Constituent Assembly Debate and Conceptual Perspective:
Dr. Ambedkar used the phrase ‘constitutional morality’ in his speech ‘The Draft Constitution’, delivered on 4 November 1948 in the context of defending the decision to include the structure of the administration in the Constitution, where he quoted George Grote as under,
“The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves.”
What did Grote mean by ‘constitutional morality’? Ambedkar quotes Grote again:
By constitutional morality, Grote meant… 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 a 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.
In Grote’s rendition, ‘constitutional morality’ had a meaning different from two meanings commonly attributed to the phrase. In contemporary usage, constitutional morality has come to refer to the substantive content of a constitution. To be governed by a constitutional morality is, on this view, to be governed by the substantive moral entailment any constitution carries. For instance, the principle of non-discrimination is often taken to be an element of our modern constitutional morality. In this sense, constitutional morality is the morality of a constitution.
Ambedkar was more familiar with the 19th century provenance of the Constitutional Morality. In this view, constitutional morality refers to the conventions and protocols that govern decision-making where the constitution vests discretionary power or is silent.
Grote’s use of the term was different from Ambedkar’s purposes. Ambedkar was making a series of historical claims about constitutionalism. Like Grote, he had little doubt that constitutional morality was rare. It was not a ‘natural sentiment’. The purpose of Grote’s History of Greece had been, in part, to rescue Athenian democracy from the condescension of its elitist critics like Plato and Thucydides, and argue that Athenian democracy had, even if briefly, achieved elements of a genuine constitutional morality.
For Grote, the central elements of constitutional morality were freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under properly constitutional government. The most political expression of a lack of self-restraint was revolution. Indeed constitutional morality was successful only in so far as it warded off revolution. Ambedkar also takes on the explicitly anti-revolutionary tones of constitutionalism.
The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution which is made for a progressive society. Working of such Constitution depends upon the prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the Debate, felt that the Constitution can live and grow on the bedrock of Constitutional Morality. Dr. Ambedkar speaking on the same said:
Constitutional Morality 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.
The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality. In this context, the following passage is of an interesting recourse.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Therefore, it would not be out of place to state that institutional respectability and adoption of precautions for the sustenance of the Constitutional values would include reverence for the Constitutional structure. It is always profitable to remember the famous line of Laurence H. Tribe that a Constitution is "written in blood, rather that ink".
In a democratic order the concept of constitutional morality and judicial values assume several dimensions and implies several consequences to the dignity and freedom of the individual. Constitutional morality means adherence to the core principles of the constitutional democracy. In Dr. Ambedkar’s perspective, Constitutional morality would mean an effective coordination between conflicting interests of different people and the administrative cooperation to resolve the amicably without any confrontation amongst the various groups working for the realization of their ends at any cost . For Ambedkar, moral fabric of the society, governed and the governance must be strong. In other words, public conscience, moral order and constitutional morality- ethics of politicians, that constitute the core of policy making, must be very sound and strong if democracy is to survive for the long period of progress and prosperity for the common people. Thus the scope of the definition of Constitutional Morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the Constitution, a socio-juridical scenario providing an opportunity to unfold the full personhood of every citizen, for whom and by whom the Constitution exists.
Legal Perspective:
Suresh Kumar Koushal and Anr vs. NAZ Foundation and Ors. (2013)
This case was one among most controversial cases in the history of Indian judiciary. It involved the clash between public morality and the constitutional morality. The matter went in appeal before the Supreme Court. The Supreme Court noted that the High Court discussed the question whether morality can be a ground for imposing restriction on fundamental rights, referring to the judgments in Gobind v. State of Madhya Pradesh and Anr. (1975) 2 SCC 148. The words of Dr. Ambedkar quoting Grotius while moving the Draft Constitution, Granville Austin in his treatise "The Indian Constitution - Cornerstone of A Nation", the Wolfenden Committee Report, 172nd Law Commission of India Report, the address of the Solicitor General of India before United Nations Human Rights Council, the opinion of Justice Michael Kirby, former Judge of the Australian High Court stated that,
Thus popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of "morality" that can pass the test of compelling state interest, it must be "constitutional" morality and not public morality.
In this case the learned Advocate Solicitor General contended that public morality of homosexual conduct might open floodgates of delinquent behavior is not founded upon any substantive material, even from such jurisdictions where sodomy laws have been abolished. Insofar as basis of this argument is concerned, as pointed out by Wolfenden Committee, it is often no more than the indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In the scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the view of the majority.
Consequently, the Supreme Court was unable to accept the stand of the Union of India that there is a need for retention of Section 377 of Indian Penal Code to cover consensual sexual acts between adults in private on the ground of public morality.
