It was Dr. Ambedkar who perhaps first used the term Constitutional Morality in the Indian context. However, in recent cases the Supreme Court has pronounced it repeatedly and therefore has attracted attention. In this article, we’ll try to see what Constitutional Morality meant for Ambedkar, and the recent contexts in which it is being used.
For Ambedkar, the central elements of Constitutional Morality were freedom and self restraint. In words of Ambedkar ‘the maintenance of democracy requires that we must ‘hold fast to constitutional methods of achieving our social and economic objectives. It must mean that we
abandon the bloody methods of revolution. It means we must abandon the method of civil disobedience, non-cooperation and satyagraha.’ While the government is subject to the full
force of criticism, this criticism must, in some sense, be ‘pacific’ criticism.
The second element of constitutional morality is the recognition of plurality. For Ambedkar, the only way to resolve the differences is to secure some degree of unanimity on a constitutional process, a form of adjudication that can mediate difference.
The third element of constitutional morality is its suspicion of any claims to singularly and to uniquely represent the will of the people. Ambedkar is very reluctant to see any branch of government, whether it be the legislature or the courts, or even the Constituent Assembly itself, as being able to claim authoritatively that it embodies popular sovereignty and can speak in its name. Any appeal to popular sovereignty has to be tempered by a sense that the future may have at least as valid claims as the present.
For Ambedkar, the function of parliament is not so much to represent popular sovereignty as it is to debate and constantly question the government and to prevent it from claiming monopoly over popular will. While elections are ‘periodic assessment’, the parliament provides a platform for ‘daily assessment.’
To sum up, constitutional morality for Ambedkar represents self-restraint, respect for plurality, deference to processes, scepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism that remains at the core of constitutional forms.
Recent occurrences of the Constitutional Morality
In the historic Government of NCT of Delhi vs Union of India case, the Supreme Court pronounced that the constitutional morality is “not just the forms and procedures of the Constitution, but provides an enabling framework that allows a society the possibilities of
In the Navtej Singh Johar case, which pertained to Section 377 of IPC, 1860, the Supreme Court said, “Constitutional morality cannot be martyred at the altar of social morality”.
In the Sabarimala judgement, the court observed, “…existing structures of social discrimination must be evaluated through the prism of constitutional morality. The effect and endeavour are to produce a society marked by compassion for every individual.”
Constitutional Morality has been used to suggest substantive values underlying the constitution. The spirit of the constitution beyond letters. To suggest that even the silence of the constitution cannot be interpreted arbitrarily. And to evaluate the functioning of government bodies where the constitution is silent or provides discretionary power.
Based on Article by Pratap Bhanu Meheta
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