Change ), You are commenting using your Twitter account. The Doctrine of Constitutional Morality is s relatively recent addition which is time and again provoked by the Supreme court in past rulings by giving some landmark judgement. Ray and Justice P. Jaganmohan) Reddy in celebrated Basic structure case Kesavananda Bharati v. State of Kerala (1973). Justice Krishna Iyer in Raj Kapoor v. It always supersedes majoritarian morality or public morality for better of society. From time to time we saw the overreach of judiciary and also the purposive interpretation of constitution and not literal one. In recent doctrine is applied in number of landmark cases which turns out year 2018 as a watershed for judiciary. Jindal Global University, Sonipat, Haryana. Out of 5 judges 3 held that goal of the court is to transform society or to convert public morality into constitutional morality. The laws enacted become expressions of public morality. Its absolutely within the constitutional paradigm, its not an uncharted plan. He insisted that for India’s democracy to succeed, the Congress should convert itself into a lok sevak sangh and work at the grassroots level. ( Log Out /  Public morality and constitutional morality 6. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. Justice Venkataramiah in S.P. The concept of Constitutional Morality was used in an important case of Navtej Singh Johar which employed this concept in an innovative manner to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality. I would then speak on the historical and juridical underpinning of ‘constitutional morality’. Introduction– write a few introductory lines about the term, constitutional morality. NCT of Delhi, invoked Babasaheb Ambedkar’s delineation of constitutional morality in asserting the urgency of decriminalising consensual sexual relations proscribed by Section 377 of … Representational Image | Bar&Bench. Ambedkar on constitutional morality 8. Will uphold constitutional morality while deciding on Sec 377, says SC If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.” The complete rejection of ‘public morality’ as a possible justification Obscenity and morality 9. Pornography, Public Morality, and Constitutional Rights October 17, 2011 November 2, 2018 By Robert P. George Every member of the community has an interest in the quality of the culture that will shape their experiences, their quality of life, and the … These judgments assume ‘constitutional morality’ to be a theory of individual rights unfettered by moral considerations by dubbing such considerations as either majoritarian or ‘subjective fetters on rights’. The Daily Guardian The pith and marrow of this discussion is that constitutional morality may be invoked on the basis of the provisions of the Constitution to question the conduct of the State and to identify the metes and bounds within which the State must operate.… Continue reading Constitutional morality, public morality and moral diversity Criticise non-constitutional practices Change ), You are commenting using your Twitter account. Narayanan December 24, 2019 00:05 IST Updated: December 23, 2019 23:19 IST M.K. Upholding Constitutional morality is not just the duty of the judiciary or state but also of individuals. However, […] Two scholars have provided particularly lucid accounts of public morality. All the contenders for political power would respect the constitution and know that their rivals also respect the same. ( Log Out /  The state has the power to deal it. The salient features of doctrine of constitutional morality can be stated as follow: There are many landmark judgements which was given by supreme court by applying this doctrine, they are as following: To pass constitutional muster and get rights under Article 25 & 26 must be in conformity   with these four tests, the same principle was used by court in TripleTalaq case. FACTS: The petitioners in the present case challenged the … Eg when we see the dissenting note of Justice Indu Malhotra in Sabrimala case it is also based on the same doctrine but with different interpretation for allowing ban under, while the same concept used by Justice Chandrachud for saying that ban was not permitted as this is discrimination, so what we can conclude for this doctrine, is it like a mercury sleeping from fingers. The doctrine of constitutional morality is a relatively recent addition to this list. Gupta v. Union of India (1981) also known as First Judge Case found that violation of constitutional convention would “be a serious breach of constitutional morality.” In 2003, Justice S B Sinha held that affirmative actions might be valid but it would violate “constitutional morality” if it is not in consonance with doctrine of equality. Criticise non-constitutional practices The doctrine of constitutional morality means adherence to noble principles enshrined in a constitution, principle interpretation of the constitution in line with the ethos of constitutional democracy. morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. ( Log Out /  All citizens would have the unrestrained freedom to criticize public officials acting in the discharge of their constitutional duties. The doctrine is evolved under Article 142 and we also need to understand the doctrine in a proper way which is the need off hour as due to this doctrine we saw some biggest watershed in judiciary (Homosexuality Judgement). When we refer to judgements in which it was used each one connotes a different meaning, as resulted in confusion that what actually this doctrine is? Rather, ‘constitutional morality’ must shape ‘social morality’. Another example of constitutional morality is the case of Navtej Johar Singh Vs. Union of India . Importantly, in the context of a diverse society such as Bharat, what would constitute the basket of accepted societal norms in order for it to rise to the level of public morality?”