A N A S S I G N M EN T

ON

L AW AND M O R AL I T Y

W I T H S P EC I A L R EFE R EN C E T O C O N S T I T U T I O N A L M O R A L I T Y

PREPARED BY-VIMLESH TIWARI

LLM 2ND SEMESTER

ROLL NO. 56 (200013215026)

UNIVERSITY OF LUCKNOW
TABLE OF CONTENTS

 INTRODUCTION

 LAW AND MORALITY

 RELATION BETWEEN LAW AND MORALITY

 LAW AND MORALITY IN CURRENT SCENARIO

 CONSTITUTIONAL MORALITY

 ELEMENTS OF CONSTITUTIONAL MORALITY

 SUPREME COURTS JUDGMENTS

 NEW ERA FOR CONSTITUTIONAL MORALITY

 NEED TO UPHOLD CONSTITUTIONAL MORALITY

 SIGNIFICANCE

 CRITICISM AND CONCERN

 CONCLUSION

 EN D N O T ES
MORALITY IN HIS CONDUCT THERE WILL BE NO EFFECT BUT IF ONE
DISOBEYS THE LAW THERE IS PUNISHMENT FOR THE SAME.

Law and morality are too vague to understand. It must be added here that

the notions of law and justice can't be captured and presented before us

within a few sentences. These notions are too vast that even words are not

sufficient to define them.

1. INTRODUCTION

Law and morality are both too uncertain terms. Many jurists, a philosopher

from ancient Greek time to modern time tried to define these to terms.

These two terms have a vast sphere. the reason for not finding any definite

meaning of these terms can be that both these terms are dynamic in nature,

with the time, situation and place meaning and value of these terms keep

changing.

What is the law? In its literal meaning law is the command of a sovereign

authority, which talks about what kind of behavior is expected of citizens,

what to do what not to. Law helps a state to establish proper order in society

and also as a tool to protect the rights of citizens. We can say the law is a

set of rules and regulations to regulate human behavior in a civilized society.

Law is an instrument for the discharge of justice. In ancient times law was

taken divine originated set of rules to regulate human action.

Modern jurists gave a various definition of law-

According to Salmond law “as the body of principles recognized and applied

by the state for the administration of justice”.

Kelson defined law as “law is characterized no as an end but as a specified

means, as an apparatus of compulsion to which, as such there adheres no

political or ethical value, law apparatus whose value derives rather from

some end which transcends the law’’

All of the definition have common elements in them like a law making

authority, set of rule and regulations, an instrument of justice, protection of

rights of the citizen, a technique of social organization, central idea of law is

what you doing is should be accepted by the social group you are part of.

What is morality? In simple terms, morality is what kind of conducts are

wrong and what kind of conduct are correct. morality is a concept of right

and wrong. And morality has a wide sphere different human beings can have

different moral principle on which they judge a conduct. morality can be

based on several things your religion, culture, society, community, and your

family values. So morality is subjective in nature everybody has different

moral values. for example, female genital mutilation can be against the

moral values of some communities and the same time can be according to

moral values of some [Link] morality does not enjoy that the independent

status as the law. Morality is something an individual’s personal Notion but

accordance to the social group he is part of. Man is a social animal and can

not live in isolation; this can be said reason for the foundation of moral
principals because if you are living in a social group your conduct should be

accepted, so this is situation where morality comes in picture, person living

in isolation not required checking his conduct on morality parameters.

2. LAW AND MORALITY

In general view morality is the quality of being in accord with standards of

right or wrong conduct. Morality, speaks of a system of behavior in regards

to standards of right or wrong. The word carries the concepts of:

(1) Moral standards, with regard to behavior;

(2) Moral responsibility, referring to our conscience; and

(3) A moral identity, or one who is capable of right or wrong action.

Morality has become a complicated issue in the multi-cultural world we live

in today. Timeless wisdom explains that there cannot be a complete law

unless there lays the effect and inclusion of morality.

3. THE RELATION BETWEEN LAW AND MORALITY.

law and morality both overlap sometimes, both of these cannot be exclusive

but sometimes something can be against the law but according to morality

or something against morals can be according to law.

For example, if a hungry needy person stole a piece of bread, if we see this

according to the law then stealing something is against the law but if we see

this situation according to morals then, it is right because the person was

trying to fulfil his fundamental need to keep his soul body together.

In another example a country refuse to give permission to refuges to take

shelter in that country to protect its citizens right and make a law for the

same purpose, it is against the morality because we should help the needy

one but this is lawful. .

