The Constitutional Morality Debate: Should Courts Reflect Social Norms or Lead Them?

Abstract

Constitutional morality, the bedrock of Indian jurisprudence, requires courts to give precedence to the values of the Constitution—justice, equality, liberty—over societal norms. This article discusses the conflict between whether courts must reflect societal values or set in motion transformative change, discussing major judgments, constitutional principles, and international approaches. Landmark judgments such as Navtej Singh Johar point to courts playing a role in the furtherance of rights, but judicial overreach and backlash from society present difficulties. The article suggests an equitable judicial strategy, synthesizing leadership and public interaction, to synchronize constitutional morality with India's diversity-rich society.

Introduction

The Indian Constitution, envisioned as a revolutionary charter, aims to eliminate systemic injustices through its underlying principles. Constitutional morality, as spelled out by Dr. B.R. Ambedkar, directs courts to set aside such principles above fleeting social mores. The argument for whether or not the courts ought to mirror public opinion or spearhead progressive reform has strengthened with decisions on privacy, gender equality, and decriminalization. The article examines the extent of constitutional morality, its application by courts, and the tension between mirroring and shaping norms, attempting to assess the judiciary's role in India's social change.

How the concept of Constitutional Morality Evolved?

In Indian context, the word Constitutional Morality was first propounded by Dr. B.R. Ambedkar in November 1948 in parliamentary debate with respect to the details of administration included in the draft constitution. Ambedkar, drawing on the work of Grote, formulated his understanding of constitutional morality as an effective coordination between conflicting interests of different people and the administrative cooperation to solve those issues or conflicts amicably without indulging in any major confrontations or resorting to violent revolutions. According to him, constitutional morality was the answer to the existing disparity in the society and the doctrine primarily translated to respect among stakeholders in a republic for Constitutional democracy as the accepted form of governance and administration.

Conceptual Framework

Constitutional morality is rooted in the Constitution's Preamble and basic rights, which highlight justice, liberty, equality, and fraternity. Provisions that are pertinent are:

• Article 14: Guaranteed equality before the law.

• Article 15: Prohibits discrimination based on religion, caste, sex, etc.

• Article 21: Secures life and personal liberty, including dignity and privacy. 

In Navtej Singh Johar v. Union of India (2018), the Supreme Court has described constitutional morality as compliance with these principles against those derived from popular opinion. Internationally, this is consistent with constitutionalism in legal systems such as in South Africa, where the courts prefer equality over tradition under the 1996 Constitution.

Landmark Judgements that shaped the Contemporary Interpretation of Constitutional Morality

Indian Courts used constitutional morality to oppose backward norms:

• K.S. Puttaswamy v. Union of India (2017) 10 SCC 1: Established privacy as a fundamental right under Article 21, asserting individual autonomy in spite of social opposition.

• Navtej Singh Johar v. Union of India (2018) 10 SCC 1: Legalised homosexuality under Section 377, IPC, appealing to constitutional morality to protect Articles 14 and 21 against moralistic values.

• Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1: Allowed women's entry into Sabarimala temple, favouring equality (Article 14) over religious tradition.

• Joseph Shine v. Union of India (2018) SCC OnLine SC 1676: Struck down adultery laws (Section 497, IPC), quoting gender equality against patriarchal practices.

These decisions highlight courts' leadership in bringing laws in consonance with constitutional ideals, though they welcome criticism for circumventing democratic mechanisms.

Significance of Constitutional Morality

1. Protects and maintains enforcement of rule of law in the nation: CM essentially means to submit to the principles of the Constitution and not to behave in a way which would turn out to be violative of the rule of law or exhibiting an action in a whimsical manner. Because the doctrine is likely to query both the government as well as the citizens, it encourages individuals to become an integral member of the system and combat the inequalities and non-constitutional aspects.

2. Encouraging and reaffirming the democratic values of the country: The doctrine encourages friendly cooperation and coordination of all the stakeholders, particularly between citizens and the state, for working towards constitutional aspirations.

Therefore, it refers to the belief of spreading the trust of citizens on democratic institutions Further, as the idea imposes a burden on the role of State authorities to act in accordance with the Constitution, it means the people respecting State authority, as long as they operate within the limits of the Constitution, and being endowed with the constitutionally protected right to openly criticize State authorities for their wrongdoing.

