The doctrine of Constitutional morality By - Abhishek kumar
The
doctrine of Constitutional morality
Abhishek kumar
Amity university patna
Abstract
Through this article, the authors have tried to shed light on
the various facets of the constitution,
Which forms the yardstick on which is gauged the day-to-day
life of a common indian. The
Constitution of india is not just a voluminous book of fancy
words but is a warden’s staff that
Lays down guidelines in deciding matters of paramount
importance.
The authors have also endeavored to highlight most, if not
all, of the aspects of the doctrine that
Forms the pillar of good governance in indian society and
have also tried to justify the importance
Of adherence to the core principles of the constitution as we
head towards a more dynamic, vibrant
And progressive society. Thus, the doctrine of constitutional
morality provides a pit for the analysis
And evaluation of any action or inaction on the part of the
government. In other words, it forms the
Soul of the indian constitution.
Introduction
In the intricate tapestry of democratic governance, india,
the world's largest democracy, has
Embraced the concept of constitutional morality as a guiding
force. This research paper explores
The profound relationship between constitutional principles
and moral values within india's
Dynamic democratic landscape, shedding light on how these
interconnected pillars shape the
Nation's laws and values. Through this exploration, we seek
to understand how india's rich history
Converges with its modern constitutional system, defining
what is just and right within the country.
Hypothesis
Constitutional morality, serving as a guiding light in
democratic societies, intricately connects and
Supports the principles of the rule of law, fair governance,
the profound respect for individual
Dignity, the fundamental right to equality, and the
unhindered exercise of personal freedoms.
Furthermore, it harmoniously aligns with the noble ideals
encapsulated in the preamble, guiding
The pursuit of social justice, the meticulous adherence to
due process, and the establishment oflegal procedures rooted in justice. Our
research, imbued with the spirit of constitutional morality,
Aspires to examine how its sincere observance influences the
practical realization of these
Elements, ultimately bestowing upon us a democratic society
characterized by greater fairness,
Justice, and societal adherence.
Research objectives
?
explore constitutional morality's theoretical foundations and historical
context to
Understand its significance in democratic societies.
?
investigate how constitutional morality influences the rule of law, ensuring
legal order
And accountability.
?
assess the alignment of constitutional morality with the ideals outlined in the
preamble,
Shaping the national ethos.
?
examine the role of constitutional morality in promoting equity, equal rights,
and
Safeguarding individual dignity and personal freedoms.
Research methodology
The research on constitutional morality, as proposed in the
hypothesis, primarily employs a
Doctrinal research methodology. This approach relies on the
extensive examination and analysis
Of existing legal literature, constitutional texts, case law,
and scholarly articles. Its primary
Objective is to comprehensively explore the theoretical and
conceptual foundations of
Constitutional morality, considering its historical context
and evolution within democratic
Societies.
Within this doctrinal approach, a critical review of legal
principles and precedents is conducted,
Permitting an evaluation of the intricate interplay between
constitutional morality and various legal
Components, such as the rule of law, principles of equity,
individual dignity, the right to equality,
And personal liberty. Moreover, it facilitates an in-depth
investigation into the alignment of constitutional morality with the ideals
outlined in the preamble of democratic constitutions and its
Influence on due process of law and the establishment of just
legal procedures. This methodology
Allows for a nuanced analysis of the topic, paving the way
for a comprehensive understanding of
The role of constitutional morality within democratic
societies.
What is constitutional morality?
The doctrine of constitutional morality means strictly
abiding by the core principles of the
Constitution as envisaged by the forefathers to head toward a
welfare society forged with the tenets
of social equality, economic progress, and cultural awareness.
How we interpret the word 'morality'
Becomes imperative in understanding the doctrine. If we go by
the definition of the word as
Prescribed by the cambridge dictionary1
It reads as 'the quality of being right, honest or
Acceptable'. In other words, it can be cataloged as a
descriptive definition of the word. It is only in
The form of a normative definition that we can truly embody
the idea of morality in deciphering
The core legal principles of the constitution. Thus, the
fundamental instinctive belief behind the
Concept of constitutional morality is that in the absence of
it, no matter how carefully the
Constitution might have been drafted, it will inherently lead
society to a downward slope and put
Its administration in a chaotic and capricious state. The
recognition of diversity and plurality paves
The way for the sense of inclusivity among the different
communities, and this forms one of the
Central tenets of the doctrine of constitutional morality.