The law is also an effective tool to enforce moral values and principal, for

example, every citizen should pay the tax for development of the sate but

there will be less number of taxpayers if there will be no law regarding this.

in another example when we are driving on road we should obey traffic rules

to protect others who also travelling with us, but if there will be no

punishment regarding this nobody will follow these rules only because of

moral values.

The relation between law and morality can be understood by two theories of

law positivism theory and natural law theory.

Natural law theory: according to this theory both law and morality are

connected. According to natural law theorist, human law is based on the

principle of morality, not on any human-made principles.

The term natural law. Status of law under natural theory does not depend on
only acts, but also religion, custom, ethics. this theory talks about what

ought to be. Natural law is inherent and not required any authority to

impose it.

Legal Positivism:-

The start of the nineteenth century may be regarded as the beginning of

the positivist movement. The term positivism has many meanings, which

are tabulated by Professor H.L.A. Hart as follows:

1. Laws are commands. This meaning is associated with the two

founders of British Positivism, Bentham and his disciple John Austin,

2. The analysis of legal concepts is: worth pursuing distinct from

sociological and historical inquiries, distinct from critical evaluation,

3. Decisions can be deduced logically from the predetermined rules

without recourse to social aims, policy and morality,

4. Moral judgments cannot be established or defended by rational

argument, evidence or proof,

5. The law as it is actually laid down, positum, has to be kept separate

from the law that ought to be.

The positive law school has its main pillars as, Jermy Bentham, John

Austin, Prof. H.L.A. Hart, Kelson. Actually positivism has grown out of

the ashes of renascence in Europe. It is hence a liberal thought or a

liberal ideology whose main aim is to bring positive reforms in the

society through the instrument of state and not through the clergy.

The question of how law is related to morality is best approached

through judicial obligations that obligates judges in their role as judges,

and then to further consider how ought judges to use morality in their

decision of disputed law cases? How should morality properly enter into

judicial decisions?

Idea to understand the judicial reasoning is by considering the “obvious

law”. This can be understood with the help of certain examples, which
he cites. When statutes award custody of minor children to a parent it is

most likely in the best interest of the child, award citizenship only to

those applicants who possess good moral character, deport those who are

convicted of crimes of moral turpitude. This shows that judges in legal

systems with obvious law like ours have to make some kind of moral

decisions in order to apply such laws to the cases before them.

With the force of the state behind them, they coerce people into giving

up their money, their liberty and their lives. Such coercion requires

justification, which is of course the (obvious) law, which lays down

certain doctrines of legislative supremacy and the ban on common law

crimes. Some political ideals such as democracy, the separation of

powers, and the rule of law make those doctrines a source of judicial

obligation.

Natural law school dominated till the nineteenth century, beginning from

the ancient Greek period. Natural law school discussed what law is etc.,

but never discussed law as an empirical formula, and never made strict

separation between what law is and what law ought to be. Natural law

thinkers while talking of law talk about law made by man's mind
consciously, as opposed to law made as a result of morality lacking

conscious element. Natural law thinking is one form or other is

pervasive and is encountered in various contexts. Values, for instance, as

pointed out, play an indispensable part in the development and day to

day administration of law. In a different sphere natural law theory has

tried to meet the paramount needs of successive ages through history,

and an account has been given of the ways in which it supported power

or freedom from power according to the social need of the time. Further

natural law school offers a indirect help with two contemporary

problems, namely, the abuse of power and the abuse of liberty.

Positivism on the other hand, by seeking to insulate legal theory from

such considerations refuses to give battle where battle is needed perhaps

wisely, perhaps to its own discredit, depending on the point of view. The

Natural law thinkers have always considered the principles of morality

as higher law and they look at man made law contempt and ridicule.

Law and morality have always been at loggerheads with each other. The

positivists led by Bentham and Austin deliberately keep justice and

morality out of the purview of legal system. Their formalistic attitude is

concerned with law as it is and not law as it ought to be. They emphasize

law from the point of source and implementation. So, the natural law

system depends upon the standards and yardsticks of morality to

formulate any law, whereas the positivist system of law depends upon

the conscious and deliberate attempt of law making.

4. HISTORIC CASE WHERE THE CONFLICT BETWEEN

LAW AND MORALITY CAN BE TRACED.

 R v Dudley and Stephens

[Law and morality – the law knows no defense of necessity]

Three sailors and a cabin boy were shipwrecked and were adrift in an

open boat 1600 miles from land. After they had been eight days

without food, and six without water, DD decided that their only chance

of survival was to kill the cabin boy and eat him, and this they did.

Four days later they were picked up by a passing ship, and on

returning to England were convicted of murder.

Held: Necessity can never be a defense to murder. Their sentence of

death was later commuted to six months’ imprisonment.

