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Constitutional Morality And Judicial Justice

Constitutional morality and judicial justice are the dimensions of the same sphere. Constitutional morality without judicial justice is not sufficient for the development of Indian society, they both collaterally participate in the growth of social justice. The judiciary is empowered by constitutional morality to think about and interpret constitutional provisions in a moral manner. The constitutional morality acts as a catalyst for the court to alter the legislation to meet social requirements.

Because the Indian constitution combines moral and legal characteristics, the constitutional morality and judiciary both exist with the same goal in mind: to eradicate disparities and non-constitutional elements from society.

Recently, the judiciary has enacted a slew of laws that go counter to the notion of constitutional morality:
  • Decriminalization of Section 377 of the Indian Penal Code (1860)
  • Nullify the Section 66 of the Information Technology Act (2000) in Shreya Singhal Case, 2015
  • Medical termination of Pregnancy Act
  • Criminal Law Amendment Act
  • Opening of Sabarimala temple to women of all age in Indian Young Lawyers Association case, 2006
  • Ban and criminalize the legislation of Triple Talaq in Shayara Bano case, 2017

This article focuses on the overall concept of constitutional morality in the field of judicial justice, such as how they are related, the importance of constitutional morality in the judiciary, and recent judgments passed by the Judiciary in the commitment of constitutional morality, as well as suggestions that the judiciary should adopt in regards to constitutional morality.

Introduction
As we can see, the concept of constitutional morality is being employed by the Indian judiciary as a source of judicial interpretation to address difficulties in modern society. It acts as a transformational instrument for the judiciary to safeguard individual interests, as seen by recent Judgements. The Supreme Court ruled in the case of Indian Young Lawyers Association & Ors. V. Kerala & Ors that Sabarimala Temple's custom of preventing women in their "menstruating years" from entering was unconstitutional and enabled all women, regardless of age, to enter. In this circumstance, devotees of Lord Ayyappa held the religious conviction that menstruation women could not enter into the temple.

However, the judiciary saw this issue through the lens of constitutional morality and rendered a decision in favour of individual rights. In the case of Shayara Bano V. Union Of India the Supreme Court of India analysed this case in the light of constitutional morality and rendered a judgement in favour of individual interests by declaring the Triple Talaq (Talaq -ul- Biddat) null and void. As a result, the Supreme Court, as a constitutional protector and interpreter, has ensured that the supremacy of the constitution and constitutional morality always triumphs over personal laws and traditions.

Evolution Of Constitutional Morality

The doctrine of constitutional morality was propounded by Grote. He defined constitutional morality as an attitude that must be spread among many stakeholders, including people, public officials, political parties, oppositions, and political institutions, in order to achieve free and peaceful governance.

Later, in the Constituent Assembly discussion on November 4, 1948, the Chairman of the Drafting Committee, Dr. Ambedkar, expressed his views on constitutional morality. He proposed that administrative details had no place in the constitution, but only in places where people are saturated with constitutional morality, such as the one outlined by Grote. One can take the risk of deleting administrative matters from the constitution and leave it up to the legislature to prescribe them.

He invoked Grote's words that constitutional morality is not a 'natural sentiment' and said that Indians, "have yet to learn it". "Democracy in India" is only a top-dressing on an Indian soil, which is essentially undemocratic. As a result, according to both of them, constitutional morality is not being observed in India.

How The Concept Of Constitutional Morality Is Evolving Through Judicial Judgements

Naz Foundation V. Government Of Nct Of Delhi (2009)

This was one of the first cases in which Section 377 of the IPC was found to be illegal because it rendered "canal intercourse against the order of nature" a criminal felony. It discriminated against the LGBTQ community of the country and breached their privacy as individuals. In this case it was ruled that Section 377 of IPC is in clear violation of Article 14, 15 & 21 of the Indian Constitution by stating that "popular morality or public disapproval of certain act is not a valid justification for restriction of the fundamental rights under Article 21"

In this case the concept of constitutional and social morality was discussed and holding that constitution morality would prevails over social morality. It was also held that while determining whether a law could be considered justified or not, the court must take into account the 'constitutional morality' and not popular or societal morality.

Navtej Singh Johar V. Union Of India

In this case the section 377 of IPC was challenged as it criminalizes the "canal intercourse" sexual intercourse against the order of the nature but the Supreme found it to be discriminatory towards the LGQBT community and concluded that sexual orientation is an inherent part of their identity, dignity and autonomy and declared it unconstitutional.

The Supreme court rendered this judgement in the light of constitutional morality by stating that the court must not be "remotely guided by majoritarian view or popular perception", that they must be "guided by the conception of constitutional morality and not by the societal morality".

