INTRODUCTION

Morality is a system of principles and values concerning people’s behavior, generally accepted by a society or a particular group.[1] It is a set of rules by which the general public regulates their daily life and that is accepted by society.

Morality refers to the morals or ethics that distinguish between what is good and what is wicked. It is the belief that a person’s moral behavior is either right or wrong. Morals are taught through society and the family. When we combine the terms social and constitutional with morality, we get social morality and constitutional morality. In recent years, the concept of social and constitutional morality has grown in importance. Looking at numerous Indian judicial decisions, we can see that India has had a mixed tendency of social morality prevailing over constitutional morality and vice versa.[2]

Indian constitution has been amended or in simple words has been subjected to many changes with time, notable instances include the incorporation of the doctrine of basic structure and others. The judiciary has always played a significant role throughout its time. The phrase Constitutional Morality was used by Dr. B.R. Ambedkar during the constituent assembly debates. He focused on the transitional era when the country was recovering from colonial or partition domination.

Constitutional morality has not been explicitly mentioned in the Constitution but over time with the help of judicial interpretation, it has been introduced, and also through cases this has been interpreted. Naz Foundation vs Government of NCT of Delhi is a landmark case, after which this principle was applied to several cases like the Sabrimala Case, Suresh Kumar Kaushal vs. Naz Foundation, and Navtej Singh Johar vs Union of India.

To understand constitutional morality, it is important to understand the historical background of constitutional morality.

HISTORICAL BACKGROUND OF CONSTITUTIONAL MORALITY:

Constitutional morality, as a judicial test, has its origins in the work of English historian George Grote, who characterized it in the context of Greek democracy during the Athenian period. Grote contended that constitutional morality was a mood among the common people that was required for the establishment of a peaceful and stable government that balanced freedom with constraints. He believed that all citizens would respect the Constitution, and no one would disobey the authorities, acting under the Constitution, all public officials would have to act within the confinement of the Constitution.

In the Indian context, Dr. Bhim Rao Ambedkar used this word during the Constituent Assembly debate to justify the inclusion of administrative details in the Constitution, citing his distrust of the legislature and its authority. Ambedkar included a detailed structure detailing the purpose of the Indian Administrative Services, which was referenced in the Constitution to outline the administrative service’s operation. He argued that only when people were saturated with constitutional morality could they risk eliminating administration matters from the Constitution and leaving them to the Legislature to prescribe. This ideology received little attention after a few mentions in the Constitutional Assembly Debates.

Although there were a few references to constitutional morality in select judgments, the majority of them lacked substance and did not completely comprehend the essence of constitutional morality. Today, constitutional morality is a mood among the general public that is required for the establishment of a peaceful and stable government.[3]

 ROLE OF CONSTITUTIONAL MORALITY IN THE NEW PERIOD OR PRESENT ERA:

Constitutional morality is nowhere mentioned in the constitution of India but it has its essence in the form of the Preamble, Fundamental rights, fundamental duties, and DPSP.

There are some key elements of constitutional morality which are described below:

Constitutional morality is a governing concept that upholds the rule of law while also incorporating community ambitions and goals. It seeks to maintain faith in democratic institutions while also encouraging cooperation to achieve constitutional goals. Constitutional morality can employ laws and forms to influence societal morality, such as outlawing the Sati practice, which granted widows the right to dignity and life. It acknowledges society’s plurality and diversity, working to make individuals and communities more inclusive via ongoing improvement and changes. This strategy enables the pursuit of constitutional goals that would be impossible to attain otherwise.[4]

LANDMARK CASES ON CONSTITUTIONAL MORALITY:

