Constitutional Morality As A Challenge

KEY TAKEAWAYS

• Considering Constitutional Morality as an indispensable part of democratic government is absolutely justified.
• It provides an ethical understanding of the government and other work of governance. The specification of norms of institutions under Constitutional Morality helps in their survival. The norms are also laid down so that their behavior complies with the soul of the Constitution by making them more accountable.
• There is an overlap in Constitutional Morality and judicial values. There is a need for both to offer justice to a person.
• Babasaheb Ambedkar noted the meaning of Constitutional morality as effective co-operation among the interests of people even if they conflict with each other and the administrative co-operation which can help solve those conflicts in a friendly way.
• The concept has been to a great extent mentioned in the Constitution in the section of Fundamental Rights, Directive Principles of State Policy, Preamble and Fundamental Duties.

Click here to enroll masterclass on - The IBC - Theory, and Practice by Adv. Amrita Kharkar

INTRODUCTION

There are nine elements of Constitutional morality. They are rule of law, Right to Equality, Freedom of expression, Preamble, Due process of law, Procedure established by law, Social Justice, Freedom of Choice, and Individual liberty.

There is recognition of plurality and diversity in the society, which helps to make individuals and communities in the society feel more inclusive. In the case of Navtej Singh Johar vs. Union of India, the apex Court provided a foundation so that the rights of LGBTQ can be asserted as they also have the right to dignity, life, liberty, and identity.

Lately, the application of the concept of Constitutional morality has widened its scope and become more significant to interpret the Constitution of India by the Judges. The most infamous application of this doctrine was in the Keshavananda Bharti case, whereexplanation of the basic structure of the Constitution was provided.

There have been more cases in the future, which prove that the concept of Constitutional morality is of dynamic nature and has transformed with the years. In the case of the Government of NCT of Delhi vs. Union of India, it was held by the SC that constitutional morality does not only explain the form and procedures laid down in the Constitution but also provides a framework to allow society the possibilities of self-renewal.

SUPREME COURT AND CONSTITUTIONAL MORALITY

The judgment given in the Sabrimala case was both appreciated and depreciated by the public. The reason for the former was clear, the age-old custom excluding women of menstruating age-group from entering the temple of Lord Ayyapa was held unconstitutional. However, the people who were discontent from this reasoned that the Court should not interfere in people's religious beliefs.

In the above case, the Supreme Court upheld Constitutional Morality and avoided the doctrine of essentiality. The invention of this doctrine was done bya seven-judge Bench in the Shirur Mutt case of 1954. The responsibility of determining the essential and non-essential beliefs and practices of religion were taken by the Court.

A total of seven issues relating to religious freedom in India about individual and group rights has to be decided by the Court and it also has to come up with a uniform policy and precedent with which matter concerning religious freedom vis-à-vis individual freedom can be decided in the future.

IMPORTANCE OF DOCTRINE

Laws can be used to change and influence the never-ending social morality. For example, abolition of untouchability to pass on the right to dignity and life to the “lower caste” people. The same has now positively affected how others view them.

The establishment of Rule of law in the land due to this doctrinecombines itself with the ideals and aspirations of the society.

It also acts as a governing ideal to highlight the need to protect the trust of people in a democracy. In the 20th Century, it is important to understand that good governance means an effective and efficient system that derives authority by legitimate power and not by authoritarian control.

Constitutional morality focuses on performing one's fundamental duties while exercising fundamental rights so that commitment to aspirations of the Constitution is sustained. It also aims to create awareness among the people whose rights are protected by the Constitution.

Freedom and self-restraint has been regarded as the main elements of the doctrine. The latter is a mandatory condition to support freedom, without violating others' right to the same.

CONCERNS RELATED TO CONSTITUTIONAL MORALITY

The first challenge is that the term 'Constitutional Morality' has not been clearly defined or explained by the Supreme Court and thus interpreting same can vary from one Judge to another.

The developments that are taking place quickly in India recently, like the abrogation of Article 370 providing Jammu and Kashmir a special status seem to fuzz down the basic structure of the Indian Constitution.

India is a federal system, where State is not exactly subordinate to the Centre, so the fact that J&K was segmented into two Union Territories without consultation violated the spirit of the Constitution.

Since, explaining the doctrine is a responsibility of the judiciary, it violates the principle of separation of powers in which there has to be balance. Judicial supremacy is established over parliament.

CONCLUSION

The very essence of the Constitution is that it has been implemented with the will of the people to govern them. But this is not an end, it is just a mean to reach the end which is Justice in its broadest sense.

A study of the Constitution is not enough to understand the importance of Constitutional Morality. There is a need to understand the very true essence of Constitutionalismproviding legitimacy to a democratic government. This is much more important than having a written Constitution.

It lays down the principle of judicial control which has helped in providing India with monumental precedents in relation to gender-justice cases and others.

Summarizing all the aforesaid facts it is suffice to say that Constitutional Morality is a sentiment which has to nurture in the minds of a responsible citizen, as upholding the spirit of constitutional morality is also the duty of individuals.