Guilty.
 Oppenheimer v Cattermole

[Law and morality- an unfair law should be given preference above morality]

[Link] was a German citizen and working as teacher there. He was

detained for a short time at the concentration camp at [Link] after that

he went to Britain and become British subject. German authorities

determined to make compensation to the employees of Jewish religious

[Link] was given that pension and one more pension

also awarded to him when he turned .

Now the question rose that he is liable to pay tax to the British government

on his pensions or not. If he is the only British citizen then he has to pay

but if he is also a citizen of Germany he can be exempted from this liability.

the case first decide by UK Special Commissioners for income tax

And held that according to German law1913, “hen there were no

complications of the countries being at war, which stated that a German lost

their German nationality if they acquired a foreign nationality without

permission.” he lost his German citizenship and liable to pay taxes.

5. LAW AND MORALITY AND CURRENT SCENARIO

We are now living in the 21st century still there are some issues where law

and morality stand against each other, sometimes law prevail morality and

sometimes morality.

1. Section 377 of Indian penal code,1860 and morality

Section 377 of Indian penal code,1860 is related to homosexuality this

section criminalise all the sexual act which are not according to the nature as

punishable offence and prescribed punishment for the same, these acts

include all the sexual acts which are nonvaginal or not productive, because

of this section the member of LGBT(lesbian, gay, bisexual, transgender,)

facing social discrimination because of there different sexual orientation then

what is normally accepted. If we see this law from moral perspective every

human being should be given equal rights to choose the way they want to

fulfil their needs. But law talks differently, here law prevails the concept of

moral principle.

2. Female genital mutilation

The practice of genital mutilation is practised in India by Dwoodi Bohra

community,

A Shia Muslim community originated from Yemen, settled in the 16th

century in India.

The main reason behind this practice is to follow shariat.

This is against the moral values this practice is very dangerous and

always practised by an untrained person, that not have any kind of

medical expertise, and because of these factors, the victim of this

practice have to suffer physical and mental pain.

Any touching of female genital parts other than medical purpose is a

crime under IPC and pocso act. Something that is criminal cannot be

essential practice; it is against the dignity and privacy of women. Still,

this practice is carried out in India.

3. Nikah halala and morality

Halala is a term that is driven from word “halal” that means something

permissible and according to law. Nikah halala is part of the personal law of

Muslim community. In this practice if a husband divorced his wife, and after

that, if he wants to marry her again then for being eligible to re-marry her

previous husband. The woman first should marry any other man and then

consummate her marriage and after taking divorce from that person, she

can marry her previous husband.

This kind of practices always favour male members of a community, and

should be challenged for checking validity, this is against the general

principle of morality.
4. Refuges and morality

Helping a needy one is a moral duty or according to moral principles. today

some countries in the word have more resources or some have not enough.

So the countries should help each other in this type of situation because of

morality. but what is happing right now is different picture, countries passing

refuge entry preventing law. The reason given is a threat to the nation’s

security, draining of resources and etc. for example the USA government

banned entry of refuses from seven Islamic countries.

5. National registration of citizen(NRC) and morality

Lakhs of Indian’s name is excluded from NRC list in Assam. They can lose

their legitimate citizenship as an Indian citizen. if these citizens are part of

declared foreign(DF) group. On May 2, 2018, the State Coordinator of the

NRC issued an order to all Deputy Commissioners of respective districts of

Assam asking to keep the names of brothers, sisters and other family

members of Declared Foreigners (DF) pending. in other words, if a person is

declared as a foreigner by a foreign tribunal then the name of other family

members, his siblings will be drop out from NRC list. Since 1985, around one

lakh (1,00,000) people have been declared as foreigners. Approximately

20,000 orders of Tribunal (mostly ex parte, that is issued without hearing

both sides) have been set aside by different judicial forums. However, there
are still 80 thousand declared “foreigners”. Let’s assume, on an average, a

so-called “foreigner” has 4 siblings. That makes a total of three lakh twenty

thousand (3, 20,000) siblings. Along with the declared “foreigners”,

this makes up a total of four lakh (4,00,000) people. The family

members of those 4 lakh people will include their children and grandchildren.

On an average at least 6 family members of each person (very liberal

estimate considering higher fertility rate among poor and illiterate people

who have been declared as “foreigners”) thus it makes over two million

people! if we talk from the moral point of view the citizens living for so long

time and suddenly they are declared foreigners and illegitimate, what will

happen to their families? It is not a right thing to ask someone to left a

country or their home after a long time that they settled well in their lives

and contributing in countries progress but law view is something different

according to which it is illegitimate.

