Constitutional Morality: A Pillar of Justice or a Threat to Majoritarian Will?

Context

In recent years, India's courts have increasingly used the concept of constitutional morality to interpret laws and determine their validity. This principle ensures that governance aligns with constitutional values like justice, equality, liberty, and fraternity rather than just following the literal text of the law.

However, this has sparked debates—while some believe it helps promote progressive judgments, others argue it leads to judicial overreach, where courts interfere in policymaking.

What is Constitutional Morality?

Constitutional morality means adhering to the core principles of the Constitution while interpreting laws and governance. It is not just about following rules but ensuring that laws promote justice and fairness.

Why is it Important?

• Protects democracy from authoritarianism or majoritarian rule.
• Safeguards individual rights and freedoms.
• Ensures fair governance and prevents misuse of power.

Key Aspects of Constitutional Morality

1. Rule of Law – Everyone, including the government, must follow the Constitution.
2. Democratic Values – Promotes justice, secularism, and fairness for all.
3. Protection of Rights – Ensures equality, free speech, and protection from discrimination.
4. Institutional Integrity – Strengthens independent institutions like the judiciary and legislature.
5. Tolerance & Pluralism – Encourages respect for different cultures and viewpoints.
6. Judicial Interpretation – Courts use this principle to interpret laws in a progressive way.

Constitutional Provisions Supporting Constitutional Morality

1. Fundamental Rights (Part III)

• Article 14 – Ensures equality before the law.
• Article 19 – Protects free speech and expression.
• Article 21 – Expands the right to life to include dignity, privacy, and autonomy.
• Articles 25-28 – Ensures religious freedom while preventing unfair practices.

2. Directive Principles of State Policy (DPSP) (Part IV)

• Article 38 – Promotes social, economic, and political justice.
• Article 39A – Ensures equal access to justice.
• Article 44 – Advocates for a Uniform Civil Code for equality in personal laws.

3. Preamble – Spirit of Constitutional Morality

The Preamble ensures that India remains a:

• Sovereign, Socialist, Secular, and Democratic Republic.
• Nation committed to Justice, Liberty, Equality, and Fraternity.

4. Separation of Powers & Judicial Review

• Article 50 – Keeps the judiciary independent from the executive.
• Articles 32 & 226 – Give courts the power to strike down unconstitutional laws.

5. Constitutional Amendments and Basic Structure Doctrine

• Article 368 – Allows changes in the Constitution, but not against its core principles.
• Kesavananda Bharati Case (1973) – Prevents unconstitutional amendments.

6. Special Provisions for Social Justice

• Article 15(3) & 15(4) – Allows affirmative action for women, SCs, and STs.
• Article 17 – Abolishes untouchability.
• Articles 330 & 332 – Reserves legislative seats for marginalized communities.

Concerns: Can Constitutional Morality Be Misused?

Some critics argue that constitutional morality can become a dangerous tool if misused.

1. Judicial Overreach

• Courts may act as lawmakers instead of interpreters.
• Example: Navtej Singh Johar v. Union of India (2018) – Decriminalized homosexuality by overruling legislative inaction.

2. Subjectivity and Inconsistency

• The term lacks a fixed definition, leading to varying judicial opinions.

3. Undermining Democracy

• Courts may override the will of the people and elected representatives.
• Example: Sabarimala Case (2018) – Allowed women to enter the temple despite strong public opposition.

4. Selective Application

• Used in some cases but ignored in others, raising questions about fairness.

5. Potential for State Misuse

• Governments might misuse it to suppress dissent under the pretext of maintaining constitutional values.

Dr. B.R. Ambedkar’s Views on Constitutional Morality

• Not a Natural Sentiment – Must be cultivated over time.
• Respect for the Constitution – Democracy requires constitutional principles over personal or majoritarian interests.
• Preventing Arbitrary Rule – Institutions must function within their limits.

Key Supreme Court Cases Upholding Constitutional Morality

1. Kesavananda Bharati v. State of Kerala (1973) – Established the Basic Structure Doctrine.
2. Navtej Singh Johar v. Union of India (2018) – Decriminalized homosexuality.
3. Indian Young Lawyers Association v. State of Kerala (2018) – Allowed women’s entry into Sabarimala temple.
4. Shayara Bano v. Union of India (2017) – Struck down triple talaq, ensuring gender justice.

Conclusion

Constitutional morality plays a crucial role in protecting rights and ensuring fair governance. However, its vague definition and potential misuse raise concerns about judicial overreach and undermining democracy. The challenge is to find a balance—ensuring that courts uphold constitutional values while respecting democratic decision-making.