Constitution, Constitutionalism and Constitutional Morality — UPSC Polity

Three concepts — Constitution, constitutionalism, and constitutional morality — are often used interchangeably, but they carry distinct meanings in political theory and in Indian jurisprudence. Understanding their difference is essential for GS-II (Indian Constitution, basic features) and the Essay paper.

What is a Constitution?

A Constitution is the foundational law of a polity — a set of rules, written or unwritten, that:

• Establishes the duties, powers, and functions of the institutions of government (legislature, executive, judiciary).
• Regulates the relationships between these institutions.
• Defines the relationship between the state and individuals (fundamental rights, duties).
• Constitutes the highest law of the land — all other laws derive validity from it.

Constitutions may be written (US, India, Germany) or unwritten (UK, Israel, New Zealand, based on conventions and statutes). They may be rigid (amendment requires super-majority, as in India) or flexible (amendment by ordinary legislation, as in UK).

Why do we need constitutions?

Three foundational reasons:

1. To restrict the exercise of power

Modern states have near-monopolies on force. Without limits, governments tend toward arbitrariness and tyranny. A constitution binds the state to procedural rules — this binding is constitutionalism (discussed below).

2. To check the tyranny of the majority

In a democracy, power formally resides "with the people" but in practice with the electoral majority. Constitutions prevent majoritarianism by entrenching minority rights, fundamental rights, and basic structure that majorities cannot easily override. Alexis de Tocqueville and Madison both warned of the "tyranny of the majority".

3. To protect collective wisdom from short-term passions

Constitutions represent collective wisdom across generations. By raising certain values above ordinary politics, they prevent temporary majorities from destroying long-term institutional fabric. This is the pre-commitment rationale.

Constitutionalism — the 'living' principle

Constitutionalism is the doctrine that government power must be effectively constrained by constitutional rules. It is not merely the existence of a constitution — many authoritarian states have written constitutions — but the practice of limited government under those rules.

Broadly, constitutionalism includes:

• Fragmented power — separation of powers, bicameralism, federalism.
• Checks and balances — institutional oversight (judicial review, parliamentary questions, CAG audit).
• Rule of law — the state is bound by law, not by the whim of rulers.
• Protection of individual rights — codified bill of rights, independent judiciary.

A country may have a constitution without constitutionalism (e.g., North Korea, which has a written constitution but no functional rule of law). Constitutionalism is thus a qualitative test.

Devices that embed constitutionalism in India

• Written, codified Constitution (Part III — fundamental rights)
• Basic Structure Doctrine (Kesavananda Bharati, 1973)
• Independent Judiciary (collegium system, Articles 124 and 217)
• Federalism (Seventh Schedule, Articles 245-263)
• Separation of powers (Articles 50, 121-122, 212)
• Universal adult franchise (Article 326)

Constitutional Morality — Ambedkar's vision

Constitutional morality is the most discussed and most abused concept in recent Indian jurisprudence. The phrase traces to George Grote, who coined it for Athenian democracy. B.R. Ambedkar adopted and redefined it in his Constituent Assembly speech on 4 November 1948.

According to Ambedkar, constitutional morality is a set of behavioural conditions to which all agents in a constitutional setting — citizens, legislators, judges, bureaucrats — must subscribe. It has three core components:

1. Freedom with self-restraint

Ambedkar insisted that political change should come through constitutional methods — not through "bloody methods of revolution" or unconstitutional civil disobedience. He described this as democratic discipline.

2. Acceptance of diversity

In a pluralistic society, agreement is impossible on substance. What is possible is procedural consensus — agreement on the rules by which disagreements will be settled. Constitutional morality is commitment to those rules.

3. Scepticism of singular claims to popular will

Ambedkar was deeply suspicious of any organ of government — including the Constituent Assembly itself — claiming to uniquely embody popular sovereignty. No majority, no institution, and no leader can legitimately say "I am the people."

