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Conceptualising constitutional morality and its emergence in the recent scenario

This article critically analyses the concept of constitutional morality itself, its history of emergence in India with a little pinch of its emergence internationally in the constitutions of Greece, America, Australia, Canada, New Zealand, Israel, Saudi Arabia and U.K, its importance in the present scenario with an essential discussion of this topic while depicted as the main principle in deciding a no. of cases in India and has now developed as one of the hottest topics for debates in many conferences and seminars.

Also this article will try to question the subjectivity of constitutional morality which is being taken as criticising point by many of its critics and for those who argues against its application in present India, how this concept too has certain breakpoints and why there is an essential need for Constitutional Morality as pointed out by the President of India i.e. All the three organs of the state, persons gracing constitutional posts, members of civil society and common citizens of India are expected to abide by constitutional morality.

He said quoting Ambedkar. In simpler words this article will help the reader to grasp the basic roots of the concept of constitutional morality, why our forefathers relied on this concept as the main principle concept of understanding and implementing the constitution and how in the present scenario a certain law is being criticized for going against the morals of the constitution i.e. Constitutional Morality.

Introduction
While talking about the roots of the topic Constitutional Morality the concepts of constitution and morality separately has a big role. Morality can be a body of standards or principles derived from a code of conduct from a particular philosophy, religion or culture, or it can derive from a standard that a person believes should be universal. It is universal in nature. It varies from time to time from society to society whose interpretation is different for different people.

Morality is also subjective in nature, what is moral for one specific individual may not necessarily be moral for another individual. While the word 'morality' has been used only four times in the Indian Constitution (twice in Article 19 and twice in Right to religious Freedom under Article 25 and 26), it continues to be invoked by the courts in many rights claim cases like surrogacy, speech, sexual orientation.

Morality in the recent scenario has been deciphered to be classified into two types:

Popular morality and Constitutional Morality

In the context of the constitution the picture of constitutional morality comes to light. In a democratic order the concept of constitutional morality assumes myriad dimensions and implies several consequences to the dignity and freedom of the individual. Constitutional morality means adherence to the core principles of the constitutional democracy.

By constitutional morality, Grote meant… 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 a 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.[1]

In other words, the concept of constitutional morality must be very sound and strong if democracy is to survive for the long period of progress and prosperity.

Constitutional Morality as morality held in Article 25 and 26[2], morality referred under the provisions is interpreted in the present scenario as constitutional morality as it includes the basic values of justice, liberty, equality and fraternity.

Constitutional morality is important for constitutional laws to be effective. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. It has been observed that young officers are resigning from service and aim to uphold constitutional morality, which they say is being violated. But the fact is that 'constitutional morality' can be better preserved by being part of the system and initiating reforms rather than working out of the system. Thus, we can conclude that upholding' constitutional morality' is indeed very important part of our official as well as moral duty and it needs combined efforts of all the sections of the society to make it possible.

Itinerary of Emergence in International Scenario

Pointing towards it source while reviewing the state of Athenian democracy in the age of Kleisthenes the Greek historian Grote enunciated that there should be a creation of rare and difficult sentiment which is the indispensable condition for making a government free, stable and peaceable and this sentiment was termed as Constitutional Morality, but yet which was ultimately overthrown by the conquerors who disregard this idea.

The term was first used by British legal scholar A.V. Dicey, in which he wrote wrote that in Britain, the actions of political actors and institutions are governed by two parallel and complementary sets of rules: The one set of rules are in the strictest sense laws, since they are rules which (whether written or unwritten, whether enacted by statute or derived from the mass of custom, tradition, or judge-made maxims know [as the common law] are enforced by the courts...

The other set of rules consist of conventions, understandings, habits, or practices that-though they may regulate the conduct of the several members of the sovereign power, the Ministry, or other officials-are not really laws, since they are not enforced by the courts. This portion of constitutional law may, for the sake of distinction, be termed the conventions of the constitution, or constitutional morality.

The simplest definition of constitutional morality was provided when the Court of Appeal for Ontario in Canada noted that when governments define the ambit of morality, as they do when they enunciate laws, they are obliged to do so in accordance with constitutional guarantees, not with unwarranted assumptions.[3] In other words, constitutional guarantees are based upon a set of basic - or fundamental - values. When framing laws, governments must ensure that those foundational values are respected.

