Dr.

Ram Manohar Lohiya National Law University,

Lucknow

ACADEMIC SESSION: 2021-22

LAW AND MORALITY : FINAL DRAFT

“Contours of Constitutional Morality”

SUBMITTED TO:                                  SUBMITTED BY:

Dr Priya Anuragini                                Parth Bhardwaj

Assistant Professor (Law)                        Enroll no. 170101092                                        

                                                

                                                                                
 DECLARATION

I hereby declare that the project work entitled “Contours of Constitutional

Morality” submitted to Dr.Ram Manohar Lohiya National Law University,
Lucknow is a record of an original work done by me under the guidance of Dr.
Priya Anuragini, Faculty of Law, Dr. Ram Manohar Lohiya National Law
University and this project work is submitted in the partial fulfillment of the
requirements for the award of the degree of B.A. LLB. (Hons).

The results embodied in this thesis have not been submitted to any other University
or Institute for the award of any degree or diploma.
 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teachers for the subject Law
and Morality, Dr Priya Anuragini for allowing me to work on such a challenging
topic and also for their exemplary guidance, monitoring and constant
encouragement throughout the course of this project.

I also take this opportunity to express a deep sense of gratitude to my seniors

in the college for their cordial support, valuable information and guidance, which
helped me in completing this task through various stages.

I am obliged to the staff of the Madhu Limaye Library, for the timely and
valuable information provided by them in their respective fields. I am grateful for
their cooperation during the period of my assignment.

Lastly, I thank my family and friends for their constant encouragement

without which this assignment would not have been possible.

                                                                                                      Parth Bhardwaj

Introduction

In ‘A History of Greece’, author George Grote analysed the importance of a public

sentiment which he described should be an integral part of Athenian Democracy
under Kleisthenes. He reviewed the passage of this social force from the populace
to those in power and its diffusion amongst all the sections of the society, majority
or minority alike. He was essentially talking about the concept of ‘constitutional
morality’, which years later was reiterated by Dr Bhimrao Ambedkar while
addressing the Constituent Assembly in his speech called the ‘The Draft
Constitution’ on 4th November 1948. In recent years, the invocation of this term in
various judgements has become quite popular in the Indian Judiciary.

What is Constitutional Morality?

One of the earliest definitions of constitutional morality was given by Grote, which
he described as a form of supreme obedience to the various aspects of the
Constitution of the land. According to him, constitutional morality implied certain
obligations for both the citizens as well as the authority which have been enlisted
below:

 Respecting the constitution and all forms of authorities deriving their

command from it.

 Availability of right to free speech for the citizens to criticise and hold
accountable all those officials acting in pursuance of their constitutional duties.

 The obligation of the mandated authority and public officials to act well
within the sanctioned charge given to them by the Constitution.

 People contesting for political power and their opposition should have
reverence for the Constitution.

Therefore, for Grote, the principles of ‘self-restraint’ and ‘plurality’ formed the
fundamental elements of constitutional morality, where the former implied the
responsibilities of all the stakeholders in a constitutional regime (as enlisted above
in points) and the latter referred to the diverse nature of the society getting
governed.

Ambedkar’s perspective on constitutional morality

In terms of Dr Ambedkar, "constitutional morality is a paramount reverence for the

forms of the Constitution, enforcing obedience to authority and acting under and
within these forms, yet combined with the habit of open speech, of action subject
only to definite legal control, and unrestrained censure of those very authorities as
to all their public acts combined, too, with perfect confidence in the bosom of
every citizen amidst the bitterness of party contest that the forms of Constitution
will not be less sacred in the eyes of his opponents than his own." As eloquent the
idea is, it very rarely formed a part of discourse let alone legal discourse until
recent reference to it by the Supreme Court in number of judgements.

