The Indian Constitution is a living document that consistently evolving whether by the judicial interpretation or by the introduction of different-2 legislations new dimensions of the constitution are being unfolded which conspicuously tends to uphold the majesty of the constitution. However, the common object of all these various developments of new constitutional dimensions is to protect and maintain the integrality of the constitution by retaining its spirit and soul more comprehensively.
In the past, we have seen such developments in the form of the ‘Basic Structure of the Constitution’ evolved in the famous case of Keshavananda Bharti v. Union of India[i], ‘arbitrary test’ evolved in the case of E. P. Royappa vs State Of Tamil Nadu & Anr [ii] or classification test evolved in the case of Chiranjit Lal v. Union Of India[iii] there are several examples of such developments. One recent example that has long this list is, ‘Constitutional Morality’. Unlike the other discussed developments this doctrine hasn’t been introduced by the judiciary exclusively instead the judiciary has only made it the subject of frequently used doctrine.
However, there is a continuing hue and cry from a section of the society[iv] that claims that the use of undefined concepts like ‘Constitutional Morality’ can be hazardous to our constitutional values. They claim that through this broad concept which neither has been defined nor been mentioned anywhere in the constitution gives unchecked and enormous power to the judiciary which through the instrumentation of this can pronounce any judgment as to its whims and fancies.
Even the Current attorney general of India K.K.Venugopal has raised his concern over the frequent use of this doctrine by the judiciary in recent days. He even called this a ‘Dangerous Weapon’ handed over to the judiciary.[v] Considering this, the author in this piece has critically analyzed this doctrine. There are two parts to the article. In the first part, the author has interpreted the true meaning of the doctrine for which the origin history of the doctrine has been traced. While in the second part of the piece the author has discussed its evolvement through the judicial process, at the same time the major lacunae of the doctrine have also been highlighted.
The Origin and The Interpretation
Dr B.R.Ambedkar, known as the ‘father of Indian Constitution’, visited Columbia University, New York in 1913.[vi] A time when discussions on the constitution morality were popularly going on in the United States.[vii] In the academic year of 1914-15 at Columbia University, Ambedkar opted for the course, ‘History 121’ of which the greek history was also a part.[viii] This is when Ambedkar first time confronted with the doctrine of constitutional morality given by George Grote in his book. Therefore, in the author’s view, it is necessary to interpret the doctrine of ‘Constitution morality’ by taking the viewpoints of both the pioneers.
Grote has defined constitutional morality as, “A paramount reverence for the forms of the constitution, enforcing obedience to the authorities acting under and within those 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 the constitution will be not less sacred in the eyes of his opponents than in his own.” [ix]
On 4th November 1948 when Ambedkar brought the motion of drafted constitution prepared by the drafting committee in the constitution assembly for discussion[x] he then read the above-given statement of Grote to justify the banal details of administration that was provided in the constitution ( which Still exist).
To understand in a better way it is necessary to understand the words quoted by the Grote. Grote gave this statement of constitutional morality for Greek law which was cultivated recently at that time. He emphasized that though, the constitution implemented (in the country) based on the ideas of Athens is, needless to say, is an ideal one[xi], the question about its acceptance by people is still problematic as people are not prone to such laws, as of now.[xii]
Since, as per him, it was not the ‘natural sentiment’ of people at that time that will easily be diffused and established among the community.[xiii] However, he acknowledges that such acceptance is an indispensable condition for having a free and peaceable government. Consequently, he gave this statement where he tried to express that initiation of the constitution is not everything the morality of it should also be implemented to uphold the majesty of the constitution and for which natural sentiment of respect should be genome among the people.
Ambedkar, at the time of drafting the constitution, was aware of the fact that the majority of the nation’s population does not understand the essentiality of a democratic nation.[xiv] He even stated this, where he said that “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”[xv]
Therefore, he provided so minutely details of the government administration since he believed that the administration (through the legislature) could change the form of the current constitution without bringing any amendment and as people who currently don’t have any natural sentiment towards it will not even oppose it.[xvi] However, with so explained details this possibility was eliminated by him and continuation with such practices ultimately brought that ‘natural sentiment’ towards the constitution among the people in this due course of time.