1. Lata Singh vs State of Uttar Pradesh: this case deals with inter-caste marriage where it was believed by the Court that no doubt that inter-caste marriages lead to the development and growth of the country but society did not accept this because the traditional mindset generally but in this case, Court held that every person has right to marry and right to choose the partner under Article 21 of the Constitution of India. The court here in this case directed the police to ensure the safety of inter-caste couples from exploitation.
2. S Khushboo vs Kanniammal and others: this case generally deals with pre-marital sex, especially in live-in a relationship where the Court held that sexual relations between two consenting adults outside of the marriage is not a violation of law, it is valid and legal.
3. Naz Foundation vs Government of NCT of Delhi: this case deals with LGBTQ+ rights and decriminalizing homosexuality. In this case Court shed light on the right to equality, right to privacy, and right to dignity and stated that Section 377 discriminated against homosexuals as a class that is an unreasonable discrimination. Delhi High Court held that certain parts that criminalized homosexuality should be removed but the amendment part they left that to parliament.
4. Suresh Kaushal Judgment: here in this judgment, it was held that homosexuality is a criminal offense and only parliament can deal with it, the Court has no power regarding this. The right to privacy cannot extend that much that one commits an offense under this.
5. Navtej Singh Johar vs Union of India: here, in this case, it was held that section 377 is partially unconstitutional, intelligible differentia is against the order of nature, it was further held that those traditional norms based on morality that are too ambiguous and substantive should be done away. The Court also held that sex includes both biological sex and sexual orientation, the Court finally held that the right to life and dignity includes privacy, dignity, and autonomy.
6. Joseph Shine vs. Union of India (2019): The Supreme Court upheld the right to gender equality and equality by striking down Section 497 of the Indian Penal Code, which made adultery a criminal. The Supreme Court stated that constitutional morality, not the ordinary morality of the state, must lead the legislation at all times in history.[5]
7. Indian Young Lawyers Association .vs State of Kerala (Sabarimala Case): The Supreme Court decided that barring women aged 10 to 50 from entering the Sabarimala shrine violates four essential tenets of constitutional morality: justice, liberty, equality, and fraternity. The phrase “morality” in Articles 25 and 26 of the Constitution, according to the court, relates to constitutional morality rather than popular morality.[6] CJI Deepak Mishra observed in the Sabrimala case that constitutional morality is not merely confined to what is written in the Constitution rather it embraces within itself a virtue of a wide magnitude that ushers in a pluralistic and inclusive society.

 SIGNIFICANCE OF CONSTITUTIONAL MORALITY:

• Constitutional Morality is a commitment to liberty.
• It is Constitutional supremacy and equality.
• It is a synonym for the rule of law.
• It provides self-restraint.
• It is the soul and spirit of the Constitution as it assures that all inequality is eliminated by it from the social milieu.
• It empowers the judiciary to take steps ahead for purposive interpretation as we have written the Constitution it allows room and space.
• It always supersedes majoritarian morality or public morality for a better society.
• It is akin to the doctrine of basic structure and perfect remedy of what is called Constitutional silence.
• Former CJI Mishra laid down four cardinal corners of the Constitution:
• Individual autonomy and liberty.
• Equality sans discrimination
• Recognition of identity with dignity.
• Right to privacy, he focused on the centrality of fraternity to the Constitutional value system.

ISSUES OR CHALLENGES WITH CONSTITUTIONAL MORALITY:

• Vague definition of Constitutional Morality.
• Promotion of Judicial supremacy.
• Dispute with popular morality and religious belief.
• Influenced by personal biases.
• Constitution is applied selectively.
• Could lead to political polarization.
• Economic inequalities may create a challenge to constitutional morality.
• Misinformation and social media may lead to challenges to constitutional morality by misleading the public on constitutional values and principles.

 CONCLUSION:

Constitutional morality is nothing more than obedience to constitutional values; it standardizes the relationship between the state and the person. Constitutional morality is useful in combating certain religious and cultural ideas that may violate an individual’s equality and liberty. Legal solutions can be provided for issues such as marital rape and surrogacy. The basic structural doctrine is a superb example of great legislation; the country needs much more legislation like this because it helped a lot in administering the country.

A society that values constitutional morality values liberty, equality, freedom, and fundamental rights. It acknowledges the importance of the rule of law and the separation of powers. Constitutional morality is a deep devotion to the ideals enshrined in the Indian Constitution. Constitutional morality aids in the fulfilment of constitutional promises; it is a growing field that will undoubtedly result in a more egalitarian society.

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[1] Morality Definition and Meaning, https://www.collinsdictionary.com/dictionary/english/morality (last visited October 11, 2023).

[2] Social Morality vs Constitutional Morality, https://articles.manupatra.com/article-details/Social-Morality-vs-Constitutional-Morality-with-special-reference-to-Navtej-Singh-Johar-V-Union-of-India (last visited October 11, 2023).

[3] The Making of Constitutional Morality by Indian Judiciary: History, Significance and Concerns, https://www.lawctopus.com/academike/constitutional-morality-india/#_ftn1 (last visited October 11, 2023).

[4] Constitutional Morality, https://www.drishtiias.com/to-the-points/Paper2/constitutional-morality (last visited October 11, 2023).

[5] Constitutional Morality, https://vajiramandravi.com/quest-upsc-notes/constitutional-morality/ (last visited October 11, 2023).

[6] Ibid.