2023 JAN 31
Constitution > Indian Constitution > Features of constitution
- As India marks the completion of 74 years of constitutional functioning, constitutional morality has phenomenally shaped the trajectory of Indian democracy.
WHAT IS CONSTITUTIONAL MORALITY?
- Constitutional morality means adherence to or being faithful to the bottom line principles of constitutional values.
- It includes commitment to an inclusive and democratic political process in which both individual and collective interests are satisfied.
- Constitutional morality refers to the ideas and motivation that enables a nation to not only practice constitutional life in letter but also in spirit.
- It’s a morality that pushes a nation to strive for the realisation of the promises that the Constitution espouses.
CONSTITUTIONAL MORALITY AND INDIAN CONSTITUTION:
- Constitutional morality is scarcely a new concept. In the Constitution of India, the term 'Constitutional Morality' is not used in any of the Articles nor the concept is explained anywhere in it.
- While the term 'Constitutional Morality' is not found in Indian Constitution, nevertheless it is rooted in various facets of the constitution.
- Spells out values like justice, liberty, equality and fraternity to be the foundation stones of our democracy.
- Fundamental Rights (Article 12 to 35):
- Protects the rights of individuals against arbitrary use of power by the State.
- Directive Principles of State Policy (Article 36 to 51):
- Guidelines to the State to implement the vision of the makers of the Constitution These include Gandhian, socialist, and liberal-intellectual direction.
- Fundamental Duties:
- Citizens not only enjoy rights but also have to fulfil certain duties towards the nation.
- Check and Balances:
- Like a legislative check on the executive; judicial review of legislative and executive actions, etc.
SIGNIFICANCE OF CONSTITUTIONAL MORALITY:
- Crucial in revolutionary judgements:
- Almost all the revolutionary judgements by the Indian judiciary, whether it be the Navtej Singh Johar judgement on homosexuality or the Joseph Shine judgement on adultery, had constitutional morality as one of their crucial fundamentals.
- For example, in the Indian Young Lawyers' Association v. Union of India (Sabrimala judgement), the Supreme Court bypassed the doctrine of essentiality (the principle protecting the 'integral' religious practises of a community) to uphold the supremacy of constitutional morality.
CONSTITUTIONAL MORALITY AND SUPREME COURT JUDGEMENTS:
- Government of NCT of Delhi Vs. Union of India:
- All high functionaries need to follow constitutional morality and protect the constitutional values spelt out by the Constitution. Constitutional Morality acts as check on arbitrary use of power by high functionaries.
- Navtej Singh Johar & Ors. Vs. Union of India:
- Supreme Court opined that Section 377 violates the right of members of the LQBTQI community on the bedrock of the principles enunciated in Articles 14, 19 and 21 of the Constitution [dignity of individuals]
- Naz Foundation case,
- The Supreme Court opined that only Constitutional Morality and not Public Morality should prevail
- Justice K.S. Puttaswamy & Anr. Vs. Union of India & Ors.:
- The Supreme Court upheld the constitutional validity of Aadhaar subject to certain limitations. Constitutional Morality ensures courts must neutralize the excesses of power by the executive and strike down any legislation or even executive action if it is unconstitutional.
- Indian Young Lawyer's Association v. State of Kerala [Sabrimala Case]:
- The Supreme Court opined that constitutional morality which includes values like justice, liberty, equality and fraternity ought to be preferred over customary values, traditions and beliefs.
- Make the society more inclusive:
- Constitutional morality is specifically significant for a vibrant and diverse country like India, which has a heterogeneous population with so many further sub classifications, including caste, religion, colours, sexual orientation, languages, genders, etc.
- Because plurality is a crucial ethos of the principle of constitutional morality, it recognises this distinction and non-homogeneity and promotes diversity, thereby contributing to a more inclusive society.
- For instance, in Navtej Singh Johar judgement, the SC provided a framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.
- Upheld the Indian democracy:
- The constitutional morality envisages an egalitarian society, which is genuinely manifested in Article 326, which grants the universal adult franchise to all sections of people in India regardless of class, gender, ethnicity, literacy, or any other identitarian attributes.
- Universal adult franchise is based on equality which is a basic principle of democracy.
- In fact, the spirit of democracy has been maintained in India over the past seven decades since the existence of the constitution, and Indian democracy has become durable and stable because people have the right to vote without any discrimination.
CRITICISM OF CONSTITUTIONAL MORALITY:
- No fixed definition:
- There is no explicit mention of the term "constitutional morality' in the Constitution of India.
- Moreover, despite the presence of several precedents or judgements based on the principle, there is no fixed definition that has been attributed to constitutional morality.
- Thus, it has an open-ended meaning and is subject to different interpretations.
- Moreover, it has been left to the discretion of the individual judges to interpret its essence and apply it in the requisite situations.
- Top-down approach and lack of faith on the true ideals of democracy:
- Constitutional morality hinders the organic and natural development of liberalism or the rectification of the wrongs or ethical ills of society as it vests powers in the hands of the courts to implement a "top-down approach" to the ideal on the morality front.
- Some critics argued that constitutional morality indirectly reflects a lack of faith in the true ideals of democracy, which are based on the wisdom of the populace that is to be governed.
- Violation of separation of power:
- Another argument against the existence of constitutional morality as a judicial principle is that it is a clear violation of a very basic tenet of democracy, namely, the separation of powers between the three wings of the governance framework: the judiciary, the legislature, and the executive.
- Dissenters continue to argue that the stated goal of upholding and promoting democracy through constitutional morality is a sham because it establishes judicial supremacy and excessive activism by the courts, resulting in intervention in functions that are primarily sanctioned to be undertaken by the legislature.
- Judicial overreach:
- Another criticism is the promotion of judicial overreach done by constitutional morality by putting it against societal morality.
- In 2018, the then Attorney General of India, Mr. K.K. Venugopal, described constitutional morality as dangerous to the country. He expressed that the Supreme Court is slowly transforming into a third Parliament Chamber.
- Constitutional morality is a sentiment that must be instilled in the minds of every Indian citizen. It is not only the duty of our judiciary or executive members to uphold the constitutional morality in the nation; it is the responsibility of each and every individual citizen of India too.
Q. ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021)