Q.

Constitutionalism and constructional morality are two important pillars of the

Indian constitution. Examine the relevance of these two in contemporary times.

Constitutionalism

Constitutionalism means limited government or in other words reins on government. It is the

antithesis of arbitrary powers. Constitutionalism demands the need for a government with
powers but at the same time insists on some inhibitions on those powers.

The concept of constitutionalism is that of a polity governed by or under a constitution that

ordains essentially limited government and rule of law as opposed to arbitrary authoritarian
or totalitarian rule. In the case of Rameshwar Prasad & Ors. Vs. Union of India & Anr, it was
held by the Apex Court that – ‘The principle of constitutionalism overrides absolutism. It
rests on the base of rule of law which advocates and substitutes the subjective satisfaction by
objective ordained by the provisions of the Constitution.’

Constitutionalism is still relevant today because it is a commitment to limitations on ordinary

political power, it revolves around a political process, one that overlaps with democracy in
seeking to balance state power and individual and collective rights. As observed by
Chandrchud J. in Minerva Mills Case vs Union of India – ‘The Constitution is a precious
heritage and, therefore, you cannot destroy its identity.’

It prescribes the modes and institutions of governance. Both modes and institutions are
legitimated through their operation under the auspices of legal and political structures.
Constitutionalism advocates a system of checks and balances and also divulges the
establishment of an independent decision-making environment. In the case of Indra Sawhney
& Ors. Vs. Union of India, it was held by the Apex Court that – ‘Judiciary in each and every
aspect is equipped with the intellectual message that faith on judiciary is of prime importance
and such faith requires the constitutional interpretation by the courts coupled with high-
octane tolerance which will further ensure the value of democracy and survival of the
constitutionalism.’

It lays down precepts such as the rule of law, democracy, human rights, and the separation of
powers, which operate within a constitutional order to mediate the interaction between law
and power in subnational, national, supranational, and global governance systems. Even if
constitutionalism is not explicitly identified in all governance debates it is of relevance when
any of these concepts are at issue.

Constitutionalism needs to be uphold in order to preserve the spirit of the constitution. The
extension of constitutionalism from its modern foundations in discourse surrounding the
liberal democratic state to supranational governance arrangements has made the concept a
touchstone issue in debates on public governance, but it has also introduced new fissures into
its analysis. The principle of constitutionalism is now regarded as a legal principle and
concept which ordains the control over the use of Governmental power to ensure that the
authority of the democratic principles should be at its peak upon which it is based.
Constitutional Morality

According to Dr. Ambedkar, Constitutional morality would mean effective coordination

between conflicting interests of different people and the administrative cooperation to resolve
them amicably without any confrontation amongst the various groups working for the
realization of their ends at any cost.

It provides a principled understanding for unfolding the work of governance. It specifies

norms for institutions to survive and an expectation of behavior that will meet not just the text
but the soul of the Constitution. It also makes the governing institutions and representatives
accountable. It is based on values like individual autonomy and liberty; equality without
discrimination; recognition of identity with dignity; the right to privacy. Constitutional
morality means adherence to the core principles of constitutional democracy.

In Supreme Court’s Sabarimala verdict religious freedom, gender equality and the right of
women to worship guaranteed under Article 14, 21 and 25 of the Constitution was reinstated
which struck down the practice of banning entry of women of a certain age to the Sabarimala
temple in Kerala as unconstitutional. Constitutional morality here went against social
morality that discriminates against women based on biological reasons like menstruation.

Constitutional morality is necessary as it ensures the establishment of rule of law in the land
while integrating the changing aspirations and ideals of the society. As a governing ideal that
highlights the need to preserve the trust of the people in institutions of democracy, it allows
people to cooperate and coordinate to pursue constitutional aspirations that cannot be
achieved single-handedly.

It can use laws and forms to impact and change the persisting social morality. By abolishing
the practice of Sati by legislation, the right to dignity and life was passed on to the widows
which later on affected the perception of the practice in the society.

It recognizes plurality and diversity in society and tries to make individuals and communities
in the society more inclusive in their functioning by constantly providing the scope for
improvement and reforms. In Navtej Singh Johar v. Union of India, the SC provided a
framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their
dignity, life, liberty, and identity.

Constitutional morality is a sentiment to be cultivated in the minds of a responsible citizen.

Upholding constitutional morality is not just the duty of judiciary or state but also of
individuals. The preamble of the constitution explicitly mentions the type of society we wish
to establish; it is only through constitutional morality it can become reality. The progressive
and monumental precedents have been set-up by the judiciary in the past few years, where
this doctrine has been applied especially in relation to the cases of gender-justice, institutional
propriety, social uplift, checking majoritarianism and other such evils.
References
 Ayush Srivastava (April 14, 2020). ‘Concept and Relevance of Constitutionalism’.
Retrieved from www.legalsarcasm.com
 Aoife O’Donoghue, Colin Murray (August 30, 2016). ‘Constitutionalism’. Oxford
Bibliographies. DOI: 10.1093/OBO/9780199756223-0181
 Kalpana Kannabiran (October 04, 2018). ‘The scope of constitutional morality’. The
Hindu.
 ‘Constitutional Morality’ (PDF). Retrieved from www.drishtiias.com