Are the same sex marriages immoral? Why is racism wrong? Should the law permit surrogacy? Is adultery a wrong? Moral questions routinely tug at the sleeve of our legal, political and cultural practices. Their persistence is perhaps one of the hallmarks of a democratic, or at least an open society.

Moral questions invade the law at every turn. A rigid separation between morality and law is highly improbable. In 2018 the Supreme Court of India has passed historical judgments (i.e. Judgment on Right to Privacy, Decriminalization of consensual relationship under section 377 and section 497 of IPC, Triple Talaq, Sabarimala temple case on the basis of Constitutional Morality. Constitutional Morality means adherence to or being faithful to bottom line principles of constitutional values.

It includes commitment to inclusive and democratic political process in which both individual and collective interests are satisfied. In the context of constitution of India, the constitutional values are Democracy, Socialism, Equality and Integrity etc. briefly it is the preamble which clarify the constitutional values. Constitutional morality is one of the corner stones for constitutional laws to be effective.

Here It is interesting to note that the phrase had been used in less than ten reported cases by the Supreme Court till 2010 from the time the Constitution was adopted. However, in the year 2018 alone, it has been used in more than 10 reported cases by the Supreme Court. Now the burning questions are, whether the courts should use Constitutional Morality as a tool for interpretation of the rights conferred on the individual by the Constitution, whether such tool should be use in limiting the interference by the state in the lives of individuals as amounting to infringement of the rights guaranteed by the Constitution.

This paper discusses constitutional morality in India, makes a distinction between Constitutional Morality and Social Morality and the landmark Judgments related to Constitutional morality.

Constitutional Morality

Constitutional Morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic Dr. B.R. Ambedkar[1]

Introduction:
In the beginning, before understanding the concept of constitutional morality in context of the Constitution of India, firstly we have to understand the meaning of constitution and the Constitutionalism.

Constitution of a country lays down the basic structure of the political system under which its subjects are to be governed. It formed the main pillars of the state – the legislature, the executive and the judiciary, defines their powers, demarcates their responsibilities and regulates their relationships with each other and with the people. The constitution of a country may also be described as its fundamental or foundational law, on the basis of which all other laws and executive acts of the state are to be tested for their validity and legitimacy.

It is wrong to regard a country's constitution as a mere inert document. For, constitution is not only what is written in the text of the constitution. Constitution is a living thing of functioning institutions. It keeps consistently growing and evolving. Every constitution gets meaning and content only from the manner in which and the people by whom it is operated, the effects it acquires from how it is interpreted by the courts of the land.

Now the other important term which needs to be explained here, is the 'Constitutionalism'. The concept of constitutionalism is that of a polity governed by or under a constitution that ordains essentially limited government and rule of law as opposed to arbitrary, authoritarian or totalitarian rule. Constitutional government should necessarily be democratic government. Also, constitutionalism is a natural concomitant of a written constitution inasmuch as a written constitution is bound to define and delimit the powers and functions of various organs of the state and a government under a written constitution can only be limited government.

Here it is interesting to know that the term 'Morality' is used at only four places in the constitution of India. In general, morality means- Principles and values concerning the distinction between right and wrong or good and bad behavior.

The Concept of Constitutional Morality:

Constitutional Morality means adherence to or being faithful to bottom line principles of constitutional values. It includes commitment to inclusive and democratic political process in which both individual and collective interests are satisfied. In the context of constitution of India, the constitutional values are Democracy, Socialism, Equality and Integrity etc. briefly it is the preamble which clarify the constitutional values.

Dr. B.R. Ambedkar in one of the Constitutional Assembly Debates explaining the concept of Constitutional Morality, quoted Greek Historian George Grote and said:
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.[2]

The upper mentioned observation of Dr. B.R. Ambedkar regarding the concept of constitutional morality came in the Constituent Assemble Debate for inclusion of administration details in the Indian Constitution, which was taken from the Government of India Act, 1935. The understanding of constitutional morality concept show that it relate to parliamentary form of government which is itself restraint by providing limitation on the power of state to control the liberty of citizen. It appears that constitutional morality show the commitment to liberty of citizen. The constitutional supremacy and equality with reference to rule of law also are necessary components in understanding the term constitutional morality.

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 reflectionable of action in the arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building.

The tradition and conventions have to develop to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the person 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.[3]

The concept of constitutional morality is not limited to the mere observance of the core principle of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the state for the betterment of each and every individual citizen of the state.[4]

Therefore, Constitutional Morality is the soul of the Constitution, Which is to be found in the Preamble of the constitution. In the Constitution of India, it is the Preamble which clarifies the constitutional values. The preamble of the constitution declares its ideals and aspirations, and it is also to be found in part III of the Constitution of India i.e. Fundamental Rights (article 12 to 35). In a democracy the constitutional morality requires the assurance of certain minimum rights, which are essential for free existence to every member of society.

The preamble to the constitution recognizes these rights as liberty of thoughts, expression, belief, faith and worship and Equality of status and of opportunities. Constitutional Morality is the guarantee which seeks that all inequality is eliminated from the social structure and each individual is assured of the means for the enforcement of the rights guaranteed. Constitutional morality inclines towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes and sections.

Thus the major elements of the constitutional morality in the context of the Constitution of India are- Preamble, Rule of Law, Right to Equality, Unity and Integrity of Nation, Social Justice, Individual liberty and Freedom of Expression.

