The Making of Constitutional Morality by Indian Judiciary: History, Significance and Concerns

Ambedkar invoked the phrase ‘constitutional morality’ during the Constituent Assembly Debates to express his doubts regarding the legislature. His concerns were hinged upon a moment of transition, wherein India was still recuperating from partition and the colonial ideas of subordination. Years after his invocation, the Supreme Court in 2014 once again mentioned the principle of constitutional morality. Since then, the principle has only developed as the innate voice of the constitution, one that is different from popular or social morality.

Nishant Mishra details the history and significance of constitutional morality, highlighting some concerns regarding the irregularity in its implementation.

The Making of Constitutional Morality by Indian Judiciary: History, Significance and Concerns

By Nishant Mishra, a second-year law student at Gujarat National Law University. 

“There are moments when I think that the future of Democracy in India is very dark. But I do not want to say that I have no other moments when I feel that if all of us put our shoulders together and pledge ourselves to “Constitutional morality”, we should be able to build up a regular party system in which there could be liberty equality and fraternity[1]

INTRODUCTION  

Indian Constitutional jurisprudence is living proof of how the judiciary has shaped the Constitution and its effectiveness by assigning newer doctrines and tests. By interpreting the meaning and power vested in the Constitution, the judiciary has given doctrines and tests such as the ‘Basic Structure’, ‘Arbitrariness’ and ‘Manifest Arbitrariness’. None of which finds any mention in the text of the Constitution.

The phrase ‘constitutional morality’ is also a making-of judicial interpretation, and the phrase doesn’t fashion explicitly within the Constitution

Although not formally recognised as a consistent doctrine, its addition and interpretation facilitated some of the most important and liberal judgements over the past few years.

Though Constitutional Assembly debates mention constitutional morality, its meaning and importance are not discussed in as much detail. Even after our Constitution came into force, it found a passing reference in some cases here and there with no significance.

The phrase garnered attention in the last decade during the Naz Foundation Case. In this case, the Delhi High Court applied this doctrine to strike down Section 377 of the Indian Penal Code. After 2014, this principle was applied in several landmark cases such as the Manoj Narula Case, Navtej Singh Johar Judgement, NCT of Delhi v. Union of India, Joseph Shinie Case, Independent Thought v. Union of India, and most famously, Sabarimala Judgement. In this context, it is imperative to understand the background and history of this doctrine, how our courts have applied it in various situations, and the future it beholds.

First, the article will understand the historical significance of constitutional morality, leading up to a discussion on its passing mention several times in the courts. Moving forward, the article tries to explain how the phrase eventually got developed into a more defined principle, listing a series of judgements that have used the principle of constitutional morality to adjudicate against popular norms. Lastly, the article also addresses the issues and concerns regarding its irregular application and inconsistent understanding.

Constitutional Morality: Historical Background 

Unlike other judicial tests that are relatively new, the doctrine of Constitutional morality traces its origin back to the work of English Historian George Grote. He described the phrase in the context of the history of Greece, [2] Athenian democracy and the perils surrounding it.

He used ‘constitutional morality’ to describe popular sovereignty, governed based on ‘freedom’ and self-restraint.[3] Constitutional morality, for Grote also meant citizens’ right to criticise public officials. Therefore, highlighting the limitation to the power of public officials[4]  and their duty to respect the Constitution. [5]

According to him, the state of invoking and realising constitutional morality, especially in context with the Athenian democracy, was short-lived and ideal. In his work, he also commented on England since the Glorious Revolution and the United States.

Today, the meaning and connotation of the phrase have acquired newer interpretations. But essentially, constitutional morality is a sentiment among the common masses necessary for establishing a peaceful and stable government. It is supposed to be a perfect balance between freedom and restrictions to those freedoms.

In the Indian context, this word was first used by Dr Bhim Rao Ambedkar during the Constituent Assembly Debate to justify the inclusion of administrative details in the Constitution itself. The phrase and its mention asserted Ambedkar’s insecurity concerning the legislature and its powers.[6]

Ambedkar was privy to including a detailed layout defining the function of the Indian Administrative Services that followed from the colonial Government of India Act, 1935. Its mention in the Constitution was made to describe the functioning of the administrative service. When justifying the importance of such an exhaustive piece of document, he said:

“that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.[7]

Ambedkar was apprehensive about too much power with the legislature. He believed that the people of Independent India hadn’t inculcated democracy at the time. That is to say that in India, soon after independence, the masses were unaware of the principle of constitutional morality.

