The principle of constitutional morality did not find much traction until the beginning of the last decade. To be fair, it did find mention in a few judgments of the Indian Supreme Court prior to that, however, the concept was abstract.
Till date, there are roughly about 38 Supreme Court judgments that have dealt with this concept in some detail, or in passing.
Understanding what is meant by constitutional morality as a principle in law as opposed to applying the principle for the purpose of justiciability and claiming certain rights (including fundamental rights on behalf of a litigant) is one aspect of the matter.
The second aspect would essentially mean how the concept of morality is ordinarily understood i.e. societal morality that is different from constitutional morality and how the courts have interpreted that.
What is understood to be societal morality has to yield to constitutional morality when tested on the touchstone of the constitution as held in Sabarimala Temple matter. But the more topical question today is whether constitutional morality has necessarily to be stated and reiterated time and again by the Supreme Court. The same is actually a facet of institutional morality and political morality. In fact, societal morality, institutional morality and political morality all yield to constitutional morality. The need of the hour is for the Institutions that govern us to observe constitutional morality.
The first mention with respect to constitutional morality is found in the Constituent Assembly debates (November 4, 1948). The reference comes on the debate with respect to the details of administration included in the draft constitution, and which was alleged to have been borrowed heavily from the Government of India Act, 1935.
While responding to this, B.R. Ambedkar introduced for the first time the concept of constitutional morality as enunciated by George Grote.
What exactly Ambedkar said was that:
“While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the forms of administration has a close connection with the form of the Constitution. The forms of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.
It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.
In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution.”
Constitutional morality as first discussed by Grote was in the context of the history of Greece and, more particularly, the attachment to constitutional forms at Athens and the use made of this sentiment by Antiphon to destroy the constitution.
It is in this context that Ambedkar had quoted Grote:
“The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendancy for themselves.”
The time and context of the Constituent Assembly debate assumed much significance at the time, as India had freshly attained independence and one nation was sought to be created out of roughly 521 princely states which had acceded to the Indian Union or were in the process of acceding. The challenge at the time was to have a predominant constitution as a binding factor for a nation. It was in this context that Ambedkar made the aforesaid remark with a view to have the constitution as the paramount document of the new nation.
There have been certain scattered discussions of what constitutes constitutional morality from sociologists point of view as discussed by Andre Beteille in that obligations of constitutional morality bind the government of the day as well as the opposition. While this observation assumes importance in the context of the situation prevailing in the country today, the question remains: what are the institutional obligations when the country is in a state of lockdown?
Constitutional morality essentially translates into constitutional methods of administration in achieving social and economic objectives as held in the adultery case. In a number of judgments, the Supreme Court has discussed the parameters of constitutional morality to variously mean, ‘genuine orderliness’ ‘a pillar stone of good governance’.
A complete lockdown for a country of 1.3 billion people is certainly not an easy task. These are tough decisions. While it has been debated that only strong leadership would be able to achieve this, and that may not be disputed. However, disturbing and heart-rending pictures are emerging every day of migrant labourers walking miles to reach the safety of their homes, of police atrocities on these people, who are punishing them, caning then and making them crawl, which, of course, has been condemned by the authorities.
This, when coupled with all the assistance rendered to another lot that was airlifted from foreign countries, has drawn considerable flak. The actions of the government may have been decisive but can scarcely be said to have been properly thought through. The Union government and the states did not think of the huge migrant populations that make the cogs of the city run. There was no announcement about mitigating circumstances for them, no promises made, no assurances given, no prior arrangements announced. Did they not exist on the radar of the authorities? Preaching social distance without realising that this is perhaps a luxury for them will cost the country a huge price. These are the people who may actually trigger a community spread of the virus.
The home ministry order of March 29 directing that the migrant workers, who had moved out to reach their homes, must be kept in the ‘nearest shelter’ didn’t specify whether it meant the shelter nearest to their homes, hence implying that the workers would be kept in shelters nearest to where they had been rounded up.
The Supreme Court, in a writ petition seeking the welfare of migrant labourers who had started walking back to their villages, passed an order on March 31 expressing satisfaction with the steps taken by the central government without expressing any concern about the human right violations as it is now no longer a lockdown for workers. It is a lock up!
A new balancing of priorities and human rights will emerge in the new normal post-COVID-19 world. Constitutional morality demands that governance, and institutions that govern and affect us, scrupulously follow its principles. This is non-negotiable. The Supreme Court, in its privacy judgment, had aptly described this principle in the following language:
“The principle of Constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such amorality. The democratic values survive and become successful where the people at large and the persons in charge of the institution are strictly guided by the Constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite Constitutional restraints. Commitment to the Constitution is a facet of Constitutional morality.”
In this context, the statement of the chief minister of Telangana needs to be applauded and appreciated.
Not only has he called them partners in the development of the state, but his announcement appears to be genuine keeping in mind the difficulties faced by the class of people who have been endowed with less. Constitutional morality demands that the institutions act today and not wait for a direction and order from the Supreme Court.
Sesh Ray is a practising advocate at the Supreme Court of India.