6. IS LAW RESPONSIBLE FOR THE ENFORCEMENT OF

RELIGION AND MORALITY?

Pornography, prostitution, homosexuality etc. are areas of one’s own

consciousness and hence it is an area of conflict which is still continuing. So,

does law has got the right to intervene with religious and moral feelings

among people? For example, there is a moral notion in our Indian society

that love marriages or inter caste marriages are not feasible enough and
hence should not take place. Consider the claim that homosexuality is

immoral. I strongly disagree. Now what In a contest between a majority of

state legislators and me and those who agree with me, what privileges the

legislature's judgment of morality. In what way are they experts how being

elected to the legislature qualifies them to make these judgments. Do they

hold hearings on the morality of homosexuality and offer reasons for their

conclusions. Or do they just press a button and register their vote. Most

importantly, how can we assess the merits of their claim? If we cannot, then

in reality they can prohibit whatever they want (and for whatever reason

they want). No matter how objective morality may be, any such doctrine of

constitutional law is recipe for tyranny. Take the issue of living relationships,

which carries a moral ban on it. I don't understand that if two major

individuals with their exercise of free consent decide to live together, where

the question of infringement of any rational standards arises. This shows

that the moral standards are never rational by effect.

Now I ask the question that, should a law be made to enforce such moral

standards. Is such a law not repugnant with the constitutional principles of

liberty and freedom? The legal positivists like, Bentham, Austin, Kelson have

always said that law must never be used as an instrument of enforcement of

any moral standards. Therefore, as one cannot see the mind and conscience,

elements of morality become weak and not determinable. But law is

convenient, the present writer asserts again that it is only convenient; it has

withstood the test of time. At any particular time, for any situation, law

becomes a technique to establish a certain expected social behavior. Morals

may be for enlightenment and would facilitate individual peruses. Therefore

it is thought and envisaged by the present writer, as compulsions and

aspirations influence life, a legal system should consist of principles of

convenience and feasibility whereas morality should be left to individual

freedom and practice. Legal enforcement of these moralities which causes

negative impact in the growth of our society must never be determined.

Law cannot be an instrument of expression of moral standards, rather law

has to be independent of all sought of moral dogmas except certain areas in

which law is dominated by morality. e.g. Legal areas like the business laws,

cyber laws, tax laws, company laws, trade laws, etc are exclusively a legal

treatise and morality has got nothing to do with that of law in such areas.

Take the historical example of SITA whose fundamental and moral instinct

has now changed it into PITA.

But on the other hand we can never deny that a major content of law

derives its content from that of morality. Like that criminal law is a product

of moral notions. For example, all religious and moral norms say not to kill

or not to steel, and it is the same here in law. So, we have almost the same
content between law and morality. The positive thinkers have thought in a

narrow interpretation of law because they overlooked religious and moral

values.

The actual conclusive situation is that religion, morality or law all have the

work of controlling the behavior of individuals of our society, hence we must

not exclude the importance of morality in our society. In the case of

International Humanitarian Laws, certain moral standards are also

recognized as a part of law. So, the absolute separation of law and morality

is not possible in these areas where morality produces a positive effect in

society which is prospective in nature.

There seems to be quite a strong connection between law and morality.

Although people sometimes say "you shouldn't legislate morality", they

presumably don't really mean this - why would we outlaw rape and murder if

they weren't wrong? Instead, I suppose they mean that people shouldn't

impose their personal moral views (especially regarding sexuality) upon

others. I would agree with that sentiment, though my reason is precisely

because I think legislation should be morally informed, and the "moral

views" in question are entirely misled.

Lord Devlin wrote:-

"Society means a community of ideas; without shared ideas on politics

morals and ethics, no society can exist. Each one of us has ideas about what

is good and what is evil; they cannot be kept private from the society in

which we live. If men and women try to create a society in which there is no

fundamental agreement about good and evil they will fail; if, having based it

on common agreement, the agreement goes, the society will disintegrate.

7. CONSTITUTIONAL MORALITY

According to Dr. Ambedkar, Constitutional morality would mean effective

coordination between conflicting interests of different people and the

administrative cooperation to resolve them amicably without any

confrontation amongst the various groups working for the realization of their

ends at any cost.

Constitutional morality has been regarded as a paramount reverence for the

constitution.
Constitutional morality provides a principled understanding for unfolding the

work of governance. It specifies norms for institutions to survive and an

expectation of behavior that will meet not just the text but the soul of the

Constitution. It also makes the governing institutions and representatives

accountable.

Constitutional Morality is scarcely a new concept. It is written largely in the

Constitution itself like in the section of Fundamental Rights (Article 12 to

35), Directive Principle of State Policy (Article 36 to

51), Preamble and Fundamental duties.