Thus, it is not wrong to say that the concept of constitutional morality which was introduced by the Ambedkar in the constitution assembly was just for justifying the detailed provision of the administration in the constitution. It was never intended to be used as a test by the courts for invalidating legislation or any government action from both scholar’s points of view whether from Grote or Ambedkar.
Evolvement and Concerns
Now, discussing its evolvement and frequent usages by the court. Though the judiciary has referred the constitutional morality several times, however, it is only after 2010 when the doctrine becomes the matter of frequent referring. As by 2010, the apex court had used this concept around ten times at max. While after this a significant jump has been noticed as in 2018 alone the apex court used this phrase more than ten times.[xvii] It becomes more concerning with the fact that every time the court is bringing the doctrine of constitutional morality in the course of its judicial process, the scope of it has been widened.
Tracing the history, the first time the term was used by the top court in the celebrated case of Keshavananda Bharti v. Union of India[xviii] then letter in the S.P. Gupta v. Union of India[xix], famously known as the ‘first judge case’, where Justice Venkataramiah stated that, “violation of constitutional convention would be a serious breach of constitutional morality.”
However, the major change in the interpretation of constitutional morality came in the case of Naz Foundation v. Government of NCT[xx] where Justice A.P.Shah first time used it as a counterpoise to ‘Public Morality’. The Delhi high court in this case while deciding about the constitutional validity of section 377 of the Indian Penal Code, which criminalizes “the carnal intercourse against the order of nature”, held that an impugned provision would not be sustained just because the majority of the people supports it or what we can say it is in accordance to public morality.
The court further, referring the judgment of the European Court of Human Rights in Norris v. the Republic of Ireland[xxi] stated that just because the conscience of the people who consider homosexuality ‘immoral’ will be shocked can’t be a valid ground to compromise the fundamental rights of two adults who with all their consensus willing to delve into such activities. To be précised, the court in this interpreted constitutional morality as a counter-majoritarian institution.
The judgment was reversed by the apex court in the case of Suresh Kumar Koushal v. Naz Foundation.[xxii] However, later in the case of Navtej Singh Johar v. Union of India[xxiii] the top court vouches for the view of the Delhi High court by reversing its earlier judgment. The court here acknowledges that it is not bound to be guided by the public morality instead it is bounded by the constitutional morality. The court also opined that the goal of the court is to transform society or convert public morality into constitutional morality.[xxiv]
This view of the judiciary towards the constitutional morality was again reiterated in the case of Joseph Shine v. Union of India[xxv] where the constitutional validity of section 497 of the Indian Penal Code was challenged. The court here observed that the underlying cause behind exempting the women from the liability under this section is the result of patriarchal norms prevailing in the society where women are treated as “victims of being seduced into a sexual relationship” and as a property of a man. The court held that this provision is a reflection of such population norms or what we can say public morality and in light of constitutional morality, such provisions can’t be allowed.
The court further broadened the scope of Constitutional morality in the case of Indian Young Lawyers Association v. the State of Kerala[xxvi], popularly known as the ‘Sabrimala case’, the court here equated the word used, ‘Morality’ in the Article 25 and 26 with the constitutional morality by drawing an analogy between the word, ‘the People of India’ used in the preamble with the word ‘Public’ used under the concerned articles. The court here stated that constitutional morality includes every text of the constitution. So, if a provision is subjected to constitutional morality then it means it has to qualify the whole provision of the constitution.
Furthermore, in the case of NCT of Delhi v. Union of India[xxvii] where the question of the dispute before the court was regarding the function of Lt. Governor and Chief Minister in the union territory of Delhi. The court again used the concept of constitutional morality to elaborate on the power-sharing functions between both the functionaries in a well-detailed manner. The court in this case again broadened the scope of applicability of the constitutional morality.