In the absence of Constitutional Morality the operation of a Constitution no matter how carefully written tends to become arbitrary, erratic and capricious. While taking in reference the historical analysis of Constitutional Morality, countries like Canada, New Zealand, Israel, Saudi Arabia and U.K. the presence of Constitutional Morality in these countries is strongly highlighted by the fact that they have unwritten Constitution to govern themselves. As stated in economic and Political weekly the stronger the presence of Constitutional Morality, the less there is a need to have a written Constitution.[4]

Not only were the American and French Constitutions very brief compared with ours but Britain which had evolved the most successful system of parliamentary democracy did not have a written constitution highlighting the fact of a strong presence of Constitutional Morality.

Itinerary of Constitutional Morality in India

The doctrine of Constitutional Morality is used in the course of JUDICIAL REVIEW. According to this doctrine the interpretation of the law should be done on the basis of the values given in the constitution that is according to the spirit of the constitution and not according to the wordings of the constitution.

Tracing its history in the context of India B.R. Ambedkar enunciated the concept of Constitutional Morality in the constitutional assembly debate for the inclusion of administrative details in the Indian Constitution, which was borrowed from the government of India Act, 1935. While criticizing the role of administration in relation to the constitution Greek philosopher Grote quote the diffusion of Constitutional Morality not merely among the majority of any community but throughout the whole, is the indispensable condition of government once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendancy for themselves.

The form of the administration must be appropriate to and in the same sense as the form of the constitution thus reflecting the spirit of the constitution and emphasising the principles of liberty, equality, and fraternity.

The supreme court use this concept of Constitutional Morality to help in interpreting the constitutional statutes as provides by law thus saving itself from the ambit of popular, social or public Morality.

It was held in the case of Navtej Singh Johar v. Union of India [5]that constitutional morality prevails over public morality which was taken in reference to Suresh Kaushal Case [6]which was the foundation of Naz Foundation Case and then its interpretation was taken into consideration in the cases of Triple Talaq, Adultery and the most criticing judgement of sabarimala.

Need for Constitutional Morality

Many countries in the world have clearly reflected the presence of constitutional morality in their economies. But in many countries it has been criticized even in India by many jurists and scholars. Attorney General of India KK Venugopal caused a furor recently when he observed that constitutional morality was a dangerous weapon because the courts applied it subjectively and hoped that it would die at birth. But still there is an urgent need for constitutional morality.

Even the President of India Addressing joint sitting of Parliament to mark Constitution Day, he said B R Ambedkar, while underlining the importance of constitutional morality, had emphasised that its essence was to regard the Constitution as supreme and to follow constitutionally-mandated procedures by quoting:
All the three organs of the state, persons gracing constitutional posts, members of civil society and common citizens of India are expected to abide by constitutional morality, he said quoting Ambedkar.

Having an unwritten constitution means the country is strongly adhering to the constitutional principles of:

  • Commitment to liberty
  • Constitutional supremacy.
  • Parliamentary form of government and self restraint.
  • Rule of law.
  • Equality
  • Intolerance for corruption, to name a few.

Which are though differently interpreted but have different ideas such as:

  • Universally as liberty, fraternity and equality.
  • Under Greek philosopher Grote containing central elements of self restraint and freedom.
  • And for Ambedkar constitutional morality is the recognition of plurality in its deepest form.

Its applicability is criticised by many because of unavailability of its source in the text of the constitution and they too have questioned:

  • Why constitutional morality should be relevant when the constitution does not make a reference to it at all and whether one could say what the exact conceptual meaning of constitutional morality is?
  • And also whether the attention should be on other important rights such as the right to equality and not understanding popular morality as constitutional morality?

These questions directly questions why constitutional morality should be upheld and the answers to these questions could be enunciated as:

  • It is an aid in making choices because it can give another set of clues while searching for constitutional meaning in cases wherein the words of the constitutional clause have multiple implied meanings.
  • It helps in making a commitment to the values like constitutional supremacy, rule of law, liberty, equality, parliamentary form of government, self restraint and intolerance for corruption etc.
  • Also by adhering to the text of the constitution major judgements would reflect the virtues of liberty equality and fraternity thus deflecting itself from the practice of popular sovereignty and thus preventing the practice of demagoguery.

Essential non-constitutional practices are considered as illegal and unethical and by speaking against or criticizing the convention by taking a moral high ground, one act as a preserver of constitutional values. Democracy which has been best defined as the government of the people, by the people and for the people, expects prevalence of genuine orderliness, positive proprietary, dedicated discipline and sanguine sanctity by constant affirmation of Constitutional Morality.[7]

In the case of Navtej Singh Johar v. Union of India Justice; D.Y.Chandrachud said that, Constitutional Morality requires that all the CITIZENS need to have a closer look at, understand and imbibe the broad values of the constitution, which are based on Liberty, Equality and Fraternity. Constitutional Morality is thus the guiding spirit to achieve the transformation which, above all constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which the society matures and imbibes Constitutional Morality is gradual, perhaps interminably so………[8]

The flourishing of Constitutional order requires not only the institutional leadership of constitutional courts, but also the responsive participation of CITIZENRY. Constitutional Morality is a pursuit of this responsive participation. The Supreme Court cannot afford to denude itself of its leadership as an institution in expounding Constitutional values. Any loss of its authority will imperil democracy itself.