After a couple of mentions in the Constitutional Assembly Debates, not much significance was given to this doctrine. Although few references to constitutional morality surfaced in certain judgements, most of them lacked substance and didn’t realise the meaning of constitutional morality entirely.

Two judges in Kesavananda Bharati v. State of Kerala judgement [8] had invoked constitutional morality but didn’t go through with it. In SP Gupta Case[9] (also known as First Judge Case), another judge described constitutional violation as ‘a serious breach of constitutional morality’. It was later also used by Justice S.B Sinha in Islamic Academy of Education v. State of Karnataka[10] and Justice Deepika Mishra in Niranjan Hemchandra Sashittal v. State of Maharashtra[11], albeit in different contexts.

New Era For Constitutional Morality

In 2014, we saw a surge in the number of cases where judges often referred to ‘constitutional morality’, especially by the Supreme Court.

In Manoj Narula v. Union of India,[12] the Supreme Court had to decide if a person with a criminal background (or against whom charges had been framed in a criminal case involving moral turpitude) could be prevented from becoming a minister in the central or state governments.

Justice Dipak Misra, speaking for himself, Chief Justice Lodha and Justice Bobde, referred to Babasaheb Ambedkar’s speech in the Constituent Assembly on constitutional morality. In describing the meaning of constitutional morality as understood by the bench, he said:

“(constitutional morality) means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible (sic) of action in an arbitrary manner. It along with commitment to the Constitution is a facet of constitutional morality.”[13]

In another important case, NCT of Delhi v. Union of India[14], the Court presented a somewhat different interpretation of constitutional morality. The Court equated constitutional morality with the spirit of the Constitution itself, which is quite similar to the basic structure doctrine. Justice Deepak Mishra wrote:

Constitutional morality in its strictest sense implies a strict and complete adherence to the constitutional principles as enshrined in the various segments of the document. It is required that all constitutional functionaries to “cultivate and develop a spirit of constitutionalism” where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution.”[15]

Here, one can draw a parallel between the principle of constitutional morality and the basic structure doctrine. In the Kesavananda case,  the Court held that although the written word gives the parliament unlimited power to amend the Indian constitution, there are certain restrictions on such powers from within the Constitution itself. The doctrine restricts the Parliament to meddle or change the ‘basic structure’ of the Constitution.

In determining what constitutes as the ‘basic structure’, the Court held that the government’s action could be tested not only against the formal provisions of the constitutions, but it must ensure that they do not violate the ‘spirit’, ‘soul’ or ‘conscience’ of the Constitution.[16]

Constitutional Morality: An Antidote to Public Morality?

Another series of judgements gave a different interpretation of constitutional morality. These judgements saw constitutional morality as remedying public morality.

Public morality refers to prevailing notions of rights and wrongs in our society.

In fact, courts have historically used public morality to curtail various fundamental rights, for instance, in State of Bombay v. R.M.D. Chambarbaugwala.[17]While relying on widespread public opinion and an ancient depiction that claimed gambling as a vice, the Court adjudicated that gambling was not a fundamental right guaranteed under Article 19(1)(g) of the Constitution.

In another case of a similar vein, Nashirwar v. State of M.P,[18] the Supreme Court affirmed the power of the State to regulate or even completely prohibit the sale of liquor. Again, in this case, the Court reasoned the decision premised on ‘public expediency and public morality’. In Mr.’ X’ v. Hospital ‘Z’[19], ‘public morality’ was treated as an essential factor when determining the precedence of one competing fundamental right over another.

The Naz Foundation Judgement,[20]however, was a significant departure from this trend. The Delhi High Court rejected public morality as a compelling state interest that could justify restrictions imposed on personal liberty as Article 21 of the Constitution provided.

The Court here also differentiated public morality and constitutional morality. Unlike constitutional morality, the Court added that popular morality was ‘based on shifting and subjective notions of right and wrong’.[21]

The Court also argued that for ‘compelling state interest’, the Court must consider constitutional and not public morality.[22] The Chief Justice here used Constitutional morality as a tool to counter the temporary notion of morality as held by the majority.

In Independent Thought v. Union of India[23], the Supreme Court struck down the 2nd exception of Section 375 of the Indian Penal Code. The exception dictated that a man who has sexual intercourse with his wife who is fifteen years of age or over does not commit rape.