The Court here stated that constitutionals morality is an indispensable part of the basic structure of the constitution; it further went on to say that it provides power to the judiciary to keep checks and balances on every aspect so the soul and spirit of the constitution which it tends to protect can’t be violated.
Here, the court also opined that constitutional morality is a second basic structure doctrine. One more noteworthy observation that the court here made was that the constitutional morality includes not only the text of the constitution but also the silent aspects of the constitution which intend to preserve the soul, spirit, and conscience of the constitution.
It means the court, here, put forth the scope of constitution morality broader than the basic structure of the constitution. Since under the basic structure of the constitution, the judicial power extends to keep check only upon the brought amendments while under the constitutional morality it extends to every provision.
Concluding the above statements of the judiciary in the different cases, we can say, as of now we have three broad interpretations of the constitutional morality. Now, the genuine question arises, was there any need to use the doctrine of constitutional morality so frequently? Can’t we achieve the object of our constitution without the assistance of constitutional morality? The author finds the answer in negative. In the author’s view, the judiciary should be avoided the invention of this doctrine for the smooth and crystal clear working of the laws.
The author believes, in all the above-discussed cases the disputes can be resolved without utilizing the doctrine of constitutional morality. So for example in the Naz Foundation case, the court can easily give the reference of the right to equality while supporting it with the case of Norris v. the Republic of Ireland (which they did in the real case also). This is also because whenever the court gives the excuse of constitutional morality it always supplements it with any already existing provisions of the constitution which needless to say are itself capable of serving the intended purpose.
For Example, in Manoj Narula v. Union of India[xxviii] where the court gave the reference of constitutional morality to justify its judgment it emphasizes majorly on the rule of law by using constitutional morality as a synonym for the rule of law. Therefore, in times when we already have broad concepts like the basic structure of the constitution, arbitrary test, reasonability, and many more even then we need a broader and a vaguer concept like the constitutional morality, I believe, certainly not.
The use of constitutional morality is justified by saying that it serves the purpose of our constitutional drafters more aptly. However, a detailed analysis will enlighten the fact that the unfettered power carried by the judiciary under the guise of constitutional morality has already started striking down this very purpose.
So, for example in the Sabrimala case,[xxix] the court justified its pronouncement by drawing a far-fetched analogy to brought the constitutional morality under the ambit of article 26[xxx]. Which by then was not subjected to other provisions of part III of the constitution unlike the article 25.[xxxi] In the author’s view, the use of constitutional morality was itself against the purpose of our constitutional drafters mainly on two grounds.
Firstly, if the drafters wanted to article 26 be subjected to other provisions of part III of the constitution they would have mentioned it, like the article 25. Secondly, in the constitutional assembly when the draft of article 26 was motioned the members of the assembly unanimously removed the phrase which stated that “it would be the subject of general law” from the clause.[xxxii] It conspicuously establishing the fact that our constitutional drafters wanted to keep all the laws as well as part III of the constitution away from the ambit of article 26. However, here the judiciary with the aid of constitutional morality disturbed this very purpose of our constitution drafters. Which explicitly is highlighting the flip side of this newly developed doctrine.
Further, one more reason behind this concern is the selectivity of the judges regarding the application of this doctrine. So, for example, while the earlier chief justice of India, Deepak Mishra majorly used the doctrine of constitutional morality in almost all the cases he heard to justify the rationale of the court.
The last chief justice of India, Rajan Gogoi who delivered judgments in some significant and one of the most popular cases of India like Ayodhya land dispute case[xxxiii], Rafale matter[xxxiv] the case involving the question from the right to information[xxxv] and the finance act[xxxvi] did not mention this doctrine in any of these cases.
Even in the Ayodhya land dispute case which was assessed mainly on the touchstones of articles 25 and 26, in which the concept of constitutional morality was included by the apex court itself a year ago in the Sabrimala case[xxxvii], the doctrine of constitutional morality was not discussed. This displaying the selective approach of the court regarding constitutional morality.
