Introduction
The phrase ‘constitutional morality’ has been employed most recently in the context of Section 377 case law. It was first used in the 2009 Naz Foundation judgment and later in the 2018 Navtej Johar judgment. The term has been used as a dichotomy against the idea of ‘social morality’ or popular opinion, seeking to make a clear distinction between the two. This sort of distinction has allowed the judiciary to evolve a jurisprudence that can take an unpopular stand, provided that it can be argued from the constitutional perspective.
There is however, reasonable doubt in adopting such a jurisprudential path- it definitely allows for an evolution of law that can be seen as more utopian, but the challenge it poses is how such an evolution can be justified when it goes against the grain of the popular element of a liberal democracy? What role does social morality play in politics and law if the constitution is the source of the ‘better’ morality? Another problem that arises is the conception of constitutional morality itself- who decides what constitutional morality encompasses? Is such a decision being made by the judiciary a form of authoritarianism?
Over the course of this essay, I will attempt to examine the principles that define constitutional morality and analyse the role it plays and ought to play in the Indian polity.
Defining Constitutional Morality
The 2018 judgment correlates constitutional morality very directly with the idea of pluralism. This warrants some deeper exploration. Before understanding the connection with pluralism, we must understand the modern conception of constitutional morality. Today, it is often used colloquially as the morality held within the constitution and thus refers to the substantive content of the constitution itself. This includes, for example, non-discrimination, secularism, federalism, etc.
However, there is another more or less distinct and alternate definition. Constitutional morality has also often been used as a replacement for constitutionalism. In the Constituent Assembly Debates, Ambedkar quotes Grote:
“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 ascendancy for themselves.”
Implied in the above, is the idea that everyone must adopt the means of the constitution and be willing to work within its framework to achieve their means. This definition talks about a respect for the constitution. This is where the pluralistic concept of constitutional morality arises. It is only when the whole of the community is able to accept the constitutional framework that constitutional morality can be said to have been achieved.
Both of these mostly distinct notions have more or less merged in the terminology that is ‘constitutional morality’ – after all, respect for the constitution arises out of agreement with the substance it espouses, allowing both these notions of constitutional morality to become one. Consequently, we can consider constitutional morality to be a respect for the specific constitutional methods that a certain constitution details.
Some other definitions of constitutional morality exist such as the 19th century understanding of the conventions and protocols in government but these are archaic definitions which we need not delve into for this discussion.
Who determines the substance of the Constitution?
Since we have established that Constitutional morality is based on the substance of a particular Constitution, let us now look at what that substance is. Surabhi Shukla at Oxford University has noticed 4 major sources of determining constitutional morality: i. the text of the Constitution, ii. Constituent Assembly Debates, iii. Events during the framing and iv. Case law.
There is a section of people who believe that this means that constitutional morality is set in stone. In the words of Sajan Poovayya, “Constitutional Morality has nothing to do with decency.”蜉 The Supreme Court must adjudge morality based only on the provided sources of law. Given these sources of law, constitutional morality seems to be defined. Although the text of the Constitution aims to be as unambiguous as possible, in the field of law which has such broad applications, definitions are often modified with changing times. The same text can take different meanings and can change its scope and applicability over time. For example, the definition of ‘sex’ in Art. 15.2 has been expanded to include sexuality. The definition of ‘law’ in Art. 13.2 has also similarly changed to include Constitutional amendments while it previously did not. It is clear that the substance of the Constitution by itself is not constant or absolute- it is dynamic; and so it should be, as law frozen in time has never proven to be good in changing times.
Thus given this dynamism, constitutional morality does not appear to be absolute. The arbiter and interpreter of the substance of the Constitution is the judiciary (effectively, the Supreme Court of India). The Parliament has some scope of amendment; however, amendments which radically change the nature of the Constitution are very rare, especially after the Basic Structure Doctrine was introduced. The question thus becomes one of accepting the opinion of the Supreme Court of India, since therein lies the source of the substance of the Constitution. The problem here is why would an ordinary citizen want to accept this opinion? They have had no stake, even indirectly, in forming it and hence would feel no compulsion to genuinely believe in it.
Ambedkar has hinted at a problem of this nature in his 4th of November speech:
“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”
He links this to the fact that India achieved independence from an undemocratic system and was thrust into a democratic one, not giving the citizens the time to organically inculcate the ethos of constitutionalism.
The trust in the judiciary and the political system, therefore, is not strong enough to warrant respect. The most prominent example in 2018 of this is the Sabarimala matter which saw the people dismiss the Court’s opinion. Violence was the response to the entry of women into the shrine, completely infringing the Court’s orders. A section of society believed that it had a right to take their own interpretation of law (or morality, to be more specific, in this case) as the right one.
The Supreme Court is a body of 31 people, almost completely autonomous and self-regulated without any checks on power and motives. This body has no claim on being a representative of popular sovereignty. Its only claim is that it is a body of people qualified enough to make decisions on issues involving intricate, complex arguments. This provides a very fundamental challenge to the common understanding of democracy. It suggests that there is a structure that exists outside of popular sovereignty that must be respected regardless of its ‘democratic’ legitimacy.
