Difference between Constitutionalism and Constitutional Morality

Constitutionalism Constitutional Morality 
Constitution is a form of limited government limited by a document i.e., constitution, the supreme law of the land. It is a scenario where the government has to work within the framework of rules and laws laid down by the constitution. Constitutional morality as per Dr Ambedkar, is effective coordination between conflicting interests of different people, and administrative cooperation to resolve them amicably without any confrontation amongst various groups working for the realization of their ends at any cost. 
Only having a written constitution does not ensure constitutionalism. It can be ensured through well functioning institutions , active civil society and a proactive judiciary. Constitutional morality refers to obeying the law for moral as well as legal reasons.
  • 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.
  • According to our Constitution, we assert that there are laws and rights and that we uphold these rights not just because they are laws but because doing so is morally correct. So, Constitutional Morality refers to obeying the law for moral reasons as well as for legal reasons.
Difference between Constitutionalism and Constitutional Morality

Evolution of Concept:

  • Propounded by George Grote in the 19th century in his book “A History of Greece.” He described CM as a “paramount reverence for the forms of the Constitution” of the land. It essentially implied a “co-existence of freedom and self-imposed restraint”.
  • Ambedkar Perspective: 
  1. Ambedkar, drawing on the work of Grote, formulated his understanding of constitutional morality as an effective coordination between conflicting interest 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. 
  2. 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.
  • The term ‘Constitutional Morality’ is not found in the Indian Constitution. Nevertheless, we find mention of the word “morality” in conjunction with “public order” in the constitution at various places like Article 19, 25 and 26 of the constitution.

Landmark Judgement

  1. Navtej Johar vs UOI: Applying the doctrine, the judges found that court must not be remotely guided by majoritarian view or popular perception, but they must be guided by constitutional morality. The courts differentiated between public and constitutional morality and said that the ideal of justice always have an overriding effect. i.e., constitutional morality has an overriding effect on public morality.
  2. Joseph Shine v. Union of India: The idea of “Husband as master of women” or “a woman as a possession of her spouse” was held to be completely contrary to the spirit of constitution facets and ideals. Here doctrine comes as counterpoise to “Public Morality”.
  3. Government of NCT of Delhi vs Union of India: In this case, Courts equated constitutional morality to a ‘second basic structure doctrine’ and it was observed by the Supreme Court that constitutional morality is “not just the forms and procedures of the Constitution but provides an enabling framework that allows a society the possibilities of self-renewal”.
  4. Indian Young lawyers Association v. State of Kerala: SC held that exclusion between the age of 10-50 in Sabrimala temple for worship of Lord Ayyappan is violative of 4 key constitutional morality tests, which includes: Justice, Liberty, Equality and Fraternity. In this, Court noted that the word “morality” in Articles 25 & 26 must mean constitutional morality and not popular morality and existing structures of social discrimination must be evaluated through the prism of constitutional morality.

Significance:

  1. Safeguards and upholds the enforcement of rule of law in the country: As the doctrine tends to question both the citizens as well as the government, it promotes people to be an active participant of the system and fight the inequalities and non-constitutional elements.
  2. Promoting and reinforcing the democratic ideals of the nation: The doctrine promotes congenial cooperation and coordination of all the stakeholders, especially among citizens and the state, to pursue constitutional ambitions.
  3. Bring about a positive transformation in the perception of societal or public morality: The principle of constitutional morality can be used for reading down laws or statutes which are inconsistent with the incumbent time. For instance, in passing a law prohibiting Sati, right to life and dignity was passed on to the Indian widows who were earlier considered to be harbingers of misfortune and ill-luck.
  4. Akin to the basic structure doctrine: Together with basic structure doctrine, CM is known as one of the ‘Constitutional Silences’. Like the basic structure test, it imposes implied constitutional limits on the government and ensures that government’s actions do not violate the spirit, soul, or conscience of the Constitution.
  5. Moving towards achieving Constitutionalism: The concept of constitutional morality urges the organs of the State to preserve the heterogeneous nature of the society. Thus, it backs the efficacy of Constitutionalism in the true sense.

Criticism:

  1. Lack of literature and clarity on the concept: As there is no explicit mention of the term ‘constitutional morality’ in the Constitution of India and no fixed definition that has been attributed to it, it has been left on the discretion of the individual judges to interpret the essence of this doctrine and apply in requisite situations.
  2. Encourages judicial supremacy and activism by the courts: Upholding and promoting democracy by using constitutional morality encourages judicial activism by the courts.
  3. Creates distrust among public towards organs of State: The top-down imposition of constitutional morality by Court which is an unelected and autonomous body may instill and encourage a general distrust among public towards the Legislature and the Executive.

Constitutional Morality over Public Morality

Under Article 19 of the Constitution, the power to impose reasonable restrictions on Fundamental Rights is vested with the Legislative and Executive and not with the Judiciary. Thus, clearly asserting that judiciary cannot limit the Fundamental Rights through the doctrine of Constitutional Morality but the same can be done by Executive and Legislature under the notion of Public Morality stated in Article 19.

Issues With Constitutional Morality Over Public Morality 

  1. It might lead to backlash by some communities or groups: some sections of people might perceive imposition of constitutional morality as an infringement on their own ways of living and culture. For eg: Sabarimala judgement led to backlash by the priests of the temple, local residents and other devotees. 
  2. it can lead to societal disharmony and further increase tensions in society : :it has the potential to disturb the delicate societal balance and widen the deep rooted tensions in the society. 

However, even if in the short run, imposition of constitutional morality over public morality might lead to a backlash; in the long run it is an essential step in order to make the progress of society possible. also it creates a path for a more equitable and just society.

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