Constitutional Morality| Important Points

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Constitutional Morality

Constitutional morality means the adherence to the norms of the Constitution in a democracy. It is not just limited to following the constitutional provisions in their literal sense, but includes a commitment to an inclusive and democratic political process in which both individual and collective interests of the society are satisfied. It requires a practical percolation of values like sovereignty, social justice and equality in the realm of constitutional adjudication.

For Example: In Supreme Court’s Sabarimala verdict religious freedom, gender equality and the right of women to worship guaranteed under Article 14, 21 and 25 of the Constitution was reinstated which struck down the practice of banning entry of women of a certain age to the Sabarimala temple in Kerala as unconstitutional. Constitutional morality here went against social morality that discriminates against women based on biological reasons like menstruation.

According to Dr. Ambedkar, Constitutional morality would mean effective coordination between conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation amongst the various groups working for the realization of their ends at any cost.

Elements of Constitutional Morality

In practice, constitutional morality is evident in various well-established rights that emanate from the Constitution, and include among others:

Rule of law
Individual liberty

Right to equality
Freedom of choice and expression
Social justice
Due process of law
Procedure established by law

‘Constitutional Morality’ in the Indian Constitution

While the term ‘Constitutional Morality’ is not found in Indian Constitution, nevertheless it is rooted in various facets of the constitution.

Preamble – Spells out values like justice, liberty, equality and fraternity to be the foundation stones of our democracy.

Fundamental Rights – Protects the rights of individuals against arbitrary use of power by the State. Especially, Article 32 provides for enforcement of these rights in SC.
Directive Principles – Guidelines to the State to implement the vision of the makers of the constitution. These include Gandhian, Socialist and Liberal-Intellectual directions.
Fundamental Duties – Citizens not only enjoy rights but have to fulfill certain duties towards the nation.
Check and Balances – like Legislative check on executive; judicial review of legislative and executive actions etc.

Constitutional Morality as per various Supreme Court Judgements

In Kesavananda Bharati Case, the Supreme Court restricted the power of the Parliament to violate the Basic Structure of the Constitution.
In Government of NCT of Delhi Vs. Union of India, all high functionaries need to follow constitutional morality and protect the constitutional values spelt out by the Constitution. Constitutional Morality acts as check on arbitrary use of power by high functionaries.
In Navtej Singh Johar & Ors. Vs. Union of India, Supreme Court opined that Section 377 violates the right of members of the LQBTQI community on the bedrock of the principles enunciated in Articles 14, 19 and 21 of the Constitution [dignity of individuals]
In Naz Foundation case, the Supreme Court opined that only Constitutional Morality and not Public Morality should prevail
In Justice K.S. Puttaswamy & Anr. Vs. Union of India & Ors., SC upheld the constitutional validity of Aadhaar subject to certain limitations. Constitutional Morality ensures courts must neutralize the excesses of power by the executive and strike down any legislation or even executive action if it is unconstitutional.
Indian Young Lawyer’s Association v. State of Kerala [Sabrimala Case], SC opined that constitutional morality which includes values like justice, liberty, equality and fraternity ought to be preferred over customary values, traditions and beliefs. It allowed the entry of women into sabrimala temple irrespective of their ages. [fighting perception, stereotype and prejudices]

Significance

Constitutional morality ensures the establishment of rule of law in the land while integrating the changing aspirations and ideals of the society.
It recognises plurality and diversity in society and tries to make individuals and communities in the society more inclusive in their functioning by constantly providing the scope for improvement and reforms. For example in Navtej Singh Johar v. Union of India, the SC provided a framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.
The progressive and monumental precedents have been set-up by the judiciary in the past few years, where this doctrine has been applied especially in relation to the cases of gender-justice, institutional propriety, social uplift, checking majoritarianism and other such evils.

Concerns

The extent and scope of constitutional morality have not been clearly defined by the Supreme Court, which leaves it open for subjective interpretations by individual judges.
Critics also argue that the concept of constitutional morality is another chapter in the adventure that the judiciary has embarked upon to infringe upon the powers of Parliament.

This in turn violates the essential principle of separation of powers by imposing Judicial Supremacy over Parliamentary Supremacy.
This overreach by the judges pits constitutional morality against societal morality.

Conclusion

Constitutional Morality is a sentiment to be cultivated in the minds of a responsible citizen. Upholding constitutional morality is not just the duty of Judiciary or state but also of individuals. It is crucial for constitutional laws to be effective. Without constitutional morality, the operation of the constitution tends to become arbitrary, erratic and capricious.

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