Constitutional Law: Doctrine of Constitutional Morality

By Akshay Sharma


ABSTRACT:

This article throws light upon the Doctrine of Constitutional Morality, Evolution of the doctrine, salient features of the doctrine, landmark judgments on this doctrine, critical analysis, and the conclusion.


The constitution is the backbone of the nation which unites the people. It is one’s moral responsibility to maintain the dignity of the constitution, respect it, and uphold the constitution without any compromise. This is a part of constitutional morality. As we all know the constitution of a nation provides the ‘Rights’ and ‘Duties’ of an individual as well as the state. How we should adhere to it and how we should follow it which will help in the proper development and smooth working of a nation. Constitutional morality is very important for constitutional laws to be effective. In the absence of constitutional morality, the functions of a constitution seem to become arbitrary, erratic, and unreliable Constitutional morality can help a nation to grow and get developed.

Keywords: Constitutional morality, Constitution, and landmark judgments.

INTRODUCTION : What is the doctrine ?

The Greatest danger to the Indian constitution is a government that ignores the constitution of India. The doctrine of Constitutional morality refers to a moral responsibility of each and every individual to be truthful towards constitutional values and maintain them with utmost integrity, without any compromise and without any violation of the constitutional laws. It can be referred to as a set of conventions and protocols that govern decision-making where the constitution vests discretionary power or is silent. In other words, It is adherence to the core principle of Constitutional democracy. Core principles include preamble, precedents, etc. Constitutional morality has different meanings at different points in time. In the 19th century British historian of Greece, George Grotemeant a culture of reference for the constitution among the people, which would ensure a peaceful government. In the Constituent Assembly, Dr. B.R. Ambedkar used it as a rhetorical device to justify the inclusion of banal details in the Constitution – details concerning matters of administration. In subsequent years, the Supreme Court made passing references to constitutional morality in its judgments, within different contexts. Today, constitutional morality essentially means two things: firstly, the opposite of popular morality, and secondly, the spirit or essence of the Constitution.

The constitutional law of India is very well known for its judicially invented tests. There are many tests which are invented by different Judicial court with a greater contribution of the Supreme Court of India. The “basic structure” doctrine, the old “arbitrariness” and new “manifest arbitrariness” tests, the “ reasonable classification test” –are all judicially invented by day to day experience and needs. The doctrine of constitutional morality is comparatively recent to the list of Judicially made innovations. It became an issue of criticism after SC’s Sabarimala judgment[1]. It also became the subject matter of much scholarly discussion especially after the Attorney General of India, K.K. Venugopala, was comprehensively reported in the press as having criticized the doctrine as a “dangerous weapon”.[2]

EVOLUTION OF DOCTRINE :

The Constitution of India is a very evolving document it evolves from time to time with the help of the judiciary. Judiciary plays a great role in the evolution of the constitution of India. Hon’ble Supreme Court in its day to day proceedings come with the new interpretation which is used by the lower courts as principles. These precedents work as a law for all other courts and the objective of this interpretation is to provide individuals social, political and judicial justice. The doctrine of Constitutional morality also evolved from judicial interpretation. It was perhaps Chief Justice A.P. Shah of the Delhi High Court who first used constitutional morality as a counterpoise to popular morality. In this form, constitutional morality requires courts to disregard societal morals while testing the validity of ofgovernment action. For example, while examining the constitutional validity of Section377 of the Indian Penal Code, which made “carnal intercourse against the order of nature” a criminal offense, the Delhi High Court looked at the values of the Constitution and not at popular morals or whether Indian society considered homosexuality to be desirable or not.

SALIENT FEATURES :

The Doctrine of Constitutional validity is a very wide concept as we discussed that it has different meanings at different points of time. Constitutional Morality is very essential for the protection of the constitution of India. Constitutional morality promotes individual interests like Article 19 and Article 25 of the Indian Constitution and also collective interest as given under Article 26 and Article 29 of the Indian Constitution. Therefore it protects the basic structure as well as the main objectives of the constitutions’ framers. Each individual should adhere to the moral philosophy of the constitution. It provides social, political, and judicial justice. It provides protection to the provisions of the constitution and if each individual follows the constitutional morality then only the basic objective of the constitutions’ framers will be achieved.

