Polity Notes 16

Constitutional Morality

Constitutional Morality is a philosophy that requires citizens and the branches of government to be imbued with the core principles and values of the constitution. It is not merely about adhering to the text but about embracing the spirit of the constitution, which includes a commitment to liberty, equality, fraternity, and procedural propriety.

• Origin and Ambedkar’s View: The term was most prominently articulated by Dr. B.R. Ambedkar in the Constituent Assembly on November 4, 1948. While defending the detailed administrative provisions in the Draft Constitution, he quoted the Greek historian George Grote, who defined Constitutional Morality as a “paramount reverence for the forms of the constitution.” Ambedkar argued that “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 Indian soil which is essentially undemocratic.” He foresaw that the success of the Indian democracy would depend not just on the text of the Constitution but on the willingness of its people and institutions to follow its underlying principles.

• Judicial Interpretation and Application: The judiciary has resurrected this concept to interpret Fundamental Rights from a higher moral perspective, especially when they conflict with prevailing social morality or customs.

  • Primary vs. Secondary Laws: In its application, the Supreme Court has often distinguished between ‘primary’ universal values (like liberty, equality, dignity, non-discrimination—akin to natural law) and ‘secondary’ man-made laws (traditions, customs, religious practices, and even ordinary statutes). The doctrine of Constitutional Morality posits that when secondary laws clash with primary constitutional values, the latter must prevail.
  • Key Judgments:
    • Navtej Singh Johar v. Union of India (2018): In decriminalizing homosexuality under Section 377 of the IPC, the Supreme Court held that social morality cannot be used to violate the fundamental rights of a segment of the population. Chief Justice Dipak Misra stated, “Constitutional morality is not an emotional feeling. It is the permeating spirit of the Constitution which is above social morality.” The Court prioritized individual autonomy, dignity, and equality over majoritarian views.
    • Indian Young Lawyers Association v. State of Kerala (2018) (Sabarimala Case): The Court, in a 4:1 majority verdict, allowed the entry of women of all age groups into the Sabarimala temple. It ruled that the practice of excluding women in their menstruating years was a form of untouchability and violated their right to equality (Article 14) and freedom of religion (Article 25). Justice D.Y. Chandrachud noted that “to treat women as children of a lesser god is to blink at the Constitution itself.”
    • Joseph Shine v. Union of India (2018): While striking down Section 497 of the IPC which criminalized adultery, the Court observed that the law treated a woman as the property of her husband and was an affront to her dignity and autonomy, thus violating constitutional morality.

• Definition and Scope:

  • Constitutional Morality means a steadfast adherence to the core principles of constitutional democracy, including rule of law, separation of powers, social justice, and individual liberty.
  • It is an interpretive tool for the judiciary to resolve ethical dilemmas, ensuring that the Constitution remains a living document that evolves with society while holding true to its foundational ideals.
  • The Supreme Court has described it as a commitment to an “inclusive and pluralistic society.” It requires that the “organs of the State must strive to work in a harmonised manner to preserve the unity and integrity of the nation.”

• Criticism and Challenges:

  • Vagueness and Subjectivity: Critics argue that “Constitutional Morality” is an undefined and amorphous term, making its application subjective and dependent on the personal philosophy of individual judges. This can lead to uncertainty in law.
  • Judicial Overreach: Its use can be seen as a tool for the judiciary to expand its powers, encroaching upon the domain of the legislature. Pratap Bhanu Mehta, a scholar, has argued that it can become a “cover for judicial usurpation of power.”
  • Anti-Democratic Potential: The idea that a few unelected judges can invalidate long-standing traditions and customs based on their interpretation of constitutional morality is seen by some as anti-democratic, as it overrides societal consensus and legislative will.
  • Conflict with Religious Freedom: In cases like Sabarimala, it raises complex questions about the judiciary’s role in interpreting ‘essential religious practices’ and balancing individual rights with the collective rights of religious denominations.

Article 29 & 30- Cultural and Educational Rights

These articles form a crucial part of the Fundamental Rights, aiming to protect the interests of minorities and preserve the cultural diversity of India.

Article 29: Protection of interests of minorities

Article 29 is structured in two clauses:

• Article 29(1): It guarantees that “any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”

  • Scope: The Supreme Court, in cases like the Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974), has held that the phrase “section of the citizens” is not confined to minorities only but includes any group with a distinct culture, which could even be a majority community. This right is therefore universal for all cultural groups.
  • Political Implications: In Abhiram Singh v. C.D. Commachen (2017), the Supreme Court clarified aspects of the Representation of the People Act, 1951. While an appeal to religion, race, caste, etc., for votes is a corrupt practice, the court has previously ruled that seeking votes on the promise of conserving a language does not amount to a corrupt practice, as it aligns with the fundamental right guaranteed under Article 29(1).

