The Uncharted Compass, Constitutional Morality as India’s Guiding Light in Turbulent Times

The Uncharted Compass, Constitutional Morality as India’s Guiding Light in Turbulent Times

In the grand, intricate tapestry of a democracy, the relationship between law and morality is a thread that runs deep, often pulling the fabric in different directions. The law, with its black-letter text and enforceable commands, is often seen as the rigid skeleton of the state. Morality, in contrast, represents the fluid, evolving conscience of its people. The perennial question has been: should the law enforce morality? The famous Hart-Devlin debate of the 1960s laid bare the core of this dilemma, weighing the benefits of a shared moral fabric against the pitfalls of imposing majoritarian sentiments. This very tension finds a unique and potent resolution in the Indian constitutional context through the resurgent and often debated doctrine of Constitutional Morality.

This principle, far from being a recent judicial invention, has become the cornerstone of some of the most transformative and contentious verdicts by the Indian Supreme Court in recent years. It serves as a judicial North Star, guiding the interpretation of the Constitution in an era marked by complex challenges to individual rights, federalism, and the very essence of democratic governance. Understanding constitutional morality is not merely an academic exercise; it is essential to comprehend the ongoing evolution of Indian democracy.

The Philosophical Bedrock: Distinguishing Law from Morality

Historically, the line between law and morality was blurred. As noted in the provided text, ancient Indian society operated on the concept of dharma, which encompassed both legal duties and moral righteousness. Similarly, in 1960s Britain, the House of Lords in Shaw vs DPP asserted the law’s role in conserving the “moral welfare of the State.”

However, the modern constitutional state necessitates a more nuanced approach. The danger of simply equating law with popular morality is that it can easily devolve into the “tyranny of the majority,” where the rights and dignity of minorities are sacrificed at the altar of transient public opinion. The Indian Supreme Court recognized this early on, approvingly quoting Justice Franklin’s observation that law must comport “with the deepest notions of what is fair and right and just.”

This complex interplay means the law and morality can exist in a dynamic dance. Sometimes, law leads morality, as was the case with the constitutional abolition of untouchability—a progressive legal step that far preceded societal acceptance, a battle that continues to this day. At other times, law follows morality, as seen in the slow, grudging recognition of gender equality through a series of legislative and judicial interventions over decades. The challenge, therefore, is to ensure that laws are not merely a reflection of majoritarian impulses but are anchored in “fundamental ethical imperatives.”

The Resurgence of a Classical Idea: Defining Constitutional Morality

The term “constitutional morality” was first articulated by the 19th-century historian George Grote in his History of Greece. He described it as a “passionate attachment” to the constitutional forms, combining obedience to authorities with the habits of free speech, legal accountability, and unrestrained criticism of those very authorities. It is, in essence, a culture of respecting the rules of the game even while passionately disputing the outcome.

This concept was masterfully introduced into the Indian constitutional discourse by Dr. B.R. Ambedkar during the Constituent Assembly debates. He presented it as the vital safeguard for a democratic republic being implanted in a society that was “essentially undemocratic.” For Ambedkar, constitutional morality was not a “natural sentiment” but a disciplined culture that had to be consciously “cultivated.” He feared that without this cultivated reverence for constitutional forms and principles, the edifice of Indian democracy would remain a mere “top-dressing” on fundamentally undemocratic soil.

The core of constitutional morality, therefore, lies in the conduct of constitutional functionaries—the judges, legislators, bureaucrats, and the executive. It represents a set of rules of constitutional propriety that go beyond the mere letter of the law.

The Great Distinction: Enforceable Law vs. Governing Convention

A critical clarification, as pointed out by Professor A.V. Dicey, is the distinction between the “law of the constitution” (which is enforceable by courts) and the “conventions of the constitution” or “constitutional morality” (which are not). A breach of a convention, like the expectation that a Prime Minister will appoint ministers of good character, is not directly actionable in a court of law.

However, this does not make these conventions powerless. Their binding force comes from the severe political consequences of their breach. As Justice Venkataramiah observed in the S.P. Gupta case, violation of a convention is a “serious breach of constitutional morality leading to grave political consequences,” such as loss of confidence in Parliament or electoral defeat. The courts, therefore, are not the primary arena for enforcing constitutional morality; the political process and the electorate are.

Constitutional Morality in Action: The Indian Judicial Journey

The true significance of this doctrine emerges from its application by the Indian judiciary in recent years, where it has been used as a transformative tool.

