Constitutional Mortality

  • Q. What is meant by the term ‘constitutional morality’ ? How does one uphold constitutional morality?

Constitutional morality means adherence to the core principles of the constitutional democracy. In classicist George Grote’s perspective, it means “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.”

Constitutional Morality

▪️ In India, the term was first used by Dr. B.R. Ambedkar during his parliamentary debates. In his perspective, it would mean an effective coordination between conflicting interests of different people and the administrative cooperation to resolve it amicably without any confrontation amongst the various groups working for the realisation of their ends at any cost.

▪️ In contemporary usage, it refers to the substantive content of a constitution. To be governed by a constitutional morality is to be governed by the substantive moral entailment any constitution carries. In this sense, constitutional morality is the morality of a constitution itself.

▪️ Its scope is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the Constitution, a socio-juridical scenario providing an opportunity to unfold the full personhood of every citizen, for whom and by whom the Constitution exists.

▪️ The sources of constitutional morality are the text of the Constitution, the Constituent Assembly debates and the events which took place at that period.
Constitutional morality is important for constitutional laws to be effective. Without it, the operation of a constitution tends to become arbitrary, erratic, and capricious.

▪️ An important case which employed this concept in an innovative manner was the Naz Foundation Case which used the concept of constitutional morality to strike down Section 377 of the Indian Penal Code and decriminalise homosexuality.

How does one uphold constitutional morality?

▪️ By letting constitutional morality guide the Court’s decision instead of popular morality, while interpreting the constitution.

▪️ By locating the content and contours of constitutional morality so that it is not being ignorantly and dangerously used in courts.

▪️ By making a commitment to the values like constitutional supremacy, rule of law, liberty, equality, parliamentary form of government, self restraint and intolerance for corruption etc.

▪️ By using it as an aid in making choices because it can give another set of clues while searching for constitutional meaning in cases wherein the words of the constitutional clause can be read in different ways.

▪️By having paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms.

Even the constitution itself mentions this concept only four times (twice in Article 19 and twice in Right to religious Freedom under Article 25 and 26), and it has been understudied and ignored for a long while by people in general as well. It needs to be changed in order to understand the constitution with a new perspective
exploring further possibilities of this concept.

Public conscience, moral order and constitutional morality- ethics of politicians, that constitute the core of policy making, must be very sound and strong if democracy is to survive for the long period of progress and prosperity of the people.

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