8. ELEMENTS OF CONSTITUTIONAL MORALITY

9. WHAT ARE THE SOURCES OF CONSTITUTIONAL

MORALITY?

The concept of constitutional morality remains understudied and that

there has been no agreement over the exact locations. four sources of

constitutional morality - (1) Text of the Constitution;

(2) Constitutional Assembly debates;

(3) Events that took place during the framing of the Constitution; and

(4) Case Law History,

10. SUPREME COURT'S JUDGMENTS AND

CONSTITUTIONAL MORALITY.

Constitutional morality is not limited only to following the constitutional

provisions literally but is based on values like individual autonomy and

liberty; equality without discrimination; recognition of identity with dignity;

the right to privacy. Constitutional morality means adherence to the core

principles of constitutional democracy.

For Example: In Supreme Court’s Sabarimala verdict religious freedom,

gender equality and the right of women to worship guaranteed under

Article 14, 21 and 25 of the Constitution was reinstated which struck down

the practice of banning entry of women of a certain age to the Sabarimala

temple in Kerala as unconstitutional. Constitutional morality here went

against social morality that discriminates against women based on biological

reasons like menstruation. Other Judgments by the Supreme Court defining

Constitutional Morality:

In Kesavananda Bharati Case, the Supreme Court restricted the power of

the Parliament to violate the Basic Structure of the Constitution. In the Naz

Foundation case, the Supreme Court opined that only Constitutional

Morality and not Public Morality should prevail. In Lt Governor of Delhi

case, SC proclaimed constitutional morality as governing ideas that

"highlight the need to preserve the trust of people in the institution of

democracy. In Sabarimala case, the Supreme Court bypassed the “doctrine

of essentiality” to uphold the Constitutional morality.

11. NEW ERA FOR CONSTITUTIONAL MORALITY

In 2014, we saw a surge in the number of cases where judges often referred

to ‘constitutional morality’, especially by the Supreme Court.

In Manoj Narula v. Union of India the Supreme Court had to decide if a

person with a criminal background (or against whom charges had been

framed in a criminal case involving moral turpitude) could be prevented from

becoming a minister in the central or state governments.

Justice Dipak Misra, speaking for himself, Chief Justice Lodha and Justice

Bobde, referred to Babasaheb Ambedkar’s speech in the Constituent

Assembly on constitutional morality. In describing the meaning of

constitutional morality as understood by the bench, he said:

“(constitutional morality) means to bow down to the norms of the

Constitution and not to act in a manner which would become violative of the

rule of law or reflectible (sic) of action in an arbitrary manner. It along with

commitment to the Constitution is a facet of constitutional morality.”

In another important case, NCT of Delhi v. Union of India ,the Court

presented a somewhat different interpretation of constitutional morality. The

Court equated constitutional morality with the spirit of the Constitution itself,

which is quite similar to the basic structure doctrine. Justice Deepak Mishra

wrote:

Constitutional morality in its strictest sense implies a strict and complete

adherence to the constitutional principles as enshrined in the various

segments of the document. It is required that all constitutional functionaries

to “cultivate and develop a spirit of constitutionalism” where every action

taken by them is governed by and is in strict conformity with the basic

tenets of the Constitution.”

Here, one can draw a parallel between the principle of constitutional morality

and the basic structure doctrine. In the Kesavananda case, the Court held

that although the written word gives the parliament unlimited power to

amend the Indian constitution, there are certain restrictions on such powers
from within the Constitution itself. The doctrine restricts the Parliament to

meddle or change the ‘basic structure’ of the Constitution.

In determining what constitutes as the ‘basic structure’, the Court held that

the government’s action could be tested not only against the formal

provisions of the constitutions, but it must ensure that they do not violate

the ‘spirit’, ‘soul’ or ‘conscience’ of the Constitution.

12. NEED TO UPHOLD CONSTITUTIONAL MORALITY

The central elements of constitutional morality are freedom and self-

restraint. Self-restraint was a precondition for maintaining freedom under a

proper constitutional government. To uphold constitutional morality, the

constitutional methods must be used for achieving social and economic

objectives. Commitment to the ideals and aspirations of the

Constitution.

Awareness creation among the common public regarding their rights

which are protected by the Constitution. Following the Fundamental Duties

while exercising Fundamental Rights.

13. CONSTITUTIONAL MORALITY: AN ANTIDOTE TO
PUBLIC MORALITY?

Another series of judgments gave a different interpretation of

constitutional morality. These judgments saw constitutional morality as
remedying public morality.

