14 April 2021 6:07 AM GMT
How is the growth of a democratic nation assessed? The obvious and most intuitive answer is the extent of prevalence of democratic norms. However, in a democratic nation these democratic norms are regulated and promoted by laws and legal institutions. A progressive democracy requires that the laws are framed for fullest realisation of human potential and these laws are adequately...
In terms of Dr Ambedkar, "constitutional morality is 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 perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of Constitution will not be less sacred in the eyes of his opponents than his own." As eloquent the idea is, it very rarely formed a part of discourse let alone legal discourse until recent reference to it by the Supreme Court in number of judgements.
Through this short article, I shall make an attempt to highlight the contemporary relevance of long-forgotten idea of constitutional morality. To this end, I shall provide an illustrative account of some recent to highlight why constitutional morality assumes importance. Thereafter, I shall provide a brief account of constitutional morality and its contemporary relevance where a brief reference shall also be made to constitutional morality being alien to us.
Some Recent Events: Why constitutional morality is needed?
In recent times, this decade has been unusually politically charged. Governments tend to act arbitrarily in the garb of draconian laws, legislature has enacted controversial laws and introduced constitutional amendments often in grey-areas of law and legal principles. Even the actions of judiciary, which is the constitutionally envisioned watch-dog of all aforesaid bodies, have been questionable.
Several governments have slapped sedition and other draconian laws to curb dissent at a mass level. While there are laws which empower governments to take such actions, the larger question that looms is that whether power should be exercise for the sake of it or for the highest fulfillment of human potential and betterment of citizenry. In a recent report, it has been highlighted that the Allahabad High Court quashed as much as 94 out of 120 cases between January 2018 and December 2020. The legislature has engaged in enacting questionable laws: religious conversion laws in several states, introduction of constitutional amendment for reservation to economically weaker sections (EWS), passage of laws through controversial voice votes, much debated Citizenship Amendment Act (CAA), NRC, manner of introduction and passage of abrogation of Article 370 in absence of a democratically elected government in the erstwhile state of Jammu & Kashmir. Much recently, the action of Governors in formation of state governments gathered much storm and partisan conduct was much alleged. Even the judiciary has been questioned. In a sexual harassment case, former Chief Justice of India in a highly unusual manner assembled and presided over a bench for clearing allegations against him. Further, somehow the judiciary has not managed time to hear and decide challenge to these controversial laws which affect the citizens of this country at large. Some matters have failed even in listed before the Court and some have not been decided upon even if they have been rendered infructuous by the mischief having already.
It is certain that more examples can be brought to light upon a more detailed enquiry. That said, it is not the crux of the discussion. While political blaming, different arguments can be advanced to justify these actions, the larger question that we as a nation have to answer is that for legal system of a country like India which has elaborate set of laws and enforcement machinery for perhaps every human action, where have we failed as a nation. Is there a value outside these laws and enforcement machinery?
Understanding constitutional morality
In the light of aforesaid discussion, it is essential to understand constitutional morality and its connotations during the founding moment of the Constitution which shed much light. Dr Ambedkar had famously called for paramount reverence to form of the Constitution and obedience to lawful authority and at the same time, keeping the authority in check. Most importantly, the constitutional reverence should be equal for anyone and his opponents.
The idea of constitutional morality has been elaborated and extended by several judgements of the Supreme Court. In Kalpana Mehta v. Union of India, Dipak Misra CJI had observed, "The Constitution is the fundamental document … and also sets out [constitutional] morality, norms and values which are inhered in various articles and sometimes are decipherable from the constitutional silence. The test of deciphering constitutional morality was laid down by Justice DY Chandrachud where he held that to understand what constitutional morality reflects, it is necessary to find what is that the Constitution is trying to say" and to identify "the broadest possible range… to fix the meaning to the text. Justice DY Chandrachud also held that Constitutional interpretation…must flow from constitutional morality. Constitutional morality is that, "fulcrum which acts as an essential check upon the functionaries… as experience has shown that unbridled power without any checks and balances would result in despotic situation which is antithetical to the very idea of democracy." It is to act "… as a check against lapses on the part of the government agencies and colourable activities aimed at affecting the democratic nature of polity.
Aforesaid discussion would go on to indicate that constitutional morality dictates every individual and body in this country is not only to show paramount reverence to the Constitution but also follow and imbibe it in our every action. Our actions should be aligned with not only the text of the law but also the spirit and aspirations of the Constitution.
Constitutional Morality: An alien sentiment?
It is important to note the background in which our Constitution came into force. When our constitution came into force, inequality and oppression was writ large. While the constitution had legally outlawed several ills of the society and promised grand rights (back then) to its citizens. However, much was to be done on ground. Granville Austin describes this point as onset of social and economic revolution in the country.
Back then, Dr. Ambedkar had expressed concern over the lack of constitutional morality in the country and urged the country to develop and imbibe the same. In his words, "Constitutional morality is not a natural sentiment. It has to cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic." This is clearly demonstrative of the fact that social and economic revolution in our nation required much work to be done. For achieving the goals set and promised in our Constitution, adherence to constitutional morality was a sine qua non.
Warnings of Dr Ambedkar remain relevant till date. Dr Ambedkar had famously warned,
"However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good"; "By Independence we've lost excuse to blame British for anything going wrong"; "Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever".
These warning are indicative of shortcomings of Indians back then which also remains relevant to the very day. We must make an attempt to establish rule of law where law conforms to the spirit of the Constitution and ensure that law and legal institutions are not abused and misused to whims and fancy of individual(s) in the position of power. Developing such a culture requires that we conform to constitutional morality. Undoubtedly, constitutional morality is foreign and alien to Indians, however a conscious effort must be made to imbibe these values while bearing in mind the warnings of Dr Ambedkar. Recent judgements of the Supreme Court in Indian Young Lawyers Association v. State of Kerala (popularly Sabrimala judgement), Navtej Singh Johar v. Union of India, Joseph Shine v. Union of India where constitutional morality has been a guiding example in judicial decision. One hopes that such examples transcends into other walks of life and we hope to see examples more commonly available to public at large.
 Dipak Misra CJI, Kalpana Mehta v. Union of India, (2017) 7 SCC 295.
 Rajiv Bhagava (eds.), Politics and Ethics of the Indian Constitution, (OUP 2008) 6.
 Justice DY Chandrachud, State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.
 CJI Dipak Misra (n 1).
 CJI Dipak Misra (n 1).
 Andre Beteille, Constitutional Morality, Economic & Political Weekly, Perspective, October 4, 2008.
 Constituent Assembly Debates 1989: VII, 38.