1. The Sabarimala Case (2018): In Indian Young Lawyers Association vs The State of Kerala, a landmark verdict, then Chief Justice Dipak Misra held that the restriction on the entry of women of menstruating age into the Sabarimala temple was unconstitutional. A key part of the reasoning was that “public morality” under Article 25 must be synonymous with “constitutional morality.” The Court held that practices based on patriarchal notions or social customs cannot override the fundamental rights to equality and dignity guaranteed by the Constitution. This judgment powerfully demonstrated how constitutional morality can be used to break down deeply entrenched social taboos and uphold individual liberty against majoritarian religious practices. The subsequent referral of the issue to a nine-judge bench underscores the ongoing jurisprudential tension surrounding this application.

2. The Delhi vs Union of India Case (2018): In the dispute over the powers of the elected government of Delhi and the Lieutenant Governor, the Supreme Court elaborated further. It held that constitutional morality is not limited to mere allegiance to the Constitution’s text. It includes the “liberal values” and “economical decision-making” that underpin a democratic structure. The Court emphasized that it requires constitutional functionaries to act in a collaborative manner, respecting the boundaries of their offices, thereby strengthening the federal spirit and democratic accountability.

3. The Judicial Appointments Case (2019): In the case concerning the non-finalization of the Memorandum of Procedure for judicial appointments, the Court in M. Manohar vs Union of India implicitly invoked constitutional morality. It stressed that the government’s consistent delay and obstruction in implementing the collegium system’s decisions violated the principle of independence of the judiciary, a basic feature of the Constitution. This was seen as a breach of the constitutional morality expected from the executive.

4. The Scope of Judicial Restraint: The Manoj Narula Case (2014): This case perfectly illustrates the limits of judicial power based on constitutional morality. The Court was asked to disqualify MPs/MLAs facing serious criminal charges from becoming ministers. While the Court expressed deep concern and noted that constitutional morality demands that the Prime Minister not choose such individuals, it refrained from creating a new disqualification. It held that such a step would amount to “rewriting” Article 75 of the Constitution. Instead, it rested on a “legitimate expectation” that the Prime Minister would act wisely. This case shows that while constitutional morality is a powerful guiding principle, it does not automatically grant courts the power to legislate or create new legal provisions where none exist.

The Contemporary Imperative: Why Constitutional Morality Matters Now More Than Ever

In today’s socio-political climate, the doctrine of constitutional morality is not an abstract philosophical concept but a vital operational tool.

• A Check on Majoritarian Authoritarianism: In an era where elected governments often claim an absolute mandate to implement their agenda, constitutional morality acts as a brake. It reminds the state that its power is not unlimited and must be exercised within the framework of constitutional values like equality, liberty, and fraternity. It protects minority communities, dissenting voices, and vulnerable groups from being steamrolled by majoritarian politics.

• Guiding the Digital Age: New-age challenges like data privacy, algorithmic bias, and online free speech require a values-based interpretation of existing laws. Constitutional morality, with its emphasis on human dignity and autonomy, provides the ethical compass to navigate these uncharted waters, as seen in the landmark Justice K.S. Puttaswamy (Retd.) vs Union of India case that recognized the fundamental right to privacy.

• Ensuring Executive Accountability: The principle holds the executive to a high standard of conduct. Whether it is the use of ordinances, the granting of pardons, or the appointment of officials, constitutional morality demands transparency, fairness, and non-arbitrariness. Its breach may not lead to a court case, but it can trigger a political and public accountability process.

• Cultivating a Democratic Culture: As Ambedkar foresaw, democracy cannot survive on parchment alone. The “passionate attachment” to constitutional forms—respecting the judiciary, accepting adverse electoral verdicts, and engaging in civil discourse—is the bedrock of a resilient democracy. Constitutional morality is the antidote to the politics of vendetta and institutional subversion.

The Road Ahead: Cultivation Over Litigation

The future of Indian democracy hinges on the continuous cultivation of constitutional morality. This is a project that extends far beyond the courtrooms. It must be ingrained in educational curricula, reflected in political discourse, and embodied by public officials. Judges must wield it wisely, not as a sword to usurp legislative function, but as a shield to protect the Constitution’s soul. Legislators must see it as a code of conduct that transcends partisan politics. Citizens must demand it as their right.

As the provided text aptly concludes, the vitality of constitutional morality is “the difference between a constitution that is merely a document and one that is a vibrant, equitable reality for all Indians.” It is the living spirit that breathes life into the words of the Constitution, transforming abstract guarantees into tangible justice. In a nation as diverse and dynamic as India, this cultivated morality is not a luxury; it is the very ingredient that can ensure democracy is not a mere “top-dressing” but the foundational soil from which a truly just and inclusive society grows.