. We can trace the evolution of doctrine from the basic structure case to the recent landmark judgements which was delivered by supreme court. Justice Chandrachud differentiated between public and constitutional morality and said that the ideal of justice always have an overriding effect i.e. The essence of constitutionalism which provides asrigid feature and serves as a moral compass in the interpretation and implementation of the constitution is the doctrine of constitutional morality. It means practical percolation of constitutional values in governance and citizen entitlement requires a sensitive state apparatus. The objective of doctrine is to preserve the rule of law and also not to act in a manner which is in violation of provision of constitution or arbitrary in any manner. Author: Shelal Lodhi Rajput from Symbiosis Law School, Pune. The preamble of the constitution explicitly mentions the type of society we wish to establish; it is only through constitutional morality it can become reality. The doctrine is a counterpoise to public morality and also it is a facet of basic structure of constitution, which provide judiciary a power to keep check on the “spirit”, “soul” of the constitution by taking a step ahead then purposive and literal interpretation. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.” The complete rejection of ‘public morality’ as a possible justification There is minority decision by Justice Indu Malhotra. It relates to parliamentary form of government which is self-restraint by providing limitation on the functioning of state to curtail liberty of citizen. The concept of Constitutional Morality was used in an important case of Navtej Singh Johar which employed this concept in an innovative manner to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality. Justice Chandrachud differentiated between public and constitutional morality and said that the ideal of justice always have an overriding effect i.e. There is need to think is this doctrine now used as a touchstone by judiciary. Morality and right to religion 5. WhatsApp. Ethics and morality are the branch of philosophy which deals with values of human conduct in the rightness or wrongness of certain actions. Comparative constitutional analyses of the concept of morality By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every … Etching the contours of public morality. In a parliamentary democracy, the obligations of constitutional morality are expected to be equally binding on the government and the opposition. Consider the question “Public morality and unelected institution are necessary checks on the elected … Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. Art 25 (1) starts with a contingent clause which clearly says that- subject to part 3 of public morality and order. The article speaks about the concept of constitutional morality. The phrase had been used in less than 10 reported cases by the apex court till 2010 from the time the constitution was adopted but in recent time in the year 2018 alone it has been used more than 10 reported cases by Apex court. Facebook. The doctrine is not new but in Indian context it is now evoked in many judgements recently, first time the concept of constitutional morality was first propounded by the British Classicist named George Grote in the 19th century in his book “A History of Greece.”  In Grote’s formulation, constitutional morality meant as: In Indian context first the word Constitutional Morality was propounded by Dr. B.R. Another example of constitutional morality is the case of Navtej Johar Singh Vs. Union of India . ( Log Out /  Narayanan December 24, 2019 00:05 IST Updated: December 23, 2019 23:19 IST M.K. There is also this persistent idea of 'Constitutional Morality' that seems to dominate the theme of many an intellectual while dealing with religion in public affairs. Change ), You are commenting using your Google account. According to Ambedkar, constitutional morality was not to be used by courts to invalidate legislation or government action. Unlike the traditional concept of Bureaucracy which anticipated it as a valueless concept, NPA (New Public Administration) movement in the sixties, treated it as a strong case for values, relevance, change and equity in the field of administration. In the last piece, in examining the relationship between constitutional morality and public morality, this author had raised the