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Constitutional Morality as a Challenge

Constitutional Morality as a Challenge
- Ayesha Afrose, B. S. Abdur Rahman Crescent Institute of Science and Technology, Chennai.


The historic Sabarimala verdict (2018), which ruled that the discriminatory practice of prohibiting women of menstrual age from accessing Lord Ayyapa\'s temple for darshan was unlawful, sparked both elation and displeasure. There were clear grounds for the joy and jubilation: women had been freed from an age-old discriminatory habit.

Hundreds of requests for judicial review were filed in response to the decision. The disgruntled block stated that because the Supreme Court is not an ecclesiastical authority, it should not have judged on matters concerning their faith and religion.

Given this, the Supreme Court outlined seven questions for a bigger bench to determine before the appeal of the Sabarimala verdict (2018) could be considered on merits in its judgment on the review petitions in Kantaru Rajeevaru v Indian Young Lawyers Association.

In light of the foregoing, a nine-judge Constitution bench of the Supreme Court, led by S A Bobde, heard a case involving the resolution of seven issues relating to religious freedom in India in terms of individual and collective rights. Furthermore, the Supreme Court has been entrusted with developing a uniform and consistent judicial policy and precedent with which to decide cases involving religious freedom and individual liberty in the coming years.

The issue of Constitutional Morality:-

One of the seven questions that will be discussed is what the term "morality" or "constitutional morality" means in the context of Articles 25 and 26 of the Indian Constitution.

The idea of \'constitutional morality\' has recently become far more important and relevant than ever before in interpreting the Indian Constitution by judges. Different aspects of this progressive and transformational doctrine, as it has come to be called, have been used by the Supreme Court in a slew of cases, some of which may be considered among the best and most significant decisions ever rendered.

This concept, "constitutional morality," has been in the Indian Constitutional framework since Dr. Ambedkar\'s time, although it remained mostly inactive after 1950 until recently. Though the Supreme Court has used the phrase constitutional morality twice in passing in the Keshavananda Bharti and S P Gupta decisions.

Other cases in which various strands of this concept have been implemented stand out and demonstrate its progressive and transformational nature.

For example, in the landmark case of Government of NCT of Delhi v Union of India, the court was asked to determine what powers the Lt. Governor of Delhi has under the Indian Constitution. The Supreme Court stated, among other things, that constitutional morality is "not merely the forms and processes of the Constitution, but also offers an enabling framework that permits a community to self-renew." Following that, in the Navtej Singh Johar case, which dealt with Section 377 of the Indian Penal Code, 1860, the Supreme Court observed, "Constitutional morality cannot be murdered on the altar of societal morality." “...existing institutions of social discrimination must be assessed through the lens of constitutional morality,” the court said in the Sabarimala decision, referring to the centuries-old practice of excluding menstruation women of a specific age bracket from the temple. The impact and goal is to create a society where everyone is treated with compassion.”

Analyzing the preceding line of decisions, one thing becomes abundantly clear: "the silences of the Constitution must also be identified in order to understand the Constitution." Constitutional morality is the erudite quiet of the constitutional text about which Justice Chalemeshwar speaks eloquently in the case of Justice K S Puttaswamy (Retd.) & Anr v. Union of India & Ors., in which the ‘Right to Privacy\' was raised to the level of a basic right.

Constitutional Morality: A radical transformational ideology:-

The Constitution Bench of nine judges faces a two-pronged challenge. To begin, investigate and determine what the phrase "constitutional morality" means in the absence of a stated definition in the Constitution. Second, because there is no definition, discrepancy seeps in rather frequently when the courts use the aforementioned theory. Furthermore, it is up to the Supreme Court, among other things, to determine the meaning and essence of the term "morality" in the context of Articles 25 and 26 of The Indian Constitution.
A uniform yardstick must be developed so that there are no legal anomalies. However, the misunderstanding and dispute that arises from legal studies in reference to ‘Morality\' is only due to the fact that the word ‘morality\' is frequently employed with qualifiers or prefixes, such as “constitutional” or “societal,” when it is put to work. 
In light of the foregoing, would the Supreme Court\'s Hercules justices be able to elevate the "silences of the constitution" to the rank of "voices of the constitution" as an interpretive instrument in resolving "challenging cases"?

The stance of Dr. B.R. Ambedkar on Constitutional Morality:-

Shri Ambedkar, the author of India\'s Constitution, is possibly the first to have publicly and loudly engaged in length with the concept "constitutional morality." Discussions on the matter will be inadequate unless Ambedkar\'s idea of constitutional morality is mentioned and illuminated. In his presentation to the Constituent Assembly in 1948, Ambedkar referenced the English historian George Grotius to explain what constitutional morality is and its relevance in a society where democracy is a top-dressing on the soil that is fundamentally undemocratic.
Shri Ambedkar utilized ‘constitutional morality\' to ensure the full implementation of the Constitution\'s aim, amidst enormous inequality and unfairness in India and a hostile political atmosphere. After a thorough diagnosis, Shri Ambedkar highlighted that the remedy for this unfortunate situation did not rest alone in the constitution or the administration controlling the nation. For Shri Ambedkar, constitutional morality was the answer to this imbalance in society, and if there is congruence between the “form of administration” and the “form of the “constitution,” then we can progressively eliminate it, he hoped.
Furthermore, the most remarkable aspect of Constitutional Morality has been its inherent transformational character. The Supreme Court has assured that no individual regulated by the Constitution is deprived of the fruits of its provisions as a result of this. In this regard, Justice Chandrachud stated in the Sabarimala decision (2018) that the Indian Constitution "has a transformational aspect so that formerly underprivileged and disadvantaged persons might enjoy their citizenship rights."


To summarize, the significance of this verdict would be far-reaching and pervasive since it would touch on other religious concerns such as Mosque Entry, Parsi women\'s fire temple entry case, Female Genital Mutilation in the Bohra community, and other incidental religious topics. Coupled with this is the progressive and tremendous trend/precedent that this court has established in recent years, where this doctrine has been used particularly in matters of gender-justice, institutional propriety, social uplift, curbing majoritarianism, and other such ills.
Constitutional Morality, as a result, is classified as a second basic structural concept. Its definition is, understandably, a little hazy, as are the definitions of most other constitutional principles, which are primarily relied on the interpretation of judges when giving verdicts in various situations. However, the country\'s judicial system makes it necessary, and it also requires judges to fill in the "empty vessels of these theories" with words of legal competence and knowledge gained through years of practice.


Indian Young Lawyers Association vs The State Of Kerala, 2018 <> accessed on 5th June, 2021
Govt. Of Nct Of Delhi vs Union Of India, 2018 <> accessed on 5th June, 2021
Navtej Singh Johar vs Union Of India Ministry Of Law, 2018 <> accessed on 5th June, 2021
Justice K.S.Puttaswamy(Retd) vs Union Of India, 2018 <> accessed on 5th June, 2021
Article 25 in The Constitution of India 1949,<> accessed on 5th June, 2021
Article 26 in The Constitution of India 1949, <> accessed on 5th June, 2021
Rachit Garg, Constitutional morality in India, <> accessed on 5th June, 2021