In addition to this, in lack of any specified definition or references, the use of constitutional morality becomes problematic as well as hazardous to that values itself to which it promises to protect. Since in lack of any definition or references it depends completely upon the individual judges as what meaning of the concept they perceive in the context of the respective cases. This, consequently, raises the ambiguity which needless to say marks an adversarial effect upon the functioning of the judiciary.
To illustrate it comprehensively, in the Sabrimala case Justice Chandrachud stated that constitutional morality includes the whole text of the constitution, therefore, the exclusionary practice would not be allowed since it violates the fundamental rights of the women, while at the other hand Justice Indu Malhotra, though, acknowledged the doctrine of constitutional morality, came into an entirely different conclusion.
Even in 2003, Justice S.B. Sinha interpreted the constitutional morality in a completely different way where while discussing the right to equality, he stated, “though a measure of affirmative action might be valid under Articles 15(4) and 16(4) of the Constitution, it would violate “constitutional morality” if it violated the doctrine of equality.”[xxxviii]
Even the Justice Deepak Mishra who said to use the concept most frequently had interpreted it in two different ways in the same cases.[xxxix]
Additionally, as we discussed in the earlier part of the paper, constitutional morality was never introduced by the Ambedkar with the intent to provide the power to the judiciary for invalidating any legislation or action which seemingly the court is doing now. Therefore, it is not wrong to say that with the frequent usages of the constitutional morality the court placing an overarching effect upon the true intention of constitution assembly.
The above-stated discussion conspicuously suggests to us that the recent evolvement of constitutional morality done by the apex court is not conciliating with the true meaning of it. As now it has become an instrument of the court which helps them to justify their judgments at their whims and fancies.
However, recently the court in the case of Kantaru Rajeevaru v. Indian Young Lawyers Association has acknowledged this facet of constitutional morality. Consequently, the court referred the matter to a constitutional bench, not less than seven judges, with the instruction to define the constitutional morality, the court remarked that “the expression constitutional morality had not been defined in the Constitution and the contours of that expression needed to be delineated lest it becomes subjective.[xl]
It’s a welcome decision taken up by the court since it was the dire need of the time as instances of misplaced interpretation of constitutional morality were rapidly growing. The judiciary in any country holds a special role. In India, their role becomes more pertinent since here they often find an upper hand in all the cases. However, it also burdens them with more responsibilities since their one says affects the rights and liabilities of several people.
Therefore, the court while pronouncing any judgments needs to be more attentive and cautious with having the anticipation of the potential future effects of their pronouncements which as we have discussed above was somewhere absent in the recent judgments of the court where it has discussed the constitutional morality. The possible side effects of such developments can be proved a boon for this democratic essentiality of the nation. Therefore, there is a dire need to re-consider this aspect more comprehensively and this paper is a small contribution from the author in this benign direction.
[i] Kesavananda Bharati v. the State of Kerala, AIR 1973 SC 1461.
[ii] E. P. Royappa vs State Of Tamil Nadu & Anr 1974 SCR (2) 348
[iii] Chiranjit Lal v. Union Of India AIR 1981 SC 41
[iv] Andre Béteille, “Constitutional Morality”, Economic and Political Weekly, vol. 43, no. 40, pp. 35-42 (2008); Pratap Bhanu Mehta, “What is Constitutional Morality?”, Seminar (2010), available at https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm (last visited 3 September 2020); Aradhana Cherupara Vadekkethil, “Constitutional Morality in the Indian Constitution by Surabhi Shukla”, South Asian Law Discussion Group Blog, Faculty of Law, University of Oxford, 12 March 2018, available at https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussiongroup/blog/2018/03-0 (last visited 3 September 2020); Kalpana Kannabiran, “The scope of constitutional morality”, The Hindu, 4 October 2018, available at https://www.thehindu.com/opinion/lead/the-scope-ofconstitutional-morality/article25115335.ece (last visited 3 September 2020)
[v] See, Apoorva Mandhani, “Constitutional Morality A Dangerous Weapon, It Will Die With Its Birth: KK Venugopal”, Livelaw, 9 December 2018, available at https://www.livelaw.in/constitutional-morality-adangerous-weapon-it-will-die-with-its-birth-kk-venugopal/ (last visited 3 September 2020); Gautam Bhatia, “India’s Attorney General is Wrong”, Scroll.in, 21 December 2018, available at https://scroll.in/article/905858/indias-attorney-general-is-wrong-constitutional-morality-is-not-a-dangerousweapon (last visited 3 September 2020); G.V. Mahesh Nath, “Constitutional Morality – A Need for Consensus on the Concept”, SSRN, 10 April 2019, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3353874 (last visited 3 September 2020).