While reading down this provision, the Court used this doctrine. It said:

“constitutional morality forbids us from giving an interpretation to Exception 2 to Section 375 IPC that sanctifies a tradition or custom that is no longer sustainable.”[24]   

In this case, the principle of constitutional morality was applied to counter the prevailing societal norms, which consider women the property of men with no sexual and bodily autonomy.

In another string of decisions, the Court similarly applied this principle. In the Navtej Singh Johar case[25], Justice Chandrachud, while distinguishing between constitutional and public morality, recognised society’s popular notions and its shadow on laws. On the other hand, constitutional morality requires that the rights of an individual should not be affected by these popular notions.

Further, he elaborated that constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any notion of social acceptance.

Three judges held that the judiciary needs to transform society or convert public morality into constitutional morality.

In the Joseph Shine Case,[26]the Court struck down Section 497 of the Indian Penal Court. This section of the IPC selectively criminalised a man for having sexual intercourse with a married woman.

Justice Chandrachud found that this section was based on the nineteenth century’s social and sexual convention, which disregarded women’s sexual agency and considered her husband’s exclusive possession. He rejected this notion and said,

it is not the  common morality of the State at any time in history, but rather constitutional morality, which must guide the law.”[27]

This judgement is all the more critical as J. Chandrachud pressed for the consonance between criminal laws and constitutional morality.

In the Triple Talaq Case[28] also, the Court engaged with constitutional morality but did not use this argument to abolish the practice. However, the principle once again came to light in the Sabarimala Judgement[29].

Sabrimala Judgement and Constitutional Morality: One Principle, Multiple Interpretations

Interestingly, in the Sabarimala case, constitutional morality was common among the majority (allowing the relief) and minority view (to decline the relief). The judgment dealt with whether women aged between 10 to 50 years old could be denied entry into the Sabrimala temple sanctum sanctorium according to religious tradition and custom. The majority opinion, delivered by CJI Justice Dipak Misra, observed:

The term ‘morality’ occurring in Article 25 (1) of the Constitution cannot be narrowed down and be viewed in terms of what it means to be an individual, a section or religious sect. In cases where there is a violation of fundamental rights the term ‘morality’ naturally implies constitutional  morality and the Constitutional Courts decision must be in conformity with basic principles of constitutional moralitythat emanates from the constitution itself.”[30], he added, “Having said so, the notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.[31]

Concurring with the majority view, Hon’ble Justice Chandrachaud observed:

“Constitutional morality is not subject to fleeting fancies of every time and age but is deeply rooted in fundamental postulates of human liberty, equality, fraternity and dignity. Freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental notions of constitutional morality. In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.”

However, differing with the majority view, Justice Indu Malhotra, in her minority opinion, observed:

Equality and non­-discrimination are certainly one facet of Constitutional morality. However, the concept of equality and non­ discrimination in matters of religion cannot be viewed in isolation. A balance is required to be struck between the principles of equality and non­-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons  belonging  to all  religions  in  a  secular  polity,  on   the  other hand. Constitutional moralityrequires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.[32]

In this judgement, different judges used the same principle to arrive at entirely different conclusions. Justice Mishra and Justice Chandrachud clearly said that public morality should give way to constitutional morality. And no religious denomination can use it to deny the women their legal right to pray at the temple. On the other hand, Justice Indu Malhotra spoke about harmonising various rights guaranteed by our Constitution. She stressed that the concept of equality and non­ discrimination in matters of religion could not be viewed in isolation. In the aftermath, several issues and criticisms were raised regarding this principle of constitutional morality.

Constitutional Morality: Criticism And Concern

Many legal scholars have raised concerns regarding the Apex Court’s understanding and application of the principle of constitutional morality.

Attorney General of India, K.K Venugopal, said,

“Use of constitutional morality can be very, very dangerous and we can’t be sure where it’ll lead us to. I hope constitutional morality dies. Otherwise, our first PM Pandit Nehru’s fear that SC will become the third chamber might come true.”[33]

The law minister also took a critical view of the Supreme Court’s usage of the principle of constitutional morality. He said,

We   hear   about   Constitutional  Morality, we appreciate   innovations   but   nuances   of Constitutional moralityshould be outlined with clarity and should not differ from judge to judge and there must be a consensus.[34]

At some levels, these apprehensions are well found. As of now, there is no clear consensus regarding the content and contour of this principle. Due to this vagueness, the fear is that it would get subjected to the personal values and biases of the judges.

If this doctrine is used without any limit or restrictions, it could amount to judicial overreach. In his latest book, ‘From The Trenches’, Senior Advocate Abhishek Manu Singhvi commented on the usage of constitutional morality in the Sabrimala case.

