Constitutional Morality

• Context (IE): The recent arrest of a serving Chief Minister has brought the question of constitutional morality, highlighting the importance of moral behaviour that political institutions should uphold.

What is Constitutional Morality?

• Constitutional morality is a concept that emphasises adherence to the principles and values enshrined in a constitution within a democratic system.
• It goes beyond strict legal interpretation, encompassing values like social justice and equality.
• It balances freedom and restraint, requiring citizens to submit to constitutional authorities while retaining the freedom to criticise those in power.
• It encourages the evolution of law in response to changing societal norms and values.
• Courts use it to adapt legal principles to reflect contemporary understandings of justice, equality, etc.

Evolution

• The term ‘Constitutional Morality’ was first used by the English Historian George Grote.
• He described it as popular sovereignty based on freedom and self-restraint. It also meant that citizens had the right to criticize public officials. This highlighted the limited power of the public officials and their duty to abide and respect the Constitution.
• According to him, Constitutional Morality is the “paramount reverence for the forms of the Constitution” of the land.

Constitutional Morality in the Indian Context

Indian Constitution on Constitutional Morality

• The term “constitutional morality” is not explicitly mentioned in the Indian Constitution.
• It can be found in:
  • Preamble: It outlines democratic principles like justice, liberty, and equality.
  • Fundamental Rights: It safeguards individual rights against arbitrary state power (Article 32).
  • Directive Principles: Provides guidelines for the state to pursue social and economic goals.
  • Fundamental Duties: These are the responsibilities of citizens towards the nation.
  • Checks and Balances: To prevent concentration of power.
  • Concepts of Discretionary Power and Non-discrimination are closely linked to constitutional morality.

Dr Ambedkar on Constitutional Morality

• Dr Ambedkar explained constitutional morality in one of the constituent assembly debates.
• According to Dr Ambedkar, constitutional morality involves:
  • A deep respect for the structure of the Constitution
  • Adherence to authority
  • The practice of free speech within legal boundaries.
  • The confidence that the Constitution is upheld by all, irrespective of political differences.

Supreme Court’s Interpretation

• The SC used the concept of constitutional morality as an aid in the interpretation of the:
  • FRs provided under the IC.
  • Constitutional validity of the laws.

Various SC Judgements

• Naz Foundation v Government of NCT, 2009: This case distinguished public morality from constitutional morality, asserting that constitutional values should take precedence over popular morality.
• Krishnamoorthy case, 2015: It is essential for Good Governance
• Union of India vs. Government of NCT of Delhi: High-ranking officials must adhere to constitutional values to prevent misuse of authority.
• Government of NCT of Delhi case, 2018: The Court likened constitutional morality to a “second basic structure doctrine,” emphasising its role in curbing arbitrary authority.
• Navtej Singh Johar case (2018): Right to privacy and dignity for LGBTQI+ community. Highlighted its role in fostering a pluralistic and inclusive society while upholding constitutional values.
• Justice K S Puttaswamy case (2018): Aadhaar’s validity was upheld with restrictions, highlighting the court’s role in checking executive overreach.
• Joseph Shine v. Union of India, 2018: The judgment emphasised that constitutional morality should guide the law, prioritising equality, non-discrimination, and dignity.

Significance of Constitutional Morality

• It strives to keep up with society’s changing times, ideals, and objectives. E.g. abolition of sati.
• It protects and supports the country’s rule of law enforcement.
• Promotes and reinforces the democratic ideals of the nation.
• It instills a sense of civic responsibility among citizens and prevents the usurpation of power.
• Promoting diversity, it helps make the society more inclusive.
• Like the basic structure test, it ensures that government actions do not violate the spirit, soul or conscience of the Constitution.
• It backs the efficacy of constitutionalism.

Criticism of Constitutional Morality

• Lack of specific clarity and unanimity on the theory, leaving it to the whims and fancies of judicial minds.
• Encourages judicial supremacy and activism by the courts, thus violating the concept of separation of power.
• Creates distrust among public towards organs of the State: The top-down imposition of constitutional morality by the Courts may instill and encourage a general distrust among public towards the Legislature and the Executive.