Central to India's dynamic democracy is the principle of constitutional morality, serving as a compass guiding the nation's advancement and growth
Abhaya Dubey
Every Quadrennial year, the election season in India sets a stage for new hope, a new batch of electorates and especially a power in each electorate to exercise their right of adult universal suffrage. News channels are brimming with discourses and the candidates are doing their best to secure a seat in the political engine of society. The vibrancy of the largest democracy was foreseen by the members of the constituent assembly who wanted the ruling ideals to rise from the Constitution itself to guide the coming of a new independent nation. The father of the Indian Constitution, Dr. Bhimrao Ramji Ambedkar defined Constitutional morality as a paramount reverence for all the forms of the Constitution, enforcing obedience to authority and acting within these forms in addition to the habit of open speech and action subject only to definite legal control. He believed that constitutional morality is not a natural sentiment rather it needs to be cultivated consciously. In contemporary times, it has become a principal tool of activism in the hands of the judicial wing of our country. Unlike other ideals of brotherhood, equality, fairness, non-arbitrariness, etc. which sprung from the need for pre-independent India, constitutional morality had to be injected into the bloodstream of the country. The Judiciary has brought back the discourse on constitutional morality through a slew of judgments in contemporary times. Thereby reinstating the nature of the Indian Constitution, an organic and living document, pulsating life into a more than half-century-old Manga Carta of India.
The CJI of India, D.Y. Chandrachud speaking in the same vein said that judges go by the values derived from the Constitution that the courts are intended to espouse such as human dignity, personal liberty, equality, fairness, etc. He also added that the Supreme Court is final not because they(judges) are right, but they are right because they are final. Transformational jurisprudence on constitutional morality is a pre-constitutional concept.
For Instance, practice, which was within the bounds of the then — prevailing social morality, was abolished and this act was a part of constitutional morality, even though the constitution was drawn up years later. Post Independence may not have found an explicit place in the text but it is embedded in the essence of constitutionalism. It demands morality to be objective based on the prevailing dynamics of society. The conscience-keepers are duty-bound to draw a balance between individual/class liberty and societal acceptance of change in the socio-legal and politico scenario.
From LGBTQ+ rights recognition in Navtej Singh Johar vs. Union of India to the striking down of section 497 of IPC, 1960, dealing with the law of adultery in Joseph Shine vs. Union of India, the Judiciary has advocated its mandate to include constitutional morality over majoritarian or popular morality. Constitutional morality is derived from public morality, however, slightly divorced from it and sifted through constitutional idealism.
The intersectionality of social and religious belief systems entangles it further, for instance, in the Sabarimala judgment, the debate circled between the popular socio-religious belief and the fundamental right of freedom of religion of a class of women (menstruating women) under Article 25 of the Indian Constitution, is a worthy example in this regard. Constitutional morality may also at times be at a crossroads with Jus naturale.
Euthanasia as a practice or the Right to Abortion, both were initially entrenched in belief systems to be against societal morality. It was not until the Supreme Court of India balanced the interests of the right seekers and the opposers, allowing both the above practices in a judicially permissible manner, that it found its acceptance.
(The writer is a research scholar;
their views are personal)
