Constitutional morality and the court

The Supreme Court has in some of its recent judgements, including what are popularly referred to as the Sabarimala and LGBTQ cases, relied on ‘constitutional morality’ as the touchstone to invalidate existing laws or to declare constitutional rights.

Attorney General of India K K Venugopal is reported to have said, in his personal capacity, that constitutional morality is a dangerous weapon and that he hoped it would “die at birth”. Union Law Minister Ravi Shankar Prasad, too, is reported to have said that the term ‘constitutional morality’ required to be defined with clarity.

What then is ‘constitutional morality’ and what are its implications? Can an enforceable constitutional right be claimed or a restriction imposed on the basis that constitutional morality so dictates or can a law be declared invalid by courts on the basis that it is contrary to the principles of constitutional morality? If yes, then should courts become the arbiters of the standards of constitutional morality?

Without getting into the legalese of it, constitutional morality would refer to the morality inherent in the constitutional structure beyond what is literally stated in the Constitution — that which any individual required to act as per constitutional norms ought to follow, even if the same is not specifically stated in the letter.

The more complex question that then arises is as to whether the requirement to follow such implied norms and to act as per them can be enforced as law or demanded as a matter of right or is it intended only to act as a moral compass? For example, if constitutional morality dictates that a person entrusted with constitutional duties must not be accused of serious criminal offences, can such restrictions be imposed by courts even if they are not specifically imposed in the Constitution itself (or in any other law)?

The genesis of ‘constitutional morality’ can be seen in the constituent assembly debates themselves. BR Ambedkar had, in fact, said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people are yet to learn it.”

The context in which Ambedkar made the above statement is extremely relevant. When questioned as to why the structure of the administration required to be mentioned in the Constitution, Ambedkar responded by saying that since Indians were yet to cultivate the sentiment of constitutional morality, “it is wiser not to trust the legislature to prescribe forms of administration.”

The implication of the above discussion during the constituent assembly debates as appear in Ambedkar’s words also appear to be that although it would be ideal if the principles of ‘constitutional morality’ are imbibed by all those requiring to act in accordance with the Constitution, this cannot lead to creation of constitutional rights or restrictions in addition to those specifically set out in the Constitution itself.

The inherent problem lies in the very unpredictable nature of the word ‘morality’. As has repeatedly been seen, this term is capable of such varied and subjective interpretation that while it might be used in an extremely progressive manner, it is also capable of extreme misuse. In fact, ‘morality’ is so flexible a term that it is incapable of a water-tight definition.

The standards of each man’s morality are entirely different. In that situation, for courts to enter into a realm of determining constitutional rights on the basis of constitutional morality could be viewed as or lead to a serious incursion by courts into the legislature’s exclusive domain, which is to legislate.

It is arguable that even if the term ‘constitutional morality’ is not specifically referred to, this principle is inherent in the reasoning adopted by the courts over several decades to expand the scope of fundamental rights of citizens (more particularly the scope of the right to life). It can also hardly be denied that the Supreme Court’s judgements in the recent past have been progressive and veering towards providing citizens with greater liberties.

The broader question though is as to whether they step on the exclusive domain of the legislature and whether they travel beyond the scope of the Constitution itself. The answer is not an easy one — especially since the feeling amongst the common man largely appears to be that the legislature has, by and large, not been quick to take a progressive approach towards the rights of citizens and it is the courts that have stepped in where the legislature failed.

The question, however, still remains as to whether the determination by courts of constitutional rights on the basis of words and phrases which are not to be found in the Constitution at all and are incapable of precise definitions and are extremely subjective would be ideal in a democratic set-up and whether the perceived failure of the legislature could justify such an approach. The answer is not an easy one.

(The writer is an Advocate on Record, Supreme Court)