“The Pathways of justice are not linear nor without obstacles. But we have, as a people, chosen the routes of democracy and the Constitution, so we really have no option but to school ourselves in constitutional morality”. – Dr. B.R. Ambedkar
The concept of constitutional morality is an age-old concept. The term constitutional morality was first delineated in India by Dr. B.R. Ambedkar in the constituent assembly. According to him constitutional morality acts as a guiding principle for the legislature, people and the courts to choose the right path in accord with the need of the hour in dynamic society.
A person is protected by the state only when the policy of the state caters to the wellbeing and happiness of its members and where the policies are so driven they abrogate the wrongs that are prevalent in society as it is considered as in spirit of democracy to protect its citizens by framing proper laws which are required to be framed in consonance with the policy of constitution.
The basis of constitutional morality is the basic idea that is enshrined in the constitution which has to be taken into consideration by people while forming their public morality[i] ; that is to say, the people are obliged to act in conformism with the fundamental tenets laid down in the Constitution.
However, there is a difference between the popular morality and the constitutional morality. Sometimes, it may so happen that the popular will is against certain acts of judiciary but the same act is required to be done having regards to the principle of constitutional morality.
The best instance is the Third Judges Case[ii] wherein the apex court diverted from its earlier judgement delivered by it in the Second Judges Case,[iii] the Court has laid down the following propositions in regard to the appointment of Supreme Court Judges:
- In making his recommendation for appointment to the Supreme Court the Chief Justice of India ought to consult four senior-most puisne judges of the Supreme Court.
- The opinion of all members of the collegiums in respect of each recommendation should be in writing.
- The views of the senior-most Supreme Court Judge who hails from the High Court from where the person recommended comes must be obtained in writing for the consideration of the collegiums.
- If the majority of the collegium is against the appointment of a particular person, that person shall not be appointed.
- A High Court Judge of outstanding merit can be appointed as a Supreme Court Judge regardless of his standing in the seniority list.
- A High Court Judge may be appointed as a Supreme Court Judge for good reasons from amongst several judges of equal merit, the particular region of the country.
There have been significant development in Indian Jurisprudence, significant amongst them are:-
Hussainara Khatoon v. State of Bihar[iv]
- The supreme court in this case held that the right to live includes within its purview the right to speedy trial.
Olga Tellis v. Bombay MCD[v]
- It was held that the right to life also includes the light to livelihood.
MC Mehta v. Union of India[vi]
- It was held, the right to life includes right to clean drinking water and access to fresh air.
Unni Krishnan V. State of Uttar Pradesh[vii]
- It was held that the right to life includes the right to education.
In all the above judgements of the supreme court interpreted the fundamental right to life and applied the principle of constitutional morality.
The most imp of all these judgements is the case of Naz Foundation[viii] wherein the Delhi High Court applied the principle of constitutional morality and decriminalised the homosexual marriages. The court in this case struck down Section 377 of Indian Penal Code which made it an offence for any person to engage in sexual relations with similar sex, according to the court the said section violated Article 14[ix], 15(2) and 21[x]. The court in the present case had also made reference to Article 15(2)[xi] which prevents all forms of untouchability.
Naz Foundation case has completely transformed the concept of constitutional morality in an adept fashion by de-histoncizing the same in order to serve a larger social purpose.
The case of Naz Foundation was approved by the Supreme Court in the case of Navjeet Singh Johar v. Union of India, wherein Supreme Court deployed the framework of Naz Foundation Case to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.
Distinction between Popular Morality and Constitutional Morality.
Joseph Shine v. Union of India[xii]
Chandrachud J. in para 147 remarked that constitutional morality is different from common morality and stands at a much higher footing than common morality. It is not the common morality which guides the law, it is the constitutional morality which guides the law. In any democracy constitutional morality requires the assurance of certain rights which are indispensable for free, equal and dignified existence of all members of the society. A commitment to constitutional morality requires the court to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all which are affected.
Keshwananda Bharti v. State of Kerala[xiii]
The court in this case diverted from its earlier decisions[xiv] and held that the preamble is the part of the basic structure of the constitution therefore, the legislature is not justified in amending it.
India is a welfare State and has been declared to be so by the Constitution. Part III i.e. Fundamental Rights and Part IV i.e. directive principles of State policy strive to promote the welfare of the citizens by ensuring social, economic and political justice. A duty is cast on the State to ensure adequate means of livelihood to the citizens, their protection against abuse, exploitation, etc.[xv] Therefore, all the policies of the state shall be driven in consonance with the constitutional morality and a law which abridges or disregards it shall be held bad.
[i] Navjeet Singh Johar v. Union of India, AIR 2018 SC 4321.
[ii] In re Presidential Reference, AIR 1999 SC 1.
[iii] Supreme Court Advocates on Record v. Union of India.
[iv] (1980) 1 SCC 93.
[v] (1985) 3 SCC 545.
[vi] AIR 1988 SC 1037.
[vii] (1993) 1 SCC 645.
[viii] Naz Foundation v. NCT of Delhi, 17 (2009) 160 Delhi Law Times 277.
[ix] Equality Clause of the Constitution of India.
[x] Article 21 – No person should be deprived of his life and personal liberty except according to procedure established by law.
[xi] Article 15(2), Constitution of India.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
[xii] AIR 2019 3 SC 4898.
[xiii] AIR 1973 SC 1461.
[xiv] Shankari Prasad v. Union of India, AIR 1951 SC 458; also, Sajjan Singh v. State of Punjab, 1964 AIR 464.
[xv] State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.