India, also known as Bharat, is a Union of States. It is a Sovereign Socialist Secular Democratic Republic with a parliamentary system of government. The republic is governed in terms of the Constitution of India which was adopted by the Constituent Assembly on the 26th November 1949 and came to force on 26th January 1950[i].
When we study Constitution or Constitutional law, we talk about its interpretation in a given scenario and how it applies in the entire nation and its various systems and segments. In particular, the Constitution deals with the duties and obligations of the state or the government towards the citizens. It provides them with powers to carry out its basic functions but also makes sure to limit the extent of that power and even sets up regulatory bodies within itself to not only keep a check on its operations but to also safeguard the rights of its citizens.
Morality has always been considered as an important factor while interpreting the constitution. It is generally expected from those at the higher positions which their operations and decisions will be based on and will comply with some moral standards that are acceptable and applicable to a given situation.
Since Constitutional Law is a higher species of law as it gives validity to all other types of law, we as citizens desire and believe in its moral, just and equitable interpretation so as to ensure us of our sovereignty, freedoms, rights and duties.
The concept of morality is very broad and brings with itself a lot of implications, for this very reason when we try to define morality it can be defined into two very broad senses: descriptive and normative. The former deals with certain codes of conduct that are put forward by a society or a group, or accepted by an individual for her own behavior whereas the latter refers to it as a code of conduct that, given specified conditions, would be put forward by all rational persons[ii]. When talking about law, we consider the normative definition of morality i.e. a code of conduct which given the situation would have been accepted or adopted by a rational person. However is the same for the Constitutional Law, which is known to be a higher species of law?
No colonial power has been ever known to act against its own interest in light of the interest of the colonized. The British who ruled over India had not been saints; but cannot be completely slandered as villains either. The innovations that were introduced by them in the field of law and governance, some of which had been mutually beneficial continue to be valued till this date. Our present Constitution owes a great deal to these innovations.
The Constitution was designed in order to serve the needs of a modern society which focused more on the future. Indian society was based on social structures of caste and community, and a lack of democratic tradition prevailed. The Constitution could at the best provide a legal framework, which was necessary but not enough to bring about the transformation which was required in society. It was not possible for it to conjure itself into existence the attitudes, dispositions and sentiments without which the transformation could hardly have been effective[iii].
In order to be effective, constitutional laws would have to rest on a substratum of constitutional morality, a concept which deeply concerned the architects of the Indian Constitution.
Philosophy of the Constitutional Morality
According to Dr. Ambedkar:
“It is not a natural sentiment. It has to be 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” [iv]Dr. Ambedkar:
The basic belief behind the significance of constitutional morality is that the operation of the constitution in its absence would turn arbitrary, erratic and capricious irrespective of how carefully it had been drafted. In a democratic order similar to ours, it is not possible to insulate the domain of law completely from that of politics and therefore, the constitution is expected therefore, to provide guidance on what should be regulated by the impersonal rule of law and what may be settled by the competition among the parties, faction and political leaders for power. It is here that the importance of constitutional morality comes into play for without its infusion among the legislators, judges, lawyers, ministers, civil servants, writers and public intellectuals; the Constitution becomes a plaything of power brokers.
The idea of constitutional morality had also been put forward by the American legal philosopher Ronald Myles Dworkin who vigorously defended his own ideals by insisting that law need not be based only on formal rules but also fundamentally, on moral principles[v].
Dworkin prescribed a particular way of reading and enforcing a political constitution, which he referred to as moral reading. He explained that most of the contemporary constitutions declared the rights of the individuals against the government in a very broad and abstract language. The moral reading proposed interpretation and application of these abstract clauses on the understanding that they invoke moral principles about political decency and justice. According to Dworkin moral reading brings political morality into the heart of constitutional law however, it is inherently uncertain and controversial and hence any system of government that makes such principles part of its law must decide whose interpretation and understanding will be authoritative. He explains that why it is easy for journalists and scholars to classify the judges as liberal and conservative as their differing patterns of decision making originate from their different understandings of central moral values that are embedded in the Constitution’s text[vi]. The constitution is not a rule or a law; it is a living document which was based on certain ideals and principles aiming at certain social goals which the architects of the Constitution had aimed to achieve. Constitutional morality or moral reading of the constitution will provide that extra support or strength to achieve those goals in contemporary society.
