Governance without constitutional morality

The founding fathers of our Constitution had visualised that the functioning of every limb of the State would be carried on in accordance with the spirit of constitutional morality and culture. Constitutional morality is strict adherence to basic and indispensable constitutional values, forming the part and parcel of basic structure of the Constitution.

That was the principle reason as to why a 13-member Bench of the Apex court by 7:6 majority in Kesavanand Bharathi Sripadagalvari v. State of Kerala has held that the amending power of Parliament under Article 368 of the Constitution doesn’t extend over the basic framework as it is inviolable. Since then the basic structure doctrine has been repeatedly reaffirmed by the Apex Court in a catena of cases. Adherence to constitutional morality and culture invariably promotes rule-based administration in accordance with egalitarian values which ultimately strengthens the whole governance process.

Dr BR Ambedkar had articulated a firm opinion that democracy in India is only top dressed in a society which is essentially undemocratic by its nature due to iniquitous and discriminatory caste system and other irrational social discriminations on the grounds of gender, caste, race, language, religion etc. He also believed ardently that these social, cultural and historical discriminations and injustices can be overcome by strictly adhering to the spirit of the Constitution and integrating the core constitutional values into policy formulation at every stage of governance process down from village Panchayat to Parliament.

What is constitutional morality?
Constitutional morality encompasses the core constitutional values that are either explicitly or implicitly considered as of paramount significance by the framers of the Constitution. Thus, constitutional morality invariably includes, inter alia, the rule of law, egalitarian values and citizenship, respect for plurality of values, opinions and diversity of life, secularism, tolerance, social justice, perfect equilibrium between fundamental rights and directive principles of state policy, fraternity and humanism. These core values that are the bed rock of the Constitution shall operate as the beacon for the building of the nation by sub-serving good governance. If there is any repugnancy between constitutional morality and morality of popular majority then invariably the constitutional morality prevails. Thus, it is quite obvious that morality of the popular majority must always yield to the constitutional morality, demonstrating the primacy nature of the latter.

Supreme Court and Constitutional Morality:
The Supreme Court has played a pivotal role in promoting constitutional morality by pronouncing various trendsetting decisions. In this process, it has acted as the sentinel of the constitutional morality. The Apex Court in Government of NCT of Delhi v. Union of India has held, “Constitutional morality reduces the gap between representation and legitimacy. It is only when political conflicts are regulated through negotiations and accommodation that the enforcement of constitutional principles can be achieved.”

Similarly, the decision of the Apex Court in NALSA V. Union of India recognising a transgender as equal to any citizen and the constitutional guarantee of equality before law and equal protection of laws are also available to them upholds the principle of egalitarian citizenship.

The recent progressive decisions of the Apex Court of far-reaching public importance and implications in succession starting from

Explicit recognition of right of an individual to change his/her faith in accordance with one’s conscience and select marriage partner free from influence of family members, relatives, community etc., as integral to one’s privacy and dignity protected under the Article 21 of the Constitution,

Running down of a substantial part of section 377 of IPC on the ground that it perpetrated discrimination on the basis of sexual orientation of an individual by making consensual adult sex in private in between two persons belonging to the same gender as an offence

Annulment of Section 497 of the IPC on the ground that it perpetuated gender discrimination against women by treating women as chattels of her husband

Invalidation the centuries old practice of barring women in menarche from entering the sanctum sanctorum of Sabarimala Temple

Invalidating Triple Talaq prevailing among Muslims on the ground of discrimination and injustice against Muslim women invariably reinforce the fact that constitutional morality is paramount in its nature and as such, always prevails over the morality of popular majority.

The emphatic observation of Justice DY Chandrachand that “the strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and to whom to marry, lie outside the control of the State, the Court as upholders of Constitutional freedom must safeguard these freedoms”. Thus, the Apex Court has made it clear that constitutional morality can’t be sacrificed at the altar of the social morality.

(Dr Chennupati Divakar Babu - The author is the Principal of Velagapudi Durgamba Siddhartha Law College, Vijayawada)