Constitutional Morality

Constitutional morality in the modern sense means to abide by the substantial moral entailment that the Constitution carries. However, Dr Ambedkar in the Constituent Assembly was referring to methods that are adopted in policymaking where the Constitution is either silent or gives discretionary powers.

Introduction

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.
Constitutional morality has been regarded as a paramount reverence for the constitution.
Constitutional morality provides a principled understanding for unfolding the work of governance. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. It also makes the governing institutions and representatives accountable.
Constitutional Morality is scarcely a new concept. It is written largely in the Constitution itself like in the section of Fundamental Rights (Article 12 to 35), Directive Principle of State Policy (Article 36 to 51), Preamble and Fundamental duties.

Elements of constitutional morality

Supreme Court’s Judgements and Constitutional Morality

Constitutional morality is not limited only to following the constitutional provisions literally but is based on values like individual autonomy and liberty; equality without discrimination; recognition of identity with dignity; the right to privacy.
Constitutional morality means adherence to the core principles of constitutional democracy.
- 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.
Other Judgments by the Supreme Court defining Constitutional Morality:
- In Kesavananda Bharati Case, the Supreme Court restricted the power of the Parliament to violate the Basic Structure of the Constitution.
- In the Naz Foundation case, the Supreme Court opined that only Constitutional Morality and not Public Morality should prevail.
- In Lt Governor of Delhi case, SC proclaimed constitutional morality as a governing ideas that “highlight the need to preserve the trust of people in the institution of democracy.
- In Sabarimala case, the Supreme Court bypassed the “doctrine of essentiality” to uphold the Constitutional morality

Significance

Constitutional morality ensures the establishment of the rule of law in the land while integrating the changing aspirations and ideals of society.
It acts as a governing ideal, emphasizing the preservation of trust in democratic institutions among the people, enabling cooperation and coordination to pursue constitutional aspirations collectively.
Constitutional morality leverages laws and forms to impact and transform prevailing social norms. For instance, the abolition of the practice of Sati through legislation bestowed widows with the right to dignity and life, subsequently influencing societal perceptions.
It acknowledges and embraces plurality and diversity within society, fostering inclusivity in the functioning of individuals and communities through continuous scope for improvement and reforms. For example, in the case of Navtej Singh Johar v. Union of India, the Supreme Court provided a framework to reaffirm the rights of LGBTQ and all gender non-conforming individuals to their dignity, life, liberty, and identity.

Concerns

The term “constitutional morality” lacks a clear definition by the Supreme Court, allowing individual judges to subjectively interpret it.
This top-down approach to morality hinders the organic emergence of solutions to persistent ethical issues in society.
It violates the principle of separation of powers by establishing judicial supremacy over parliamentary supremacy, contradicting the essence of democratic governance.
Critics argue that the application of this doctrine leads to judicial overreach and pits “constitutional morality” against “societal/popular morality.”

Need to Uphold

The central elements of constitutional morality are freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under a proper constitutional government.
- To uphold constitutional morality, the constitutional methods must be used for achieving social and economic objectives.
Commitment to the ideals and aspirations of the Constitution.
- Awareness creation among the common public regarding their rights which are protected by the Constitution.
- Following the Fundamental Duties while exercising Fundamental Rights.

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.
- The preamble of the constitution explicitly mentions the type of society we wish to establish; it is only through constitutional morality it can become reality.
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.

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