Principles in constitutional morality
The concept of the rule of law forms one of the most critical
aspects of the doctrine of
Constitutional morality. The rule of law forms an effective
supplement to natural law. It is the
Mother formula for good governance in every democratic
society that guarantees fundamental
Rights to its citizens. It is one of the pillars of the
modern world and is widely considered necessary
1https://dictionary.cambridge.org/dictionary/english/moralityfor
sustained economic growth and cultural and social development. It forms the
backbone for the
Just administration of the society and functions on the
notion of 'supremacy of law above
Everything else.2
. As the eminent jurist albert venn dicey has penned down in
his authoritative
Work, 'the law of the constitution.'3
That a man can only be punished for the breach of the law in
An ordinary course and for nothing else, thus evoking a
spirit of legal predominance above
Everything else. The constitution itself does not often
guarantee this legal spirit. Still, it is the
Result of a host of judicial decisions that have erected the
sense of determining the rights and
Liabilities of the parties involved in the cases brought
before the courts of this country. Under the
Indian constitution, the concept of the rule of law has been
embarked upon by many provisions
Of the constitution. Article 14 of the constitution of india
enumerates that the state shall not deny
Any person equality before the law or equal protection of laws
within the territory of india.
Although the concept is american in origin, its vibrant
nature has been well-suited to the equally
Diversified population of the country. No one should be
considered to be above the law. All actions
And inactions on the part of an individual against another
individual or an association or actions of
A corporation against a group of bodies shall be adjudged
with equal accountability bearing on
Both sides, i.e., every act done without any legal
justification brings equal accountability, be it any
Government official or any sweeper. However, the law of
equality has an inherent limitation
Subject to its constitutional guarantee. The right to
equality can be exercised among groups of
People or individuals who are on an equal footing when it
comes to their economic and social
Status. Still, it is only when un-equals are treated equally
that it vitiates the principle of reasonable
Classification, which calls for a special/preferential
treatment that is to be bestowed upon some
Special groups. Thus, the principle of reasonable
classification has to satisfy the two tests as
Perceived by the constitution, i.e., firstly, the motive for
differentiation must be fetched on
Intelligible differentia, and secondly, the rationale based
on which a group is differentiated from
Another should have a strong nexus to the object that is
sought for through such classification (the
Nexus test). In the landmark decision of state of west bengal
v/s anwar ali sarkar,4
, the supreme
2 rule of law and dicey’s concept
3 Introduction to the law of the constitution, macmillan 1885
4 air 1952 sc 75court struck down the west bengal special
courts act, 1950, which was purportedly enacted by
The state government to regulate speedy trial of certain
offenses, as arbitrary and held in its view
That the concept of speedy trial did not from a judicious
criterion for application of the principle of
Reasonable classification, and therefore violative of article
14 of the constitution. Another
Judgment that laid down a detailed commentary on the
interconnectivity of the fundamental rights
Enumerated in articles 14, 19, and 21 (often regarded as the
golden rights) is in maneka gandhi
V/s union of india.
5. These three articles together are often regarded as the
golden triangles of the
Constitution of india as often they are to be interpreted
together in deciding an important point of
Law arising out of any contention of any of these three
articles as they are mutually dependent on
Each other. The court observed that 'the law must therefore
now be settled that article 21 does not
Exclude article 19 and that even if there is a law
prescribing a procedure for depriving a person
Of personal liberty, and there is consequently no
infringement of the fundamental right conferred
By article 21 such a law in so far as it abridges or takes
away any fundamental right under article
19 would have to meet the challenges of that article.’ thus,
the supreme court reversed its own
Judgment rendered in the gopalan’s case6
And made the golden rights interconnected to each other
And held that any law depriving a person of his fundamental
right guaranteed under article 21 must
Not only stand the test of such an article but the test of
the other two articles as well as mentioned
Under articles 14 and 19.
In the grand tapestry of the indian constitution, the
preamble stands as an eloquent prologue,
Articulating the noble aspirations and values that the
framers of the constitution sought to enshrine.
