Constitutional Morality: Can We Understand Our Morals Right?

  • Constitutional Morality: Can We Understand Our Morals Right?

    Over the last couple of years, there have been a slew of judgments rendered by the Supreme Court in the field of constitutional law. For a student of constitutional law, these have been exciting times as the apex court has taken upon itself the daunting task of interpreting complex yet nuanced issues of constitutional interpretation. In recent times, the court has championed the cause...

    Over the last couple of years, there have been a slew of judgments rendered by the Supreme Court in the field of constitutional law. For a student of constitutional law, these have been exciting times as the apex court has taken upon itself the daunting task of interpreting complex yet nuanced issues of constitutional interpretation.

    In recent times, the court has championed the cause of gender justice in the decisions of Triple Talaq case and Sabrimala case; emphasized the right of equality by striking down provisions which criminalised adultery and homosexuality; tried to balance the competing and conflicting interests of various stakeholders be it the right of privacy of its citizens vis-à-vis the State in the Aadhar verdict or the powers of the states vis-à-vis the Union in a federal structure in the case pertaining to the powers of the Lieutenant Governor of Delhi. While these cases have dealt with various facets of constitutional law, there has been a common thread between all of them.

    Even a cursory glance at all these judgments would indicate that the Court time and again has taken recourse to the concept of 'constitutional morality' while not only protecting but also expanding the ambit of the rights of its citizenry. It almost seems that constitutional morality has become the new buzzword in the field of constitutional law. A precept that champions the cause of its citizens should normally be welcomed by one and all. However, several eminent jurists including the Attorney General K.K. Venugopal have been staunch critics of this theory which they believe is fraught with unprecedented dangers. They have gone to articulate that further propagation and use of 'constitutional morality' would reduce the Supreme Court to the third chamber of the Parliament. It is in this background that one must attempt to understand as to what is precisely meant by constitutional morality, how it`s being put in use by the Supreme Court and why it is required in the context of vibrant yet diverse democracy such as India.

    Constitutional morality, to put it very simply means adherence to the norms of the Constitution; it goes beyond the plain text of the Constitution and requires a practical percolation of values like sovereignty, social justice and equality in the realm of constitutional adjudication. In many cases, it might be the antithesis of popular or societal morality but is pursued nonetheless so as to ensure that the rights and dignity of any individual is not prejudiced merely because of his choice to defy the popular notions of the society. Constitutional morality is a beacon of light which helps to preserve the faith and trust of people in the constitutional courts. As eloquently stated by Justice Rohinton Fali Nariman in Navtej Singh Johar v. Union of India, "Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares ideals and aspirations, and also is to be found in Part III of the Constitution, particularly in respect of those provisions which assure the dignity of an individual." It may not be possible to elucidate the concept of constitutional morality any further in abstract or in a vacuum since it is an ever-evolving concept. To have a better understanding of constitutional morality, it would be imperative to give a brief overview of various landmark decisions wherein constitutional morality has been pressed into service by the Supreme Court while dealing with sensitive issues of far-reaching implications.

    In Government of NCT of Delhi Vs. Union of India, the Supreme Court relied on extensive principles of constitutional morality as an essential feature to be followed by all citizens and all high functionaries to strengthen the practice of constitutional morality. It is an essential check upon high functionaries, as experience has shown that unconstrained power without any check often tends to become tyrannical which is in conflict with the idea of democracy. The functionaries are required to apply and protect the constitutional values spelt out by the Constitution which constitute the values of constitutional morality. This is why it is emphasized that constitutional interpretation must flow from constitutional morality.

    Section 377 of the IPC penalizes carnal intercourse which is supposedly against the order of 'nature' and terms it as "unnatural offences". In Navtej Singh Johar & Ors. Vs. Union of India, the Supreme Court tested the validity of Section 377 while deliberating upon the principle of constitutional morality and this landmark decision decriminalized consensual sex among adults in private, including homosexuality. Constitutional morality requires all citizens to have an understanding and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. The Court stressed that the State should maintain a heterogeneous fiber in the society and be guided by the well-founded notion of inclusiveness. The Court also acknowledged the doctrine of "Non-retrogression of rights" which primarily implies that judicial interpretation needs to be consistently progressive to keep in line with transformative nature of the Constitution. The Court opined that Section 377 violates the right of members of the LQBTQI community on the bedrock of the principles enunciated in Articles 14, 19 and 21 of the Constitution.

    In 2018, the Supreme Court in the landmark judgment of Justice K.S. Puttaswamy & Anr. Vs. Union of India & Ors., upheld the constitutional validity of Aadhaar subject to certain limitations. Commenting upon the principle of constitutional morality as an essential component of law, the Court stated that the constitutional courts of the country must neutralize the excesses of power by the executive and strike down any legislation or even executive action if it is unconstitutional. Institutions of governance are bound by a sense of constitutional morality which requires them to abide by judicial orders. The Court stressed on the fact that the use of Aadhar for commercial exploitation of data is impermissible and reiterated the primacy of the right to privacy of the citizens. This judgment revitalized our faith in the Constitution and directed that a ruling government has to work within constitutional parameters of constitutional morality.

    Another noteworthy judgment that stressed upon the principle of constitutional morality is Indian Young Lawyer's Association v. State of Kerala. The traditional ban on the entry of women (10-50 years of age) into the Sabarimala temple was also challenged before the Supreme Court. Several legal questions were posed before the apex court and many of them owed their origination to the basis of constitutional morality. The apex court opined that morality implies constitutional morality which includes values like justice, liberty, equality and fraternity and any view expressed by the constitutional courts must comply with the principle of constitutional morality. It is established that constitutional morality ought to be preferred over customary values, traditions and beliefs. The Constitution ensures the right to freedom of religion under Article 25 and 26 and entering the Sabarimala temple is a part of an individual woman's fundamental right to profess, practice and propagate religion. Restricting the freedom to freely practice and propagate religion and discrimination against women of the age group of 10 to 50 years by denying them their fundamental right to enter and offer prayers at the Sabarimala temple was a manifestation of patriarchal rules and that cannot be acceptable.


    India is a country that boasts of propagating 'Unity in Diversity'. Our country exhibits a mosaic of socio-cultural heterogeneity and pluralities, integrated in a multicultural federal polity. In view of such diversities, it was utmost crucial for the makers of Indian Constitution to bid adieu to the popular perceptions, stereotypes and prejudices deeply ingrained in the mindset of Indian society.

    Constitutional morality is crucial for constitutional laws to be effective. Without constitutional morality, the operation of the constitution tends to become arbitrary, erratic and capricious. We see that acts like homosexuality which are acceptable in one group may be considered deviant in another group. Therefore, it is crucial that we must constantly evaluate our personal beliefs and tastes on the touchstone of constitutional morality. We have already discussed above that constitutional morality emphasizes on inclusiveness and value systems contemplated by the Constitution. At this point, it becomes crucial to highlight that the Constitution ought to be put on a higher pedestal. The Legislature, the Executive and the Judiciary are obligated to function in strict compliance with the Constitution and if any conflict arises, then Constitutional morality must prevail over popular morality.

    [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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