Public morality refers to prevailing notions of rights and wrongs in our

society.

In fact, courts have historically used public morality to curtail various

fundamental rights, for instance, in State of Bombay v. R.M.D.
Chambarbaugwala While relying on widespread public opinion and an
ancient depiction that claimed gambling as a vice, the Court adjudicated
that gambling was not a fundamental right guaranteed under Article
19(1)(g) of the Constitution.

In another case of a similar vein, Nashirwar v. State of M.P, the

Supreme Court affirmed the power of the State to regulate or even
completely prohibit the sale of liquor. Again, in this case, the Court
reasoned the decision premised on ‘public expediency and public
morality’. In Mr.’ X’ v. Hospital ‘Z’], ‘public morality’ was treated as
an essential factor when determining the precedence of one
competing fundamental right over another.
The Naz Foundation Judgement, however, was a significant departure
from this trend. The Delhi High Court rejected public morality as a
compelling state interest that could justify restrictions imposed on
personal liberty as Article 21 of the Constitution provided.

The Court here also differentiated public morality and constitutional

morality. Unlike constitutional morality, the Court added that popular
morality was ‘based on shifting and subjective notions of right and
wrong’.The Court also argued that for ‘compelling state interest’, the
Court must consider constitutional and not public morality. The Chief
Justice here used Constitutional morality as a tool to counter the
temporary notion of morality as held by the majority.

In Independent Thought v. Union of India , the Supreme Court struck

down the 2nd exception of Section 375 of the Indian Penal Code. The
exception dictated that a man who has sexual intercourse with his wife
who is fifteen years of age or over does not commit rape.

While reading down this provision, the Court used this doctrine. It said:

“Constitutional morality forbids us from giving an interpretation to Exception

2 to Section 375 IPC that sanctifies a tradition or custom that is no longer
sustainable.”[24]
In this case, the principle of constitutional morality was applied to
counter the prevailing societal norms, which consider women the
property of men with no sexual and bodily autonomy.

In another string of decisions, the Court similarly applied this principle.

In the Navtej Singh Johar case, Justice Chandrachud, while
distinguishing between constitutional and public morality, recognised
society’s popular notions and its shadow on laws. On the other hand,
constitutional morality requires that the rights of an individual should
not be affected by these popular notions.

Further, he elaborated that constitutional morality reflects that the ideal

of justice is an overriding factor in the struggle for existence over any
notion of social acceptance.

Three judges held that the judiciary needs to transform society or

convert public morality into constitutional morality.

In the Joseph Shine Case,]the Court struck down Section 497 of the
Indian Penal Court. This section of the IPC selectively criminalised a
man for having sexual intercourse with a married woman.

Justice Chandrachud found that this section was based on the nineteenth
century’s social and sexual convention, which disregarded women’s
sexual agency and considered her husband’s exclusive possession. He
rejected this notion and said,

“it is not the common morality of the State at any time in history, but rather
constitutional morality, which must guide the law.

This judgement is all the more critical as J. Chandrachud pressed for the
consonance between criminal laws and constitutional morality.

In the Triple Talaq Case also, the Court engaged with constitutional
morality but did not use this argument to abolish the practice. However,
the principle once again came to light in the Sabarimala Judgement

Sabrimala Judgement and Constitutional Morality: One

Principle, Multiple Interpretations

Interestingly, in the Sabarimala case, constitutional morality was

common among the majority (allowing the relief) and minority view (to
decline the relief). The judgment dealt with whether women aged
between 10 to 50 years old could be denied entry into the Sabrimala
temple sanctum sanctorium according to religious tradition and custom.
The majority opinion, delivered by CJI Justice Dipak Misra, observed:

“The term ‘morality’ occurring in Article 25 (1) of the Constitution cannot be

narrowed down and be viewed in terms of what it means to be an individual, a

section or religious sect. In cases where there is a violation of fundamental

rights the term ‘morality’ naturally implies constitutional morality and the

Constitutional Courts decision must be in conformity with basic principles of

constitutional moralitythat emanates from the constitution itself.” he added,

“Having said so, the notions of public order, morality and health cannot be

used as colourable device to restrict the freedom to freely practise religion and

discriminate against women of the age group of 10 to 50 years by denying them

their legal right to enter and offer their prayers at the Sabarimala temple for the

simple reason that public morality must yield to constitutional morality.“

Concurring with the majority view, Hon’ble Justice Chandrachaud

observed:

“Constitutional morality is not subject to fleeting fancies of every time and age

but is deeply rooted in fundamental postulates of human liberty, equality,

fraternity and dignity. Freedom of religion and, likewise, the freedom to manage

the affairs of a religious denomination is subject to and must yield to these

fundamental notions of constitutional morality. In the public law conversations

between religion and morality, it is the overarching sense of constitutional

morality which has to prevail.”

