Constitutional Law: Doctrine of Constitutional Morality

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The supreme law of land Constitution of India is a living document rather than a book containing words. It is a source of moral guidance to our courts in deciding various issues. Indian constitutional law is no stranger to judicially invented tests and doctrines. From time to time we saw the overreach of judiciary and also the purposive interpretation of constitution and not literal one. There are many judicially crafted inventions that is not explicitly mentioned in constitutional text formally anywhere. The Doctrine of Constitutional Morality is s relatively recent addition which is time and again provoked by the Supreme court in past rulings by giving some landmark judgement.

What is the Doctrine?

The constitutional morality is not still defined anywhere, there are many different notions on the same. The doctrine of constitutional morality means adherence to noble principles enshrined in a constitution, principle interpretation of the constitution in line with the ethos of constitutional democracy. It may also be defined as it means adherence to core values of principles and philosophy of constitutional democracy that extended to create egalitarian moral based society based on social, economic and political justice.

Elements of Constitutional Morality

  • Rule of Law
  • Individual liberty
  • Right to Equality
  • Freedom of choice expression
  • Preamble
  • social justice
  • Due process of law

Constitutional morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the constitution it is so broad that it includes commitment to inclusive and democratic political process in which the individual and collective interests are satisfied, a judicial scenario providing an opportunity to unfold the full personhood of every citizen for whom and by whom the constitution exists etc. It specifies norms for institution to survive and an expectation behaviour that will mere not just the text but the soul and spirit of the constitution. It means practical percolation of constitutional values in governance and citizen entitlement requires a sensitive state apparatus. The judiciary as a interpreter of constitution has effectively used constitutional morality to overcome age old laws, which needs to get reformed with changing time, as society can’t be static it gets evolved with changing times same goes with the law to cater the needs of society by keeping in mind the spirit of constitution.

The doctrine of constitutional morality is concept which commands and empower the judicial minds to interpret the constitution and its provisions in a moral way subject to the constitution and not to the public morality, in the recent development we get to see this from our judiciary. The essence of constitutionalism which provides asrigid feature and serves as a moral compass in the interpretation and implementation of the constitution is the doctrine of constitutional morality.

Evolution of Doctrine

The doctrine is not new but in Indian context it is now evoked in many judgements recently, first time the concept of constitutional morality was first propounded by the British Classicist named George Grote in the 19th century in his book “A History of Greece.”  In Grote’s formulation, constitutional morality meant as:

  • That all citizens would respect and adhere the constitution.     
  • No own would disobey authorities acting under the constitution.         
  • All citizens would have the unrestrained freedom to criticize public officials acting in the discharge of their constitutional duties.                    
  • All Public officials would have to act within the confines of the constitution.              
  • All the contenders for political power would respect the constitution and know that their rivals also respect the same.

In Indian context first the word Constitutional Morality was propounded by Dr. B.R. Ambedkar on 4 November 1948 in parliamentary debate to inculcate the morality in the constitution with its great importance and effectiveness. While addressing he said quoted Grote’s word that constitutional morality was not a “natural sentiment” and said that Indians “Have yet to learn it”. According to Ambedkar, constitutional morality was not to be used by courts to invalidate legislation or government action. Simply he used the Grote’s idea as a persuasive or rhetorical device to justify why seemingly mundane details about the administration of the government had been in Constitution of India. In Ambedkar’s view, constitutional morality means an effective coordination between conflicting interest of different people and the administrative cooperation to solve those issues or conflicts amicably or in friendly way as far as possible”.

The phrase had been used in less than 10 reported cases by the apex court till 2010 from the time the constitution was adopted but in recent time in the year 2018 alone it has been used more than 10 reported cases by Apex court. First it was referred by two judges (Justice A.N. Ray and Justice P. Jaganmohan) Reddy in celebrated Basic structure case Kesavananda Bharati v. State of Kerala (1973). Justice Venkataramiah in S.P. Gupta v. Union of India (1981) also known as First Judge Case found that violation of constitutional convention would “be a serious breach of constitutional morality.” In 2003, Justice S B Sinha held that affirmative actions might be valid but it would violate “constitutional morality” if it is not in consonance with doctrine of equality. The doctrine is continuously evolving from the adoption of constitution itself as it’s a form of judicial activism. We can trace the evolution of doctrine from the basic structure case to the recent landmark judgements which was delivered by supreme court.

In recent, the doctrine become buzzword as the word “Constitutional Morality” is reiterated by Apex court in many landmark judgements. CJI Dipak Mishra (as he then was) in his judgement said “ that magnitude and sweep of constitution morality  is not confined to the provisions and a literal text which a constitution contains, rather it embraces within itself a virtue of a wide magnitude that ushers in a pluralistic and inclusive society.”  The doctrine is an emphatic guarantee that court plays a counter majoritarian role within constitutional scheme and it is committed to protecting all minorities. In recent doctrine is applied in number of landmark cases which turns out year 2018 as a watershed for judiciary

Salient features

The salient features of doctrine of constitutional morality can be stated as follow:

