<![CDATA[Constitutional Morality in India]]>The mention of Constitutional Morality in judgements has become the new norm in the constitutional courts of our country. Recently,  the Supreme Court in the case of Navtej Singh Johar Vs Union of India (2018), popularly known as the LGBT Judgement, has observed that  “even if there is disapproval by the majority of the sexual orientation or exercise of choice by the LGBT persons, the Court as the final arbitrator of constitutional rights, should disregard social morality and uphold and protect constitutional morality which has been adverted to by this Court in several cases”[1]. But KK Venugopal, Attorney General of India, in his personal capacity has said, “ Use of constitutional morality can be very, very dangerous and we cannot be sure where it will lead us. Unless it dies, the former Prime Minister Pandit Jawaharlal Nehru’s fear of the Supreme Court becoming the third chamber of the Parliament may come true.”[2]  This Essay attempts to understand the meaning of this term, its evolution, its scope and its relevance in Constitutional Jurisprudence. It also  addresses the fears and concerns of the Attorney General.

The earliest mention of the term, in India’s constitutional history, dates back to 4th November 1948 when Dr. B. R. Ambedkar in the Constituent Assembly referred to George Grote, an English Historian of 18th century CE. Dr. B.R. Ambedkar said “The diffusion of ‘constitutional morality’, not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendance for themselves.”[3]. Again, he went on to state what Constitutional Morality meant for Grote, “By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.”[4]. A perfect example of it would be the Right to Freedom of Speech and Expression[5] with reasonable restrictions. Dr. B.R. Ambedkar, however had already spoken about it much earlier, though not in any official capacity, to the world at large through his “The Annihilation of Caste (1936)”. In his work, he wrote  that, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic”[6]. Hence, it is not wrong to say constitutionalism is a facet of constitutional morality.

While Grote gives a broad framework for  what Constitutional Morality would mean, Dr. B.R. Ambedkar has talked about the need for nurturing the culture of Constitutional Morality. To bring further clarity on the subject matter, we need to delve deeper to understand its magnitude. ‘Morality’ as per Black’s Law Dictionary means “Conformity with recognized rules of correct conduct”[7]. So how can the constitution by virtue of it being a ‘living document’[8] conform to the recognised rules of correct conduct? It is only when the players and agents of our constitution, namely, the Executive , Legislature, Judiciary and the People in general, play their respective roles as per the constitutional scheme , will  we function in accordance with our constitutional morality. Now, let us examine how well constitutional morality has been observed in these 69 years since the constitution came into being.

THE EXECUTIVE – When the first elected government came into being , Jawaharlal Nehru, the first Prime Minister of independent India, made it a point to be punctual at the Parliament in spite of not having a formidable opposition. This was well recognised by the then members. It was only to set a precedence to parliamentarians, of the present and future, especially those who form the Government of the day. This is in line with  ensuring Government’s accountability to the Parliament. On the flip side, Chandrachud J. of  the Supreme Court in the case of Krishna Kumar Singh Vs State of Bihar (2017) has opined that “successive re-promulgations of the first ordinance issued in 1989 was a fraud on the Constitution”[9]. Another glaring example would be the foul usage of Article 356, which provides for the imposition of President’s Rule and dissolution of the State Assembly in case of failure of the constitutional machinery. In fact, when the Janata Government was formed in the elections held immediately after the national emergency was revoked, the then Union Home Minister on  April  18, 1977, addressed a letter to the Chief Ministers of nine congress ruled States  “earnestly commending” their consideration that they may advise the Governors of their respective States “to dissolve the  State Assemblies  in exercise of the powers under  Art.  174(2)(b) and  seek a fresh mandate from the electorate. This was done allegedly because the then government seriously doubted whether the respective state governments actually enjoyed the confidence of the people. . Such was the audacity of the Union Government in this clear case of a colourable action. However, this particular case was resolved in the case of State of Rajasthan vs Union of India[10].  Till the landmark judgement in S.R. Bommai[11] Case (1994) where guiding principles were laid down by a nine judge constitutional bench it had been almost a de-facto norm that  the Union Government would contemplate unfairly utilising Article 356 to dissolve the State Assembly when the state government was formed by a party other than the ruling party at the centre. Another case in point has been the issue of politicisation of the Office of the Governor which in several cases has been viewed as  being a sort of political retirement. This precedent has been a matter of concern which even prompted Sarkaria Commission (1988) to recommend guidelines[12] on the appointment of Governor to insulate the office from the clutches of arbitrary and unjust politics. An example flowing from the issue discussed above is the recent appointment of Sadasivam, former Chief Justice of India (CJI) as the Governor of the State of Kerala. The moot question to students of law and political science, in this case is whether a person who has graced the office of CJI can be appointed as Governor, which is constitutionally a lower position as per the order of precedence in India? Though, the question can be conveniently answered to strict legal satisfaction, whether would it pass the moral conscience of the Constitution is undoubtedly doubtful.

