The Constitution of India is a living document as per the old saying and, therefore, one can find a culture of Invention-ism in the reading or interpretation of the Constitution. The supreme law of land i. e Constitution of India is a living document rather than a book containing words. Of late, use of the 'Doctrine of Constitutional Morality' has become much more significant and relevant while interpreting the Constitution of India by the Judges than ever before.

The Supreme Court has applied different facets of this progressive and transformative doctrine, as it has come to be known, in a catena of cases, some of which may possibly be counted as the finest and seminal Judgments. The term constitutional morality has often been invoked by Supreme court in India for striking down laws which could be termed as manifestations of popular morality. There are many judicially crafted inventions that is not explicitly mentioned in constitutional text formally anywhere.

The Doctrine of Constitutional Morality is relatively recent addition which is time and again provoked by the Supreme Court in past rulings by giving some landmark Judgement. This phrase of constitutional morality, existed in the Indian Constitutional Scheme since times of Dr B. R. Ambedkar, but post-1950 until recently it was in a somewhat dormant state. But this term is not found in Constitution of India. Nevertheless, the word 'morality' in the Constitution of India at various places (Article 19, 25 & 26). Dr. B R Ambedkar used Constitutional Morality multiple times in Parliamentary debates.

While the concept of Basic Structure tended to nullify the constitutional amendments which go against the fundamental spirit of the Constitution of India, there was a need for an alternative jurisprudential concept that can be used to nullify ordinary legislations instead of using the 'Basic Structure' doctrine so as to avoid weakening the sanctity of the concept. This is not to say that only constitutional amendments come under the purview of the 'Basic Structure' doctrine, however, it is true that it applies mostly to such amendments!

What is the Doctrine?

The Constitutional Morality is not still defined anywhere, there are many different notions on the same. The doctrine of constitutional morality means adherence to noble principles enshrined in a Constitution of India, principle interpretation of the Constitution in line with the ethos of constitutional democracy. It may also be defined as it means adherence to core values of principles and philosophy of constitutional democracy that extended to create egalitarian moral based society based on social, economic and political justice.

Elements of Constitutional Morality

• Rule of Law
• Individual liberty
• Right to Equality
• Freedom of choice expression
• Preamble
• social justice
• Due process of law

Constitutional Morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the Constitution it is so broad that it includes commitment to inclusive and democratic political process in which the individual and collective interests are satisfied, a judicial scenario providing an opportunity to unfold the full personhood of every citizen for whom and by whom the Constitution exists etc. It specifies norms for institution to survive and an expectation behaviour that will mere not just the text but the soul and spirit of the Constitution of India.

It means practical percolation of constitutional values in governance and citizen entitlement requires a sensitive state apparatus. The Judiciary as a interpreter of Constitution of India has effectively used 'constitutional morality' to overcome age old laws, which needs to get reformed with changing time, as society can't be static it gets evolved with changing times same goes with the law to cater the needs of society by keeping in mind the spirit of Constitution of India.

The Doctrine of Constitutional Morality is concept which commands and empower the Judicial minds to interpret the Constitution of India and its provisions in a moral way subject to the Constitution and not to the public morality, in the recent development we get to see this from our Judiciary. The essence of constitutionalism which provides as rigid feature and serves as a moral compass in the interpretation and implementation of the Constitution of India is the Doctrine of Constitutional Morality.

Evolution of Doctrine

The doctrine is not new but in Indian context it is now evoked in many Judgements recently, first time the concept of constitutional morality was first propounded by the British Classicist named George Grote in the 19th Century in his book A History of Greece. In Grote's formulation, constitutional morality meant as:

• That all citizens would respect and adhere the constitution.
• No own would disobey authorities acting under the constitution.
• All citizens would have the unrestrained freedom to criticize public officials acting in the discharge of their constitutional duties.
• All Public officials would have to act within the confines of the constitution.
• All the contenders for political power would respect the constitution and know that their rivals also respect the same.

In Indian context first the word 'constitutional morality' was propounded by Dr. B. R. Ambedkar on 4th November, 1948 in Parliamentary Debate to inculcate the morality in the Constitution of India with its great importance and effectiveness. While addressing he said quoted Grote's word that constitutional morality was not a natural sentiment and said that Indians Have yet to learn it.

According to Ambedkar, constitutional morality was not to be used by Courts to invalidate legislation or Government action. Simply he used the Grote's idea as a persuasive or rhetorical device to justify why seemingly mundane details about the administration of the Government had been in Constitution of India. In Ambedkar's view, constitutional morality means an effective coordination between conflicting interest of different people and the administrative cooperation to solve those issues or conflicts amicably or in friendly way as far as possible.

The phrase had been used in less than 10 reported cases by the Apex Court till 2010 from the time the Constitution of India was adopted but in recent time in the year 2018 alone it has been used more than in 10 reported cases by Supreme Court of India.

