Constitutionalism under the Garb of Morality

Research Methodology

The author has adopted doctrinal research. In the present paper the author has done case analysis
of recent judgement of Supreme Court in accordance to vires of Constitutional Morality.

Introduction

The beauty of the Indian Constitution is that it includes 'I' 'you' and 'we'. Such a magnificent,
compassionate and monumental document embodies emphatic inclusiveness which has been
further nurtured by judicial sensitivity when it has developed the concept of golden triangle of
fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression
of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In
such a situation, the essentiality of the rights of women gets the real requisite space in the living
room of individual dignity rather than the space in an annex to the main building. That is the
manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized
society. The civility of a civilization earns warmth and respect when it respects more the
individuality of a woman. The said concept gets a further accent when a woman is treated with
the real spirit of equality with a man. Any system treating a woman with indignity, inequity and
inequality or discrimination invites the wrath of the Constitution. Any provision that might have,
few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux
of time and growing constitutional precepts and progressive perception.

Constitutional values infuse the letter of the law with meaning. True to its transformative vision,
the text of the Constitution has, time and again, been interpreted to challenge hegemonic
structures of power and secure the values of dignity and equality for its citizens. One of the most
significant of the battles for equal citizenship in the country has been fought by women.
Feminists have overcome seemingly insurmountable barriers to ensure a more egalitarian
existence for future generations. However, the quest for equality continues. A woman cannot be
asked to think as a man or as how the society desires. Such a thought is abominable, for it
slaughters her core identity. Equality is the governing parameter. All historical perceptions
should evaporate and their obituaries be written. It is advisable to remember what John Stuart
Mill had observed that the legal subordination of one sex to another-is wrong in itself, and now
one of the chief hindrances to human improvement; and that it ought to be replaced by a system
of perfect equality, admitting no power and privilege on the one side, nor disability on the other.

Through the current paper the author would like to bring into light recent cases where the Apex
Court has made a worthy transformation. This transformation has been made by cutting the roots
of stereotype ideologies by recognizing Constitutional Morality. In the era of global warming,
Constitutional morality has added oxygen mask to life of women by holding inclusiveness as
vital part of Constitution. This has also made the life of women worth living.

Transformative Constitutionalism

The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to
transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice,
liberty, equality and fraternity as set out in the Preamble to our Constitution. The expression
'transformative constitutionalism' can be best understood by embracing a pragmatic lens which
will help in recognizing the realities of the current day. Transformation as a singular term is
diametrically opposed to something which is static and stagnant, rather it signifies change,
alteration and the ability to metamorphose. Thus, the concept of transformative
constitutionalism, which is an actuality with regard to all Constitutions and particularly so with
regard to the Indian Constitution, is, as a matter of fact, the ability of the Constitution to adapt
and transform with the changing needs of the times.

The idea is to steer the country and its institutions in a democratic egalitarian direction where
there is increased protection of fundamental rights and other freedoms. It is in this way that
transformative constitutionalism attains the status of an ideal model imbibing the philosophy and
morals of constitutionalism and fostering greater respect for human rights. It ought to be
remembered that the Constitution is not a mere parchment; it derives its strength from the ideals
and values enshrined in it. However, it is only when we adhere to constitutionalism as the
supreme creed and faith and develop a constitutional culture to protect the fundamental rights of
an individual that we can preserve and strengthen the values of our compassionate Constitution.
Charter of shifting paradigm and progressive rights

The democratic ideals which are embodied in Constitution like ours is a living and organic
document with senses that are adaptive to its surroundings.

The Apex Court in the case of Chief Justice of Andhra Pradesh and Ors. v. L.V.A. Dixitulu and
Ors.1 highlighted that the Constitution is a living, integrated organism having a soul and
consciousness of its own and its pulse beats, emanating from the spinal cord of its basic
framework, can be felt all over its body, even in the extremities of its limbs.

In the case of Saurabh Chaudri and Ors. v. Union of India and Ors.2 it was observed by the
Apex Court that our Constitution is organic in nature, being a living organ, it is ongoing and with
the passage of time, law must change. Horizons of constitutional law are expanding.