While the term "constitutional morality" may not be
explicitly etched in these hallowed words, the
Preamble's essence profoundly resonates with the principles
inherent in the concept of
Constitutional morality.
"we, the people of india," it begins, invoking the
collective will and wisdom of the citizenry, thus
Establishing the fundamental principle of popular
sovereignty. The commitment to a "sovereign,
Socialist, secular, and democratic republic"
encapsulates the pillars upon which the edifice of
Constitutional morality is constructed. "sovereign"
bespeaks the nation's autonomy, affirming its
5 air 1978 sc 597
6 a.k. gopalan v/s. State of madras, air 1950 sc
27independence from external influence yet maintaining a delicate balance with
the global
Community. It is a reaffirmation of the state's commitment to
governing in consonance with the
Constitution, in accordance with the moral precepts it
embodies. "socialist" embodies the idea of
Economic and social justice, a commitment to equitable
distribution of resources and opportunities,
Underscoring the constitutional morality that underpins the
quest for a just and fair society.
"secular" signifies a profound respect for the
diversity of faiths and religions, elevating the
Principle of religious harmony to the status of a
constitutional virtue. It reflects the enduring
Commitment to religious freedom and the peaceful coexistence
of all beliefs, a cornerstone of
Constitutional morality. "democratic" heralds the
spirit of participatory governance, where every
Citizen's voice is both heard and valued. Democracy, a
lodestar of constitutional morality,
Encompasses the principles of equality, freedom, and the rule
of law. "republic" encapsulates the
Fundamental principle that the head of state is chosen
through popular mandate, thus reaffirming
The democratic fabric that is intricately woven into the
constitution. The idea of participatory
Governance, where laws are supreme, lies at the heart of
constitutional morality.
In the poetic language of the preamble, the moral and ethical
values that underpin the nation's
Governance are brought to life. It serves as the guiding
star, illuminating the path towards a just,
Fair, and equitable society—true to the ideals of constitutional
morality.
Another important aspect of the doctrine of constitutional
morality is the concept of justice, or
Rather, to be precise, the concept of socio-economic justice.
The constitution of india solemnly
Promises to all its citizens justices-social, economic, and
political; liberty of thought, expression,
Belief, faith, and worship; equality of status and of
opportunity; and to promote among all fraternity
Assuring the dignity of the individual and the unity of the
nation. These are stratified under three
Parts of the constitution, namely the preamble, the
fundamental rights, and most importantly, in
This context, the directive principles of the state policy.
Although the directive principles are
Devoid of being legally enforced, these are the intrinsic
ideas that were perceived by the makers to
Transform india into a welfare state. What makes an effective
reading of the constitution is the
Simultaneous reading of the preamble along with the chapter
of directive principles which vividly
Renders the picture of the concept of socio-economic justice
as envisaged by the forefathers. Theplanning of justice according to the basic
necessities of all has been the pedestal of socio-economic
Justice. 'A bare minimum' has been the crux on which the
different government policies are
Promulgated. At the very outset, the principles expect the
distribution of social benefits according
To necessity, which needier person can get benefits under
art. 41 it is expected that the state shall,
Within the limits of its economic capacity and development,
make effective provision for securing
The right to work, education, and public assistance in case
of unemployment, old age, sickness, and
Some other cases of undeserved want under art. 42, 43
provisions include social justice. The
Constitutional (44th amendment) act, 1978 inserted clause 2
in art. 38, which provides that the
State shall, in particular, make all the necessary endeavors
to minimize inequalities in income and
To eliminate inequalities in status, facilities, and
opportunities not only among individuals but also
Amongst groups of people residing in different areas or
engaged in different vocations. According
To the hon’ble chief justice gajendra akar-“in this sense,
social justice holds the aims of equal
Opportunity to every citizen in the matter of social and
economic activities and to prevent.
Inequalities.” In the case of air india statutory corporation
v/s united labour union7
, a three-judge bench of the supreme court has explained the
concept of justice as follows: -
The concept of ‘social justice’ consists of diverse
principles essential for the orderly growth and
Development of personality of every citizen 'social justice,
therefore, is not just a simple or single idea of the society, but an essential
part of the complex social change to relieve the poor of their misery, etc.,
from handicaps penury to ward off distress and to make their life livable for
the greater good of the society at large'.
