“Constitutional Morality Still to be Defined”: A Judicial Perspective

Abstract

Constitutional morality refers to a strict adherence to the core values and principles of the Constitution, and it guides the conduct of both the government and the citizen. The concept was propounded by the British classicist George Grote in the nineteenth century, for whom it meant a paramount reverence for the forms of the Constitution. In India it was first invoked by Dr. B. R. Ambedkar, the architect of the Constitution. Although the term is not expressly defined in the Indian Constitution, it is inherent in the document’s emphasis on justice, equality and liberty, values that run through the Preamble, the Fundamental Rights and the Directive Principles of State Policy. Constitutional morality implies the coexistence of individual freedom and self-restraint, and it embraces the morality of individuals as well as that of constitutional authorities and democratic institutions. It has a significant role in the positive transformation of the social, public and religious moralities that are deeply rooted in Indian society, and for the development of the nation it must take precedence over them. In the view of the Supreme Court of India, constitutional morality rests not only on the constitutional text but on values such as individual autonomy, liberty, equality, non-discrimination, identity, dignity and privacy, and the Court has described it as an adherence to the core values of constitutional democracy and as a yardstick of justice. Drawing on a doctrinal analysis of landmark judgments, this paper examines how the judiciary has used the concept, why it remains contested and undefined, and how it might be given firmer content.