Constitutional Morality: Let it Guide Judicial Independence

On the occasion of the 77th Constitution Day, Chief Justice of India (CJI) Surya Kant articulated the idea of constitutional morality that is deeply embedded in the Constitution.

Foundation and Origin of Constitutional Morality

• Coined By: The term was coined by British historian George Grote in his work ‘A History of Greece’.
• Core Meaning: Constitutional morality is a sentiment that underlies written constitutional rules and sustains democratic governance.
  • It promotes adherence to constitutional norms and respect for institutions beyond mere legal rules and regulations.
• Main Pillars of Constitutional Morality: Freedom (respecting everyone’s liberty) and self-restraint (power-holders not misusing their authority even if the law allows it)

Ambedkar’s Perspective on Constitutional Morality (1948)

• Distinction Between Moralities: Dr B.R. Ambedkar clearly distinguished between Constitutional Morality and Social Morality rooted in caste and tradition.
• Possibility of Constitutional Failure: He warned the Constituent Assembly that even a well-designed Constitution can fail in practice.
• Danger of Maladministration: He cautioned that the constitutional form can be perverted through maladministration, defeating the spirit of the Constitution.
• Reasons For Strict Adherence to Constitutional Morality: 
  • Risk of Unaccountable Power: Power-holders become unaccountable when constitutional restraints are weakened.
  • Scope for Democratic Manipulation: Democracy itself creates opportunities for manipulation under the cover of legality. Hence, strict adherence to Constitutional Morality (faith in constitutional values) is essential to safeguard democracy.
• Jurisprudential Faith in the Constitution: Ambedkar viewed constitutional morality as creating a jurisprudential faith in the Constitution.
  • This faith gives meaning to liberty, dignity, equality, fraternity, and reasonableness.
  • Judges are responsible for giving content and context to these constitutional promises.

The Test Of Time: The Emergency Era

• Emergency Era (1975–77): The period of National Emergency witnessed a serious betrayal of democratic institutions, including the Judiciary.
• Darkest Judicial Moment: In the ADM Jabalpur case, the Supreme Court dealt with the scope of fundamental rights during the Emergency.
• Suspension of Right to Life (Article 21): The Supreme Court ruled that during an Emergency, even the Right to Life under Article 21 could be suspended.
• Preference for Legality over Morality: The Court chose legal obedience to Emergency orders over the protection of human rights and moral constitutional values.
• Core Institutional Failure: This reflected a failure of Constitutional Morality, where formal legality replaced substantive justice.
• Key Lesson from the Emergency: Legality without moral commitment risks legitimising injustice, highlighting the need for ethical responsibility within institutions.
• The Lone Dissenter — Justice H.R. Khanna: He asserted that the Rule of Law exists independent of and beyond the constitutional text.
  • He held that life and personal liberty are natural rights that no State can take away, even during an Emergency.
  • His dissent demonstrated that moral commitment to justice must prevail over narrow legal formalism.

Evolution of Constitutional Morality in the Last 50 Years

• Post-Emergency Shift in Judicial Role: After the Emergency, the Supreme Court reoriented itself as a “Protector of Constitutional Values” rather than a passive interpreter of law.
• Constitutional Morality as Guiding Principle: Judicial decision-making increasingly reflected Constitutional Morality, focusing on justice, dignity, and rights.
• Key Tools of Constitutional Morality: 
  • Basic Structure Doctrine (Kesavananda Bharati Case): Parliament cannot amend or destroy the basic features of the Constitution, thereby preserving its core identity.
  • Expansion of Access through Public Interest Litigation (PIL): PIL enabled the poor and marginalised to approach courts, reducing procedural barriers to justice.
  • Use of Epistolary Jurisdiction: Courts accepted letters and postcards as writ petitions to protect the fundamental rights of vulnerable groups.

Modern Challenge: CJI and Institutional Morality

• Scope of Constitutional Morality in Institutions: Constitutional Morality applies to the functioning and procedures of institutions, not merely to their final decisions or outcomes.
• Master of Roster Issue: The Chief Justice of India (CJI) has significant administrative power to assign cases to different benches.
  • This power must be exercised transparently and fairly to prevent arbitrariness and bias.
  • Fair exercise of roster powers is essential to maintain the moral authority and legitimacy of the CJI’s office.
• Contemporary Judicial View: The current view is that Constitutional Morality should guide judicial administration, especially in the fair allocation of cases to benches.

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Critical Analysis: Constitutional Morality as Shield, Not Sword

• Courts as Constitutional Interpreters: Responsible use of constitutional morality ensures that courts remain constitutional interpreters and not moral arbiters.
  • Judicial overreach in the name of morality can distort constitutional balance.
• Not Every Issue Is a Moral Crisis: Constitutional morality is meant for exceptional situations, and not every legal or constitutional issue reflects a moral failure of democracy or betrayal of the Constitution.
• Situations Justifying Its Use: It applies when there are manifest violations of constitutional rights, procedures, and processes.
  • It is relevant when power-holders act irresponsibly despite legal recognition of constitutional guarantees.
• Shield Against Injustice, Not Judicial Supremacy: It serves as a shield against constitutional injustice.
  • It should not be used as a sword to promote judicial supremacy.

Conclusion

Constitutional morality has evolved from a civic sentiment into a guiding safeguard of democracy. It survives not merely through legal text, but through steadfast moral commitment to constitutional values.

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