CONSTITUTIONAL MORALITY IN INDIA
AUTHOR- SHREYAM SHARMA*
EDITOR- MANISHIKHA MONDAL
INTRODUCTION
Constitutional morality means respect for the fundamental ideals of the constitution in a democracy. Constitutional morality entails a commitment to an inclusive and democratic political process that serves both individual and societal interests.
One of the most distinguished mentions of the doctrine of constitutional morality is by Dr. B.R. Ambedkar in his speech ‘The Draft Constitution’, delivered on 4 November 1948. B.R Ambedkar relies on the classicist George Grote to incorporate the administrative structure in the Constitution by noting that:
“Because even a strong and tenacious minority might make the operation of a free institution impossible without being strong enough to gain command for themselves, the absorption of ‘Constitutional morality’, across the entire nation, is an important condition of a government that is both free and peaceful.”[1]
From the references to and elaboration of the concept made by Dr. Ambedkar, one may conclude that constitutional morality demands respect for the provisions of the Constitution, and to refrain from arbitrary actions that would undermine procedure established by law. It calls for predominant importance to its spirit as opposed to the letter of the law.
Despite constituent assembly debates, extensive deliberations on constitutional morality, there is no reference to the term or any standard of constitutional morality in the text of the constitution. Neither is any reference to constitutional morality made in statutory law, though the phrase ‘morality’ is juxtaposed with public policy in some contexts[2]. But the importance of constitutional morality has been emphasized time and again in various Supreme Court judgements and even endorsed by jurists such as Justice Krishna Iyer, who observed that we cannot regain our past glory unless we realize the importance of morality in our present legal system. Hon’ble Justice Dhananjay Y. Chandrachud observes that Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. He further observes that it signifies a constitutional culture that is not only in favour of the government but in every subject of the law[3]. It became the subject of much scholarly discussion, especially after the Attorney General of India, K.K. Venugopal was extensively reported in the press as having criticized it as a “dangerous weapon”[4].
The Supreme Court of India has developed the doctrine of constitutional morality in a number of recent cases including the Government of NCT of Delhi, State v. UOI[5], Navtej Singh Johar vs Union Of India[6] and Joseph Shine v. union of India[7].
1. NAVTEJ SINGH JOHAR VS UNION OF INDIA 10 SSC 1 (2018): (Social vs Constitutional Morality)
Background Facts:
The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to individual autonomy over one’s sexuality by declaring Section 377 as violative of Article 21 and 14 of the Constitution.
Held: The Supreme Court unanimously ruled that Section 377 of the IPC, to the extent that it criminalized consensual sexual acts between adults, was unconstitutional. The Supreme Court judgement supersedes constitutional morality over social morality to sustain and preserve the constitutional values imbibed into the Indian democracy. However, the court hasn’t specifically defined social morality and therefore it can be studied in a diametrically opposite conception as that of constitutional morality.
According to the Supreme Court, while ‘social morality” can be discriminatory and non-inclusive, ‘constitutional morality is free from such prejudices and must therefore be upheld. Constitutional morality is formal rational-legal thinking that is independent of prejudices, biases, and divisions existing in the society, thus upholding the right to equality and equal treatment of law.
Therefore, the court held that irrespective of the tenets of social morality with its pre-existing biases, constitutional morality would dictate the prevention of discrimination against the Queer Community. As a result, Sec. 377 failed the test laid down by the normative standard of constitutional morality, and the court recognized the fundamental rights of the LGBTQ+ community.
This judgement led to a major development of the concept of constitutional morality, one being that constitutional morality is fundamentally separate from social morality and the other being that there exists a hierarchy between the two wherein the former prevails over the latter. The reasoning used by the Court also implies and leads us to believe that constitutional morality is mostly anti-majoritarian and consequently social morality is primarily majoritarian. The Court recognized society’s singular identity which disregards the presence of diverse forms of ideas and expression annihilating the morality that the constitution wants to imbibe in its citizens.
2. JOSEPH SHINE VS UNION OF INDIA 3 SSC 39 (2019):
Background Facts:
Section 497 IPC criminalized adultery by imposing culpability on a man who engages in sexual intercourse with another person’s wife. The petitioner claimed the provision for adultery to be arbitrary and discriminatory in terms of gender. The petitioner claimed that this demolishes the dignity of a woman and challenged it to be violative of Articles 14, 15(1), and 21 of the Indian Constitution. A constitutional bench of 5 judges was set up for the challenge petition. The issues raised in the Court were (a) Whether the provision for adultery is arbitrary and discriminatory under Article 14? (b) Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on a gender basis under Article15? (c) Whether a woman loses her dignity by the restriction on her sexual autonomy and liberty? (d) Whether criminalization of adultery is the state’s intrusion into the private sphere of its citizens?
Held: Section 497 is struck down as unconstitutional, being violative of Articles 14, 15, and 21 of the Constitution. Justice Chandrachud found that the exemption given to married women from being punished as abettors assumed that a woman was a “victim of being seduced into a sexual relationship” and that she “has no sexual agency”. He held that a woman’s “sanctity” and a man’s “entitlement” to “her exclusive sexual possession” may have been “significative of the anachronistic customs of the 19th century”, but it should always be constitutional morality that should be a beacon for law, not common morality.
He concluded by finding that Section 497 denied independent sexual agency and autonomy to a married woman, thus wielding the law to protect a patriarchal notion that runs against the ideals of constitutional morality. Justice Chandrachud emphasized the inevitability of questioning patriarchal social morals and values that are antithetical to constitutional morality.
The Court here has reiterated the ideals enumerated in the previous cases, wherein any legislation or policy that conforms to social morality and hence the majoritarian view but opposed to the constitutional morality cannot be sustained. The preservation of a patriarchal concept of marriage cannot be the cost of eradication of constitutional morality.
CONCLUSION
Neither Grote nor Ambedkar intended constitutional morality to be used by Courts to test the validity of government action. For them, it represented the respect and dearness in the hearts of citizens for the Constitution, which shall serve to restrain the political ambitions of selfish powers and excessive restraint of rights. But today it is constructed with many other things. Firstly, constitutional morality is the enemy of popular morality and a reminder that courts must be independent of existing social morals and biases while pronouncing a judgement. There is nothing “dangerous”, to use Attorney General Venugopal’s words, about this formulation of constitutional morality.
The second contemporary meaning of constitutional morality enables courts to look at the “spirit”, “soul” or “conscience” of the Constitution while testing the validity of government acts of legislation and executive actions. This resulted in the development and promotion of this doctrine to the fold of the ‘basic structure doctrine and has now taken up a very crucial place in the Indian Constitutional jurisprudence.
REFERENCES
The Constitution and the Constituent Assembly Debates. Lok Sabha Secretariat, Delhi, 1990, pp. 107-131 and pp. 171-183.
§23 of the Indian Contract Act, 1872 states as follows: The consideration or object of an agreement is lawful, unless— —The consideration or object of an agreement is lawful, unless—" it is forbidden by law; 1 or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
NCT of Delhi v. Union of India, 8 SCC 501(2018).
Gautam Bhatia, “India’s Attorney General is Wrong”, Scroll.in, 21 December 2018, available at: https://scroll.in/article/905858/indias-attorney-general-is-wrong-constitutional-morality-is-not-a-dangerousweapon (last visited 6 June 2021).
8 SSC 501 (2018).
Writ Petiton(Criminal) No.76 of 2016.
3 SSC 39 (2019).
*The Author is a 2nd-year B.A.LLB (Hons) student at National Academy of Legal Studies and Research, Hyderabad, Telangana.
Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA does not hold any liability arising out of this article.
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