Thus, we are required to keep in view the dynamic concepts inherent in the Constitution that
have the potential to enable and urge the constitutional courts to beam with expansionism that
really grows to adapt to the ever-changing circumstances without losing the identity of the
Constitution. The idea of identity of the individual and the constitutional legitimacy behind the
same is of immense significance. Therefore, in this context, the duty of the constitutional courts
gets accentuated. We emphasize on the role of the constitutional courts in realizing the evolving
nature of this living instrument. Through its dynamic and purposive interpretative approach, the
judiciary must strive to breathe life into the Constitution and not render the document a
collection of mere dead letters.

The following observations made in the case of Ashok Kumar Gupta and Anr. v. State of U.P.3
further throws light on this role of the courts: Therefore, it is but the duty of the Court to supply
vitality, blood and flesh, to balance the competing rights by interpreting the principles, to the
language or the words contained in the living and organic Constitution, broadly and liberally.

The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and
timeless rights of 'liberty' and 'equality' and it would be against the principles of our Constitution
to give them a static interpretation without recognizing their transformative and evolving nature.
The argument does not lie in the fact that the concepts underlying these rights change with the
1
(1979) 2 SCC 34
2
(2003) 11 SCC 146
3
(1997) 5 SCC 201
changing times but the changing times illustrate and illuminate the concepts underlying the said
rights.

In this regard, the observations in Video Electronics Pvt. Ltd. and Anr. v. State of Punjab and
Anr.4 are quite instructive: Constitution is a living organism and the latent meaning of the
expressions used can be given effect to only if a particular situation arises. It is not that with
changing times the meaning changes but changing times illustrate and illuminate the meaning of
the expressions used. The connotation of the expressions used takes its shape and colour in
evolving dynamic situations.

Our Constitution fosters and strengthens the spirit of equality and envisions a society where
every person enjoys equal rights which enable him/her to grow and realize his/her potential as an
individual. This guarantee of recognition of individuality runs through the entire length and
breadth of this dynamic instrument. The Constitution has been conceived of and designed in a
manner which acknowledges the fact that 'change is inevitable'. It is the duty of the courts to
realize the constitutional vision of equal rights in consonance with the current demands and
situations and not to read and interpret the same as per the standards of equality that existed
decades ago. The judiciary cannot remain oblivious to the fact that the society is constantly
evolving and many a variation may emerge with the changing times. There is a constant need to
transform the constitutional idealism into reality by fostering respect for human rights,
promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning
the idea of alienation or some unacceptable social notions built on medieval egos and
establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand
scrutiny. In Ashok Kumar Gupta (supra), the Court had observed that common sense has always
served in the court's ceaseless striving as a voice of reason to maintain the blend of change and
continuity of order which are sine qua non for stability in the process of change in a
parliamentary democracy. The Court ruled that it is not bound to accept an interpretation which
retards the progress or impedes social integration. The Court further observed that it is required
to adopt such interpretation which would give the ideals set out in the Preamble to the
Constitution aided by Part III and Part IV a meaningful and living reality for all Sections of the
society. It is through this armoury of expansive dynamism that the courts have been able to give

4
(1990) 3 SCC 87
an all-inclusive interpretation to the fundamental rights enshrined in Part III of our Constitution.
This is borne testimony by the decisions of the constitutional courts which have evolved views
for extending the protection of fundamental rights to those who have been deprived of the
enjoyment of the same. If not for such an approach adopted by the courts, our Constitution and
its progressive principles would have been rendered ineffective and the dynamic charter would
be reduced to a mere ornate document without any purpose or object.

The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy
and the weaker sections. The role of the Court assumes further importance when the class or
community whose rights are in question are those who have been the object of humiliation,
discrimination, separation and violence by not only the State and the society at large but also at
the hands of their very own family members. The development of law cannot be a mute spectator
to the struggle for the realisation and attainment of the rights of such members of the society.
The Court has gone on the extent of holding the laws unconstitutional if they violate individual
liberty. The Court has heard the suppressed voices of minor against majoritarian masses. The
purposive interpretation made by the Courts is been vital in keeping the law at pace with
changing times.

The classical view of Constitutionalism

In enforcing the fundamental right to equality, this Court has evolved a test of manifest
arbitrariness to be employed as a check against state action or legislation which has elements of
caprice, irrationality or lacks an adequate determining principle.