THE LEGISLATURE – Legislatures in India are constitutionally mandated to have popular houses that commands the trust and the will of the people. And flowing through it the government of the day enjoys the confidence of the popular house thereby indirectly representing the people. With the coming of the era of fractured mandates, large scale defections are a common occurrence . Infact, Gaya Lal, an MLA from Haryana changed his party thrice in a fortnight. This gave rise to the popular term “ Aya Ram Gaya Ram”[13] in political circles. As horse trading became frequent, thereby threatening the stability of the government of the day, the Union Government was forced to legislate the Tenth Schedule[14] to the Indian constitution, popularly known as Anti-Defection law. However, in the post tenth schedule era, A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. It is a clear case of poor display of political ethics, answered in a legal sense. However, would it pass the conscience of constitutional morality? Undoubtedly doubtful.

The infamous JMM bribery case[15] dealt with the question of parliamentarians taking bribes to vote. Supreme court through legal fiction, opined in favour of those MPs who had taken bribes and voted in the house of parliament but held those MPs liable,  who took bribes but did not vote in that particular sitting. Supreme court by creative interpretation of the parliamentary privileges[16] has answered in a strict legal sense. However, would it pass the conscience of constitutional morality? Again  doubtful.

THE JUDICIARY – India, following the annals of Common Law,  considers its Judiciary as the guardian of the Constitution. As a matter of fact, the credit of ensuring that our constitution remains a living document should largely go to our Judiciary. The three great dissenting opinions of Justice Fazl Ali[17] on the right to freedom of speech of expression[18], Justice Subba Rao[19] and Justice Khanna[20] on right to life[21]are beyond significant in this context . Also, the point to be noted is that this dissenting opinion cost Justice Khanna the opportunity to become the Chief Justice of India as he was next in line in seniority to grace the said office. He was eventually superseded by Justice H M Beg.  Quite a case involving constitutional morality. Another, highlighted case was the NJAC Judgement[22] where supreme court struck down the Constitution (99th Amendment) act citing the independence of the Judiciary. It is interesting to note the observation of Justice Chelameshwar, which is as follows: “to permit the Bharati ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of parliamentary function. Nor can the constitutional fascination for the basic structure doctrine be made a trojan horse to penetrate the entire legislative camp fighting for a new social order and to overpower the battle for abolition of basic poverty by the ‘basic structure’ missile’.”  Though, the supreme court has decided upon the subject matter, this question is not strictly answered from the point of constitutional morality. Infact, this question can give eminent jurists of our time a run for their money.  

Recently,  the Judiciary has been in the light for three not so right reasons. One, when it was asserted by the supreme court that CJI is the Master of the roaster. Even in a case where there would be a potential conflict of interest as it happened in the case of Chief Justice Deepak Mishra. Two, when four senior most judges held a press conference to preserve the institution in relation to its internal functioning. Three, when the allegation of sexual harassment against Chief justice Ranjan Gogoi came out in public. Though, the matter has now been sorted by the court, the procedure which was followed in the process raised more than just a few eyebrows. All these three points may have had some legal answer. However, when looked through the lens on constitutional morality, it may require some serious introspection.

