Constitutional morality

Published on 14 Jan 2025

Constitutional morality means adherence to or being faithful to the bottom-line principles of constitutional values. It includes a commitment to an inclusive and democratic political process that protects both collective and individual interests. Constitutional morality is not a natural sentiment but has to be cultivated. The elements of constitutional morality include individual liberty, the right to equality, the rule of law, social justice, procedure established by law etc.

Significance of Constitutional Morality

• Highlights constitutional supremacy: Constitutional morality places the Constitution above all other laws, establishing it as the ultimate authority that guides the actions of government and citizens.

• Example: The Supreme Court in the Sabarimala judgment stressed the constitutional morality of Articles 14 and 25 to allow women entry into Sabarimala.

• Expansion and protection of fundamental rights: Constitutional morality facilitates better interpretation of the Constitution and thus widens the scope of fundamental rights.

• Example: In the Naz Foundation case, the Delhi High Court struck down IPC Section 377 as it violated Article 21 based on the principle of constitutional morality.

• Nullify discriminatory public morality: Certain practices that are socially acceptable but work against individual rights get struck down when the Constitution gets supremacy.

• Example: In the Independent Thoughts vs Union of India case, the Supreme Court struck down the 2nd exception of IPC 375 which dictated that a man who has sexual intercourse with his wife over 15 does not commit rape.

• Strengthen judiciary: The judiciary can review the policies of the government to be within the limits set by the constitution and thus make judicial review more effective.

• Example: The Supreme Court by striking down Section 497 of IPC in the Joseph Shine case used constitutional morality to make the review more relevant.

• Social justice: Constitutional morality requires the state to protect the interest of the minority and demands citizens to treat one another with a sense of brotherhood which brings social justice.

• Checks and balances: Constitutional morality prevents any one branch of the government from exercising unchecked power. It also maintains a balance between the individual right to liberty and the state’s powers to impose reasonable restrictions.

Criticisms of constitutional morality

• Absence of fixed definition: The open-ended nature of the concept makes its interpretation subjective and increases the discretionary powers of the judges.

• Leads to judicial overreach: The power to interpret constitutional morality makes the judiciary more powerful which tilts the balance of power in their favour.

• Against basic tenets of democracy: The judiciary imposing such changes upon the state and the society is against democratic principles as the judiciary is not a body accountable to the public.

Despite criticisms, the idea of constitutional morality has been relevant in protecting the rights of the individual and ensuring the supremacy of the Constitution. It has facilitated the judiciary to do away with many discriminatory practices and has restored social justice.

Tags:
Polity

Keywords:
Constitutional morality constitutional supremacy fundamental rights Checks and balances

Syllabus:
General Studies Paper 2

Topics:
Indian Constitution