Questions & Answers (Q&A)

Q1: What is the core difference between “public morality” and “constitutional morality” as understood in Indian jurisprudence?

A1: The core difference lies in their source and function. Public morality is often rooted in prevailing social customs, religious beliefs, and majoritarian sentiments. It can be transient, parochial, and potentially exclusionary. Constitutional morality, in contrast, derives its authority from the enduring values enshrined in the Constitution itself, such as justice, liberty, equality, and fraternity. Its function is to act as a check on public morality. As the Sabarimala judgment initially proposed, when a conflict arises, constitutional morality must prevail. For instance, a social custom (public morality) that denies entry to women in a shrine can be struck down for violating the constitutional morality of gender equality and individual dignity. It is the difference between what the majority believes is right and what the Constitution guarantees as fundamentally right for every individual.

Q2: Based on judicial pronouncements, can a citizen directly sue the government for a breach of “constitutional morality” even if no specific law has been violated?

A2: Generally, no. As per the distinctions drawn by Professor Dicey and affirmed in cases like Manoj Narula, a breach of constitutional morality often involves violating a “convention of the constitution,” which is not directly enforceable in courts. For example, a citizen cannot sue the Prime Minister for appointing a minister with a criminal background solely on the grounds of breaching constitutional morality, as the Court held it could not create a new legal disqualification. However, if a breach of constitutional morality simultaneously violates an enforceable legal right or a specific constitutional provision, it becomes actionable. For instance, if the executive’s action, motivated by a disregard for constitutional morality, leads to a violation of the Right to Equality (Article 14), then it becomes justiciable. The primary remedy for a pure breach of convention lies in the political arena—through parliamentary accountability, public opinion, and electoral consequences.

Q3: How did Dr. B.R. Ambedkar’s conceptualization of constitutional morality highlight its importance for a nascent Indian democracy?

A3: Dr. Ambedkar presented constitutional morality as a necessary cultural bulwark for India’s survival as a democracy. He astutely observed that democracy was being planted as a “top-dressing on an Indian soil, which is essentially undemocratic,” referring to the deeply hierarchical and unequal social structures. He argued that the mere text of the Constitution would be insufficient without a corresponding “paramount reverence for the forms of the constitution” among the people and their leaders. For him, it was not an innate virtue but a disciplined culture that had to be consciously “cultivated” and “learned.” This highlighted his fear that without this cultivated ethos of respecting democratic processes and institutions, the formal structures of democracy could easily be subverted by traditional, authoritarian, or majoritarian tendencies.

Q4: The article mentions that law can both “lead” and “follow” morality. Can you provide examples of each from the Indian context?

A4: Certainly.

• Law Leading Morality: The most potent example is the abolition of untouchability (Article 17). The Constitution outright banned this practice, making it a legal offense long before large sections of Indian society had evolved to reject it socially. The law was ahead of the prevailing social morality, aiming to drag society toward a more ethical standard. Another contemporary example is the decriminalization of homosexuality in the Navtej Singh Johar case (2018), where the judiciary, invoking constitutional morality, invalidated a colonial-era law, thereby leading societal attitudes towards greater acceptance of LGBTQ+ rights.

• Law Following Morality: The evolution of laws against domestic violence illustrates this. For centuries, violence within the household was largely considered a private matter, not a legal one. As societal morality evolved to recognize the rights and dignity of women, the law eventually followed suit, culminating in the comprehensive Protection of Women from Domestic Violence Act, 2005. Similarly, the slow recognition of environmental rights through judicial interpretation (reading the Right to Life under Article 21 to include a right to a healthy environment) followed a growing global and national moral consensus on ecological preservation.

Q5: In the context of the digital era, how can the principle of constitutional morality guide policymaking on issues like data privacy and artificial intelligence?

A5: Constitutional morality provides an essential ethical framework for navigating the digital frontier. Its core principles of individual autonomy, dignity, equality, and freedom can directly inform policy.

• On Data Privacy: Instead of a purely utilitarian approach, constitutional morality would mandate that any data protection law must fundamentally prioritize the individual’s right to control their personal information, as an extension of their right to privacy and dignity (as established in the Puttaswamy case). Policies that enable mass surveillance would be viewed with extreme skepticism.

• On Artificial Intelligence: When deploying AI in governance (e.g., in welfare distribution, policing, or hiring), constitutional morality would demand a focus on non-discrimination and fairness. It would require policies that ensure AI systems do not perpetuate existing social biases (violating equality) and that there is transparency and accountability in automated decision-making to prevent arbitrary state action. In essence, constitutional morality forces policymakers to ask not just “what can we do with this technology?” but “what should we do, in alignment with our foundational constitutional values?”