The recent actions of the Indian Prime Minister and the Government have raised concerns regarding the principles of constitutional Morality enshrined in the Indian Constitution.
Recent Concerning Actions taken by the Indian Prime Minister and the Government
- Pre-emptive Action on Welfare Schemes:
- Pradhan Mantri Kisan Samman Nidhi: The Prime Minister approved the seventeenth instalment of the Pradhan Mantri Kisan Samman Nidhi, the farmers’ welfare scheme, for ₹20,000 crore, before the allocation of ministerial portfolios.
- Such a scheme will be under the Ministry of Agriculture with its working regulated by the Ministry of Finance, Department of Expenditure.
- Pradhan Mantri Awas Yojana: Cabinet Actions Without Portfolios: The first cabinet, which met without the allocation of portfolios, also took the decision “to provide assistance to three crore additional rural and urban households for the Construction of houses under the Pradhan Mantri Awas Yojana”.
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Adoption of the Parliamentary Democracy in India
- Adoption of Parliamentary Democracy: B.R. Ambedkar and his fellow framers wisely chose the parliamentary system over the presidential system to pitch for responsibility in governance.
- Reason for Adoption:
- Towards More Responsibility: A Parliamentary Executive being more dependent upon a majority in Parliament becomes more responsible.
- While, a non-Parliamentary Executive being independent of Parliament tends to be less responsible to the Legislature.
- Accountability: It was hoped that the assessment of responsibility of the executive is both daily and periodic.
- Daily Assessment: It is done by Members of Parliament in the form of
- Questions ,
- Resolutions ,
- No-confidence motions,
- Adjournment motions and
- Debates on addresses.
- Periodic Assessment: It is done by the electorate every five years. Thus, the framers preferred “more responsibility to more stability”.
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- Extension of Tenures:
- National Security Adviser and the Principal Secretary: extended tenure Without reconstituting the Cabinet Committee after the formation of the new government.
- This was done under the garb of the old “Appointments Committee of the Cabinet”, which, incidentally, comprises the Prime Minister and the Home Minister.
- Shift in Power and Cabinet Functioning: In recent times, the functioning of the Government of India shows a complete negation of the cabinet system and collective responsibility to the President and Parliament.
- There is an extraordinary amassing of power in the Prime Minister’s Office (PMO) which is destroying the constitutional basis of “more responsibility”.
- Business Rules: Pertinently, the Government of India (Allocation of Business) Rules, as they stand today, allocate only business to the PMO — “To provide Secretarial Assistance to the PM”.
- On the contrary, they provide that “The business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to these Rules”.
- Cabinet Secretariat: The distribution of subjects is provided in the Second Schedule. Even the Cabinet Secretariat is only to provide “Secretarial assistance to the Cabinet and Cabinet Committees” and enforce the “Rules of Business”.
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- Impact: These actions demonstrate a significant departure from constitutional principles and accountability.
What is Constitutional Morality?
- About: In terms of India, constitutional morality is termed by Dr. B.R. Ambedkar, referring to respect and adherence to the Constitution and its principles.
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- The term, constitutional morality was first coined by British historian George Grote in his twelve-volume work, A History of Greece.
- It means to follow the Constitution in spirit, not just in words, and to uphold values such as justice, freedom, equality, and brotherhood that the Constitution stands for.
- The discretionary power of the state and the principle of non-discrimination are closely associated with the concept of constitutional morality.
- Pillars: It comprises following pillars
- Core Values such as justice, liberty, equality, fraternity, secularism, and dignity
- Rule of Law
- Democratic Principles
- Fundamental Rights
- Separation of Powers
- Checks and Balances
- Constitutional Interpretation
- Ethical Governance to ensure transparency, accountability, and integrity in public service
- Constitutional Provisions: Though the term constitutional morality is not explicitly used in the Indian Constitution, it is deeply embedded in several of its sections:
- Preamble: It outlines the principles that underpin our democracy, including justice, liberty, equality, and fraternity.
- Fundamental Rights: It safeguards individuals’ rights against the arbitrary use of state power. Notably, the Supreme Court allows for the enforcement of these rights under Article 32.
- Directive Principles: They provide guidelines for the state to pursue the goals set by the constitution’s framers, drawing from Gandhian, socialist, and liberal intellectual philosophies.
- Fundamental Duties: Alongside their rights, citizens also have responsibilities to the nation.
- Checks and Balances: It includes judicial review of legislative and executive actions, legislative oversight of the executive, etc.
- Others: The principles of Rule of Law, separation of powers, and the independence of the judiciary, all inherently uphold the essence of Constitutional Morality, safeguarding democracy and fostering good governance.
- To Ensure Constitutional Morality: Article 77, provides that the President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
- The Indian Constitution upholds the principles of democracy, secularism, and social justice, and reflects the country’s commitment to upholding constitutional morality.
- As per Article 74 of the Indian Constitution, there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
- Supreme Court’s Viewpoints: The Supreme Court has emphasised in numerous judgments that constitutional morality entails upholding individual dignity, promoting good governance, and preventing the arbitrary use of power.
- Kesavananda Bharati v. State of Kerala (1973): In this landmark judgment, the Supreme Court of India laid down the ‘basic structure doctrine,’ which holds that the Parliament cannot amend the basic structure of the Constitution.
- The court recognized Constitutional Morality as an essential component of the basic structure, protecting the fundamental values and principles enshrined in the Constitution.