LANDMARK JUDGEMENT :

In Manoj Narula v Union of India[3], a bench of the Supreme Court of India had taken 'constitutional morality' in its traditional sense of respect for the rule of law. In Navtej Singh Johar v Union of India Ministry of law and order[4], however, the phrase is elevated to a doctrine, reflecting values that underlie the entire constitutional text. also in the case of Indian Young Lawyers Association v State of Kerala[5]The applicant has also pointed out that even if the said practice is considered to be a custom, it has to still pass the test of constitutional morality. Constitutional morality and the judiciary works side by side, these both are safeguards of each other. The Constitution gives power to the judiciary and the judiciary interprets the constitution to lead us to constitutional morality. Landmark cases such as Sabrimala Temple case, Triple talaq case, and the very famous case of decriminalization of homosexuality are some landmark cases where the supreme court interpreted the constitution and changed the laws. From the birth of the constitution of India, the Supreme court or we can say the Judiciary used their powers to interpret the constitution so that constitutional morality can be achieved.

CRITICAL ANALYSIS:

There are three main pillars that provide us or lead us to the constitutional morality, the Parliament, the Executive, and the Judiciary. Now, how these pillars adhere to the constitution. Elected representatives of the parliament should truly represent the citizens of the country who in turn adhere to the constitutional morality on their behalf. Secondly, the Executive should be responsive and empathic towards the individuals. And Thirdly, Judiciary should be vigilant and empowering to the citizens of the country. Now we will critically evaluate the current status of Constitutional Morality and Judicial Values under the Indian scenario. Judiciary in its various Judgements leads us to the constitutional morality as we can see the recent judgment in the case of Navtej Singh Johar v Union of India[6] the supreme court of India Decriminalized Homosexuality which was an offense under Section 377 of the Indian Penal Code, 1860. The famous Sabrimala temple case in which women were allowed to enter the temple Here, the judiciary leads to constitutional morality as it provides the right to women to enter the temple and the Triple Talaq case of Shayra Bano and other v. Union of India and others[7]where the Supreme court interpreted the laws to adhere to the constitutional morality which is an individual's right. There is so many other judgment where Judiciary provided protection and leads to constitutional morality. Hence here we discussed some of the cases where constitutional morality is achieved by interpreting the constitution according to the situation and demand which leads to the protection of the citizen of India. In a democratic order, the concept of constitutional morality and judicial values assume innumerable proportions and implies several consequences to the dignity and freedom of the individual. So we can say that all the three pillars are required at their place to achieve constitutional morality.

Conclusion :

The constitution embodied with the will of the people to govern them is not an end but a means to an end. Constitution framers drafted the constitution for the proper working of the country. It also contains any provision for the safety of its citizens and from the above discussion, we can say that it is for the betterment of the citizens of India. All the three pillars which provide or lead us to constitutional morality are doing their best and if even then anything goes wrong the reason is not bad constitution the reason is the bad citizens who are not following the constitutional morality. Judiciary, Parliament, and executive are doing whatever they are required to do at their level. Hence Constitutional Morality is very essential and we should adhere to the principle of Constitutional democracy.

[1]Indian Young Lawyers Association v. State of Kerala, (2018) SCC Online SC 1690 [2]Apoorva Mandhani, “Constitutional Morality A Dangerous Weapon, It Will Die With Its Birth: KK Venugopal”, Livelaw, 9 December 2018, available at: https://www.livelaw.in/constitutional-morality-adangerous- weapon-it-will-die-with-its-birth-kk-venugopal/ (last visited 1 November 2019); Gautam Bhatia, “India’s Attorney General is Wrong”, Scroll.in, 21 December 2018, available at: https://scroll.in/article/905858/indias-attorney-general-is-wrong-constitutional-morality-is-not-a-dangerousweapon (last visited 1 November 2019) [3]https://indiankanoon.org/docfragment/199141576/?formInput=%20constitutional%20morality [4]https://indiankanoon.org/docfragment/168671544/?formInput=%20constitutional%20morality [5]https://indiankanoon.org/docfragment/163639357/?formInput=%20constitutional%20morality [6]https://indiankanoon.org/docfragment/168671544/?formInput=%20constitutional%20morality [7]https://indiankanoon.org/doc/115701246/

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