A modest plea for Constitutional Morality

Why in News?

The concept of constitutional morality has recently been debated in the context of arguments before the Supreme Court, particularly in matters involving religious practices such as Sabarimala. Questions have been raised regarding its scope, judicial application, and potential misuse.

UPSC Relevance

GS Paper II

• Indian Constitution: Philosophy and Features
• Judiciary: Role, Activism, Accountability
• Fundamental Rights vs Religious Freedom
• Separation of Powers

GS Paper IV

• Public morality vs Constitutional morality
• Ethical governance and institutional integrity

What is Constitutional Morality?

Constitutional Morality means not just blindly following the written words of the Constitution, but truly understanding and living by its basic values and spirit.

It is about being loyal to the soul of the Constitution rather than only obeying its literal rules.
Even if something is not clearly written in the Constitution, if it goes against its core values, it is considered wrong under constitutional morality.

It includes a strong commitment to these important values:

• Liberty: Every person should have the freedom to live, speak, and think freely (without harming others).
• Equality: All citizens are equal before the law. No one should be treated unfairly because of caste, religion, gender, etc.
• Justice: Fairness in social, economic, and political matters.
• Dignity: Every human being deserves respect and self-worth. No one should be humiliated.
• Rule of Law: Everyone, including the Prime Minister and judges, must obey the law. No one is above the law.
• Fraternity: Feeling of brotherhood and unity among all Indians, despite our differences.
• Respect for dissent and diversity: We must respect people who have different opinions, religions, cultures, or lifestyles.

Key Features of Constitutional Morality

• It makes sure that people in power (government, leaders, officials) exercise their authority only within the limits set by the Constitution. They cannot do whatever they like.
• It promotes reason (logical thinking), open debate, and accountability (leaders must answer for their actions).
• It stops arbitrariness (random, unfair decisions) and authoritarianism (dictator-like rule).
• It acts as a guiding light for judges when they interpret the Constitution in new or difficult situations.

Constitutional Morality vs Societal Morality

In a constitutional democracy like India, societal morality (old traditions) cannot be used to take away a person’s Fundamental Rights. Constitutional morality acts as a protective shield against unjust or harmful traditions. For example, even if society believes in something for centuries, if it violates equality or dignity, the Constitution can strike it down.

Role of Constitutional Morality in the Judiciary

The courts (especially the Supreme Court) use constitutional morality to decide tough cases. It helps judges answer important questions such as:

• Can old traditions be allowed to override the principle of equality?
• At what point does “religious freedom” become unfair discrimination against others?
• How should we balance an individual’s dignity with the customs of a religious or social group?

What it ensures:

• Fundamental Rights always win over old customs.
• Reason and logic win over blind prejudice or bias.

Important Supreme Court Cases:

1. Kesavananda Bharati Case (1973)
   This is one of the most important cases in Indian history. The Supreme Court said that Parliament cannot change the basic structure of the Constitution. It established the Basic Structure Doctrine. This case strongly reinforced that the core values of the Constitution are supreme.
2. Navtej Singh Johar Case (2018)
   The Court decriminalised homosexuality by striking down parts of Section 377. It declared that every person has the right to live with dignity and privacy. The judgment clearly said that constitutional morality is more important than social morality.
3. Sabarimala Temple Case (2018)
   The Supreme Court allowed women of all ages to enter the Sabarimala temple. It held that the right to equality and dignity is more important than religious customs that exclude women.
4. Joseph Shine Case (2018)
   The Court struck down the old law that made adultery a criminal offence. It recognised that women have equal autonomy and dignity. A woman cannot be treated as the property of her husband.
5. NCT of Delhi Case (2018)
   The Court applied constitutional morality to decide the power-sharing dispute between the Central Government and the Delhi Government. It emphasised cooperative federalism and constitutional values in governance.

Core Constitutional Debates

1) Majority Rule vs Constitutionalism

1. True democracy is not just whatever the majority wants.
2. The Constitution puts strong limits on even popular practices if they violate basic rights.
3. Examples of practices that were declared unconstitutional:
   • Untouchability (discriminating against Dalits)
   • Gender discrimination
   • Exclusion of LGBTQ+ persons

2) Judicial Activism vs Judicial Restraint

1. Judicial Activism: The court actively protects Fundamental Rights, safeguards minorities, and corrects failures of the government.
2. Judicial Restraint: The court should not interfere too much. It should respect the decisions of the elected government and maintain separation of powers.

Balanced View: Courts must step in when basic rights are seriously violated, but they should not start making policies or running the government themselves.

Criticisms of Constitutional Morality

• Vagueness: There is no single clear definition. Different people may understand it differently.
• Judicial Overreach: It sometimes gives too much power to judges.
• Inconsistency: Different benches of the court may interpret it in different ways.
• Selective Use: Sometimes it is used only in certain cases, which reduces its credibility.

Institutional Concerns

Constitutional morality is not only for the government — it also applies to the judiciary itself. It requires judges to:

• Give consistent judgments
• Provide clear and transparent reasoning
• Follow due process (proper legal procedure)

Emerging Issue – Judicial Arbitrariness

If court decisions become unpredictable, lack clear standards, or appear arbitrary, it can weaken the Rule of Law.

Significance (Why Constitutional Morality is Important)

• It protects minorities from the unfair dominance of the majority (majoritarianism).
• It ensures every citizen is treated with dignity and equality.
• It helps bring positive social reforms in society.
• It strengthens real democracy.
• It promotes healthy, rational, and respectful public discussions.

Way Forward

For Institutions (Courts, Government, Parliament):

• Use constitutional morality only with clear and logical reasoning.
• Maintain consistency in judgments.
• Strengthen law-making (legislative reforms) to support constitutional values.

For Society:

• Promote constitutional literacy — teach students and citizens about the Constitution.
• Encourage respect for diversity and different opinions.

Structural Improvements:

• Develop clearer standards and guidelines for applying constitutional morality.
• Ensure all institutions remain accountable.
• Try to balance individual rights with healthy traditions wherever possible

Conclusion

Constitutional morality represents the ethical foundation of India’s constitutional democracy. While the concept may be abstract, it plays an important role in ensuring that constitutional rights prevail over discriminatory social practices.

The real challenge is not whether constitutional morality exists, but how responsibly institutions interpret and apply it. A weakening of constitutional morality risks replacing constitutional governance with majoritarian impulses and institutional arbitrariness, thereby undermining the democratic project envisioned by the framers of the Constitution.

Practice Questions

Which of the following best describes the concept of “constitutional morality”?

A. Adherence to traditions and customs of society
B. Following only the written provisions of the Constitution
C. Upholding the spirit, values, and principles of the Constitution
D. Obedience to parliamentary sovereignty in all situations

Answer: C

Which of the following elements are part of constitutional morality?

1. Respect for plurality
2. Judicial supremacy over all institutions
3. Commitment to individual liberty
4. Openness to criticism

Select the correct answer:

A. 1, 3 and 4 only
B. 1 and 2 only
C. 2 and 3 only
D. 1, 2, 3 and 4

Answer: A

Match List I with List II:

Select the correct answer:

A. A-2, B-1, C-3
B. A-1, B-2, C-3
C. A-2, B-3, C-1
D. A-3, B-1, C-2

Answer: A

Mains Questions:

1. Constitutional morality is indispensable for protecting Fundamental Rights. Discuss.
2. Examine the conflict between societal morality and constitutional morality.
3. Critically analyse the role of judiciary in applying constitutional morality.