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(The Indian Express launches a new series of articles for UPSC aspirants written by seasoned writers and erudite scholars on issues and concepts spanning History, Polity, International Relations, Art, Culture and Heritage, Environment, Geography, Science and Technology, and so on. Read and reflect with subject experts and boost your chance of cracking the much-coveted UPSC CSE. In the following article, political scientist Madhukar Shyam inspects the concept of constitutional morality.)
The recent arrest of a serving Chief Minister put the spotlight on the question of constitutional morality. While arresting a chief minister in office may not be illegal, members of civil society raised concerns over moral behaviour that political institutions should uphold.
But what does constitutional morality entail? Where does it originate from? How is the concept inherent in the Indian constitution?
Constitutional morality entails the adherence to constitutional norms within a democratic system. It goes beyond the literal interpretation to encompass a commitment to values such as sovereignty, social justice, and equality in constitutional adjudication.
The term was first coined by British historian George Grote in his twelve-volume work, A History of Greece. Grote discussed the reforms of the Athenian Constitution by Cleisthenes – a statesman regarded as the founder of Athenian democracy.
He emphasised the need for a constitution that could instil a sense of civic responsibility among citizens and prevent the usurpation of power by oligarchs and despots through coercion.
In essence, constitutional morality embodies the balance between freedom and restraint. That is, citizens submit to constitutional authorities and, at the same time, have the freedom to criticise those in power.
On November 4, 1948, Dr. BR Ambedkar used the term constitutional morality during his speech in the Constituent Assembly on ‘The Draft Constitution’. He supported the incorporation of the administrative framework into the constitution and quoted classicist Grote in his remarks.
Ambedkar was, in fact, more familiar with a different usage of the term stemming from its 19th-century origins. This perspective defines constitutional morality as the norms and procedures guiding decision-making in cases where the constitution is silent or grants discretionary power.
But constitutional morality is now commonly used to refer to the substance of a constitution itself. According to this perspective, being subject to constitutional morality means being subject to the substantial moral implications inherent in a constitution. For instance, the principle of non-discrimination is often viewed as a key component of contemporary constitutional morality.
Though the term constitutional morality is not explicitly used in the Indian Constitution, it is deeply embedded in several of its sections:
1. Preamble: It outlines the principles that underpin our democracy, including justice, liberty, equality, and fraternity.
2. Fundamental Rights: It safeguards individuals’ rights against the arbitrary use of state power. Notably, the Supreme Court allows for the enforcement of these rights under Article 32.
3. Directive Principles: They provide guidelines for the state to pursue the goals set by the constitution’s framers, drawing from Gandhian, socialist, and liberal intellectual philosophies.
4. Fundamental Duties: Alongside their rights, citizens also have responsibilities to the nation.
5. Checks and Balances: It includes judicial review of legislative and executive actions, legislative oversight of the executive, etc.
Also, it may be reiterated here that the discretionary power of the state and the principle of non-discrimination are closely associated with the concept of constitutional morality.
How is the concept of constitutional morality observed by the Indian Supreme Court? A few rulings should be noted in order to comprehend the apex court’s viewpoint:
1. In the 2015 Krishnamoorthy case, the court emphasised that constitutional morality is essential for good governance.
2. In the case of Union of India vs. Government of the NCT of Delhi, it was ruled that high-ranking officials must adhere to constitutional morality and uphold the ideals outlined in the Constitution to prevent the arbitrary use of authority.
3. The Court, in the Government of NCT of Delhi case (2018), likened constitutional morality to a “second basic structure doctrine”, emphasising its role in curbing arbitrary authority.
4. Similarly, in Navtej Singh Johar & Ors. vs. Union of India, the Supreme Court held that Section 377 infringed upon the rights of the LGBTQI community and violated the fundamental values of individual dignity as enshrined in Articles 14, 19, and 21 of the Constitution.
5. In its decision in Justice K S Puttaswamy and Anr. vs. Union of India and Ors., the Supreme Court confirmed the constitutional validity of Aadhaar with certain restrictions, underscoring the role of courts in checking executive abuse of power.
6. In the Justice K S Puttaswamy case (2018), the Court reiterated its duty to uphold constitutional morality by nullifying any law or executive action that contravenes the constitution.
Thus, the Supreme Court has emphasised in numerous judgments that constitutional morality entails upholding individual dignity, promoting good governance, and preventing the arbitrary use of power.
Disregarding the morality of the constitution can have significant ramifications for democratic processes. Here are some questions that have been recently raised.
What is the extent to which individuals can be taught to uphold the moral principles outlined in the Constitution and behave more ethically toward their obligations?
Is a ruling dispensation – as accused by Opposition parties – using police or investigating agencies to put pressure on them?
Does absolute power affect the notion of constitutional morality in a parliamentary democracy?
In certain instances, like for instance the issue of the entry of menstruating women into the Sabarimala temple, what non-discriminatory or balanced strategy should be used?
Understanding constitutional morality in various temporal and spatial contexts requires attempting to answer such fundamental concerns.
What do you understand by the term constitutional morality?
Explain the concept of constitutional morality as given by Dr. BR Ambedkar.
Discuss elements of constitutional morality in the Indian constitution.
Evaluate significant Supreme Court’s judgements relating to constitutional morality.
(Dr. Madhukar Shyam is an Assistant Professor of Political Science, University of Delhi.)
