preventing the woman from exercising her sexual agency”. The possibility of "a lady as an owner of her life partner" was held to be totally in opposition to the constitutional goals of fairness and nobility. Once more, inside the instance of Shafin Jahan v Ashokan K.M., the Apex Court offered an impact to the private decision of a grown-up lady to wed somebody practising an alternate religion.

In this way, the idea of constitutional morality seems to have been utilized by the constitutional court as a guide in the interpretation of the provision of the Constitution and for the understanding of the constitutional validity of the rules.

CRITICAL VIEW ON APPLICATION OF CONSTITUTIONAL MORALITY CONCEPT BY THE COURTS

The top law officer of the nation, took a basic note of constitutional morality idea as is being utilized by the Supreme Court: Delivering an address at the Second J Dadachanji Memorial Debate, Attorney General of India Sri K.K.Venugopal censured the legal executive's reliance on constitutional morality in decisions, for example, Sabarimala sanctuary line. He stated, “Utilization of constitutional morality can be incredibly risky and we can't be certain where it will lead us to. I trust constitutional morality passes on. Otherwise, our first PM Pandit Nehru's dread that the Supreme Court of India will turn into the third chamber may work out as expected.” With the basic methodology attributed to the idea of Constitutional Morality for being utilized by the Courts as a guide in the interpretation of provisions in the Constitution and Constitutional validity of the Statutes, it is important to find the idea of constitutional morality by seeing such an idea. There is a peril of this idea being unconsciously and perilously utilized in courts without distinct lucidity and agreement being reached on the idea of Constitutional Morality.

The Law Minister took a basic perspective on Constitutional Morality idea for being utilized by the Supreme Court on the event of Constitutional Day festivity as under:

“We find out about ConstitutionalMorality, we acknowledge developments however subtleties of Constitutional Morality ought to be illustrated with clearness and ought not to contrast from the judge to pass judgment and there must be an accord.”(Prasad)

In the Indian Young Lawyers Association case, 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 the majority opinion) and declining (with minority opinion) the relief in the writ petition.

The writ petition was favoured under Article 32 of the Constitution by seeking relief for issuance of directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to guarantee passage of female devotees between the age of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala, Kerala, which has been denied to them based on certain customs; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 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 the 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.”(Indian Young Lawyers Association v. Union of India, 2018)

Having said so, the notions of public order, morality and health cannot be used as a colourable device to restrict the freedom to freely practice 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.”(Indian Young Lawyers Association v. Union of India, 2018)

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 content that 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.”(Indian Young Lawyers Association v. Union of India, 2018)

“.....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 practice 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 individuals have the right to practice 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 non­discrimination 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 non­discrimination 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 harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.”

For philosophical, juridical, and even parliamentary debate, the concept of constitutional morality is a substantial issue. Here it is relevant to quote Dr Ambedkar:

“There are movements when I think that the future of Democracy in India is very dark. But I do not want to say that I have no other moments when I feel that if all of us put our shoulders together and pledge ourselves to "Constitutional morality" we should be able to build up a regular party system in which there could be liberty equality and fraternity.”(Ambedkar, Constituent Assembly Debates)

CONCLUDING REMARKS

The obligation of the constitutional courts is to decree the legitimacy of law on entrenched standards, specifically, authoritative ability or infringement of central rights or of some other constitutional arrangements. Simultaneously, it is expected from the courts as the last mediator of the Constitution to maintain the treasured standards of the Constitution and not to be remotely guided by majoritarian sees or famous observations. The Court must be guided by the origination of constitutional morality and not by cultural morality(Navtej Singh Johar v Union of India, 2018)

The idea of Constitutional Morality was utilized in a significant instance of Navtej Singh Johar which utilized this idea in an imaginative way to strike down Section 377 of the Indian Penal Coe and decriminalized homosexuality. However, this concept appears to have come under severe criticism with Sabarimala Temple Case (Indian Young Lawyers Association v. Union of India, 2018)

There appears to be an agreement among the legal scholars that the concept of Constitutional Morality remained to be understudied and there is a need for a consensus to be reached for defining and applying this concept. The hotspot for understanding this idea could be the text of the Constitution, Constituent Assembly discussions, and history of occasions that occurred during the making of the Indian Constitution. Without this solid examination and accord being reached on this huge idea of Constitutional morality, there is a peril of public morality being deciphered as Constitutional morality.

Cases are decided following the black letter of the law, by adopting constitutional norms and therefore the concept of constitutional morality is often there to assist it. There are different approaches to constitutional morality, some benches consider it in some manner, some bench within the other. Sometimes so as to capture the spirit and soul of particular provision needing to know what it means, applying the concept of constitutional morality can help us in understanding a specific norm stated within the constitution. The stronger the presence of constitutional morality, the lesser need is there to place everything down in black and white.

We thank you for your support and encouragement to Internationalism. We believe in providing open access to our articles, reports and papers without any paywall for our readers and those who pray well for the think-tank. In order to keep our content open accessed and free, we need your support. Please donate any amount up to 500 INR if possible.

Link to donate: https://pages.razorpay.com/pl_EnnLuU7tqq6lv7/view

Recent Posts

See All

Support us

In order to keep our content open accessed and free, we need your support. Please donate any amount up to 500 INR if possible.

Paypal

Other

Amazing Information. Clear Stats.

200+

3

50+

Applications for our Internships

every month

Books Published so far

Members so far

© Internationalism™ - AbhiGlobal Legal Research & Media LLP, 2020.

 

[Registered under the Limited Liability Partnership Act, 2008 | LLP Identification No. AAQ-1629. Please refer to mca.gov.in for more details.]