In E.P. Royappa v. State of Tamil Nadu,5 Justice Bhagwati characterised equality as a "dynamic
construct" which is contrary to arbitrariness. Equality is a dynamic concept with many aspects
and dimensions and it cannot be "cribbed, cabined and confined" within traditional and
doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact,
equality and arbitrariness are sworn enemies; one belongs to the Rule of law in a republic while
the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit
in it that it is unequal both according to political logic and constitutional law and is therefore
violative of Article 14.

5
(1974) 4 SCC 3
In S.G. Jaisinghani v. Union of India,6 the Court held that absence of arbitrary power is the first
essential of the Rule of law upon which our whole constitutional system is based. In a system
governed by Rule of law, discretion when conferred upon executive authorities must be confined
within clearly defined limits. The Rule of law from this point of view means that decisions
should be made by the application of known principles and Rules and, in general, such decisions
should be predictable and the citizen should know where he is. If a decision is taken without any
principle or without any Rule it is unpredictable and such a decision is the antithesis of a
decision taken in accordance with the Rule of law.

Constitution Bench judgments in Mithu v. State of Punjab7 and Sunil Batra v. Delhi
Administration8 and, eventually, came to hold thus:

It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that
Article 14 has been referred to in the context of the constitutional invalidity of statutory law to
show that such statutory law will be struck down if it is found to be "arbitrary". And again: ...The
test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to
invalidate legislation as well as subordinate legislation Under Article 14.

Insofar as “manifest arbitrariness” is concerned, it is important to advert to the majority

judgment of this Court in Shayara Bano v. Union of India,9 The majority, in an exhaustive
review of case law under Article 14, which dealt with legislation being struck down on the
ground that it is manifestly arbitrary, has observed following in para 87;
The thread of reasonableness runs through the entire fundamental rights chapter. What is
manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would
violate Article 14. The arbitrariness doctrine when applied to legislation obviously would not
involve the latter challenge but would only involve a law being disproportionate, excessive or
otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to
differentiate between State action in its various forms, all of which are interdicted if they fall foul
of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.

6
(1967) 2 SCR 703
7
(1983) 2 SCC 277
8
(1978) 4 SCC 494
9
(2017) 9 SCC 1
Manifest arbitrariness, therefore, must be something done by the legislature capriciously,
irrationally and/or without adequate determining principle. Also, when something is done which
is excessive and disproportionate, such legislation would be manifestly arbitrary. Arbitrariness
thus would apply to negate a legislation as well as would also apply to subordinate legislation.

Transformative Constitutionalism vis-à-vis Constitutional Morality

The concept of constitutional morality is not limited to the mere observance of the core
principles of constitutionalism as the magnitude and sweep of constitutional morality is not
confined to the provisions and literal text which a Constitution contains, rather it embraces
within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive
society, while at the same time adhering to the other principles of constitutionalism. It is further
the result of embodying constitutional morality that the values of constitutionalism trickle down
and percolate through the apparatus of the State for the betterment of each and every individual
citizen of the State.

In one of the Constituent Assembly Debates, Dr. Ambedkar, explaining the concept of
constitutional morality by quoting the Greek historian, George Grote, said: 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 citizen amidst the bitterness of party contest that the forms of constitution wall not be
less sacred in the eyes of his opponents than his own.10

Our Constitution was visualized with the aim of securing to the citizens of our country
inalienable rights which were essential for fostering a spirit of growth and development and at
the same time ensuring that the three organs of the State working under the aegis of the
Constitution and deriving their authority from the supreme document, that is, the Constitution,
practise constitutional morality. The Executive, the Legislature and the Judiciary all have to stay
alive to the concept of constitutional morality.

10
Constituent Assembly Debates, Vol. 7 (4th November 1948)
In the same speech,11 Dr. Ambedkar had quoted George Grote who had observed: The diffusion
of 'constitutional morality', not merely among the majority of any community, but throughout the
whole is the indispensable condition of a 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 ascendance for themselves. 12 This statement of Dr.
Ambedkar underscores that constitutional morality is not a natural forte for our country for the
simple reason that our country had attained freedom after a long period of colonial Rule and,
therefore, constitutional morality at the time when the Constituent Assembly was set up was an
alien notion. However, the strengthening of constitutional morality in contemporary India
remains a duty of the organs of the State including the Judiciary.