However, differing with the majority view, Justice Indu Malhotra, in her
minority opinion, observed:

“Equality and non-discrimination are certainly one facet of Constitutional

morality. However, the concept of equality and non discrimination in matters of

religion cannot be viewed in isolation. A balance is required to be struck

between the principles of equality and non-discrimination on the one hand, and

the protection of the cherished liberties of faith, belief, and worship guaranteed

by Articles 25 and 26 to persons belonging to all religions in a secular

polity, on the other hand. Constitutional moralityrequires the harmonisation

or balancing of all such rights, to ensure that the religious beliefs of none are

obliterated or undermined.“

In this judgement, different judges used the same principle to arrive at

entirely different conclusions. Justice Mishra and Justice Chandrachud
clearly said that public morality should give way to constitutional
morality. And no religious denomination can use it to deny the women
their legal right to pray at the temple. On the other hand, Justice Indu
Malhotra spoke about harmonising various rights guaranteed by our
Constitution. She stressed that the concept of equality and non
discrimination in matters of religion could not be viewed in isolation. In
the aftermath, several issues and criticisms were raised regarding this
principle of constitutional morality.

14. SIGNIFICANCE

Constitutional morality ensures the establishment of rule of law in the

land while integrating the changing aspirations and ideals of the society.

Constitutional morality as a governing ideal that highlights the need to

preserve the trust of the people in institutions of democracy. As such
an ideal, it allows people to cooperate and coordinate to pursue
constitutional aspirations that cannot be achieved single-handedly.

Constitutional morality can use laws and forms to impact and change
the persisting social morality. For example, by abolishing the practice
of Sati by legislation, the right to dignity and life was passed on to the
widows which later on affected the perception of the practice in the
society.

Constitutional morality recognizes plurality and diversity in society

and tries to make individuals and communities in the society more
inclusive in their functioning by constantly providing the scope for
improvement and reforms. For example in Navtej Singh Johar v.
Union of India, the SC provided a framework to reaffirm the rights of
LGBTQ and all gender non-conforming people to their dignity, life,
liberty, and identity.

15. CONSTITUTIONAL MORALITY: CRITICISM AND

CONCERN

Many legal scholars have raised concerns regarding the Apex Court’s

understanding and application of the principle of constitutional morality.

Attorney General of India, K.K Venugopal, said,

“Use of constitutional morality can be very, very dangerous and we can’t be

sure where it’ll lead us to. I hope constitutional morality dies. Otherwise, our

first PM Pandit Nehru’s fear that SC will become the third chamber might come

true.”[33]

The law minister also took a critical view of the Supreme Court’s usage

of the principle of constitutional morality. He said,

“We hear about Constitutional Morality, we appreciate innovations but

nuances of Constitutional moralityshould be outlined with clarity and should

not differ from judge to judge and there must be a consensus.“ [34]
At some levels, these apprehensions are well found. As of now, there is

no clear consensus regarding the content and contour of this principle.

Due to this vagueness, the fear is that it would get subjected to the

personal values and biases of the judges.

If this doctrine is used without any limit or restrictions, it could amount

to judicial overreach. In his latest book, ‘From The Trenches’, Senior

Advocate Abhishek Manu Singhvi commented on the usage of

constitutional morality in the Sabrimala case.

He said that phrase is full of subjectivity. And maintained that the

judicial approach to constitutional morality could vary from judge to

judge like the proverbial ‘Chancellor’s foot’.[35] Hence, this deviation and

whimsical use could make the judiciary ignorant. Therefore, a standard

needs to be set to avoid legal inconsistencies and arbitrariness.

In Kantaru Rajeevaru v. Indian Young Lawyers Association [36], the

Supreme Court decided to refer to a larger bench on defining

constitutional morality. The Court observed that the expression is not

defined anywhere in the Constitution. And contours of this expression

need to be delineated to prevent it from becoming subjective.

Various jurists have also tried to define this term. Justice Nariman, in

the same case, asserted that the spirit of the Constitution forms

constitutional morality. According to him, it consists of nothing but the

values inculcated in the Constitution, contained in the Preamble, read

along with Part III and Part IV.

16. CONCLUSION

Constitutional Morality is a sentiment to be cultivated in the minds of a

responsible citizen. Upholding constitutional morality is not just the duty

of Judiciary or state but also of individuals.