According to Dr Ambedkar, the concept of constitutional morality implied the

harmonious interaction between the governing and governed, including the
peaceful settlement of dissent faced from the latter and conflict of interests arising
between them without indulging in any major confrontations or resorting to violent
revolutions. He pinned the onus of resolving the then (and still) existing disparity
and inequity in the society not merely on the government or the Constitution but
also on this belief system or principle of constitutional morality. He believed that
this principle can help get rid of the bridge and gap between the form of
administration and that of the constitution in the country. Bhimrao Ambedkar had
this belief that the Indian society was largely undemocratic in nature and
constitutional morality holds significance in this nation where democracy is merely
a ‘top-dressing’ on the soil.

PRE AND POST KESHAVANANDA BHARATI

 A critical analysis of the Pre- Keshavanandha Bharathi Case elucidates that an
action is decided as in congruence to Constitutional Morality and Judicial Values
when it falls within the ambit of the literal meaning of the constitutional provisions
where the intention behind such provisions were generally ignored.

This permitted the plenary power of the Parliament to play with Constitution
ensuing a tussle between the Judiciary pleading for the citizen’s inalienable
fundamental rights and the State pleading for social welfare producing forty second
Amendments in Indian Constitution soon after the country celebrated its
independence’s silver jubilee. But, by a stoke of judicial creativity, in the
Keshavandha Bharati Case, the court discovered the existence of a basic structure
and basic features too inviolably paramount to be truncated even by the
Constituent power of the Parliament and upheld the spirit of Indian Constitution
which is easily discernable not only from the Preamble but the whole scheme of
the Constitution. Thus the contemporary deduction is that an action in accordance
with the Constitutional Morality and judicial values may be in congruence with the
Constitutional provisions, but an action in accordance with the constitutional
provision may not uphold Constitutional morality always.

PROCEDURE ESTABLISHED VS DUE PROCESS

In A.K. Gopalan .v. State of Madras, a three pronged argument that:

 The word ‘law’ in Article 21 does not mean merely enacted law but
incorporates principles of natural justice so that a law to deprive a person of his life
of personal liberty cannot be valid unless it incorporates these principles in the
procedure laid down by it

 That the reasonableness of the law of preventive detention ought to be

judged under Article 19

 The expression ‘procedure established by law’ introduces into India the

American concept of procedural due process which enables the courts to see
whether the law fulfils the requisite elements of a reasonable procedure;

was all rejected by the Supreme Court, but after three decades, through a highly
creative pronouncement in the landmark post-emergency case, Maneka Gandhi .v.
Union of India , the Supreme Court overruled the judgment delivered in Gopalan
Case. When the court followed the meaning incorporated in Article 21 without
considering the intention behind the Article in nexus with Constitutional
objectives, it resulted in a traumatic experience where personal liberty had reached
its nadir to the citizens during emergency (1975-1977). The impenetrable question
is whether the Judiciary is accountable to its earlier decision which was against
judicial values and constitutional morality.

Contemporary judgements

in 2010, Justice Ajit Prakash Shah in Naz Foundation v. Government of NCT of

Delhi first used Constitutional Morality in an antithetical manner to popular
acceptance and standards of morality. In this form, a precedent was set for the
courts to disregard societal norms, stigmas and limitations while assessing the
actions of the State. For instance, in this case, while deliberating upon the issue of
decriminalisation of homosexuality, then a criminal offence under Section 377 of
the Indian Penal Code, the Court took into cognizance the ideal of upholding the
constitutional principles rather than society’s perception with regards to the
legitimacy of same-sex relationships.
The trend continued, as judges started giving the rationale of constitutional
morality in their judgments thereafter. The ex-Chief Justice of India, Justice
Deepak Misra, in the Government of NCT of Delhi v. Union of India equated
constitutional morality to a ‘second basic structure doctrine’. The fact of the
principle being respected and adhered to by both the citizens as well as officials
was reinstated and it, acting as a check on both of these classes alike, was
reinforced by the justices. Almost all the revolutionary judgements in the recent
past, 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. In fact, in the Indian Young Lawyers’ Association v. Union
of India, commonly known as the Sabrimala judgement, the Supreme Court also
bypassed the doctrine of essentiality (the principle protecting the ‘integral’
religious practices of a community) to uphold the supremacy of constitutional
morality.

