Indian constitutional law is no stranger to judge-made tests. The ‘basic structure’ doctrine, the ‘classification test’, the new ‘manifest arbitrariness’ test – these are all judicially crafted inventions that find no express mention in the constitution. The doctrine of constitutional morality is a relatively recent addition to this list. It came in for heavy criticism after the Supreme Court’s Sabarimala judgment and the Attorney General of India has called it a “dangerous weapon”. Since then, the Supreme Court seems to have grown wary of its use. In the string of significant judgments delivered by the court on the eve of Chief Justice Gogoi’s retirement in November 2019, involving questions as diverse as Ayodhya, Rafale, the Right to Information Act, and the Finance Act, constitutional morality was conspicuous by its absence. In fact, the task of defining ‘constitutional morality’ has now been referred to a bench of seven judges of the Supreme Court. But what does ‘constitutional morality’ really mean and is it a dangerous weapon in the hands of unelected judges?
Cleisthenes Of Athens
In the 19th century, a British historian by the name of George Grote wrote an authoritative 12-volume history of Greece without ever having visited that country. This was not particularly uncommon at that time. James Mill, for instance, wrote his history of India in the early 19th century without ever having visited India. In his treatise, Grote wrote of Cleisthenes of Athens (c. 570 BCE – c. 508), the founder of Athenian democracy. In those days, people would pursue their own ruthless ambitions “without any regard to the limits imposed by law”. In order to preserve Athenian democracy, Cleisthenes, therefore, had to kindle, in the citizens of Athens, a “passionate attachment” to the Constitution, which Grote called “constitutional morality”.
At its heart, Grote’s constitutional morality essentially required a “coexstience of freedom and self-imposed restraint”.
While citizens were expected to respect the constitution and obey constitutional authorities, they would also have the freedom to criticise those authorities who, in turn, would have to act within the limits set by law.
Ambedkar’s Excuse
BR Ambedkar arrived at Columbia University in New York in 1913. Only a year previously, in June 1912, a leading member of the New York Bar, William Dameron Guthrie, had delivered an address at the Pennsylvania Bar Association where he had spoken about Grote’s “constitutional morality”. In the academic year 1914-15, Ambedkar took a course called ‘History 121’ at Columbia, which included elements of Greek history. It was therefore in New York that Ambedkar possibly learned of Grote’s constitutional morality.
Decades later, in November 1948, Ambedkar made a speech in the Constituent Assembly in which he explained why India’s constitution was so long – why seemingly banal details concerning governmental administration had been incorporated into it. He said: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” “[I]t is only where people are saturated with Constitutional morality such as the one described by Grote the historian”, he added, “that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.”
In other words, Grote’s ‘constitutional morality’ was an excuse given by Ambedkar to justify why mundane details had been included in India’s Constitution.
A Counterpoise To Popular Morality
For several decades thereafter, stray references were made to the words ‘constitutional morality’ in Supreme Court judgments. Then came the Naz Foundation case in which Section 377 of the Indian Penal Code was challenged. While arriving at its decision, the Delhi High Court asked itself an interesting question: could the section be upheld because homosexuality was against “public morality”? Chief Justice AP Shah rejected this argument and found that “popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights”.
Chief Justice Shah’s formulation of constitutional morality saw the court as a counter-majoritarian institution.
Its purpose was to ensure that the principles of the constitution prevailed over the fickle morals of the people. The Delhi High Court’s judgment eventually found favour with the Supreme Court in Navtej Singh Johar’s case.
A Second Basic Structure Test
Thereafter, in State (NCT of Delhi) v. Union of India (2009), Chief Justice Dipak Misra wrote that courts must interpret constitutional provisions “in the light of the spirit of the Constitution”. “Constitutional morality”, he added, “means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.” Another judge in that case wrote that constitutional morality was “an expectation of behaviour that will meet not just the text but the soul of the Constitution.”
This understanding of constitutional morality is akin to the “basic structure” test invented by the Supreme Court in 1973. The constitution originally set no limits on parliament’s power of amendment – theoretically, parliament could delete any of its provisions, including our fundamental rights. However, in the Basic Structure case (1973), the Supreme Court held that there are implied limits on Parliament’s power to amend the Constitution – that Parliament cannot destroy the “basic structure” of the Constitution.
A “Dangerous” Doctrine?
Neither Grote nor Ambedkar intended constitutional morality to be used by courts to test the validity of government action. To them, it was an aspiration – a hope that citizens would inculcate a love for the rule of law which would make it difficult for the constitution to be obliterated by the political powers of the day.
However, constitutional morality today essentially means two things. Firstly, it is a reminder that courts must disregard the morals of the majority while deciding constitutional cases. This is an unremarkable proposition. In a democracy, it is obviously the unelected court which has the ability to decide cases without worrying about what voters want.
Secondly, constitutional morality requires courts to look at the “spirit”, “soul” or “conscience” of the Constitution, and not just at the constitution’s words, while deciding whether the government has done something wrong. In this sense, constitutional morality is no more or less dangerous than the basic structure doctrine itself. True, this articulation of constitutional morality is vague and subject to the choices of each individual judge.
What is to stop a judge, for instance, from finding that communism is a part of the undefined “spirit” of the Constitution or that the “soul” of the Constitution mandates that India be declared a Hindu State?
On the other hand, much constitutional doctrine itself is vague. Concepts like “arbitrariness”, “manifest arbitrariness”, “reasonableness” – these are catchphrases, by themselves hollow vessels into which meaning is poured by judges who decide cases according to their own sense of right and wrong. At some level, all constitutional doctrine is empty – judges’ words inhabit constitutional spaces on the basis of their own lived experiences. Those who argue that constitutional morality in this formulation is dangerous must equally argue against doctrines like the basic structure test, the tests of manifest arbitrariness and reasonableness, indeed against all of the ubiquitous catchphrases used in constitutional law.
Abhinav Chandrachud is an advocate at the Bombay High Court.
The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.
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