[vi] “in the 1910s”, available at http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/1910s.html (last visited 3 September 2020).
[vii] See, “Extension of Remarks of Hon. Marlin E. Olmsted, of Pennsylvania, in the House of Representatives”, 16 July 1912, Congressional Record ID: CR-1912-0716 (available on Lexisnexis.com); “Bulle
[viii] “Dr Ambedkar’s Courses at Columbia”, available at http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/graphics/courses.html (last visited 3 September 2020).
[ix] George Grote Esq., Greece (New York: Peter Fenelon Collier, 1899), available at https://babel.hathitrust.org/cgi/pt?id=hvd.hw20pr&view=1up&seq=7 (last visited 3 September 2020).
[x] Constituent Assembly Debates of India, vol. 7, at p. 31.
[xi] Russell Meiggs, “Cleisthenes of Athens”, Encyclopaedia Britannica, available at https://www.britannica.com/biography/Cleisthenes-of-Athens (last visited 3 September 2020).
[xii] George Grote Esq., Greece (New York: Peter Fenelon Collier, 1899), available at https://babel.hathitrust.org/cgi/pt?id=hvd.hw20pr&view=1up&seq=7 (last visited 3 September 2020).
[xiii] Supra note 6.
[xiv] Constituent Assembly Debates of India, vol. 7, at p.38
[xviii] Supra Note 1.
[xix] S.P. Gupta v. Union of India, (1981) Supp SCC 87.
[xx] Naz Foundation v. Government of NCT 7 (2009) SCC Online Del 1762
[xxi] Norris v. Republic of Ireland 142 Eur. Ct. H.R. (ser. A) (1988).
[xxii] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
[xxiii] Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
[xxiv] Ibid., paragraph 122 (per Misra CJ); paragraph 405 (per Chandrachud J).
[xxv] Joseph Shine v. Union of India (2019) 3 SCC 39.
[xxvi] Indian Young Lawyers Association v. the State of Kerala, (2018) SCC Online SC 1690.
[xxvii] NCT of Delhi v. Union of India (2018) 8 SCC 501.
[xxviii] Manoj Narula v. Union of India (2014) 9 SCC 1.
[xxix] Supra note 26.
[xxx] Constitution of India 1949, Article 26.
[xxxi] Constitution of India 1949, Article 25.
[xxxii] Constitution Assembly debates (Volume III 1st May 1947).
[xxxiii] M. Siddiq v. Mahant Suresh Das, Civil Appeal Nos. 10866-10867 of 2010, judgment dated 9 November 2019.
[xxxiv] Yashwant Sinha v. Central Bureau of Investigation, Review Petition (Crl.) No. 46 of 2019, judgment dated 14 November 2019.
[xxxv] Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, Civil Appeal No. 10044 of 2010, and judgment dated 13 November 2019.
[xxxvi] Rojer Mathew v. South Indian Bank, Civil Appeal No. 8588 of 2019, judgment dated 13 November 2019.
[xxxvii] Supra note 26
[xxxviii] Islamic Academy of Education v. the State of Karnataka, (2003) 6 SCC 697 (paragraph 118).
[xxxix] Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1, Navtej Johar v. Union of India (2018) 10 SCC 1.
[xl] Review Petition (Civil) No. 3358 of 2018, majority judgment dated 14 November 2019.