The society as a whole or even a minuscule part of the society may aspire and prefer different
things for themselves. They are perfectly competent to have such a freedom to be different, like
different things, so on and so forth, provided that their different tastes and liking remain within
their legal framework and neither violates any statute nor results in the abridgement of
fundamental rights of any other citizen. The Preambular goals of our Constitution which contain
the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the
commitment and loyalty of the organs of the State to the principle of constitutional morality.

It is the concept of constitutional morality which strives and urges the organs of the State to
maintain such a heterogeneous fiber in the society, not just in the limited sense, but also in
multifarious ways. It is the responsibility of all the three organs of the State to curb any
propensity or proclivity of popular sentiment or majoritarianism. Any attempt to push and shove
a homogeneous, uniform, consistent and a standardized philosophy throughout the society would
violate the principle of constitutional morality. Devotion and fidelity to constitutional morality
must not be equated with the popular sentiment prevalent at a particular point of time.

Any asymmetrical attitude in the society, so long as it is within the legal and constitutional
framework, must at least be provided an environment in which it could be sustained, if not
fostered. It is only when such an approach is adopted that the freedom of expression including
that of choice would be allowed to prosper and flourish and if that is achieved, freedom and
liberty, which is the quintessence of constitutional morality, will be allowed to survive.
11
Ibid
12
Grote, A History of Greece, Routledge, London, 2000, p. 93
In Government of NCT of Delhi v. Union of India and Ors. 13 (Dipak Misra, CJI) observed:
Constitutional morality, appositely understood, means the morality that has inherent elements in
the constitutional norms and the conscience of the Constitution. Any act to garner justification
must possess the potentiality to be in harmony with the constitutional impulse. We may give an
example. When one is expressing an idea of generosity, he may not be meeting the standard of
justness. There may be an element of condescension. But when one shows justness in action,
there is no feeling of any grant or generosity. That will come within the normative value. That is
the test of constitutional justness which falls within the sweep of constitutional morality. It
advocates the principle of constitutional justness without subjective exposition of generosity. The
duty of the constitutional courts is to adjudge the validity of law on well-established principles,
namely, legislative competence or violations of fundamental rights or of any other constitutional
provisions. At the same time, it is expected from the courts as the final arbiter of the Constitution
to uphold the cherished principles of the Constitution and not to be remotely guided by
majoritarian view or popular perception. The Court has to be guided by the conception of
constitutional morality and not by the societal morality.

We may hasten to add here that in the context of the issue at hand, when a penal provision is
challenged as being violative of the fundamental rights of a Section of the society,
notwithstanding the fact whether the said Section of the society is a minority or a majority, the
magna cum laude and creditable principle of constitutional morality, in a constitutional
democracy like ours where the Rule of law prevails, must not be allowed to be trampled by
obscure notions of social morality which have no legal tenability. The concept of constitutional
morality would serve as an aid for the Court to arrive at a just decision which would be in
consonance with the constitutional rights of the citizens, howsoever small that fragment of the
populace may be. The idea of number, in this context, is meaningless; like zero on the left side of
any number. In this regard, we have to telescopically analyse social morality vis-à-vis
constitutional morality. It needs no special emphasis to state that whenever the constitutional
courts come across a situation of transgression or dereliction in the sphere of fundamental rights,
which are also the basic human rights of a section, howsoever small part of the society, then it is
for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that
constitutional morality prevails over social morality.
13
2018 (8) SCALE 72
A country or a society which embraces constitutional morality has at its core the well-founded
idea of inclusiveness. While testing the constitutional validity of impugned provision of law, if a
constitutional court is of the view that the impugned provision falls foul to the precept of
constitutional morality, then the said provision has to be declared as unconstitutional for the pure
and simple reason that the constitutional courts exist to uphold the Constitution.

Recent Instances where Apex Court upheld Constitutional Morality

In Anuj Garg v. Hotel Association of India, 14 this Court struck down Section 30 of the Punjab
Excise Act, 1914 which prohibited the employment of women in premises where liquor or other
intoxicating drugs were consumed by the public. Holding that the law suffered from "incurable
fixations of stereotype morality and conception of sexual role", the Court took into account
"traditional cultural norms as also the state of general ambience in the society" and held that "no
law in its ultimate effect should end up perpetuating the oppression of women."

In Navtej Singh Johar and Ors. v. Union of India and Ors. 15 (Chandrachud J.) held thus: A
discriminatory act will be tested against constitutional values. A discrimination will not survive
constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class
constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether
direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not
be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only
of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes
of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot
establish a permissible reason to discriminate. Such a discrimination will be in violation of the
constitutional guarantee against discrimination in Article 15(1).