“There are moments when I think that the future of Democracy in India is very

dark. But I do not want to say that I have no other moments when I feel that if

all of us put our shoulders together and pledge ourselves to “Constitutional

morality”, we should be able to build up a regular party system in which there

could be liberty equality and fraternity.

Indian Constitutional jurisprudence is living proof of how the judiciary has

shaped the Constitution and its effectiveness by assigning newer doctrines

and tests. By interpreting the meaning and power vested in the

Constitution, the judiciary has given doctrines and tests such as the ‘Basic

Structure’, ‘Arbitrariness’ and ‘Manifest Arbitrariness’. None of which

finds any mention in the text of the Constitution.

The phrase ‘constitutional morality’ is also a making-of judicial

interpretation, and the phrase doesn’t fashion explicitly within the

Constitution Although not formally recognized as a consistent doctrine, its

addition and interpretation facilitated some of the most important and

liberal judgments over the past few years. Though Constitutional

Assembly debates mention constitutional morality, its meaning and

importance are not discussed in as much detail. Even after our Constitution

came into force, it found a passing reference in some cases here and there

with no significance. The phrase garnered attention in the last decade

during the Naz Foundation Case. In this case, the Delhi High Court

applied this doctrine to strike down Section 377 of the Indian Penal Code.

After 2014, this principle was applied in several landmark cases such as

the Manoj Narula Case, Navtej Singh Johar Judgement, NCT of Delhi

v. Union of India, Joseph Shinie Case, Independent Thought v. Union

of India, and most famously, Sabarimala Judgement. In this context, it is

imperative to understand the background and history of this doctrine, how

our courts have applied it in various situations, and the future it beholds.
ENDNOTES

1..thomas aquinas: summa theologica i-ii q. 90 a. 4).

2. servais pinckaers: pour une lecture de veritatis splendor, paris, 1995, pp. 41-42.
3. pope john paul ii, address to the international union of catholic jurists, nov.24,2000.
4. alasdair macintyre, after virtue, 1984 (2nd edition), p. 152.
5. no one more than holmes promoted legal positivism. today his views are being called more
and more into question. for an incisive criticism, see: alschuler, albert: law without values. 6. 6.
the life, work, and legacy of justice holmes, university of chicago press, 2002.

7. "the law is a great thing - because men are poor and weak, and bad. and it is great, because
where it exists in its strength, no tyrant can be above it" (anthony trollope: the duke's children,
ch. 61).
8. positivism and separation of law and morals (1957-58) 71 harvard law review at p 601 n
the philosophy of a law, ed. r.m. dworkin, oxford university press, london, 1977.

dr babasaheb ambedkar, writing and speeches vol 17 part ii (first published 2003, dr ambedkar
foundation 2013) 378.
. george grote, greece (first published 1846, peter fenelon collier, 1899
11. constituent assembly debates of india, vol. 7, at p. 31.
12, kesavananda bharati v. state of kerala, (1973) 4 scc 225.
13. s.p. gupta v. union of india, (1989) supp (1) scc 87.
14. islamic academy of education v. state of karnataka, (2003) 6 scc 697.
15. niranjan hemchandra sashittal v. state of maharashtra, (2013) 4 scc 642.
16. manoj narula v. union of india, (2014) 9 scc 1.
17. state (nct of delhi) v. union of india, (2018) 8 scc 501.
18. the state of bombay vs r. m. d. chamarbaugwala, 1957 air
19. nashirwar etc. etc vs the state of madhya pradesh, 1975 air
20. mr. ‘x’ v. hospital ‘z’, 1998 supp(1) scr 723.
21. naz foundation v. govt. of nct of delhi, 160 delhi law times 277.
22. independent thought v. union of india, air 2017 sc 4904.
23. joseph shine v. union of india, 2018 sc 1676.
24. shayara bano v. union of india, (2017) 9 scc 1.
25. indian young lawyers association & ors vs the state of kerala & ors., (2019) 11 scc 1.
26. staff reporter, ‘use of constitutional morality very dangerous, hope it dies’ (the quint, 9th
december 2018) < constitutional morality must die or sc could become parliament’s third
chamber, as nehru feared: a-g venugopal> accessed 10th september 2020.
27. staff reporter, ‘apply yardstick of constitutional morality evenly: ravi shankar ….’ ( the new
indian express, 27 nov 2018) apply yardstick of constitutional morality evenly: ravi shankar
prasad. accessed 15 sep. 2020.
Staff reporter, ‘the challenge of constitutional morality before the supreme ….’ (the leaflet, 26
mar 2020) the challenge of constitutional morality before the supreme court. Accessed 17 sep.
2020.
Kantaru rajeevaru v. Indian young lawyers association, (2020) 3 scc 52.

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