7 PM | Safeguarding constitutional morality | 24th December 2019

Context:Consitutional morality and the debate around it.

Constitutional morality:

• 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 . 
• 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.
• To be governed by a constitutional morality is to be governed by the logical moral principles that are carried by any constitution. 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. Some other such principles are jusctice, equality, liberty etc that enshrined in Indian constitution.
• In the view-point of Dr. Ambedkar, “the central elements of constitutional morality were freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under constitutionally formed 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.”
• Ambedkar says that the maintenance of democracy requires that we must “hold fast to constitutional methods of achieving our social and economic objectives. It must mean that we abandon the bloody methods of revolution. It means we must abandon the method of civil disobedience, non-cooperation and satyagraha.”
• 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,

Sources of constitutional morality:

Concept of constitutional morality remains understudied and that there has been no agreement over the exact locations but generally there are four sources of constitutional morality:

• Text of the Constitution
• Constitutional Assembly debates
• Events that took place during the framing of the Constitution
• Case Law History.

Constitutional Morality in Indian Constitution:

• Constitutional morality are committed to certain features of it such as:
• commitment to liberty
• constitutional supremacy
• Parliamentary form of government and self restraint
• rule of law
• equality
• intolerance for corruption, etc.
• The written Constitution does not make any reference to any standard of Constitutional Morality. It had a passing mention during the Constituent Assembly Debates with the meaning and scope attributed in line with its understanding in the English context. 
• From a quick assessment, it is found 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.
• It was used by the Delhi High Court in testing the Constitutional validity of Section 377 of the Indian Penal Code in 2009 (Naz Foundation vs Govt. of NCT of Delhi). However, in the year 2018 alone, it has been used in more than 10 reported cases by the Supreme Court.
• For the purpose of understanding the reliance by the Supreme Court on the phrase in the recent past, five cases may be considered:
  • Triple Talaq
  • sexual orientation
  • privacy
  • adultery
  • entry of women into a temple in Kerala. 

Recent contraversial incidents that are being suggested as against the basic structure and principles of the Constitution:

• Abrogation of article 370: The fact that Article 370 was a temporary provision has been used to dilute it. Nevertheless, it was a provision made in the Constitution for a specific purpose, which clearly required more detailed and careful treatment before being abruptly invalidated.
• Federalism:While the Indian Constitution provides for a federal system with a unitary bias, the Central and State Governments both derive their authority from the Constitution. This implies that States are not exactly subordinate to the Centre. Splitting Jammu and Kashmir (J&K) into two Union Territories, without due consultation with different segments and shades of opinion there, including its political leadership, ran contrary to this essential principle. It violated the spirit, if not the letter, of the Constitution.
• Secularism:Secularism has remained a part of Indian culture since ages. However, some biases are beginning to emerge in many circles in India. In its seminal judgment in S.R. Bommai case held that secularism is part of the basic structure of the Constitution (the doctrine of Basic structure upheld in Kesavananda Bharati v. State of Kerala case, 1973) and cannot be trifled with in the name of security or other considerations.
• Citizenship (Amendment) Act (CAA): The CAA only makes it easier for refugees from countries such as Afghanistan, Bangladesh and Pakistan to gain Indian citizenship. However it excludes certain categories, such as Muslims. This denies people belonging to one particular religion recourse to the new law. The critics argue that this act violates the Constitution’s Article 14 and 15 which guarantees the fundamental right to equality to all persons.

Conclusion:The Constitution was made possible by a constitutional morality that was liberal at its core and not just in the ideological sense. The deeper virtues from which constitutional morality sprang can be listed as: 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. Thus, constitutional morality is important for constitutional laws to be effective. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. 

Source:https://www.thehindu.com/opinion/lead/safeguarding-constitutional-morality/article30383084.ece