Introduction
In a free democratic republic, the contentious tension between constitutional principles and changeable social attitudes has become an object of perpetual legal and judicial reflection. At the heart of such contention is “constitutional morality”-a legal and judicial doctrine that advances constitutional values, human dignity, and individual liberty above mass opinions or traditional social morality.
Constitutional morality is used to protect fundamental rights in cases where social values conflict with rights.
Understanding Constitutional Morality
George Grote, who laid the foundation of the concept of constitutional morality, got its origin in the Indian Constitution through the contributions of Dr. B.R. Ambedkar. He states that the idea of constitutional morality is a special set of sentiments which must be cultivated: A deference to forms, an obedience to results, which cannot be displeasing to the dominant sentiment of democracy.
Core Dimensions of Constitutional Morality
1. Supremacy of Constitutional Values:
The test of validity of the State Action and personal laws shall be based on Constitution and not the society.
2.Protection of pluralism and minorities:
It is a safeguard for minoritarian opinions, non-conformist persons and groups.
3.Transformative Constitutionalism:-The Constitution has to be a device which seeks to transform the society from hierarchy into equalitarianism based on liberty, equality and fraternity.
The Friction Between Social Morality and Constitutional Morality
Social mores consist of the moral values, customs, traditional thinking, and cultural standards of a society at a given time. They are subject to change but often contain forms of racism, patriarchal values, and discrimination.
If social morality influences legal or executive decision-making, it can reduce basic rights:
1. Sectarian or Majoritarian Bias:
Popular majorities may try to curb the individual’s liberty in these respects and specify the choices one can make about his habits as per their ideas of morality.
2. Continued Historical Bias:
Cultural practices can sometimes legitimize discrimination against certain castes, sex, or segments of society.
3. Individual Freedom:
Social morality tends to trample individual freedom, self-determination, and the right to personal choice and privacy.
Judicial Evolution and Landmark Precedents
The Supreme Court of India had over the years defined constitutional morality in such a manner that laws and practices based on regressive values were challenged and struck down:
1. Homosexuality is decriminalized: Navtej Singh Johar v. Union of India (2018)
In decriminalising consensual adult sex by striking down Section 377 of the Indian Penal Code the Court explicitly declared that constitutional morality will prevail over popular morality. The Court underscored that the fundamental rights envisaged in Articles 14, 15, 19 and 21 are to be protected from the test of social morality.
2. Right to Privacy and Autonomy Justice K.S. Puttaswamy v. Union of India (2017)
The nine-judge bench judgment led by Chief Justice N.V. Ramanaheld that privacy is a fundamental right flowing from human dignity and individual autonomy. It acknowledged that personal life choices, choices of personal associations and informational privacy are protected not only against state encroachments but also against societal.Judgment a ruling by an appellate court which said that the defendant had committed an offence.
3. Sabarimala Temple Case/ Indian Young Lawyers Association v. State of Kerala, (2018) – Relating to Ritual Practices and Gender Equality
Supreme Court held that the restriction on entry of women of certain age group to Sabarimala temple is violation of Articles 14, 15 and 25 guarantee of fundamental rights. The Court held that, right to religion under Article 25 is subject to public health, public order and morality – which is constitutional morality and not societal morality.
4. Abolition of Arbitrary Personal Practices: Shayara Bano v. Union of India (2017)
“The Court has held, in declaring Talaq-e-Biddat (instant triple talaq) as unconstitutional, that any arbitrary religious practices offending the dignity of women or the dignity and equality of women, would not satisfy the requirement of Constitutionality.”
Challenges in Applying Constitutional Morality
Though constitutional morality is a crucial weapon for social change, its use can be a matter of debate for the following reasons:
1.Potential for Judicial Overreach:
Without precise guidelines, there is a risk that judges could interpret the principle subjectively, replacing their own values for the statutory law of the legislature.
2. Democratic Legitimacy:
Should unelected judges be the ones to override laws passed by the will of the majority as reflected through elected legislators?
3. Social Backlash and Implementation Challenges:
There may be social resistance to a judicial declaration grounded in constitutional morality if such steps are pushed beyond public acceptance and require effective steps to be implemented.
Rebalancing Constitutionality and Social Change
In order for constitutional morality to be the guiding principle for societal change, not to disrupt the harmony of the machinery of institutions, the legal systems employ the following balancing principles:
1. Objective Standard of Interpretation:
Rather than center constitutional morality on subjective principles, courts interpret directly textually anchored provisions in the Constitution, including the Preamble, Fundamental Rights, and Directive Principles.
2. Dynamic / Living Tree Doctrine:
Various protections of the law should be construed flexibly to bring the law into conformity with changing standards of human rights while remaining faithful to the central principles of the constitution.
3. Civic Education and Institutional Dialogue:
Converting these norms into societal values demands sustained deliberation among the judiciary, the legislature, civil society, and the educational establishment to generate greater societal buy-in of constitutional principles.
Conclusion
Constitutional morality is the moderator, stopping the tyranny of the majesty of the masses and the despotism of despoiled traditions. Social values are bound to change with time. Nevertheless, their change should be monitored with the constitutional guidance of equality, liberty and dignity.
If constitutional principles override social biases, the judicial implementation of constitutional morality realizes the Constitution’s transformative agenda-that all citizens, however unpopular in the court of popular opinion, will be guaranteed the full panoply of individual fundamental rights.
References
2. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1: Unanimously recognized privacy and personal dignity as intrinsic components of the right to life under Article 21.
3. Shayara Bano v. Union of India, (2017) 9 SCC 1: Invalidated instant triple talaq as manifestly arbitrary and violative of fundamental equality.
4. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1: Landmark ruling establishing that constitutional morality supersedes social morality regarding individual identity and sexual orientation.
5. Indian Young Lawyers Association v. State of Kerala, (2018) 11 SCC 1 (Sabarimala Case): Reaffirmed that religious freedom is subject to constitutional morality, gender justice, and human dignity.
