Constitutional Morality: An agency of Social Change

Supreme court in the recent year or so has laid profound emphasis on the constitutional morality and its prime position in Indian Jurisprudence. Indian constitution was a culmination primarily of a political struggle and not of a social struggle. Unlike America and France, India did not go through a revolution before adopting our constitution. And rightly so, our journey towards independence is called as a 'freedom struggle' and not an 'Indian Revolution'. Societal pariahs which existed before independence continued afterwards. The task of social transformation was entrusted upon constitution and its institutions. And therefore, its no wonder, that constitution and its institutions often find themselves on the opposite side of social morality.

1. Importance of Constitutional Morality

Constitutional morality is a tool to achieve ideals envisioned and engraved in our constitution. Realization of these ideals demand adherence to the constitutional morality. The SC in Sabarimala encapsulates the purpose of Constitutional morality in following lines:

The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.

2. Constitutional Morality and Public Morality

Social mores try to justify themselves by taking shelter into Article 19(2) which places restrictions on rights guaranteed under Part-III of the constitution. This article says that:

Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

'Public morality' mentioned in above article is often confused to be a mention of societal morality which are at times reflection of majoritarian values. Supreme court has clarified that morality mentioned in Article 19(2) indicates to constitutional morality. In Sabarimala, it says that:

We must remember that when there is a violation of the fundamental rights, the term "morality‟ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution.

3. Constitution Morality as a safeguard against Majoritarian Values

Constitution strives to assist every individual to realize their potential. It guarantees equality, liberty, justice and fraternity assuring the dignity of every individual. Every individual has a right to self identify and self realize. As is populary said et domus sua cuique est tutissimum refugium – A man‘s house is his castle. The SC in Sec 377 judgement says that:

The concept of constitutional morality would serve as an aid for the Court to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be. The idea of number, in this context, is meaningless; like zero on the left side of any number

4. Constitutional Morality as a guiding principle for law making

In a polity based on parliamentary democracy, governments reflects majoritarian choice in the society. To secure rights of minorities, constitutional probity demands adherence to constitutional morality while drafting laws for society as a whole. The SC reiterates in Adultery case that:

It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity.

Constitution is the supreme law of the land and therefore constitutional morality overrides every other sense of morality and correctness. Supremacy of constitutional morality is crucial for carrying out the social transformation entrusted upon the constitution by our fore fathers.