Constitutional morality in recent SC judgments

The Supreme Court has invoked constitutional morality expansively since 2014:

• Naz Foundation (Delhi HC, 2009) and Navtej Johar (2018) — used constitutional morality to decriminalise homosexuality (reading down Section 377 IPC). Justice Misra held that "constitutional morality cannot be martyred at the altar of social morality".
• Sabarimala (Indian Young Lawyers Association, 2018) — Justice Misra declared that temple entry restrictions on women aged 10-50 violated constitutional morality.
• Joseph Shine v. Union of India (2018) — struck down Section 497 IPC (adultery) as violative of constitutional morality and dignity.
• Shayara Bano (2017) — triple talaq struck down, partly on constitutional morality grounds.
• Puttaswamy (2017) — recognised privacy as a fundamental right flowing from constitutional morality.

Criticism of judicial invocation

Scholars like Pratap Bhanu Mehta and Andre Beteille warn that constitutional morality risks becoming whatever a particular bench says it is. The Supreme Court in Manoj Narula v. Union of India (2014) cautioned against judges reducing constitutional morality to personal moral preferences. The balance between constitutional morality and judicial restraint remains contested.

Codified Constitution — merits and demerits

India's Constitution is codified — its provisions are contained in a single written document. This has significant implications.

Merits of codification

Demerits of codification

Constitutional conventions — an under-appreciated piece

Even a codified constitution relies on unwritten conventions — the conduct of the office of the Prime Minister, the Speaker's ruling in the absence of written procedure, the Governor's discretion. Dicey described these as "constitutional morality" in another sense — non-legal, binding political norms. In India, the collegium system is a convention-based institution, not a written one — and its legitimacy is regularly contested.

Constitution vs Constitutionalism vs Constitutional Morality — at a glance

Latest developments (2024-26)

• One Nation One Election debate (2024-25) — raises questions of constitutional morality in federal relationships and state autonomy.
• Supreme Court Electoral Bonds verdict (Feb 2024) — struck down the Electoral Bonds Scheme on constitutional morality and Article 19 transparency grounds; a landmark reassertion of constitutionalism over opaque political finance.
• SC on Article 142 (Jan 2026) — bench headed by CJI Sanjiv Khanna clarified the "complete justice" power must operate within constitutional morality, not override separation of powers.
• Uniform Civil Code (Uttarakhand UCC, January 2024) — implementation of Uttarakhand UCC Act 2024 re-ignited constitutional-morality questions on minority rights vs uniformity.
• Dr Balram Singh v. Union of India (Nov 2024) — SC upheld the inclusion of 'Socialist' and 'Secular' in the Preamble as consistent with constitutional morality.

Updated context: The 2025 constitutional-morality debate is increasingly about whether the doctrine has become a judicial super-power — used to strike down legislation without clear textual basis — or whether it remains a necessary safeguard for minorities and institutional balance.

UPSC Relevance

Maps to GS-II (Indian Constitution — historical underpinnings, evolution, significant provisions, basic structure) and Essay (topics on ethics, governance, democracy).

Prelims facts:

• Constitutional morality was articulated by B.R. Ambedkar on 4 November 1948 in the Constituent Assembly.
• The term originates from George Grote, 19th-century English historian.
• Kesavananda Bharati (1973) — basic structure doctrine emerged from constitutionalism concerns.
• Codified Constitutions require special majority for amendment (Article 368).
• India's Constitution has 448 Articles (as of latest count post-amendments), with 12 schedules and 5 appendices.
• Doctrine of Ultra Vires — a core expression of constitutionalism.
• Dicey's three principles of rule of law — supremacy of law, equality before law, predominance of legal spirit.

Mains angles:

• "Constitutional morality must not be reduced to the personal morality of judges." Discuss with reference to recent Supreme Court judgments.
• Distinguish between Constitution and constitutionalism. Is India a constitutional democracy in substance, not merely in form?

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