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Constitution, Constitutionalism and Constitutional Morality in India

The Constitution of independent India stands for the will of the people. It was prepared by the Constituent Assembly which began this monumental task in December 1946 in New Delhi and took a little less than three years to complete it. The Constituent Assembly which had 299 members (after the partition of India) addressed and deliberated over each clause of the constitution and arrived at decisions by consensus.

The Assembly adopted the Constitution of independent India on the 26th of November 1949 and the Constitution came into effect on the 26th of January 1950. To commemorate these two momentous events in the long history of our nation, 26 November is celebrated as Constitution Day while 26 January is celebrated as Republic Day.

What is Constitution

A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and usually determine how that entity is to be governed.

When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are encompassed in a single comprehensive document, it is said to embody a codified constitution. Some constitutions (such as that of the United Kingdom) are uncodified, but written in numerous fundamental Acts of a legislature, court cases or treaties.

Constitutions concern different levels of organizations, from sovereign countries to companies and unincorporated associations. A treaty which establishes an international organization is also its constitution, in that it would define how that organization is constituted. Within states, a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Some constitutions, especially codified constitutions, also act as limiters of state power, by establishing lines which a state's rulers cannot cross, such as fundamental rights.

The Constitution of India is the longest written constitution of any country in the world, with 146,385 words[4] in its English-language version, while the Constitution of Monaco is the shortest written constitution with 3,814 words. The Constitution of San Marino is the world's oldest active written constitution, having been established in 1600, while the Constitution of the United States is the oldest active codified constitution. Only half of all sovereign state constitutions around the world have functioned continuously for more than 19 years.

Meaning of Constitutionalism

Constitutionalism is:

"a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".

Political organizations are constitutional to the extent that they:
"contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority".

As described by political scientist and constitutional scholar David Fellman:
Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials ...

Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.

What is Constitutional Morality?

One of the earliest definitions of constitutional morality was given by Grote, which he described as a form of supreme obedience to the various aspects of the Constitution of the land.

According to him, constitutional morality implied certain obligations for both the citizens as well as the authority which have been enlisted below:
  • Respecting the constitution and all forms of authorities deriving their command from it.
  • Availability of right to free speech for the citizens to criticise and hold accountable all those officials acting in pursuance of their constitutional duties.
  • The obligation of the mandated authority and public officials to act well within the sanctioned charge given to them by the Constitution.
  • People contesting for political power and their opposition should have reverence for the Constitution.

Therefore, for Grote, the principles of 'self-restraint' and 'plurality' formed the fundamental elements of constitutional morality, where the former implied the responsibilities of all the stakeholders in a constitutional regime (as enlisted above in points) and the latter referred to the diverse nature of the society getting governed.

Ambedkar's perspective on constitutional morality

According to Dr Ambedkar, the concept of constitutional morality implied the harmonious interaction between the governing and governed, including the peaceful settlement of dissent faced from the latter and conflict of interests arising between them without indulging in any major confrontations or resorting to violent revolutions. He pinned the onus of resolving the then (and still) existing disparity and inequity in the society not merely on the government or the Constitution but also on this belief system or principle of constitutional morality.

He believed that this principle can help get rid of the bridge and gap between the form of administration and that of the constitution in the country. Bhimrao Ambedkar had this belief that the Indian society was largely undemocratic in nature and constitutional morality holds significance in this nation where democracy is merely a 'top-dressing' on the soil.

The contemporary interpretation of Constitutional Morality

In the context of the present era, constitutional morality can be primarily defined to be constituted of two morality has scarcely been used by the courts. It was subtly indicated in the very famous Keshavnanda judgement by the apex court when it propounded the conception of the basic structure of the Constitution. Another famous case when a mention of �breach of constitutional morality� of having been committed was the First Judges case, a.k.a. S.P. Gupta v. Union of India.

Thereafter, it was only recently in 2010 that Justice Ajit Prakash Shah in Naz Foundation v. Government of NCT of Delhi first used it in an antithetical manner to popular acceptance and standards of morality. In this form, a precedent was set for the courts to disregard societal norms, stigmas and limitations while assessing the actions of the State. For instance, in this case, while deliberating upon the issue of decriminalisation of homosexuality, then a criminal offence under Section 377 of the Indian Penal Code, the Court took into cognizance the ideal of upholding the constitutional principles rather than society's perception with regards to the legitimacy of same-sex relationships.

The trend continued, as judges started giving the rationale of constitutional morality in their judgments thereafter. The ex-Chief Justice of India, Justice Deepak Misra, in the Government of NCT of Delhi v. Union of India equated constitutional morality to a 'second basic structure doctrine'. The fact of the principle being respected and adhered to by both the citizens as well as officials was reinstated and it, acting as a check on both of these classes alike, was reinforced by the justices.