Justice Chandrachud distinguishes "public morality" from "constitutional morality". In the former, "the conduct of society is determined by popular perceptions existent in society", while the latter "requires that the rights of an individual ought not to be prejudiced by popular notions of society".

Indian Young Lawyers Association V. The State Of Kerala

This lawsuit is also known as the Sabarimala temple case since it involves the admission of women to the Sabarimala shrine. The devotees of Lord Ayappa have a religious belief that forbids menstruating women from visiting the temple. The court ruled in favour of women, ruling that the Sabarimala Temple's practise of excluding women in their "menstruating years" from attending is unconstitutional, violating Articles 15, 17, 25, and 26 of the Indian Constitution, and allowing entrance to all women, regardless of age.

The court assessed this issue with the notion of constitutional morality in mind, and it preserved the scope of individual rights by guaranteeing that constitutional morality always takes precedence over customs and religious beliefs.

Importance Of Constitutional Morality In Judiciary

The Doctrine of Constitutional Morality is a relatively new concept that has been repeatedly triggered by the Supreme Court in previous judgements by issuing a landmark decision. In a democratic order, the idea of constitutional morality and judicial principles takes on many aspects and has several implications for the individual's dignity and freedom. The use of this word in various judgments has grown extremely common in the Indian judiciary in recent years.

The word 'constitutional morality' is likewise a judicial interpretation, as it does not appear expressly in the Constitution. In the modern period, constitutional morality may be divided into two sub-categories: as a spirit or force of the Constitution and as the antonym of popular morality. The Supreme Court has used various aspects of this progressive and revolutionary doctrine, as it has come to be called, in a slew of cases, some of which may be considered among the best and important decisions. Its objective was to guarantee that the values of the constitution took precedence over the people's changeable morality. In Navtej Singh Johar's case, the Delhi High Court's decision was subsequently upheld by the Supreme Court.

Criticisms
'The Doctrine of Colorable Legislation elucidates the principle that what cannot be done directly cannot be done indirectly.'

The Judiciary is an independent body of government constitutionally entrusted with the fair and just settlement of disputes and is committed to maintaining law and order and preserving the rights and liberties provided by the Constitution and laws of the State. The main argument against the Doctrine of Constitutional Morality as a judicial principle is that it is clearly in 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.

Another point of view advanced by individuals opposed to the notion of constitutional morality is that it has been left up to individual judges to determine its essence and apply it in appropriate conditions.

Furthermore, it impedes the organic and natural evolution of liberalism or the repair of societal wrongs or ethical evils by vesting powers in the hands of the courts to apply a 'top-down approach' in the name of the morality front concept. Judiciary that limits its authority fairly and removes its jurisdiction sparingly when needed is not subject to public scrutiny and lacks accountability.

Conclusion
Constitutional morality is a feeling that should be instilled in the minds of all responsible citizens. It may be argued that both Ambedkar and Grote saw Constitutional Morality as a self-imposed restriction by the people to respect the constitutional values, rather than as a tool for resisting or resolving government action. However, over seventy years after Dr. Ambedkar made his Constituent Assembly address in 1948, a variety of interpretations of the concept have been assigned by various scholars and courts.

Maintaining constitutional morality is not just the responsibility of the judiciary or the state, but also of individuals. The sort of society we aspire to construct is plainly mentioned in the constitution's preamble; it can only become a reality via constitutional morality.

The judiciary has established progressive and monumental precedents in the last several years, where this theory has been used particularly in circumstances of gender-justice, institutional propriety, social uplift, curbing majoritarianism, and other such ills. The Constitution, embodied with the will of the people to govern them, is not an end in itself, but rather a means to an end, namely Justice, Social, Economic, and Political, a triune phenomenon enshrined as a pledge in the Preambular Glory of our Constitution, and adherence to Constitutional Morality and Judicial Values is inalienable in achieving it.

For the time being, the two-pronged definition of constitutional morality includes: first, a legal mechanism for combating popular morality, and second, a reminder that Courts should keep themselves free of, sometimes rigid, societal beliefs and opinions that need to be revamped for the betterment and overall advancement of the country. Second, it aids in keeping the government responsible by allowing the courts to investigate the spirit and conscience of the Indian Constitution.

As a result, it is correctly classified as a second basic structural doctrine. It is understandably imprecise and ambiguous in its description, as are most other constitutional principles, which are significantly dependent and dependant on the interpretation of judges while giving verdicts in various situations. However, the country's judicial system necessitates it, as does the requirement for judges to fill up the "empty vessels of these theories" with words of legal skill and experience gained through years of practice.

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