The prime aim of constitutional morality was to prevent any branch of government from declaring that it could uniquely represent the people. In essence, Indian Constitution is a cosmopolitan constituiton that imbibe universal principles of liberty equality, and fraternity.

Criticism
Constitutional morality may seem to emphasize the formal elements: self-restraint, respect for plurality, deference to processes, skepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism that remains at the core of constitutional forms. These may seem rather commonplace, but Ambedkar had little doubt that the subjectivity that embodied these elements was rare and difficult to achieve. Ambedkar grasped singularly the core of the constitutional revolution.

It was an association sustained not by a commonality of ends, or unanimity over substantive objectives (except at perhaps a very high level of generality). It was rather a form of political organization sustained by certain ways of doing things. It was sustained not so much by objectives as by the conditions through which they were realized. This was the core of constitutional morality.

It is a concern for criticism rather than representation of popular will that ties Ambedkar most closely to Grote's invocation of constitutional morality.

After all, the burden of Grote's great history of Athenian democracy was to defuse the criticism of Athens that popular sovereignty was a threat to freedom and individuality. Once popular sovereignty or the authority of the people had been invoked, who else would have any authority to speak?
Grote defused this anxiety in a novel way. Allegiance to forms of constitution was not to be confused with deference to popular sovereignty. The claim by a government that it represented popular sovereignty did not, by itself, have any authority. Its claims and decisions could still be interrogated, censured and subject to unrestrained criticism. Indeed, what Athenian constitutional practice had achieved was precisely this: the space for unrestrained criticism that was nevertheless 'pacific and bloodless' and not silenced by claiming the authority of the people.

Even it has been criticized for its subjectivity in its interpretation of concept. The Law Minister took a critical view of Constitutional Morality concept forbeingused by the Supreme Court on the occasion of Constitutional Day celebration as under:
We hear about Constitutional Morality, we appreciate innovations but nuances of Constituitonal Morality should be outlined with clarity and should not differ from judge to judge and there must be a consensus.[9]

Its criticism has been strongly highlighted by the judgement of In Indian Young Lawyers Association case (Sabrimala Temple case) where while deciding the judgement different judges have different conceptions of constitutional morality thus emphasising its subjectivity.

Conclusion
The duty of the constitutional courts is to be in consonance of the law with perfect balance of morality encaptulated in it but this morality should not reflect the majoritarian view but instead adjudge the validity of law on well established principles, namely, legislative competence or violations of fundamental rights or of any other constitutional provisions thus reflecting the spirit of the constitution of India. The Court has to be guided by the conception of constitutional morality and not by the societal morality[10]

There appears to be an agreement among the legal scholars that the concept of Constitutional Morality remained to be understudied and there is need for a consensus to be reached for defining and applying this concept. The source for understanding this concept could be Text of Constitution, Constituent Assembly debates and history of events that took place during the framing of the Indian Constitution. In absence of this concrete study and consensus being reached on this significant concept of Constitutional morality, there is danger of popular morality being interpreted as Constitutional morality.

End-Notes:
  1. Ambedkar, Speech Delivered on 25 November 1949 in The Constitution and Constituent Assembly Debates, p. 174.
  2. Article 25 and 26 of the Constitution of India states that
  3. The Court of Appeal for Ontario in Canada, in a 1995 judgement.
  4. Journal article: Constitutional Morality by Andre Beteille, Economic and Political Weekly.
  5. Suresh Kumar Koushal & Anr vs Naz Foundation & Ors CIVIL APPEAL NO.10972 OF 2013 dated 11­12­ 2013
  6. Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (para no.116 and 117)
  7. As held in the case of Manoj Narula v. Union of India, (2014) 9 SCC 1
  8. Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016 (para no.116 and 117)
  9. Law Minister Sri Ravi Shankar Prasad on Celebration of Constitutional Day Source:http://www.newindianexpress.com/nation/2018/nov/27/apply-yardstick-of-constitutional-morality-evenly1903665.html.
  10. Dr. Babasaheb Ambedkar: Writing and Speeches Volume 17 page 378.

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