Constitutional Morality in India
India is known as the largest democratic sovereign state with a constitutional vision of justice which is bright and clear aimed and committed towards its citizens values. The Preamble is one of the most evident proofs of the same. The Preamble to a written constitution states the objects which the constitution seeks to establish and promote and also aids the legal interpretation of the constitution where the language is found to be ambiguous[vii]. Therefore it seems right to claim that our constitution has been based on some certain moral values and objectives that it aims to achieve and in the light of which various laws and acts are introduced.
The Indian judiciary has been given a pivotal role as they are referred to as the ‘guardians of the constitution’ for they make sure that the rules made by the government are not in contradiction to the principles of the constitution or infringe upon its basic structure. Therefore, a sound moral reading of the constitution always comes into play whenever the judicial values are put to test, and as a result whenever we talk about the interpretation of the constitution, it is the judicial system which is expected to carry out the principles of equity, justice and good conscience while interpreting the constitution and withholding its morals and principles.
Judiciary on Constitutional Morality in India
We cannot understand the depth of constitutional morality until and unless we are faced by the lack or absence of it. India and the Indian judiciary witnessed the same with the case of Adm Jabalpur v. Shivknt Shukla (1967)[viii].
State of U.P. v. Raj Narain[ix]
It began with the judgement delivered by the Allahabad High Court on June 12, 1975 by Justice Jagmohan Lal Sinha in the case of the State of U.P. v. Raj Narain[ix] regarding the challenge to then Prime Minister Indira Gandhi’s election to Lok Sabha and the resultant victory for the constituency of Rae Bareli (U.P.) wherein she had been convicted of having indulged into malpractices which made her election void and prohibited her from both contesting to an election as well as holding her office for a period of six years. As a result of restraining her political power by the Apex Court, she had been made handicapped in a matter of vote or speak in Lok Sabha[x].
India witnessed as Prime Minister, Indira Gandhi requested the then President Fakruddin Ali Ahmad to declare an emergency under clause (1) of Article 352 of the Indian Constitution under the context of internal disturbances. This also meant that as per Clause (1) of Article 359, key fundamental rights such as Article 14, 21 and 22 remained suspended and multiple people were taken into custody along with prominent political leaders under Preventive Detention Laws and Maintenance of Internal Security Act.
All of these incidents and the post emergency petitions filed but the detainees in high court brought about the case of Additional District Magistrate Jabalpur v. Shivkant Shukla which was also a writ of Habeas Corpus.
The whole situation had been considered to be a dark period for the Indian Democracy as not only the principles and rights of its citizens had been infringed upon to a certain degree but also the forty-second amendment via Article 368 of the Indian Constitution was introduced which was contrary to the very basic structure of India.
ADM Jabalpur v. S.S. Shukla
The constitutional bench of five judges, the supreme court of India in the case of ADM Jabalpur v. S.S. Shukla ruled
“in view of presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to direction the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala-fides factual or legal or is based on extraneous consideration.[xi]”
This judgement had been although in compliance with the interpretation of the statues but had been criticized to various degrees on the grounds of morality. The judgement although stood sound on its interpretation of the laws laid down by the constitution, however lacked a moral sense which had been deemed to be quite necessary at the time.
However, the Indian Judiciary moved ahead and is currently can be actively observed interpreting the laws not as a formal rule but also measuring them on the basis of the needs and wants of the society as well as the principles of natural justice and morality, hence allowing the Indian society to change and adapt into a more advanced and accepting society.
Justice K.S. Puttaswamy (Retd.) v. Union of India
An example of the same is privacy judgement which was recently delivered in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India[xii] which upheld privacy as a constitutionally protected right which not not only emerges from the rights provided to us under Article 21 but also from the varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III of the constitution.
The bench overruled its decision in M.P. Sharma v. Satish Chandra, District Magistrate, Delhi[xiii] as well as Kharak Singh v. State of Uttar Pradesh[xiv]. The judgement invoked the writings of Nobel Laureate Prof. Amartya Sen ‘The Idea of Justice’[xv] as well as ‘The Country of Young Boys’[xvi]. The judgement was widely appreciated in modern society as it was not only an interpretation of a text but also weighed the morals and social justice and was even considered to be a bright phase in the history of Indian democracy. This judgement also overturned the ADM Jabalpur v. Shivkant Shukla[xvii] upholding the opinion of Justice H.R. Khanna.
Apart from this, apart from dealing with privacy, has also dealt with a number of aspects. The judgement rectified the mistakes committed by the Supreme Court in the past and also laid down heavily on Justice Sanghvi’s judgement in Suresh Kumar Kaoushal v. Naz Foundation[xviii] thereby upholding the spirit of LGBT rights.
