Unraveling The Dichotomy Of Constitutional Morality

The debate on Constitutional Morality came to limelight after the Apex Court’s judgment in India Young Lawyers Association v. The State of Kerala[1](popularly known as the Sabrimala case) in the year 2018. Academicians and researchers on Constitutional law, who were busy for few decades over Constitutionalism, working of a living Constitution, originalist theory of Constitution, etc., found themselves in the tempest because the phrase was used and justified by the justices on both the sides, the majority and the dissenting. Adding to the confusion, Attorney-General K.K. Venugopal later in an interview to a TV channel opined that Constitutional Morality is a vague concept which is going to have a nascent death.

As a student of Constitutional law at that time, even I was curious about this phrase. Never in my academics had I encountered this phrase and was a bit in confusion as to where to start with. The concept became more complex when on internet I happened to find a work of English classicist George Grote, “A History of Greece”. According to Grote, the term Constitutional Morality, despite its rather simple appearance, attempts to convey the complex value for what the written Constitution stands for. Grote observes:

“… 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 the constitution will not be less sacred in the eyes of his opponents than his own.”

It is apparent that Grote was not speaking of the actual written word of the Constitution, rather the ideals it was meant to cherish. Locating the ideals of the Constitution, especially by a generation that did not draft it is not a simple task in hand. It requires ascertainment of true historical facts and interpretation of the thought process (and not just the thoughts) of those who stood for the values or texts that found their way into a written Constitution.  A simplistic approach to Constitutional Morality would be to assume that principles of fundamental rights such as the right to life and liberty, the right against discrimination and the freedom of speech are just some examples of Constitutional Morality that had been drafted into the Constitution. Though this cannot be said to be entirely incorrect, the term ‘Constitutional Morality’ is a term that attempts to immortalize the ideals, aspirations, and visions of the future that were held dear and immutable by the Constituent Assembly. It is necessary to understand that while there is a relationship between the Constitution and Constitutional Conventions, they are not necessarily the same as Constitutional Morality. However, in view of the fact that Constitutional Conventions are expressions of traditions and customs, in many cases they may also be expressions of Constitutional Morality.

After reading Grote, at least this much can be ascertained that there are certain foundational principles on which Constitution of any nation stands. These principles form the crux of Constitutional Morality. But a new question arises that whether designation of certain foundational principles as the ‘basic structure’ by the Apex court of India, it would be appropriate to say Constitutional Morality completely overlaps with the doctrine of basic structure. One can also argue that each and every word of the Constitution of India that runs through 395 Articles is written with some purpose and Constitutional Morality finds its place behind each letter of the written Constitution rather than certain core principles. Before finding any answer in haste, it would be safe to look at Dr. Ambedkar’s statement on Constitutional Morality made at the time of drafting of the Indian Constitution. While introducing the Draft Constitution to the Constituent Assembly, Dr. Ambedkar quoted Grote who had said:

“The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at 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 the ascendancy for themselves.”

Thereafter, Dr. Ambedkar added further:

“While everybody recognized the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration must be appropriate to and in the same sense as the form of the constitution. The other is that it is perfectly possible to pervert the constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the constitution. ……The question is can we presume such a diffusion of constitutional morality? constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”

Returning to the question of interconnection between Constitutional Morality and basic structure mentioned earlier, after reading the lines of Dr.Ambedkar it is clear at least to an extent that Constitutional Morality is something more wider than the principles covered by the doctrine of basic structure. On the question of whether Constitutional Morality covers every letter of the Indian Constitution, it is still a matter of debate. The adoption of the Constitution was an instrument for achieving Constitutional Morality and means to discourage the prevalent social morality at that time. A country or a society which embraces Constitutional Morality has at its core the well-founded idea of inclusiveness. The survival of our democracy and the unity and integrity of the nation depend upon the realization that Constitutional Morality is no less essential than Constitutional legality.

After a long journey of ifs and buts in my quest for the understanding of the concept of Constitutional Morality, I stand my ground that (still at least for the time-being) Constitutional Morality is nothing but actions taken in the spirit of the Constitution. This act is not only for the Supreme Court judges but for every citizen and it covers as small acts as limited use of plastic by the citizens, continuous vigilance on the government at power, fair reporting and every other act that makes sense towards the working of our living Constitution.

Disclaimer: The views are personal

Ashutosh Kumar Singh

LL.M., University of Delhi

Research Scholar,

Department of Contemporary and Tribal Customary Law, Central University of Jharkhand

[1] AIR 2018 SC 435

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