The Supreme Court Advocates on Record Association and Ors v. UOI (2015)
The five Judges bench while discussing the matter posed questions that we the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy? Are we nearing such ethical and constitutional disorder that frightened civil society runs back to Mother Nature or some other less wholesome authority to discipline us?
Manoj Narula vs Union of India (2014)
Democracy, which has been best defined as the Government of the People, by the People and for the People, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance.
Niranjan Hemchandra Sashittal and Anr. vs State of Maharashtra (2013)
The Appex court observed that it can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. it is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. the only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality.
Mr. Parasaran, the amicus curiae in the above mentioned case has drawn distinction between the two concepts, namely, constitutional morality and constitutional propriety on one hand and ethical acceptability on the other and, in that regard, he was on the point that the advice of the Prime Minister, as has been stated by the framers of the Constitution, to the Head of the Executive for appointment of a Minister should conform to the standards of constitutional morality, regards being had to the constitutional norms, democratic polity and the sanctity of democracy. Mr. Parasaran was the view that the framers of the Constitution have bestowed immense trust on the Prime Minister as would be seen from the Constitutional Debates, and, therefore, this Court should reiterate the principle of constitutional trust and that would be a suggestive one.
Constitutional Morality vis-à-vis Judicial Values:
Upholding Constitutional morality and judicial values is indispensable to ensure an individual his inalienable fundamental rights in the process of dispensing justice. But in the modern days there has been a precipitate diminution of admiration and a sharp erosion of the constitutional and judicial values which ought to actuate the administration of justice. Keeping the morality of the constitution or preserving, perfecting, and perpetuating it, has evolved as the greatest challenge for the contemporary States in the twenty first century.
Diligence, in the broad sense, is concerned with carrying out judicial duties with skill, care and attention, as well as with reasonable promptness. The constitutional umpires can’t always browse through the Articles for solutions to the constitutional deadlocks; they should be guided by the spirit of the constitution, political morality and democratic ethics. Independent and fearless judiciary is primarily responsible for retention of the parliamentary democracy, protection of constitutional values and fundamental rights of the people.
The implications of Constitutional Morality without Judicial Values and judicial values without Constitutional Morality are equally absurd. Constitutional Morality is a sentiment to be cultivated in the minds of a responsible citizen but to be promoted by an independent judiciary embodied with values and ethics. Where judicial diligence is absent and judicial integrity is questioned Constitutional Morality cannot be upheld. The fruits of the morality of Constitution are enjoyed where the people can come to the courts to redress their grievances, and it is pertinent to note that it is not only important they are heard, but it is important, they believe they have been heard. Constitutional morality and judicial values are both inextricably entangled to deliver justice to the sovereign mandate. Morality envisaged in the constitution is meaningful when it’s judiciously protected for the welfare of the people. The judiciary being the custodian of Indian constitution is entrusted with obligation to incorporate judicial values in its undertakings to ensure the achievement of constitutional goals. To uphold the majesty of law and constitution for the public interests the constitutional morality shall be complemented and supplemented by the judicial values.
Constitutional Morality and Judicial Values with reference to Preamble:
India, the largest democratic sovereign State has a Constitutional vision of justice which is lucid and lucent and its mission, committed towards people’s values. The Preamble spells out its pledge of justice, social, economic and political and We, the people of India are the beneficiaries of a Socialist, Secular and Democratic order. Constitutional morality and judicial values are both inextricably entangled to deliver justice to the sovereign mandate. Morality envisaged in the constitution is meaningful when it’s judiciously protected for the welfare of the people. The judiciary being the custodian of Indian constitution is entrusted with obligation to incorporate judicial values in its undertakings to ensure the achievement of constitutional goals. Ever since it’s inception the country witnessed the emergence of judiciary from a weak organ of the State to the most powerful instrument, with its judicial creativity, justly handcuffing the elements that are detrimental to Constitutional morality and judicial values. The founding father of our Constitution, Dr.B.R.Ambedkar warned the nation in its burgeoning stage itself the significance of strong adherence to the morality of the Constitution and judicial values.
Conclusion:
The notion of Constitutional Morality is not an isolated concept but carries several values tagged along. Dr. Ambedkar alone threw immense emphasis on the concept pertaining to its usage while understanding the law and in order to deliver justice. Constitutional Morality when evaluated with judicial values and the phraseology of the preamble on equal footing, given more accurate understanding. The Supreme Court and various subordinate courts when confronted with constitutional morality against public morality always gave prevalence to prior notion. However, the Courts deviated from restricting the notion within the boundaries of definition and discussed the case in hand on the basis of assumption of inclusive definition of constitutional morality. Therefore, while interpreting the law, it is of highest obligation to keep in mind the notion of constitutional morality in order to sustain equality, equality before the law, reasonable restriction and other significant concepts of the Constitution of India besides ensuring that the weak is not suppressed by the stronger. With strong backing of law, weak may prevail over the stronger.