3. Cause a constructive change in the notion of societal or public morality: 

The doctrine of constitutional morality can be employed for reading down laws or statutes which are not in consonance with the prevailing time. For example, while enacting the law against Sati, the right to life and dignity has been transferred to the Indian widows who were previously thought to be bringers of ill-luck and bad fortune.

But since the enactment of this law, there has been an apparent change in the popular mentality which also contributed to granting them additional rights like those of remarrying and being educated after the demise of their husbands.

4. Encouraging diversity, assisting in the inclusIvity of society: Constitutional morality is particularly relevant for a dynamic and pluralistic nation like India which has acquired a heterogeneous populace with so many additional subclassifications: caste, religion, colours, sexual orientation, languages, genders, etc. As 'plurality' is one of the most important ethos of the doctrine of constitutional morality, it accepts this difference and heterogeneity and encourages diversity, making the society inclusive.

5. Similar to the doctrine of basic structure:

Along with basic structure doctrine, CM is also referred to as one of the 'Constitutional Silences'. Similar to the basic structure test, it applies unexpressed constitutional restrictions upon the government and prevents government's actions from violating the spirit, soul or conscience of the Constitution.

6. Gradually towards Constitutionalism: Constitutional morality is a concept that pushes the organs of the State to maintain the diverse nature of the society. Therefore, it supports the effectiveness of Constitutionalism in the real sense.

Comparative and Critical Perspectives

Worldwide, courts strike a balance between reflection and leadership. The U.S. Supreme Court's Obergefell v. Hodges (2015) legalized gay marriage, reflecting Navtej Johar's forward-thinking approach. South Africa's Minister of Home Affairs v. Fourie (2005) moved towards marriage equality based on constitutional values. In India, judges such as Justice D.Y. Chandrachud are advocates for courts being change agents, while the Law Commission's 272nd Report (2017) advises caution against overstepping. Reflecting norms risks perpetuating inequalities, but leading change can invite backlash, as witnessed in Sabarimala protests.

Challenges in Application

• Judicial Overreach: Progressive decisions could intrude into legislative domains, diluting democratic legitimacy.

• Societal Resistance: Rulings such as Sabarimala were accompanied by extensive protests, rendering enforcement tricky.

• Ambiguous Definition: Constitutional morality's imprecision results in variable judicial application.

• Cultural Pluralism: India's cultural diversity makes uniform application of progressive values difficult.

• Public Trust: Regular activism runs the risk of undermining feelings of judicial impartiality.

Recommendations

1. Develop judicial standards to establish constitutional morality's parameters for uniform application.

2. Release public awareness campaigns to bring societal values in line with constitutional precepts.

3. Promote judiciary-legislature communication to prevent fears of overreach.

4. Learn incremental reforms in culturally delicate matters from the gradualist approach adopted by South Africa.

5. Enforce mechanisms rigorously to ensure compliance with transformative rulings.

Conclusion

Constitutional morality empowers Indian courts to bring about social change, as seen in privacy, equality, and dignity rulings. As transformational leaders become essential to break down backward-looking norms, courts will have to solve issues such as overreach and opposition. An integrated approach—mixing principled leadership, judicial restraint, and public outreach—can help courts transform society without losing legitimacy, realizing the Constitution's visionary ideals.

References

1. Constitution of India, Articles 14, 15, 21, Preamble.

2. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

3. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

4. Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.

5. Joseph Shine v. Union of India, (2018) SCC OnLine SC 1676.

6. Obergefell v. Hodges, 576 U.S. 644 (2015).

7. Minister of Home Affairs v. Fourie, (2005) ZACC 19 (South Africa).

8. Law Commission of India, 272nd Report on Assessment of Statutory Frameworks of Tribunals in India, 2017.Universal Declaration of Human Rights, Articles 7, 8, 1948.

9. https://timesofindia.indiatimes.com/readersblog/pracin-jain-academy/constitutional-morality-28110/

10. https://www.legalserviceindia.com/ 

DISCLAIMER- This article has been submitted by Priyanshu Dadhich, trainee under the LLL Legal Training Program. The views and opinions expressed in this piece are solely those of the author.