  • Commitment to liberty
  • The constitutional supremacy and equality.
  • It is a synonym for the Rule of Law.
  • It relates to parliamentary form of government which is self-restraint by providing limitation on the functioning of state to curtail liberty of citizen.
  • It is soul and spirit of constitution; it assures that all inequality is eliminated by it from social milieu.
  • It empowers judiciary to take a step ahead for purposive interpretation, as we have written constitution it allows rooms, space and flexibility. 
  • It always supersedes majoritarian morality or public morality for better of society.
  • Not limited by provisions of constitution but it is mandate to accomplish the aim of the constitution.
  • It is akin to doctrine of basic structure and perfect remedy what is called “constitutional silence”

Landmark judgements

There are many landmark judgements which was given by supreme court by applying this doctrine, they are as following:

  • Navtej Singh Johar v Union of India (2018): To protect the right of LGBTQ community, the apex court comes up with the judgement which partially struck down Section 377 of IPC which made “carnal intercourse against the order of nature” (Homosexuality) a crime. The doctrine is applied here former CJ Dipak Misra found that court must not be remotely guided by majoritarian view or popular perception, they must be guided by constitutional morality. Justice Chandrachud differentiated between public and constitutional morality and said that the ideal of justice always have an overriding effect i.e. constitutional morality have an overriding effect on public morality. Out of 5 judges 3 held that goal of the court is to transform society or to convert public morality into constitutional morality. The court took a progressive and proactive approach, the human dignity, freedom and right to privacy under Article 21 was cited as the ratio of the decision.
  • Joseph Shine v. Union of India (2019):  Upholding the right of gender equality and right to equality supreme court struck down Section 497 of IPC which made adultery (a crime for a man to have sexual intercourse with a married woman, though the married woman was not to be punished as an abettor. Here it was noted by court that the constitutional validity of criminal laws not be determined by popular/public morality which are not in consonance with constitutional morality. The idea of “Husband as master of women” or “a woman as a possession of her spouse” was held to be completely contrary to the spirit of constitution facets and ideals. Here doctrine comes as counterpoise to “Public Morality”.
  • Indian Young lawyers Association v. State of Kerala: The judgements which is biggest blow on the Public morality and also criticised by religious prophets and other. SC held that exclusion between the age of 10-50 in Sabrimala temple for worship of Lord Ayyappan is violative of 4 key constitutional morality tests, which includes:  1. Justice 2. Liberty 3. Equality 4. Fraternity.

To pass constitutional muster and get rights under Article 25 & 26 must be in conformity   with these four tests, the same principle was used by court in TripleTalaq case. Court noted that the word “morality” in Article 25&26 must mean constitutional morality and not popular. There is minority decision by Justice Indu Malhotra.

  • NCT of Delhi v. Union of India (2018)  The judgement again reiterated the doctrine of constitutional morality. The issue is to figure out how power is to be shared between the central and provincial government of Delhi under constitution.  It was unanimously held that Chief minister and not the Lieutenant Governor is the executive head of government, court noted that “morality is constitutional norms and conscience of the constitution.”

Critical analysis

The doctrine is not only restricted to some texts of the constitution it is in the spirit of constitution. It requires in a democracy the assurance of basic rights, which are essential for existence to every member of society. The doctrine is a counterpoise to public morality and also it is a facet of basic structure of constitution, which provide judiciary a power to keep check on the “spirit”, “soul” of the constitution by taking a step ahead then purposive and literal interpretation. We have scene that the doctrine is a progressive approach with change if time and evolution of society but is there are no demerits of doctrine?

We all know each coin has two faces, same here with the doctrine. The constitutional morality is nowhere located in constitution and it is necessary to do the same, as there is evident danger that might concept be used in constitutional courts as per the whim and fancies of judicial brains as in absence of definite clarity and consensus being reached on the doctrine. The objective of doctrine is to preserve the rule of law and also not to act in a manner which is in violation of provision of constitution or arbitrary in any manner. When we refer to judgements in which it was used each one connotes a different meaning, as resulted in confusion that what actually this doctrine is?  Eg when we see the dissenting note of Justice Indu Malhotra in Sabrimala case it is also based on the same doctrine but with different interpretation for allowing ban under, while the same concept used by Justice Chandrachud for saying that ban was not permitted as this is discrimination, so what we can conclude for this doctrine, is it like a mercury sleeping from fingers. There is need to think is this doctrine now used as a touchstone by judiciary.

Conclusion    

Unbounded judicial creativity makes the court day to day constitutional convention and the purpose of separation of power will be defeated, as judiciary always can establish it supremacy over legislature by this type of crafted inventions. The question here is are we now headed into uncharted territories where we are going to see more conflict and more confusion and what brings more clarity. The doctrine is evolved under Article 142 and we also need to understand the doctrine in a proper way which is the need off hour as due to this doctrine we saw some biggest watershed in judiciary (Homosexuality Judgement).

Dynamism of constitutional morality has to be understood in proper perspective. It expects the constitutional authorities to behave in accordance with constitution, similarly if there is any kind of practice which is not in conformity then holistic application of doctrine can be used, not in a narrower manner and it does not mean that every public policy decided on the ground of this doctrine. Its absolutely within the constitutional paradigm, its not an uncharted plan.

Author: Shelal Lodhi Rajput from Symbiosis Law School, Pune.

Editor: Muskaan Garg from Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana.

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