First it was referred by two judges (Justice A. N. Ray & Justice P. Jaganmohan) Reddy in celebrated Basic Structure case [Kesavananda Bharati & Ors. Vs State of Kerala & Anr., (1973) 4 SCC 225]. Justice Venkataramiah in [S. P. Gupta Vs. Union of India 1981 Suppl (1) SCC 87] also known as First Judge Case found that violation of constitutional convention would be a serious breach of constitutional morality.

In 2003, Justice S. B. Sinha held that affirmative actions' might be valid but it would violate constitutional morality if it is not in consonance with doctrine of equality. The doctrine is continuously evolving from the adoption of Constitution of India itself as it's a form of Judicial activism. Tracing the evolution of doctrine from the 'Basic structure' case to the recent landmark Judgements which was delivered by Supreme Court.

In recent, the doctrine become buzzword as the word Constitutional Morality is reiterated by Supreme Court in many landmark Judgements. CJI Dipak Mishra (as he then was) in his Judgement said  that magnitude and sweep of constitutional morality is not confined to the provisions and a literal text which a Constitution contains, rather it embraces within itself a virtue of a wide magnitude that ushers in a pluralistic and inclusive society. The doctrine is an emphatic guarantee that Court plays a counter majoritarian role within constitutional scheme and it is committed to protecting all minorities.

Salient features
The salient features of doctrine of constitutional morality can be stated as follow:

• Commitment to liberty
• The constitutional supremacy and equality.
• It is a synonym for the Rule of Law.
• It relates to parliamentary form of government which is self-restraint by providing limitation on the functioning of state to curtail liberty of citizen.
• It is soul and spirit of constitution; it assures that all inequality is eliminated by it from social milieu.
• It empowers judiciary to take a step ahead for purposive interpretation, as we have written constitution it allows rooms, space and flexibility.
• It always supersedes majoritarian morality or public morality for better of society.
• Not limited by provisions of constitution but it is mandate to accomplish the aim of the constitution.
• It is akin to doctrine of basic structure and perfect remedy what is called constitutional silence.

Landmark Judgements
There are many landmark Judgements which have been rendered by Supreme Court by applying this doctrine, they are as following:
[Navtej Singh Johar & Ors. Vs Union of India & Ors., (2018) 10 SCC 1]: To protect the right of LGBTQ community, the Apex Court comes up with the Judgement which partially struck down Section 377 of IPC which made carnal intercourse against the order of nature (Homosexuality) a crime. The doctrine is applied here. The former CJ Dipak Misra found that Court must not be remotely guided by majoritarian view or popular perception, they must be guided by constitutional morality.

Justice Chandrachud differentiated between public and constitutional morality and said that the ideal of Justice always have an overriding effect i.e. constitutional morality have an overriding effect on public morality. Out of 5 Judges 3 held that goal of the Court is to transform society or to convert public morality into constitutional morality. The Court took a progressive and proactive approach, the human dignity, freedom and right to privacy under Article 21 of Constitution of India was cited as the ratio of the decision.

[Joseph Shine Vs. Union of India, 2018 SCC OnLine SC 1676: Upholding the right of gender equality and right to equality Supreme Court struck down Section 497 of IPC which made adultery (a crime for a man to have sexual intercourse with a married woman, though the married woman was not to be punished as an abettor. Here it was noted by Supreme Court that the constitutional validity of criminal laws not be determined by popular/public morality which are not in consonance with constitutional morality. The idea of Husband as master of Women or a Woman as a possession of her Spouse was held to be completely contrary to the spirit of constitutional facets and ideals. Here doctrine comes as counterpoise to Public Morality.

[Indian Young lawyers Association & Ors. Vs State of Kerala & Ors., 2018 SCC OnLine SC 1690] Judgement which is biggest blow on the Public morality and also criticised by religious prophets and other. Supreme Court held that exclusion between the age of 10-50 in Sabrimala temple for worship of Lord Ayyappan is violative of 4 key constitutional morality tests, which includes: 1. Justice 2. Liberty 3. Equality 4. Fraternity.

To pass constitutional muster and get rights under Article 25 & 26 of Constitution of India must be in conformity with these four tests, the same principle was used by Supreme Court in Triple Talaq case. Supreme Court noted that the word morality in Article 25 & 26 of Constitution of India must mean constitutional morality and not popular. There is minority decision by Justice Indu Malhotra.

[NCT of Delhi Vs Union of India & Anr., 2019 SCC OnLine SC 193] The Judgement again reiterated the doctrine of constitutional morality. The issue is to figure out how power is to be shared between the Central and provincial Government of Delhi under Constitution of India. It was unanimously held that Chief Minister and not the Lieutenant Governor is the Executive head of Government, Court noted that morality is constitutional norm and conscience of the Constitution of India.