THE PEOPLE – While the above stated institutions constitute the essence of the State, it is the necessity, demand and the people as a whole from whom the State derives legitimacy and authority for its very existence. Infact, Enlightenment thinkers, such as , Thomas Hobbes and Jean-Jacques Rousseau made critical study between the “State of Nature[23]” and “Social Contract[24]”, a hypothetical condition that imagined how society would function without and with the presence of state respectively. In the “State of Nature” like scenario, individuals were more or less bound by personal conscience and natural law, while in “Social Contract” like scenario, all individuals cumulatively consent to give up some natural freedom and rights to enjoy the benefits of a political order that provides them all with protection of life , liberty and all this they hold dear. Our constitution puts reasonable restrictions on people exercising their fundamental rights which can be seen as a real-time working of the social contract theory. Another interesting facet on constitutional morality was witnessed in the Flag code case[25], although the case did not quote constitutional morality per se. This particular case dealt with the argument from the state that restrictions on the free use of National Flag is a matter of public policy which were in the realm of the State. Also, The Flag Code of India and the Emblems and Names (Prevention of Improper Use) Act, 1950 were cited to make the case strong, to deny the public use of Flag. The supreme court observed that “The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is that the duty to respect the flag must be strictly obeyed. The pride of a person involved in flying the Flag is the pride to be an Indian and that, thus, in all respects to it must be shown. The state may not tolerate even the slightest disrespect.”[26]

Further, in the N.O.T.A. case[27] dealt with the creative interpretation of Article 49-O of conduct of election rules 1961. In this case, the Supreme Court opined that the right to vote also included the right not to vote and to maintain the same in secrecy. These were instances when the law was silent to its effect, which had to be brought out from the cold chambers.

THE CONCLUSION – Supreme Court has observed that “The silence of the Constitution must be imbued with substantive content by infusing them with a meaning which enhances the rule of law.”[28]. It is precisely at those moments when the constitution is silent devoid of any concrete directives, the players of constitutional game are looked upon to adhere to what are the already recognized rules of right conduct. After all, the fear of our Attorney General on Constitutional Morality being an unruly horse has some truth to it. Hence, we shall conclude with the understanding that constitutional morality is the distance between those actions that may be legally correct but not morally correct and those actions that maybe both legally and morally correct. However, the caveat is that, morality has to be judged upon our constitutional ethos rather than the private values of the person who adorns the constitutional role in our polity.

[1] Para 23, Navtej Singh Johar  Vs Union of India (2018)

[2] Livemint

[3] The Constitution and the Constituent Assembly Debates. Lok Sabha Secretariat, Delhi, 1990, pp. 107-131 and pp. 171-183.

[4] The Constitution and the Constituent Assembly Debates. Lok Sabha Secretariat, Delhi, 1990, pp. 107-131 and pp. 171-183.

[5] Article 19, Constitution of India.

[6] The Annihilation of Caste (1936)

[7] Pg. 3194, Black’s Law Dictionary, 8th Ed 2004.

[8] Pg. 3, Constitution at 67

[9] Para 3, Order of T.S. Thakur, CJI, Krishna Kumar Singh Vs State of Bihar (2017)

[10] State Of Rajasthan & Ors. Etc. Etc vs Union Of India1977 AIR 1361, 1978 SCR

[11] S. R. Bommai v. Union of India ([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)

[12] Para 4.6.09 Chapter IV, Role of Governor, Sarkaria Commission Report, 1988.

[13] The Print, as published on 19th May 2018

[14] The Constitution (52nd Amendment) Act, 1985

[15] Narasimha Rao v. State (CBI/SPE), (1998) 4 S.C.C. 626

[16] Indian Constitution

[17] A K Gopalan vs State of Madras 1950

[18] Article 19, Constitution of India

[19] Kharak Singh vs State of UP

[20] ADM Jabalpur vs SS Shukla

[21] Article 21, Constitution of India

[22] Supreme Court Advocates-on-Record Association vs Union of India (2015)

[23] The leviathan (1651)

[24] Du Contrat social (1851)

[25] Naveen Jindal vs Union of India (2004)

[26] Ibid, 25.

[27] People’s Union for Civil Liberties vs Union of India (2013)

[28] Para 67, Krishna Kumar Singh vs State Of Bihar (2017)

This article is written by Sudar Muthalakan.

Disclaimer:  This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.

Featured image credit: CNBC

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