What makes for a valid ground for discussion while adhering
to the principles of constitutional
Morality is the distinction between 'due process' and
'procedure established by law .'while the
Former gauges the concept of law as per its legislative
ambit, that is to say, whether the law has
Been formed with regard to the legislative procedures and
whether it has been correctly
Implemented by the executive following the procedures
established by law, the latter is an
Exhaustive concept. Under the concept of the 'due process of
law,' the courts will check not only
7 air 1997 sc 645the procedural validity of the law but also
the fact that whether it adheres to the principle of natural
Justice or not. The indian judiciary is a mix of both, with
the concept of due process getting an
Upper hand, as it is fair to say that a law should not only
be reasonable but be just and judicious as
Well. The concept of due process of law gained leverage in
the indian constitution when its
Accurate interpretation was laid down in the famous american
case of mathews v/s eldrige 8 where
The threefold test for determination of constitutional
sufficiency to administrative procedures was
Laid down. Following the footsteps of the us supreme court,
the supreme court of india, in the
Case of maneka gandhi9
, accepted the determinable points, which are:
• if there is a law in place that empowers the state to take
away someone's life and freedom,
• whether the parliament has the authority to enact the
relevant legislation;
• whether the assembly followed the right steps when passing
the law
The judgement in "nct delhi vs. Union of india”
10 reflects the importance of constitutional
Morality in upholding the principles of democratic governance
and federalism. It emphasizes that
Government authorities must work in consonance with the
constitutional values of the
Representative government, respect the mandates of the
people, and adhere to the principles of
Federalism as articulated in the indian constitution.
The adoption of the constitution with a pledge to bring forth
the spirit of following its principles
To the core laid the cornerstone of the doctrine of
constitutional morality. Individual dignity has
Been another core principle of this sacred doctrine, which
has become significant in the flurry of
Judgments laid down by the supreme court in recent years. In
the case of navtej singh johar11 the
Hon’ble supreme court decriminalized consensual same-sex
relations, affirming the lgbtq+
Community's rights and recognizing their equality before the
law, but in the case of supriyo v.
Union of india12 the hon’ble supreme court acknowledged the
rights of couples but did not
8 424, u.s. 349
9
Ibid no. 5
10 civil appeal no. 2357 of 2017 supreme court of india
11 air 2018 sc 4321
12 supreme court of india, writ petition (civil) no. 1011 of
2022, 2023 insc 920legalize marriage equality. While same-sex relationships are
protected by the constitution, the act
Of marriage itself remains prohibited. The court has
entrusted the parliament with the responsibility
Of deciding whether to enact laws pertaining to marriage. In
its ruling, the court urged the
Government to address discrimination faced by same-sex
couples and established a committee for
This purpose. In the case of ks puttaswamy13 the hon’ble
supreme court upheld the fundamental
Right to privacy, establishing a crucial precedent for the
protection of personal freedoms in the
Digital age; it can be seen how laudably the supreme court
has utilized the ideas of constitutional
Morality by assuring individuals' dignity, life, liberty, and
freedom. The judgment in joseph
Shine.14 underscores the paramount importance of individual
dignity, autonomy, and personal
Freedom in personal relationships. The court recognized that
section 497, which made adultery a
Criminal offense, was rooted in gender stereotypes and
discriminated against women by treating
Them as the property of their husbands. The archaic law was
unjust and a violation of individual
Dignity as it undermined the autonomy and agency of
individuals in matters of their personal lives.
Through this analysis, it can be short that mutual respect is
the fulcrum of fraternity, which assures
Human dignity.
Conclusion
In the legal saga, constitutional morality unfolds as a
guiding luminary. This ethereal theme shapes
The constitutional discourse and provides the metronome for a
harmonious coexistence of
Individual freedoms and societal values. It pays tribute to
the essential balance in democratic
Governance, highlighting how the constitution, similar to a
symphony, brings together diverse
Elements to create a fair and harmonious society.
13 air 2017 10 scc 1
14 (2019) 3 scc 39