Analysing the above series of Judgments, one thing becomes amply clear that:
the silences of the Constitution of India are also to be ascertained to understand the Constitution. 'Constitutional Morality' is this silence of the constitutional text regarding which Justice Chalemeshwar talks eruditely in the [Justice K S Puttaswamy (Retd.) & Anr Vs. Union of India & Ors., Latest Caselaw 604 SC] where Right to Privacy was elevated to the status of a fundamental right.

Critical analysis
The doctrine is not only restricted to some texts of the Constitution rather it is in the spirit of Constitution of India. It requires in a democracy the assurance of basic rights, which are essential for existence to every member of society. The doctrine is a counterpoise to public morality and also it is a facet of 'Basic Structure' of Constitution of India, which provide Judiciary a power to keep check on the spirit, soul of the Constitution of India by taking a step ahead then purposive and literal interpretation. The doctrine is a progressive approach with change in time and evolution of society but there are no demerits of doctrine?

Every coin has two faces, same here with the doctrine. The constitutional morality is nowhere located in Constitution of India and it is necessary to do the same, as there is evident danger that might concept be used in constitutional Courts as per the whim and fancies of Judicial brains as in absence of definite clarity and consensus being reached on the doctrine. The objective of doctrine is to preserve the Rule of Law and also not to act in a manner which is in violation of provision of Constitution of India or arbitrary in any manner.

Liberals and progressives have lauded the Supreme Court for espousing this progressive approach. However, at the same time, on the opposite end of the ideological spectrum, many among those who rail against liberals', claims that the application of this doctrine amounts to Judicial overreach and are thereby pitting constitutional morality against societal/popular morality.

Even the Attorney General of India, taking a pot shot at the application of this doctrine, has observed that constitutional morality is a dangerous weapon as the Courts have applied it subjectively. Senior Advocate Abhishek Manu Singhvi, in his latest book, From The Trenches (2020), commenting on constitutional morality, specifically in regard to the Sabarimala case (2018) argues that this phrase is full of subjectivity.

Further, Singhvi maintains that the Judicial approach to constitutional morality could vary from Judge to Judge like the proverbial Chancellor's foot. As Rule of Law is not explicitly mentioned in the constitutional text still it is not just part of the Constitution of India but also Basic Structure. In the want of an express definition should we say that Rule of Law is also subjective?

However, on the other hand, apologists of social morality basically premise their argument on two grounds. First, premised upon the wrong presumption that constitutional morality is for mature society. This is possibly a superficial understanding of the issue. Second, the Courts are not the appropriate fora to adjudicate upon these issues. It is quite strange that these arguments just sweep under the carpet the well-established dictum that the Supreme Court, the sentinel on qui vive, is mandated by the Constitution of India to protect the fundamental rights of every citizen.

Also, giving leeway to social morality, at the altar of constitutional morality, in a highly religious and diverse nation, as India is, can embolden majoritarianism. However, it is the Rule of Law which should be the order of the day and not the social morality, an enabler of majoritarianism. It should, therefore, be sparingly used while interpreting the Constitution of India. However, taking a diametrically opposite stand and in an unprecedented move, gives primacy to Social Morality over constitutional morality, wouldn't it amount to losing the forest for the woods?

Significantly, in the Navtej Singh Johar verdict, the Supreme Court observed in regard to social morality, that Any attempt to push and shove a homogeneous, uniform, and consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality. Further, it was added, Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.

Referring to Judgements in which it was used each one connotes a different meaning, as resulted in confusion that what actually this doctrine is? e. g when we see the dissenting note of Justice Indu Malhotra in Sabrimala case it is also based on the same doctrine but with different interpretation for allowing ban under, while the same concept used by Justice Chandrachud for saying that ban as not permitted as this is discrimination, is it like a mercury sleeping from fingers. There is need to think is this doctrine now used as a touchstone by Judiciary.

Conclusion
Dynamism of constitutional morality has to be understood in proper perspective. It expects the constitutional authorities to behave in accordance with Constitution of India, similarly if there is any kind of practice which is not in conformity then holistic application of doctrine can be used, not in a narrower manner and it does not mean that every public policy decided on the ground of this doctrine. It's absolutely within the constitutional paradigm, it's not an uncharted plan.

Constitution embodied with the will of the people to govern them is not an end but a means to an end i.e. Justice, Social, Economic and Political, a triune phenomenon inscribed as a pledge in the Preambular glory of Constitution of India and the adherence to constitutional morality and Judicial Values is inalienable in accomplishing it. Let heaven falls, but Justice shall triumph!

In the presence of a Constitution of India embodying every human aspect for safeguarding the morality of individual and ensuring Judicial values, if things go wrong under the Constitution of India the reason will not be that we had a bad Constitution. What we will have to say is that Man is vile! The Constitution was made possible by a constitutional morality that was liberal at its core.

Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]