- SP Gupta Case (First Judges Case), 1982: The Supreme Court labelled a constitutional breach as a severe violation of constitutional morality.
- Manoj Narula v. Union of India, 2014: The Supreme Court stated that “Constitutional Morality means to bow down to the norms of the Constitution and not act in a manner which would become violative of the rule of law of action in an arbitrary manner.
- Krishnamoorthy Case, 2015: The Supreme Court emphasised that constitutional morality is essential for good governance.
- The Union of India vs. Government of the NCT of Delhi Case: It was ruled that high-ranking officials must adhere to constitutional morality and uphold the ideals outlined in the Constitution to prevent the arbitrary use of authority.
- In the Government of NCT of Delhi Case, 2018, the Supreme Court likened constitutional morality to a “second basic structure doctrine”, emphasising its role in curbing arbitrary authority.
- Navtej Singh Johar & Ors. vs. Union of India Case: The Supreme Court held that Section 377 infringed upon the rights of the LGBTQI community and violated the fundamental values of individual dignity as enshrined in Articles 14, 19, and 21 of the Constitution.
- Justice K S Puttaswamy and Anr. vs. Union of India and Ors. Case: The Supreme Court confirmed the constitutional validity of Aadhaar with certain restrictions, underscoring the role of courts in checking executive abuse of power.
- In the Justice K S Puttaswamy case (2018), the Court reiterated its duty to uphold constitutional morality by nullifying any law or executive action that contravenes the constitution.
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Some Notable Examples of Upholding Constitutional Morality
- India: The Indian Supreme Court’s decision to strike down the practice of triple talaq, which was deemed unconstitutional and violated the fundamental rights of Muslim women.
- Naz Foundation v. Government of NCT of Delhi, 2009): The Delhi High Court decriminalized consensual homosexual acts between adults, invoking the principle of Constitutional Morality.
- The court held that criminalising homosexuality violates the fundamental rights to equality (Article 14), freedom of expression (Article 19), and life and personal liberty (Article 21) enshrined in the Constitution.
- The court emphasised the need for Constitutional Morality to promote inclusiveness, plurality, and tolerance.
- USA: The United States Supreme Court’s decision to legalize same-sex marriage, which upheld the principles of equality and non-discrimination enshrined in the constitution.
- South Africa: The South African Truth and Reconciliation Commission, which was established to uphold constitutional morality by promoting accountability, reconciliation, and healing in a post-apartheid society.
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Significance of Constitutional Morality
- Forms a Balance: Constitutional Morality forms a balance between respecting the laws of the land and maintaining individual rights and freedoms.
- Backbone of the Constitution: Constitutional Morality forms the backbone of the Constitution, serving as a compass for its interpretation and application.
- Essential for Democracy: Upholding constitutional morality is essential for the functioning of a democratic society, as it ensures that the rule of law is maintained, and the rights and freedoms of citizens are protected.
Challenges for Constitutional Morality
- Need to be Built-up: In words of B.R. Ambedkar, “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 top-dressing on Indian soil, which is essentially undemocratic.”
- Constitutional Dictatorship: B.R. Ambedkar did warn that Bhakti in life is good for the salvation of the soul. But in politics, it is the sure path to dictatorship.
- What we are witnessing is constitutional dictatorship, something that the framers were strongly against.
- Lack of Clarity: The concept of constitutional morality is not clearly defined and also it is unclear what is the extent to which individuals can be taught to uphold the moral principles outlined in the Constitution and behave more ethically toward their obligations?
- Example: In certain instances, like for instance the issue of the entry of menstruating women into the Sabarimala temple, what non-discriminatory or balanced strategy should be used?
- Allegations of Bianess: There are various alleged misuse of police or investigating agencies to put pressure on opposition.
- Impact on Democracy: There may be use of absolute power affecting the notion of constitutional morality in a parliamentary democracy.
- Judicial Overreach: If this doctrine is used without limits or restrictions, it could lead to judicial overreach, which is the violation of the separation of powers.
- Selective Application: There have been several instances where constitutional morality has been selectively applied to certain groups or issues, undermining the principle of impartiality and the rule of law.
Ways to Uphold Constitutional Morality
- Uphold the principles of justice, equality, and liberty enshrined in the constitution, and promote policies that reflect these values.
- Uphold the fundamental rights and freedoms of citizens and ensure that they are protected against any infringement.
- Respect the democratic process and ensure that it is transparent, participatory, and accountable.
- Educate citizens about the importance of upholding constitutional morality.
- Citizens should be encouraged to actively participate in the political process and hold their elected officials accountable.
- Defining the holistic meaning of constitutional morality could make this a standard, especially in cases where the rights and liberties of individuals are pitted against religious or cultural practices.
- Strong and independent institutions, such as the judiciary and the press are needed to play a vital role in upholding constitutional morality.
- Time has come to foster a cooperative environment where the opposition can effectively scrutinize government actions, propose constructive alternatives, and represent diverse societal interests, promoting a more transparent and accountable government.
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Conclusion
Constitutional Morality, though not explicitly stated in the text of the Constitution, is an inherent philosophical concept that governs its operation and interpretation. It embodies the spirit and ethos of the Constitution, ensuring adherence to its core principles and maintaining a balance between individual rights, governmental authority, and the pursuit of social justice.
June 19, 2024