STATE ACTIONS AND WHY ITS NEEDED

In recent times, this decade has been unusually politically charged. Governments
tend to act arbitrarily in the garb of draconian laws, legislature has enacted
controversial laws and introduced constitutional amendments often in grey-areas of
law and legal principles. Even the actions of judiciary, which is the constitutionally
envisioned watch-dog of all aforesaid bodies, have been questionable.

Several governments have slapped sedition and other draconian laws to curb
dissent at a mass level. While there are laws which empower governments to take
such actions, the larger question that looms is that whether power should be
exercise for the sake of it or for the highest fulfillment of human potential and
betterment of citizenry. In a recent report, it has been highlighted that the
Allahabad High Court quashed as much as 94 out of 120 cases between January
2018 and December 2020. The legislature has engaged in enacting questionable
laws: religious conversion laws in several states, introduction of constitutional
amendment for reservation to economically weaker sections (EWS), passage of
laws through controversial voice votes, much debated Citizenship Amendment Act
(CAA), NRC, manner of introduction and passage of abrogation of Article 370 in
absence of a democratically elected government in the erstwhile state of Jammu &
Kashmir. Much recently, the action of Governors in formation of state governments
gathered much storm and partisan conduct was much alleged. Even the judiciary
has been questioned. In a sexual harassment case, former Chief Justice of India in a
highly unusual manner assembled and presided over a bench for clearing
allegations against him. Further, somehow the judiciary has not managed time to
hear and decide challenge to these controversial laws which affect the citizens of
this country at large. Some matters have failed even in listed before the Court and
some have not been decided upon even if they have been rendered infructuous by
the mischief having already.

It is certain that more examples can be brought to light upon a more detailed
enquiry. That said, it is not the crux of the discussion. While political blaming,
different arguments can be advanced to justify these actions, the larger question
that we as a nation have to answer is that for legal system of a country like India
which has elaborate set of laws and enforcement machinery for perhaps every
human action, where have we failed as a nation. Is there a value outside these laws
and enforcement machinery?

Sources of Constitutional Morality

The term ‘morality’ is not excessively stated in the Constitution, let alone
constitutional morality. However, there can be four sources from which
constitutional morality derives itself. These are as follows:

 Constitutional morality can be originated from within the Constitution itself.

If read and interpreted properly, Articles 12 to 35 (Fundamental Rights), Articles
36 to 51 (Directive Principles of State Policy), Preamble and the Fundamental
Duties tend to have the pervasive essence emphasising upon constitutional
morality.

 The debates and discussions that happened in the Constitutional Assembly

have been one of the most important sources of constitutional morality as
Ambedkar’s views have been taken as the basis of modern-day understanding of
the same.

 The events that unfolded during the framing of the Constitution and the
requisite constitutional history associated with it.

 The case laws and precedents, specifically in the modern-day era with so
many draconian laws read down by the Hon’ble Supreme Court and various High
Courts in upholding the spirit of constitutional spirit, morality and strengthening
democratic ideals.

Importance of Constitutional Morality

Constitutional Morality has been described as one of the transformative and

revolutionary nature by several of its proponents. The significance of constitutional
morality can be enlisted below:
While it aims to keep pace with the changing times, principles and ambitions of the
society, the doctrine of constitutional morality also safeguards and upholds the
enforcement of rule of law in the country. Thus, it is, in no way, one-sided and
tends to question both the citizens as well as the government.

The doctrine of constitutional morality is also helpful for the congenial cooperation
and coordination of all the stakeholders in promoting and reinforcing the
democratic ideals of the nation. It strives for a greater amiability amongst people to
pursue constitutional ambitions which are not possible to be won without unity and
team spirit. Thus, it points to the idea of propagating the trust of the people on
democratic institutions.