He said that phrase is full of subjectivity. And maintained that the judicial approach to constitutional morality could vary from judge to judge like the proverbial ‘Chancellor’s foot’.[35] Hence, this deviation and whimsical use could make the judiciary ignorant. Therefore, a standard needs to be set to avoid legal inconsistencies and arbitrariness.

In Kantaru Rajeevaru v. Indian Young Lawyers Association[36], the Supreme Court decided to refer to a larger bench on defining constitutional morality. The Court observed that the expression is not defined anywhere in the Constitution. And contours of this expression need to be delineated to prevent it from becoming subjective.

Various jurists have also tried to define this term.  Justice Nariman, in the same case, asserted that the spirit of the Constitution forms constitutional morality. According to him, it consists of nothing but the values inculcated in the Constitution, contained in the Preamble, read along with Part III and Part IV.

Conclusion

Though some issues with the uncertain use of the ‘constitutional morality’, it can not be discarded entirely as several path-breaking and progressive judgments have made good use of it. By setting certain objective standards, the principle of constitutional morality could develop into a more holistic doctrine, such as the ‘Basic Structure Doctrine’. A regular and more consistent understanding will help judges in interpreting the Constitution better.

Defining the meaning of ‘constitutional morality clearly could make this a standard, especially in cases where the rights and liberties of individuals are pitted against religious or cultural practices.

Some of these issues are marital rape, surrogacy, abortion and sexuality. Even many religious and cultural practises such as genital mutilation in Dawoodi Bohra Community or rights of Parsi women can be resolved, providing legitimate solutions to such complex constitutional problems.

In the 1970s, many sceptics criticised the Basic Structure Doctrine, claiming that it will lead to judicial anarchy and curb the executive’s power. However, this doctrine has served our country well. Similarly, we need some time to see how our courts apply constitutional morality and how it will help us solve our times’ pressing socio-cultural problems.

 

Endnotes

[1] Dr Babasaheb Ambedkar, Writing and Speeches Vol 17 Part II (first published 2003, Dr Ambedkar Foundation 2013) 378.

[2] George Grote, GREECE  (first published 1846, Peter Fenelon Collier, 1899).

[3] Ibid 154.

[4] Ibid.

[5] Ibid.

[6] Constituent Assembly Debates of India, vol. 7, at p. 31.

[7]  Ibid.

[8]  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[9] S.P. Gupta v. Union of India, (1989) Supp (1) SCC 87.

[10] Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697.

[11] Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642.

[12] Manoj Narula v. Union of India, (2014) 9 SCC 1.

[13] Ibid [75].

[14] State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.

[15] Ibid [284.1].

[16] Ibid.

[17] The State Of Bombay vs R. M. D. Chamarbaugwala, 1957 AIR 699.

[18] Nashirwar Etc. Etc vs The State Of Madhya Pradesh, 1975 AIR 360.

[19] Mr. ‘X’ v. Hospital ‘Z’, 1998 Supp(1) SCR 723.

[20] Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.

[21] Ibid [79].

[22] Ibid.

[23] Independent Thought v. Union of India, AIR 2017 SC 4904.

[24] Ibid [91].

[25]Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[26] Joseph Shine v. Union of India, 2018 SC 1676.

[27] Ibid [143].

[28] Shayara Bano v. Union of India, (2017) 9 SCC 1.  

[29] Indian Young Lawyers Association & Ors vs The State of Kerala & Ors., (2019) 11 SCC 1.

[30] Ibid [106].

[31] Ibid [111].

[32] Ibid [11.8].

[33] Staff Reporter, ‘Use of Constitutional Morality Very Dangerous, hope it dies’ (The Quint, 9th December 2018) < Constitutional morality must die or SC could become Parliament’s third chamber, as Nehru feared: A-G Venugopal> accessed 10th September 2020.

[34] Staff Reporter, ‘Apply yardstick of Constitutional morality evenly: Ravi Shankar ….’ ( The New Indian Express, 27 Nov 2018) Apply yardstick of Constitutional morality evenly: Ravi Shankar Prasad. Accessed 15 Sep. 2020.

[35] Staff Reporter, ‘The challenge of Constitutional Morality before the Supreme ….’ (The Leaflet, 26 Mar 2020) The challenge of Constitutional Morality before the Supreme Court. Accessed 17 Sep. 2020.

[36] Kantaru Rajeevaru v. Indian Young Lawyers Association, (2020) 3 SCC 52.

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