The Constitution of independent India stands for the will of the people. It was
prepared by the Constituent Assembly which began this monumental task in
December 1946 in New Delhi and took a little less than three years to complete
it. The Constituent Assembly which had 299 members (after the partition of
India) addressed and deliberated over each clause of the constitution and
arrived at decisions by consensus.
The Assembly adopted the Constitution of independent India on the 26th of
November 1949 and the Constitution came into effect on the 26th of January 1950.
To commemorate these two momentous events in the long history of our nation, 26
November is celebrated as Constitution Day while 26 January is celebrated as
What is Constitution
A constitution is an aggregate of fundamental principles or established
precedents that constitute the legal basis of a polity, organisation or other
type of entity and usually determine how that entity is to be governed.
When these principles are written down into a single document or set of legal
documents, those documents may be said to embody a written constitution; if they
are encompassed in a single comprehensive document, it is said to embody a
codified constitution. Some constitutions (such as that of the United Kingdom)
are uncodified, but written in numerous fundamental Acts of a legislature, court
cases or treaties.
Constitutions concern different levels of organizations, from sovereign
countries to companies and unincorporated associations. A treaty which
establishes an international organization is also its constitution, in that it
would define how that organization is constituted. Within states, a constitution
defines the principles upon which the state is based, the procedure in which
laws are made and by whom. Some constitutions, especially codified
constitutions, also act as limiters of state power, by establishing lines which
a state's rulers cannot cross, such as fundamental rights.
The Constitution of India is the longest written constitution of any country in
the world, with 146,385 words in its English-language version, while the
Constitution of Monaco is the shortest written constitution with 3,814 words.
The Constitution of San Marino is the world's oldest active written
constitution, having been established in 1600, while the Constitution of the
United States is the oldest active codified constitution. Only half of all
sovereign state constitutions around the world have functioned continuously for
more than 19 years.
Meaning of Constitutionalism
"a compound of ideas, attitudes, and patterns of behavior
elaborating the principle that the authority of government derives from and is
limited by a body of fundamental law".
Political organizations are constitutional to the extent that they:
institutionalized mechanisms of power control for the protection of the
interests and liberties of the citizenry, including those that may be in the
As described by political scientist and constitutional scholar David Fellman:
Constitutionalism is descriptive of a complicated concept, deeply embedded in
historical experience, which subjects the officials who exercise governmental
powers to the limitations of a higher law. Constitutionalism proclaims the
desirability of the rule of law as opposed to rule by the arbitrary judgment or
mere fiat of public officials ...
Throughout the literature dealing with modern
public law and the foundations of statecraft the central element of the concept
of constitutionalism is that in political society government officials are not
free to do anything they please in any manner they choose; they are bound to
observe both the limitations on power and the procedures which are set out in
the supreme, constitutional law of the community. It may therefore be said that
the touchstone of constitutionalism is the concept of limited government under a
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
- 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'
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
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
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.
The contemporary interpretation of Constitutional Morality
In the context of the present era, constitutional morality can be primarily
defined to be constituted of two morality has scarcely been used by the courts.
It was subtly indicated in the very famous Keshavnanda judgement by the apex
court when it propounded the conception of the basic structure of the
Constitution. Another famous case when a mention of “breach of constitutional
morality” of having been committed was the First Judges case, a.k.a. S.P. Gupta
v. Union of India
Thereafter, it was only recently in 2010 that Justice Ajit
Prakash Shah in Naz Foundation v. Government of NCT of Delhi first used it 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
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
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.
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
- 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
- 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.
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
- 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
- Another corollary criticism to the previous point is the promotion of
judicial overreach done by constitutional morality by putting it against
- 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.
It can be concluded that both Ambedkar and Grote did not perceive Constitutional
Morality as an instrument for combating or resolving government action; rather,
they equated it with a self-imposed restraint by the people to uphold the
constitutional ideals. However, with the passage of time and almost seventy
decades after Dr Ambedkar delivered his Constituent Assembly speech in 1948, a
lot of different interpretations of the principle have been affixed by different
scholars and judges.
For now, the two-pronged definition of constitutional
morality encompasses: firstly, a legal mechanism of fighting popular morality
and a reminder that Courts should keep themselves free from, sometimes rigid,
societal beliefs and opinions that need a revamp for the betterment and
comprehensive advancement of the country. Secondly, it helps in holding the
government accountable by facilitating the courts to examine the spirit and
conscience of the Indian Constitution.
Thus, it is rightly categorised as a second basic structure doctrine. It is
rightly a bit vague and unclear with regards to its definition, like most of the
other constitutional doctrines which are heavily dependent and reliant on the
interpretation of the judges while delivering judgments in different cases.
However, the kind of judicial system that exists in the country makes it a
necessity, and also mandates it for the judges to fill in the “hollow vessels of
with words of legal expertise and experience garnered over the
years of practice.