following questions: ‘Given that public morality gives recognition to societal norms and is therefore meant to foster moral diversity, would it not be fair to contend that constitutional morality lies in recognizing the moral diversity enabled by public morality? Morality and right to religion 5. However, […] Safeguarding constitutional morality M.K. The erroneous notion that private and public morality are not complementary, has led to grievous errors in both Faith and reason, which has led to condoning the engaging in or affirmation of immoral acts that deny the inherent Dignity of the human person as a beloved son or daughter. The constitutional morality is nowhere located in constitution and it is necessary to do the same, as there is evident danger that might concept be used in constitutional courts as per the whim and fancies of judicial brains as in absence of definite clarity and consensus being reached on the doctrine. Public morality and constitutional morality 6. Unbounded judicial creativity makes the court day to day constitutional convention and the purpose of separation of power will be defeated, as judiciary always can establish it supremacy over legislature by this type of crafted inventions. CONSTITUTIONAL MORALITY OVER POPULAR MORALITY: While Constitutional morality is meant to point out reverence to the ideals enshrined in the Indian Constitution, popular morality or societal morality is chiefly what public at large perceive as the principles of right and wrong from time to time. Would it not follow that synonymizing public morality with a judicially-fashioned version of constitutional morality would lead to undermining the constitutional mandate of moral diversity? Share. Constitutional morality is a sentiment to be cultivated in the minds of a responsible citizen. It expects the constitutional authorities to behave in accordance with constitution, similarly if there is any kind of practice which is not in conformity then holistic application of doctrine can be used, not in a narrower manner and it does not mean that every public policy decided on the ground of this doctrine. Thus, there shouldn’t be stripping the … Indian constitutional law is no stranger to judge-made tests. Change ), You are commenting using your Facebook account. Ambedkar on 4 November 1948 in parliamentary debate to inculcate the morality in the constitution with its great importance and effectiveness. First it was referred by two judges (Justice A.N. In democracy, public morality and unelected institutions are necessary checks, not inimical to elected govt India’s democracy, as envisaged by the makers of its Constitution, thrived essentially because of the respect of the leaders for ethical constitutionalism and … Constitutional morality is important for constitutional laws to be effective. ( Log Out /  The judgment clearly establishes the difference between constitutional morality and public morality. It empowers judiciary to take a step ahead for purposive interpretation, as we have written constitution it allows rooms, space and flexibility. It is akin to doctrine of basic structure and perfect remedy what is called. In the last few pieces, this author had undertaken a discussion on constitutional morality, its nexus with public morality, and the nature and scope of intervention permitted by the Indian Constitution to the State and the Judiciary respectively in relation to public morality. Not limited by provisions of constitution but it is mandate to accomplish the aim of the constitution. Constitutional Morality has featured in a variety of conversations across the country ranging from courts, to classes, to academics, to social scientists, to activists, to laywomen. Constitutional morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the constitution it is so broad that it includes commitment to inclusive and democratic political process in which the individual and collective interests are satisfied, a judicial scenario providing an opportunity to unfold the full personhood of every citizen for whom and by whom the constitution exists etc. morality derived from constitutional values, is based on shifting and subjective notions of right and wrong. For democracies to succeed, both Gandhi and Ambedkar believed that the parliamentary majorities need to be restrained through constitutional ethics and public morality. Indian constitutional law is no stranger to judge-made tests. We all know each coin has two faces, same here with the doctrine. Articles 19(2), 19(4), 25(1) and 26 make it either expressly or otherwise clear that the power to limit such fundamental rights citing public morality is vested in “the State”. To give a brief background about the issue, in the case of Naz Foundation vs. NCT of Delhi, the Delhi High Court held that s.377 was unconstitutional and thereby decriminalized homosexuality. The Supreme Court of India, on February 2nd 2016 decided to revisit the much controversial section 377 of the Indian Penal Code, 1860. It is soul and spirit of constitution; it assures that all inequality is eliminated by it from social milieu. 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