The opinion of the apex court of India on Constitutional Morality:

In the Constitution of India, the term 'Constitutional Morality' is not used in any of the Articles nor the concept is explained anywhere in it. However, the term Morality find place at four places in the constitution, which are under Article 19 (2), Article 19 (4), Article 25 (1) and Article 26 (Right to Freedom of Religion) of the Constitution. The Supreme Court used the concept of Constitutional Morality as an aid in interpretation of the fundamental rights provided under the Constitution and also used this concept for interpretation on the constitutional validity of the statutes.

On a superficial assessment, the phrase had been used in less than ten reported cases by the Supreme Court till 2010 from the time the Constitution was adopted. It was also used by the Delhi High Court in testing the Constitutional Validity of Section 377 of the Indian Penal Code in the year of 2009. However, in the year 2018 alone, it has been used in more than 10 reported cases by the Supreme Court. It would be a fruitful exercise to refer to some of the decisions and context in which the need to concept of Constitutional Morality came up for consideration before the Supreme Court.

In Manoj Narula v. Union of India,[5] the Supreme Court dealt with a point of great public importance as to the legality of the person with criminal background and charged with offences involving moral turpitude being appointed as ministers in central and state governments.

Dealing with issue of corruption in politics, it was observed that:
The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Functioning of such a 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.

The concept of constitutional morality and social morality was discussed and holding that constitutional morality would prevails over social morality, the Supreme Court in Navtej Singh Johar case, 2018[6] partially struck down Section 377 of the Indian Penal Code, and declared such provision unconstitutional in so far as it criminalized consensual sexual conduct between adult of same sex.

There was reference to the decision in Suresh Kumar Kousal case[7] wherein the Supreme Court had overruled the decision rendered by Delhi High Court in Naz Foundation Case[8]. The prime contention in Navtej Singh Johar case was that in Suresh Kousal case the bench had been guided by social morality leaning on majority perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality.

With this factual background concerning the concept of Constitutional Morality, the relevant observation of bench are extracted hereunder:
It is the concept of constitutional morality which strives and urges the organs of the state to maintain such a heterogeneous fiber in the society, not just in the limited sense, but also in dynamic ways. It is the responsibility of all the three organs of the state to curb any propensity or proclivity of popular sentiment.

Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of Constitutional Morality. Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.[9]

In this regard we have to telescopically analyse social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.[10]

In Indian Young Lawyers Association case (Sabarimala Temple case)[11] the concept of Constitutional Morality was applied in the majority view and as well in minority view. It appears that a critical note is taken on this decision for having applied the concept of Constitutional morality for allowing (with majority opinion) and declining (with minority opinion) the relief in the writ petition.

In this case the writ petition was filed under article 32 of the constitution of India for seeking relief in the form of issuance of direction against the Government of Kerala and Devaswom Board of Travancore, to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare certain provisions of the Act regulating the affairs of this temple unconstitutional being violative of Article 14, 15, 25 and 51A (e) of the Constitution of India; and further to pass direction for the safety of women pilgrims at this temple.

Conclusion:
The place and function of morals in the law has always been a focal concern of legal and political philosophers. Morality upheld right over wrong but because of the lack of correct interpretation it differs from person to person. There may be a tussle between the social morality and constitutional morality as because the social morality upheld and validate the things which are valid from the very long time and on the other hand oppose the other like same sex marriage, adultery etc. but as a wise judge thinks that the society grows with the time and Law should be change and adaptable according to modern needs of the people. It is necessary to differentiate between constitutional morality and social morality.

The concept of constitutional morality was used in an important case of Navtej Singh Johar which employed this concept in an innovative manner to strike down section 377 of the Indian Penal Code and decriminalize homosexuality. However, this concept appears to have come under severe criticism with Sabarimala Temple Case. There appears to be an agreement among the legal scholars that the concept of constitutional morality remained to be understudied and there is need for a consensus to be reached for defining and applying this concept. The source of understanding this concept could be the text of the constitution, constituent assembly debates and history of events that took place during the framing of the Indian Constitution.

End-Notes:

1. Writing and Speeches of Dr. Baba Saheb Ambedkar, Volume No. 13 Page No. 61
2. Constituent Assemble Debates, Vol. 7 (4th November 1948), Grote History of Greece, Volume III Page 347
3. Manoj Narula v. Union of India (2014) 9 SSC 1
4. Navtej Singh Johar & ors. V. Union of India thr. Secretary Ministry of Law and Justice, writ petition (cr.) no. 76 of 2016, SC 6 Sept. 2018.
5. Manoj Narula v. Union of India (2014) 9 SCC 1
6. Navtej Singh Johar v. Union of India, Ministry of Law and other Writ petition (cr.) no. 76 of 2016
7. Suresh Kumar Koushal v. Naz Foundation & Ors. Civil Appeal No. 10972 of 2013 dated 11/12/2013
8. Naz Foundation v. Govt. of (NCT) Delhi and Ors. WP (c) no. 7455/2001 dated 2/07/2009
9. Navtej Singh Johar v. Union of India, Ministry of Law and other Writ petition (cr.) no. 76 of 2016 (para no. 116 and 117)
10. Ibid at para no. 121
11. Indian Young Lawyers Association & Ors V. The state of Kerala & Ors W. P. (civil) no. 373 of 2006.
    
    Award Winning Article Is Written By: Mr.Chandra Prakash Rajora - Research Scholars
    

    Authentication No: MA106468484768-5-3221