• Article 29(2): It states that “No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

  • Nature of Right: This is an individual right, available to every citizen, irrespective of whether they belong to a majority or minority community. It prevents discrimination in state-funded or state-maintained educational institutions.
  • Historical Context - Champakam Dorairajan Case: In State of Madras v. Smt. Champakam Dorairajan (1951), the Madras government’s policy of reserving seats in medical and engineering colleges based on caste and religion (the Communal G.O.) was challenged. The Supreme Court struck it down, holding that it violated Article 29(2). This judgment directly led to the First Constitutional Amendment Act, 1951, which inserted Article 15(4), enabling the state to make special provisions for the advancement of socially and educationally backward classes.

Definition of Minority

The term ‘minority’ is not defined in the Constitution. The judiciary has provided clarity on this matter.

• Judicial Definition: A minority is a community which is numerically less than 50% of the population.
• Unit for Determination: In the landmark case of T.M.A. Pai Foundation v. State of Karnataka (2002), an 11-judge bench of the Supreme Court held that the unit for determining religious or linguistic minority status would be the State, not the entire country.

Article 30: Right of minorities to establish and administer educational institutions

This article grants specific rights to religious and linguistic minorities.

• Article 30(1): “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

  • The phrase “of their choice” confers a wide discretion, allowing minorities to establish not just institutions for imparting their own religion or language, but also secular educational institutions.

• Article 30(1A): Inserted by the 44th Amendment Act, 1978, this clause provides that if the property of a minority educational institution is compulsorily acquired, the compensation paid must be such that it does not restrict or abrogate the right guaranteed to them. This was to safeguard their rights after the Right to Property was removed as a Fundamental Right.

• Article 30(2): “The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

• Scope and Limitations (Not Absolute):

  • The right is to “administer” but not to “mal-administer.” In the T.M.A. Pai case, the Court held that the state can impose reasonable regulations to maintain academic standards, ensure good administration, and prevent commercialization.
  • The state can prescribe qualifications for teaching staff, ensure proper infrastructure, and regulate fees to a reasonable extent (as clarified in P.A. Inamdar v. State of Maharashtra, 2005).
  • General laws of the land concerning public order, morality, health, sanitation, taxation, etc., are applicable to minority institutions.
  • Minority institutions are not obligated to implement the state’s reservation policy for SC/ST/OBCs in admissions or employment, as this would infringe upon their right under Article 30(1).

Article 32: Right to Constitutional Remedies

This article is the cornerstone of the Fundamental Rights, providing an enforcement mechanism.

• Ambedkar’s Vision: Dr. B.R. Ambedkar, during the Constituent Assembly debates on December 9, 1948, famously described it as the most important article: “If I was asked to name any particular article in this Constitution as the most important—an article without which this Constitution would be a nullity—I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it.”

• Key Features:

  1. Guaranteed Right: It guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights.
  2. Power to Issue Writs: It empowers the Supreme Court to issue directions, orders, or writs, including Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.
  3. Empowerment of Other Courts: Parliament can by law empower any other court to exercise all or any of the powers of the Supreme Court under Article 32(2), though this power has not been exercised yet. (Note: High Courts already have this power under Article 226).
  4. Suspension: The right to move the court can be suspended only during a Proclamation of National Emergency, as per Article 359.

• Basic Structure Doctrine: The Supreme Court in Kesavananda Bharati v. State of Kerala (1973) held that judicial review, and by extension Article 32, is a part of the ‘basic structure’ of the Constitution and cannot be taken away by amendment.

Types of Writs

A writ is a formal written order issued by a court. Under Articles 32 and 226, the Supreme Court and High Courts issue five types of writs.

• Habeas Corpus:

  • Meaning: A Latin term meaning “to have the body of.”
  • Purpose: It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. If the detention is found to be illegal, it would set the detained person free.
  • Scope: It is a bulwark of individual liberty against arbitrary detention. It can be issued against both public authorities (the State) and private individuals.
  • Limitations: The writ cannot be issued where: (a) the detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, or (d) the detention is outside the jurisdiction of the court.
  • Historical Context: In ADM Jabalpur v. Shivkant Shukla (1976), the SC took a restrictive view, holding that the right to issue a writ of Habeas Corpus could be suspended during an emergency. This judgment was heavily criticized and effectively overruled by the 44th Amendment Act, 1978.