The principle of constitutional morality can be used for reading down laws or
statutes which are inconsistent with the incumbent time and can be used to bring
about a positive transformation in the perception of societal or public morality. For
instance, in passing a law prohibiting Sati, right to life and dignity was passed on
to the Indian widows who were earlier considered to be harbingers of misfortune
and ill-luck. However, after the passage of this law, there has been a clear change
in the public mindset with regards to Sati and the rights of widows in India. It also
led to the promulgation of more rights to them such as those of remarrying and
getting educated post their husband’s demise.

Constitutional morality is specifically substantially significant for a vibrant and

diverse country like India which has got a heterogeneous population with so many
further subclassifications: caste, religion, colours, sexual orientation, languages,
genders, etc. Since ‘plurality’ is one of the crucial ethos of the principle of
constitutional morality, it recognises this distinction and non-homogeneity and
promotes diversity, helping to make the society more inclusive.

It is observed that a lot of officers resign or leave their government jobs in order to
show solidarity to some movements and for upholding constitutional morality.
However, the principle of constitutional morality is contrary to this; it promotes
people to be an active participant of the system and fight the inequalities and non-
constitutional elements.

Criticism of Constitutional Morality

Besides the pros and importance attached to constitutional morality, there are also
certain concerns which need to be addressed by legal experts, legislators, jurists
and the courts. These have been discussed below:

 There is no explicit mention of the term ‘constitutional morality’ in the

Constitution of India. Moreover, despite the presence of several precedents or
judgments 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
privy to subjective interpretations by different perception holders. Moreover, it has
been left on the discretion of the individual judges to interpret its essence and
apply in requisite situations.

 Another viewpoint presented by those in opposition to the doctrine of

constitutional morality is that it hinders the organic and natural development of
liberalism or rectification of the wrongs or ethical ills of the society as it vests
powers in the hands of the courts to implement a ‘top-down approach’ of the ideal
on the morality front. Some have supplemented this proposition with the corollary
premise that it indirectly reflects a lack of faith on the true ideals of democracy
which is based on the wisdom of the populace that is to be governed.
 One strong argument against the existence of constitutional morality as a
judicial principle is that it is in clear violation of a very basic tenet of democracy,
that is, of separation of power between the three wings of the State governance
framework: judiciary, legislature and the executive. Dissenters keep pushing forth
the idea that the projected objective of upholding and promoting democracy by
using constitutional morality is merely a sham as it establishes judicial supremacy
and excess activism by the courts, leading to the intervention in those functions
which are primarily sanctioned to be undertaken by the legislature. Some also
interpret this as a fraud on the constitution in a veil of promoting constitutionalism.

 Another corollary criticism to the previous point is the promotion of judicial

overreach done by constitutional morality by putting it against societal morality.

 In the recent past, the 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”.
Coming from a senior legal officer like the AG himself, this can spark the growth
of a negative perception amongst the masses regarding this principle.

CONCLUSION

Dr Ambedkar had famously warned,

"However good a Constitution may be, if those who are implementing it are not
good, it will prove to be bad. However bad a Constitution may be, if those
implementing it are good, it will prove to be good"; "By Independence we've lost
excuse to blame British for anything going wrong"; "Will Indians place the country
above their creed or will they place creed above country? I do not know. But this
much is certain that if the parties place creed above country, our independence will
be put in jeopardy a second time and probably be lost forever".

These warning are indicative of shortcomings of Indians back then which also
remains relevant to the very day. We must make an attempt to establish rule of law
where law conforms to the spirit of the Constitution and ensure that law and legal
institutions are not abused and misused to whims and fancy of individual(s) in the
position of power. Developing such a culture requires that we conform to
constitutional morality. Undoubtedly, constitutional morality is foreign and alien to
Indians, however a conscious effort must be made to imbibe these values while
bearing in mind the warnings of Dr Ambedkar. Recent judgements of the Supreme
Court in Indian Young Lawyers Association v. State of Kerala (popularly
Sabrimala judgement), Navtej Singh Johar v. Union of India, Joseph Shine v.
Union of India where constitutional morality has been a guiding example in
judicial decision. One hopes that such examples transcends into other walks of life
and we hope to see examples more commonly available to public at large.