Contours of Constitutional Morality

Syllabus: GS2/Indian Polity

Context

• In recent years, India’s constitutional courts have revived the concept of ‘constitutional morality’ for constitutional interpretation and judicial reasoning, and has become a litmus test for the constitutional validity of laws and a safeguard against the volatility of public morality.

About The ‘Constitutional Morality’

• Origins of the Concept: The idea of constitutional morality dates back to George Grote’s History of Greece (1846), where he described it as a ‘paramount reverence for the forms of the constitution’.
  • According to Grote, constitutional morality required:
    • Adherence to constitutional forms and procedures;
    • Respect for offices and institutions; and
    • Civic self-restraint guided by public reason.
• Dr. BR Ambedkar, inspired by Grote, invoked this concept during the Constituent Assembly debates, warning that democracy in India was only a ‘top-dressing on an undemocratic soil’.
  • It refers to the adherence to the core principles enshrined in the Constitution, even when they conflict with popular sentiment or political expediency. It demands a deeper commitment to:
    • Liberty, equality, and fraternity;
    • Respect for constitutional institutions;
    • Tolerance and pluralism;
    • Public reason and self-restraint;
• AV Dicey distinguished between the law of the constitution (enforceable by courts) and conventions of the constitution, or constitutional morality, which are not legally enforceable but politically binding.
  • Violation of such conventions may not attract judicial action but can lead to grave political consequences.

Why Does ‘Constitutional Morality’ Matters?

• In recent years, constitutional morality has emerged as a powerful interpretive tool in judicial decisions. Courts have invoked it to:
  • Strike down laws that violate fundamental rights;
  • Reinforce the independence of institutions;
  • Protect minority rights against majoritarian impulses;
• Constitutional morality serves as a bulwark against the volatility of public morality, which can be swayed by populism or prejudice.

Challenges to Constitutional Morality

• Historical Dormancy: Constitutional morality remained dormant for decades, despite being discussed in the Constituent Assembly.
  • Only recently has it gained traction in legal and academic circles.
• Majoritarianism vs. Constitutional Values: Popular morality often clashes with constitutional principles like equality and liberty.
  • Laws or policies driven by majority sentiment may undermine minority rights or secularism.
• Judicial Inconsistency: Courts have invoked constitutional morality in landmark cases, but its application remains uneven.
  • Lack of a clear framework leads to subjective interpretations, risking judicial overreach.
• Breach and Accountability: A breach of constitutional morality may not always be judicially actionable, but it has political or moral consequences.
  • For example, disregard for constitutional propriety may invite censure in Parliament or disapproval from the electorate.
  • Thus, constitutional morality operates through both legal and extra-legal accountability.
• Institutional Weakness: Constitutional bodies (e.g., Election Commission, judiciary) sometimes face pressure or politicization.
  • Weak institutional independence hampers the enforcement of constitutional morality.
• Public Apathy and Limited Awareness: Citizens often lack awareness of constitutional values and rights.
  • Without civic education, public discourse may drift toward emotional or sectarian narratives.

Law and Morality Debate

• The Hart–Devlin Controversy (1960s): It epitomized the clash between legal positivism and moral enforcement.
  • Lord Devlin believed that the law should preserve societal morality to prevent disintegration, while HLA Hart warned against imposing moral conformity through legal coercion.
• Judicial Recognition of Moral Principles: The House of Lords upheld a residual power of courts to preserve the moral welfare of the state.
  • Similarly, in P. Rathinam v. Union of India (1994) 3 SCC 394, the Supreme Court of India quoted Justice Frankfurter’s view that law embodies rights grounded in moral principles, reflecting what is ‘fair, right, and just’.
• Law Leading and Following Morality: At times, law leads morality — as in the abolition of untouchability, where legal change preceded social acceptance.
  • At other times, law follows morality, as seen in the gradual recognition of gender equality.

Contemporary Debate

• To some, constitutional morality is a bulwark protecting individual rights from transient majoritarian sentiments.
  • To others, it represents a judicial overreach—a ‘dangerous weapon’ capable of reshaping societal norms.
• Its influence now extends across debates on LGBTQ+ rights, women’s temple entry, freedom of speech, and the tension between national security and civil liberties.

Judicial Interpretation

• SP Gupta Case (1981): Justice Venkataramiah emphasized that violating constitutional conventions breaches constitutional morality, though not necessarily the law.
• Indian Young Lawyers Association v. State of Kerala (2018, Sabarimala Case): Chief Justice Dipak Misra equated ‘public morality’ under Article 25 with constitutional morality, though this was later contested.
• Manoj Narula v. Union of India (2014): The Court held that constitutional morality means adherence to the norms of the Constitution, urging ethical restraint among political leaders.
• State (NCT of Delhi) v. Union of India (2018): The Court broadened the meaning to include liberal values and consensual governance.
• Justice KS Puttaswamy (Retd.) v. Union of India (2017): The right to privacy was upheld as an aspect of constitutional morality and rule of law.

Way Forward: Promise of a Mature Constitutionalism

• Constitutional morality is not blind devotion—it is disciplined fidelity. It teaches that allegiance to the Constitution lies in how we uphold it, not merely in what it delivers.
• At a time of deep political polarization, it reminds us that constitutional commitment need not breed rigidity, and constitutional critique need not erode faith.
• The founding fathers envisioned the Constitution as a living document of both reverence and reform—a framework where liberty thrives through restraint and justice through reason.

Source: TH