Almost all the revolutionary judgements in the recent past, whether it be the Navtej Singh Johar judgement on homosexuality or the Joseph Shine judgement on adultery, had constitutional morality as one of their crucial fundamentals. In fact, in the Indian Young Lawyers' Association v. Union of India, commonly known as the Sabrimala judgement, the Supreme Court also bypassed the doctrine of essentiality (the principle protecting the 'integral' religious practices of a community to uphold the supremacy of constitutional morality.

Sources of Constitutional Morality

The term 'morality' is not excessively stated in the Constitution, let alone constitutional morality. However, there can be four sources from which constitutional morality derives itself. These are as follows:
  1. Constitutional morality can be originated from within the Constitution itself. If read and interpreted properly, Articles 12 to 35 (Fundamental Rights), Articles 36 to 51 (Directive Principles of State Policy), Preamble and the Fundamental Duties tend to have the pervasive essence emphasising upon constitutional morality.
  2. The debates and discussions that happened in the Constitutional Assembly have been one of the most important sources of constitutional morality as Ambedkar's views have been taken as the basis of modern-day understanding of the same.
  3. The events that unfolded during the framing of the Constitution and the requisite constitutional history associated with it.
  4. The case laws and precedents, specifically in the modern-day era with so many draconian laws read down by the Hon'ble Supreme Court and various High Courts in upholding the spirit of constitutional spirit, morality and strengthening democratic ideals.

Criticism of Constitutional Morality

Besides the pros and importance attached to constitutional morality, there are also certain concerns which need to be addressed by legal experts, legislators, jurists and the courts.

These have been discussed below:
  • There is no explicit mention of the term 'constitutional morality' in the Constitution of India. Moreover, despite the presence of several precedents or judgments based on the principle, there is no fixed definition that has been attributed to constitutional morality. Thus, it has an open-ended meaning and is privy to subjective interpretations by different perception holders. Moreover, it has been left on the discretion of the individual judges to interpret its essence and apply in requisite situations.
  • Another viewpoint presented by those in opposition to the doctrine of constitutional morality is that it hinders the organic and natural development of liberalism or rectification of the wrongs or ethical ills of the society as it vests powers in the hands of the courts to implement a 'top-down approach' of the ideal on the morality front. Some have supplemented this proposition with the corollary premise that it indirectly reflects a lack of faith on the true ideals of democracy which is based on the wisdom of the populace that is to be governed.
  •  One strong argument against the existence of constitutional morality as a judicial principle is that it is in clear violation of a very basic tenet of democracy, that is, of separation of power between the three wings of the State governance framework: judiciary, legislature and the executive. Dissenters keep pushing forth the idea that the projected objective of upholding and promoting democracy by using constitutional morality is merely a sham as it establishes judicial supremacy and excess activism by the courts, leading to the intervention in those functions which are primarily sanctioned to be undertaken by the legislature. Some also interpret this as a fraud on the constitution in a veil of promoting constitutionalism.
  • Another corollary criticism to the previous point is the promotion of judicial overreach done by constitutional morality by putting it against societal morality.
  • In the recent past, the Attorney General of India, Mr K.K. Venugopal described Constitutional Morality as �dangerous� to the country. He expressed that the Supreme Court is slowly transforming into a �third Parliament Chamber�. Coming from a senior legal officer like the AG himself, this can spark the growth of a negative perception amongst the masses regarding this principle.

It can be concluded that both Ambedkar and Grote did not perceive Constitutional Morality as an instrument for combating or resolving government action; rather, they equated it with a self-imposed restraint by the people to uphold the constitutional ideals. However, with the passage of time and almost seventy decades after Dr Ambedkar delivered his Constituent Assembly speech in 1948, a lot of different interpretations of the principle have been affixed by different scholars and judges.

For now, the two-pronged definition of constitutional morality encompasses: firstly, a legal mechanism of fighting popular morality and a reminder that Courts should keep themselves free from, sometimes rigid, societal beliefs and opinions that need a revamp for the betterment and comprehensive advancement of the country. Secondly, it helps in holding the government accountable by facilitating the courts to examine the spirit and conscience of the Indian Constitution.

Thus, it is rightly categorised as a second basic structure doctrine. It is rightly a bit vague and unclear with regards to its definition, like most of the other constitutional doctrines which are heavily dependent and reliant on the interpretation of the judges while delivering judgments in different cases. However, the kind of judicial system that exists in the country makes it a necessity, and also mandates it for the judges to fill in the �hollow vessels of these doctrines� with words of legal expertise and experience garnered over the years of practice.

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