In Joseph Shine v. Union of India16 Writ Petition (Criminal) No. 194 of 2017 in para 132 court
observed:

Section 497 rests on and perpetuates stereotypes about women and sexual fidelity. In curtailing
the sexual agency of women, it exacts sexual fidelity from women as the norm. It perpetuates the
notion that a woman is passive and incapable of exercising sexual freedom. In doing so, it offers

14
(2008) 3 SCC 1
15
(2018) 10 SCALE 386
16
Writ Petition (Criminal) No. 194 of 2017
her 'protection' from prosecution. Section 497 denudes a woman of her sexual autonomy in
making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the
notion that a woman consents to a limited autonomy on entering marriage. The provision is
grounded in and has a deep social effect on how society perceives the sexual agency of women.
In reinforcing the patriarchal structure which demands her controlled sexuality, Section 497
purports to serve as a provision envisaged for the protection of the sanctity of marriage. In the
context of a constitutional vision characterized by the struggle to break through the shackles of
gender stereotypes and guarantee an equal citizenship, Section 497 entrenches stereotypes and
existing structures of discrimination and has no place in a constitutional order.

Control over women's sexuality is the key patriarchal assumption that underlies family and
marriage.17 When it shifts to the 'public' as opposed to the 'private', the misogyny becomes even
more pronounced.18 Section 497 embodies this. By the operation of the provision, women's
sexuality is sought to be controlled in a number of ways. First, the husband and he alone is
enabled to prosecute the man with whom his wife has sexual relations. Even in cases where the
relationship is based on the consent of the woman, the law treats it as an offence, denying a
woman who has voluntarily entered into a consensual relationship of her sexual agency. Second,
such a relationship would be beyond the reach of penal law if her husband consents to it. The
second condition is a telling reflection of the patriarchal assumption underlying the criminal
provision: that the husband is the owner of the wife's sexual agency.

In para 139, it was observed by Dr. D.Y. Chandrachud, J.,19

Section 497 chains the woman to antediluvian notions of sexuality. Chief Justice Dipak Misra in
Navtej emphasised the importance of sexual autonomy as a facet of individual liberty, thus
protected Under Article 21 of the Constitution: The sexual autonomy of an individual to choose
his/her sexual partner is an important pillar and an insegregable facet of individual liberty. When
the liberty of even a single person of the society is smothered under some vague and archival

17
David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), p.no. 30
18
Ibid
19
supra note. 15
stipulation that it is against the order of nature or under the perception that the majority
population is peeved when such an individual exercises his/her liberty despite the fact that the
exercise of such liberty is within the confines of his/her private space, then the signature of life
melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of
such an individual is abridged.

Indian Hotel and Restaurant Association (ahar) & Anr vs. The State of Maharashtra & Ors.20 the
Apex Court has held that State cannot exercise “social control” under the garb of its notion of
morality.

The Apex Court declared certain provisions of the Maharashtra Prohibition of Obscene Dance in
Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act,
2016 and also the Rules framed there under being the Maharashtra Prohibition of Obscene Dance
in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein)
Rules, 2016 as unconstitutional which made a complete ban on bar dancers under the notion of
morality. The court further went on to observe that, any law which is passed by the state to
prevent obscenity must have real, apparent and reasonable nexus and it must not be fictitious in
nature. The notion of morality and its interpretation rests on the shoulders of judiciary. By laying
a complete ban on bar dancers thus creating a different class must be based on intelligible
differentia and reasonable nexus. In the present case, where it violates right to equality and right
to livelihood of women employed in bar dancers not only infringes their fundamental rights but
also contravenes the principle of inclusive democracy.

Conclusion

Constitution which is living and organic document restrains the abuse of power of state under
ambit of Article 14. The classical view which opposed arbitrary act of the state has widened its
scope to include Constitutional Morality. Devoid from the principle of utility, Constitutional
morality talks about individual liberty. Protection the interest of suppressed class against the
masses the Court has upheld the faith of minority in the Judiciary. The notion of justice no more

20
Writ Petition (civil) no. 576 OF 2016
remains a text in books and it seems to be done by the Apex Court. Equality which is also basic
structure has now included in its ambit Constitutional Morality.