The spirit of constitutional morality was also observed in the Sabrimala Case[xix] as well as the decriminalization of homosexuality under Article 377 of the Indian Constitution[xx]. I believe that as long as the idea of constitutional morality upholds itself within the judicial system of the country, the citizens will truly be safeguarded from the arbitrariness or harshness of simple formal rules which can be moulded as per the discretion of the State which puts a question mark on the very basis of democracy and the very basic structure of the Indian Constitution which was also prior witnessed by India is the emergency of 1975-1977.
Therefore, it is the duty of the judicial system to not forgo their inner principles of morality, justice, equity and a good conscience and the interpretation is done on the basis of certain social goals that had been the very driving force behind the formation of the Indian Constitution.
The Constitution is indeed a living document however; it gains its enforceability through the judicial system of this country which upholds its principles and provisions and the spirit of its basic structure. The constitution of India is susceptible to various amendments by those in power, wherein it is quite possible for it to be used as a mere tool of politics and power show.
There have been times wherein the spirit of the Constitution was tampered with and it was made possible for the interpretation of the document had been done just as that, a document and not the very force keeping the whole of the nation together. It was interpreted as a rule which could be changed without any substance to them and that is where the idea of constitutional morality comes from.
Constitutional morality is the very support that a Constitution requires to enforce upon its principles upon the society for its betterment and what prevents it from becoming arbitrary, erratic and capricious. We need constitutional morality not only to preserve our national spirit but also to move ahead with the time and develop a more accepting and a more advanced society.
Endnotes[i] National Informatics Centre (NIC), Ministry of Electronics & Information Technology, Government of India. india.gov.in. May 06, 2019. https://www.india.gov.in/my-government/constitution-india (accessed August 5 August , 2019). [ii] Gert, Bernard and Gert, Joshua. “The Definition of Morality.” In The Stanford Encyclopedia of Philosophy. Metaphysics Research Lab, Stanford University, 2017. [iii] Béteille, Andre. “Constitutional Morality.” Economic and Political Weekly 43, no. 40 (2008): 35-42. http://www.jstor.org/stable/40278025. [iv] Constituent Assembly Debates 1989: VII, 38 [v]Sparks, Karen. Encyclopedia Britannica. march 22, 2013. https://www.britannica.com/biography/Ronald-Dworkin (accessed august 6, 2019). [vi] Dworkin, Ronald William. Freedom’s Law the Moral Reading of the American Constitution. Oxford: Oxford. Univ. Pr., 2005. [vii] Re Barubari Union, AIR 1960 SC 845 (846) : (1960) 3 SCR 250 [viii] ADM Jabalpur v. Shivkant Shukla (1967) 2 SCC 521 [ix] State of UP v. Raj Narain 1975 AIR 865 [x] A.D.M. 1975-77 and A.D.M. 1975-77, ‘A.D.M. Jabalpur v. Shukla And The Emergency Of 1975-77’ (India Opines, 2017) accessed 6 August, 2019. [xi] A.D.M. 1975-77 and A.D.M. 1975-77, ‘A.D.M. Jabalpur v. Shukla And The Emergency Of 1975-77’ (India Opines, 2017) accessed 6 August, 2019. [xii] Justice K.S. Puttaswamy (Retd.) v. Union of India. Writ petition no. 1014 of 2017 (SC, september 26, 2018). [xiii] M.P. Sharma v. Satish Chandra, District Magistrate, Delhi 1954 AIR 300, 1954 SCR 1077 (March 15, 1954) [xiv] Kharak Singh v. State of Uttar Pradesh 1963 AIR 1295, 1964 SCR (1) 332 (December 18,1962) [xv] The Idea of Justice, Amartya Sen (Cambridge, Mass.: Belknap Press/Harvard University Press, 2009) [xvi] Amartya Sen, The Country of First Boys. And other essays, Oxford, Oxford University Press, 2016, 328 p., ISBN : 9780198738183. [xvii] ADM Jabalpur v. Shivkant Shukla (1967) 2 SCC 521 [xviii] Suresh Kumar Kaoushal v. Naz Foundation SPL (C ) No. 873 of 2010 (December 11,2013) [xix] Sabrimala Ayyapa Seva Samajam v. State of Kerala HC WP (C ) No. 27138 of2018 (October 29,2018) [xx] Navtej Singh Johar & Ors.versus Union of India the Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016 ( September 6, 2018)
Shaina is a very hard-working and diligent writer. She does her work fervently and makes sure that whatever task she takes is completed in given time and is qualitative. She is an avid reader and also has been a writer for school magazine. Besides these, her hobbies include poetry and sketching.