• Mandamus:

  • Meaning: A Latin word meaning “we command.”
  • Purpose: It is a command issued by a court to a public official asking him to perform his official duties that he has failed or refused to perform.
  • Scope: It can be issued against any public body, a corporation, an inferior court, a tribunal, or the Government. It cannot be issued against a private individual or body, to enforce departmental instructions, or when the duty is discretionary and not mandatory. It also cannot be issued against the President or the State Governors.

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Prelims Pointers

• Constitutional Morality was prominently used by the Supreme Court in the Sabarimala case and the Section 377 (decriminalization of homosexuality) case.
• Dr. B.R. Ambedkar was the first to use the term ‘Constitutional Morality’ in the Constituent Assembly debates.
• Article 29(1) grants the right to conserve a distinct language, script, or culture to “any section of the citizens.”
• The Supreme Court has clarified that “section of citizens” in Article 29 includes both majority and minority communities.
• Article 29(2) prohibits discrimination in admission to state-maintained or state-aided educational institutions on grounds only of religion, race, caste, or language.
• The term ‘Minority’ is not defined in the Indian Constitution.
• In the T.M.A. Pai Foundation case (2002), the SC held that the unit for determining minority status (religious or linguistic) is the State.
• The State of Madras v. Champakam Dorairajan (1951) case led to the First Constitutional Amendment Act, 1951, which added Article 15(4).
• Article 30 grants rights to religious and linguistic minorities to establish and administer educational institutions of their choice.
• The provision regarding compensation for compulsory acquisition of minority institution property was added to Article 30 by the 44th Amendment Act, 1978.
• Dr. B.R. Ambedkar called Article 32 the “heart and soul of the Constitution.”
• The right to move the Supreme Court under Article 32 is a Fundamental Right itself.
• Article 32 is a part of the ‘basic structure’ of the Constitution.
• The President can suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency under Article 359.
• Habeas Corpus is a Latin term meaning “to have the body of.” It can be issued against both public and private authorities.
• Mandamus is a Latin term meaning “we command.” It is issued to a public official to perform his/her official duties.

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Mains Insights

• Constitutional Morality: Judicial Tool or Judicial Overreach?

  • Cause-Effect: The increasing invocation of Constitutional Morality by the judiciary can be seen as a response to the legislative and executive branches’ reluctance to address contentious social issues due to electoral compulsions. This forces the judiciary to step in to protect the rights of marginalized groups.
  • Debate: The central debate revolves around whether Constitutional Morality is a legitimate interpretive principle for advancing transformative constitutionalism or an “unruly horse” that allows judges to impose their subjective values, thereby violating the separation of powers. While it helps in upholding individual dignity against majoritarian norms, its lack of a concrete definition opens it up to criticism of being anti-democratic and promoting judicial supremacy.
  • Historiographical Viewpoint: From one perspective, the framers, especially Ambedkar, intended for a set of unwritten constitutional conventions (morality) to guide the functioning of the state. The judiciary is merely giving effect to this original intent. From another, critics argue that the framers intended for Parliament, the representative body of the people, to be the primary arbiter of social change, not the judiciary.

• Minority Rights (Art. 29 & 30): Balancing Protection with Integration

  • Dilemma: Articles 29 and 30 represent a classic constitutional dilemma: how to protect the unique identity of minorities without fostering a sense of separatism. The rights are intended to create a level playing field and preserve India’s pluralistic fabric.
  • Analysis: The right to “establish and administer” institutions has been interpreted to mean significant autonomy. However, this has led to debates over “reverse discrimination,” where minority institutions may have advantages (e.g., exemption from reservation policies) not available to majority institutions. The judiciary, through cases like T.M.A. Pai and P.A. Inamdar, has tried to strike a balance by allowing reasonable state regulation for academic excellence while preserving the core minority character.
  • Cause-Effect: The judicial interpretation that the ‘State’ is the unit for determining minority status has significant implications. It has led to demands for minority status by groups that are a majority at the national level but a minority in certain states (e.g., Hindus in Punjab or Jammu & Kashmir).

• Article 32: The Guardian of Fundamental Rights

  • Significance: Article 32 transforms Fundamental Rights from mere declarations into enforceable rights. Without it, these rights would be toothless. The evolution of Public Interest Litigation (PIL) has further widened the scope of Article 32, diluting the traditional rule of locus standi and allowing any public-spirited citizen to approach the court on behalf of the oppressed or disadvantaged.
  • Comparison (Art. 32 vs. Art. 226): While the purpose of both is similar, the writ jurisdiction of High Courts under Article 226 is wider than that of the Supreme Court under Article 32. High Courts can issue writs not only for the enforcement of Fundamental Rights but also for “any other purpose,” i.e., enforcement of any legal right. However, approaching the SC under Article 32 is a Fundamental Right itself, whereas the right to approach the HC under Article 226 is a constitutional right.

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