Author: Yagyanseni Acharya
Student, Vellore Institute of Technology, Chennai
The concept of Constitutional morality was brought to light by author George Grote in his book ‘A History of Greece’ where he analyzed how public sentiment should be a vital part of the democratic Athenian government under Kleisthenes. He examined how these societal forces traveled across the whole society, whether it's the bulk of the minority, from the people to those in positions of authority. This very essential concept was reiterated years later in 1948 by Dr. B.R. Ambedkar in his speech 'The Draft Constitution’ while he addressed the Constituent Assembly.
GROTE AND AMBEDKAR'S PERSPECTIVE ON CONSTITUTIONAL MORALITY
Grote described Constitutional Morality as a sort of utmost compliance with the varied parts of the constitution of the land. He implied that there existed certain obligations for the citizens in addition to the authorities of the state. For Grote, the principles that shaped the elemental rudiments of this idea were-
a. Self-restraint (implies the duties of all the stakeholders in an exceedingly legitimate rule)
b. Plurality (varied nature of the society being administered)
On the opposite hand, in keeping with Dr. Ambedkar, the concept implies the amicable interaction between the people that govern and the people who are governed, including the diplomatic settlement of opposition faced by the latter and the struggle to ascend among them without indulging in any major conflicts or resorting to vicious rebellions. He held the onus of settling the prevailing disparity and inequity within society wasn't simply on the government or the Constitution but also on this principle of constitutional morality. He believed that this belief could help eliminate the disparity and break the shape of management of the country’s constitution.
CONSTITUTIONAL MORALITY AND CONSTITUTIONALISM
The idea of Constitutional Morality isn't something that happens as a natural sentiment but has got to be cultivated within the minds of the people. It is simple words, bowing right down to the foundations of the constitution and not acting in a manner that might prove to be offensive to the rule of law or expression of action in an arbitrary manner. It doesn't limit its observation to the core of the principle but rather embraces within itself a wide magnitude of virtues. Committing to the constitution is itself a facet of this idea.
Constitutionalism refers to a society that's ruled by or under a constitution that establishes essentially limited authority and also the rule of law instead of an authoritarian regime. The democratic rule should be a requirement for constitutional government. Constitutionalism is additionally a natural by-product of a written constitution therein it's required to stipulate and limit the authority of assorted state agencies, and a government governed by a written constitution can only be a limited government. The very manner in which the govt. institutions conduct themselves to attain the objectives of the constitution is the essence of constitutionalism.
ELEMENTS OF CONSTITUTIONAL MORALITY
The state's institutions are urged to keep up with society's diversity by the concept of constitutional morality. As a result, it supports constitutionalism in its truest form.
The Preamble of the Constitution contains the Constitution's fundamental principles, which are called constitutional morality. The Preamble sets forth the elemental principles of the constitution further as its aims and aspirations which are stated partially in III, or the elemental Rights section, of the Indian Constitution. The morality of the constitution in an exceedingly democracy demands the protection of a group of fundamental freedoms for every citizen.
These rights are acknowledged within the constitution's preamble as freedom of opinion, speech, belief, and worship, and furthermore as equality of opportunity and standing. Constitutional morality is indeed the peace of mind that aims to finish all inequity in society and make sure that all and sundry have the tools necessary to uphold their protected rights.
Elements of the Doctrine of Constitutional Morality:-
Rule of Law
Right to Equality
Unity and Integrity of Nation
Freedom of Expression
APPLICATION OF THE DOCTRINE BY APEX COURT AND ITS CRITICISM
Over the years, the concept was merely mentioned within the debates of the assemblies and surfaced in a few judgments as most lacked substance and didn't quite understand the meaning of constitutional morality entirely. But in 2014, a recent surge was seen within the cases where quite a few judges, especially within the supreme court, brought up the term "constitutional morality," wherein they also saw this doctrine as remedying public morality (refers to the prevailing notions of rights and wrongs within society).
In the Navtej Singh Johar case, While the question needed to be discussed against the backdrop of constitutional morality, the bench had been influenced by a social morality that leaned on majoritarian perception. With this factual backdrop on the concept of constitutional morality, the pertinent bench observations are derived as follows:
"It is that the idea of constitutional morality that strives and impels the State's organs to uphold such a various fabric in society, not just within the narrow sense but also in a very type of ways. All three governmental entities are tasked with controlling any tendency toward majoritarianism or popular feeling. Any try to impose one, consistent, homogeneous philosophy throughout the complete society would go against the elemental morals of the constitution. Constitutional morality must not be linked with current beliefs. Devotion and fidelity thereto must be seen in their title.
In the Sabarimala Temple Case, this concept seems to possess faced harsh criticism. The concept of constitutional morality was utilized in the Indian Young Lawyers Association case (Sabrimala Temple case) from both the bulk and minority viewpoints. There seems to be some criticism of this decision's application of the notion of constitutional morality in permitting (with the majority's support) and rejecting (with the minority's support) the relief requested in the writ petition.
The writ petition under Article 32 of the Constitution sought relief for the issuance of directives against the Government of Kerala, the Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple, and District Magistrate of Pathanamthitta to confirm the entry of female devotees between the cohort of 10 and 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala), which has been denied to them on the idea of specific custom and usage.