The Space for Social Morality
Grote identified two core elements of constitutional morality: freedom and self-restraint. While the former is the hallmark of the liberal democratic State, the latter is the restriction that guarantees the former and is the focus of what mature constitutionalism entails. Freedom exists in multiple mediums such as expression, movement, trade or association. Self-restraint is something that is required to temper it in a pluralistic society. This takes the form of being able to trust the structure of the State, the Constitutional setup, to implement certain social goals. The aspect of political maturity comes in because it requires the individual to understand that their conception of this social goal will not be the one that is realised. In fact, one could go so far as to say that the realised end of this process is unlike any end imagined by any individual. Instead, it is the output that emerges when the whole community participates in the Constitutional process.
Society therefore has an important role to play, but a strong sense of constitutional morality suggests that in fact this role includes the ability to learn self-restraint before practicing its freedoms. This is the prescription of the liberal State.
The most impassioned response to such a prescription by sections of society tends to be that of defending freedoms at all costs and questioning the need for self-restraint. The answer to that comes from an analysis of power hierarchies.
Constitutional Morality requires a disassociation of various forms. It requires that people’s identities are disassociated from their views and instead there is a culture of trust among people so that each one is able to agree with the other on a common method of reaching a resolution. Disassociation here does not mean that one’s political and personal opinions cannot be related to their identity. Denial of lived experiences and choices are not a tenable argument to make. The only disassociation that is asked of is that of personal prejudices, grudges and opinions. This disassociation is unachievable in a society with skewed power hierarchies. Take the issue of sexuality. A demonization by society of the queer community is predicated on an intense association between the personality of the queer individual and the threat to social order that comes with it. Now a queer person’s policy ideas may be of any kind but because of this existing prejudice, there is a greater chance of dismissing political claims by a queer individual. This consequently leads to a lack of specialized reproductive health or even active victimisation of the community through social boycotts. In such circumstances, it is clear that not every individual is being afforded the same freedoms. There is a flagrant denial of the constitutional principles that place everyone on an equal footing. Besides heteronormativity, patriarchy, caste segregation and class differences are different ways in which power hierarchies and their inherent prejudices can manifest themselves. Once these identities are disassociated, it falls upon a fair Constitutional mechanism to adjudicate the matter and arrive at an end to whatever policy matter is at hand.
It is essential therefore that constitutional morality is enforced to allow this disassociation to occur. If there is no self-restraint on the part of the people, then restraint must be enforced to provide everyone their place in the political system.
It is essential to note that even the individuals who fall within the institutions that compromise the Constitutional setup must have this morality imbued within them. They, more than anyone else, must be able to disassociate these identities. This includes the judges of the judiciary, the civil service in all their functions, the police and elected officials.
Conclusion: The Nature of the Framework
Constitutional Morality, in summation, is an abstract set of rules that everybody respects as a system under which to operate their political goals and ambitions. It is indeed a prescription- it carries some sort of authority, some sense of compulsion. However, it is not by itself imposing a substantive solution.
Constitutional Morality does not aim to tell you how to achieve equality or liberty. It does not aim to set up a socialist order or a laissez-faire model. It only aims to provide a reasonable framework to arrive at some substantive decisions. The notion of constitutional morality is premised on the idea that there can be no true substantive decision that can be called democratic without an efficient framework with which to achieve it.
Therefore, even though constitutional morality asks something of society: self-restraint and the ability to disassociate, it does not actually ask it to change its substantive beliefs, only its methods.
This does not however assume a perfect Constitution. It must be reiterated that the substance of the Constitution is also changing. It cannot be absolute. However, it must be developed distinctly. The call for a complete disassociation between the individual and his/her views also entails two separate realms of political discourse- a constitutional realm and a substantive or ideological realm. In the former, the focus of politics is to find the ideal set of rules which everyone can respect- keeping in mind that here, everyone necessitates every single individual, and not merely a majority of society. Then, within this framework, the latter can be accommodated and will flourish in a more legitimate fashion. A well-functioning democracy requires a strong constitutional structure and ethos to give it a foundation.
The need of the hour in Indian democracy today is an effort to build both the ethos of constitutionalism as well as the development of a more reliable structure for the constitution. The primary issue that has plagued politics in India is the inability to separate the two realms. There has been an effort to make the Constitution a tool of ideological progress rather than a strong structure. The increasing strength of Directive Principles of State Policy which has been used to justify the ban on beef or even the introduction of the word socialist and the Ninth Schedule’s misuse have been attempts to make the Constitution an embodiment of ideological policy.
This is not to say that the Constitution should be left untouched- there is indeed a basis in a constitutional system to question it. There are fears from some people that the Supreme Court is acting like a supra-legislature by imposing its own views through the current scheme. Having given itself complete independence through the collegium and also extended its powers of judicial review through extensive writ litigation, public interest litigations and theories such as the basic structure doctrine, the judiciary enjoys an unprecedented power in the current set-up. There are also questions about the Constitution’s inclusion of reservation and its criteria. All of these discussions come within a political realm that is separate from the typical discussion on how and what amount of social welfare should be implemented, economic policy, or other substantive political discussions. Thus while there is indeed space for constitutional challenges, this space is within the constitution itself. It cannot be taken outside with the use of violence and extra-legal interventions. Using the process of Parliament, Judicial appeal, petitioning and protesting, people must work to improve the framework. There is a need for raising awareness through political education about the necessity for both forms of morality. It is essential for our democracy to mature and survive.
Mihir Rajamane 
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