Imposing an external objective standard [ doctrinal constitutional morality] which is different from the subjective view of Article 25 and 26 [ Morality, Public order and Health], the court is creating something which undermines the settled text of the constitutional provision by a judge made doctrine. ( Log Out /  In this case Supreme Court had overruled its own previous judgment of Suresh Kaushal vs. Union of India and decimalizes the archaic Section 377 of Indian Penal Code which criminalizes consensual sex except for heterosexual penile-vaginal. Author: Shelal Lodhi Rajput from Symbiosis Law School, Pune. The laws enacted become expressions of public morality. To give a brief background about the issue, in the case of Naz Foundation vs. NCT of Delhi, the Delhi High Court held that s.377 was unconstitutional and thereby decriminalized homosexuality. Ethics and morality are the branch of philosophy which deals with values of human conduct in the rightness or wrongness of certain actions. 552. Change ), You are commenting using your Twitter account. Share. However, […] How to uphold constitutional morality. Tradition and Morality in Constitutional Law Francis Boyer Award lecture. Ambedkar on constitutional morality 8. ... For the purpose, we redefine it as an aspect of ‘public morality’. Out of 5 judges 3 held that goal of the court is to transform society or to convert public morality into constitutional morality. Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious. For democracies to succeed, both Gandhi and Ambedkar believed that the parliamentary majorities need to be restrained through constitutional ethics and public morality. 29/08/2020. Constitutional morality is not a ‘dangerous weapon’ ... the state’s defence could not merely be that the law was justified because it conformed with public morality. Constitutional morality is a sentiment to be cultivated in the minds of a responsible citizen. In democracy, public morality and unelected institutions are necessary checks, not inimical to elected govt India’s democracy, as envisaged by the makers of its Constitution, thrived essentially because of the respect of the leaders for ethical constitutionalism and … Constitutional ethics is about leaders respecting constitutional order, conventions and institutions. Constitutional morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the constitution it is so broad that it includes commitment to inclusive and democratic political process in which the individual and collective interests are satisfied, a judicial scenario providing an opportunity to unfold the full personhood of every citizen for whom and by whom the constitution exists etc. The doctrine is not only restricted to some texts of the constitution it is in the spirit of constitution. It is soul and spirit of constitution; it assures that all inequality is eliminated by it from social milieu. First it was referred by two judges (Justice A.N. He insisted that for India’s democracy to succeed, the Congress should convert itself into a lok sevak sangh and work at the grassroots level. 2013] REASON, MORALITY, & CONSTITUTIONAL COMPLIANCE 1385 cannot be assumed but must be defended law by law.17 Then, Professor Greene argues that the government should grant exemptions to some of its restrictive laws.18 That is a moral, not a legal, argument, which presupposes that the government has a moral right to demand compliance with the laws in question. Its absolutely within the constitutional paradigm, its not an uncharted plan. Telegram. ( Log Out /  Constitutional ethics is about leaders respecting constitutional order, conventions and institutions. It requires in a democracy the assurance of basic rights, which are essential for existence to every member of society. Court noted that the word “morality” in Article 25&26 must mean constitutional morality and not popular. The judiciary as a interpreter of constitution has effectively used constitutional morality to overcome age old laws, which needs to get reformed with changing time, as society can’t be static it gets evolved with changing times same goes with the law to cater the needs of society by keeping in mind the spirit of constitution. In the last few pieces, this author had undertaken a discussion on constitutional morality, its nexus with public morality, and the nature and scope of intervention permitted by the Indian Constitution to the State and the Judiciary respectively in relation to public morality. Editor: Muskaan Garg from Jindal Global Law School, O.P. Twitter. The doctrine of constitutional morality is concept which commands and empower the judicial minds to interpret the constitution and its provisions in a moral way subject to the constitution and not to the public morality, in the recent development we get to see this from our judiciary. FACTS: The petitioners in the present case challenged the … Constitutional morality is important for constitutional laws to be effective. That all citizens would respect and adhere the constitution. Criticise non-constitutional practices The strength or weakness of constitutional morality in contemporary India has to be understood in the light of a cycle of escalating demands from the people and the callous response of successive governments to those demands. It is akin to doctrine of basic structure and perfect remedy what is called. Change ), Conversations, certitude and disagreements, The European origins of cultural coloniality, Conversations, certitude and disagreements, The European origins of cultural coloniality. The constitutional morality is not still defined anywhere, there are many different notions on the same. 2013] REASON, MORALITY, & CONSTITUTIONAL COMPLIANCE 1385 cannot be assumed but must be defended law by law.17 Then, Professor Greene argues that the government should grant exemptions to some of its restrictive laws.18 That is a moral, not a legal, argument, which presupposes that the government has a moral right to demand compliance with the laws in question. How to uphold constitutional morality. ( Log Out /  Simply he used the Grote’s idea as a persuasive or rhetorical device to justify why seemingly mundane details about the administration of the government had been in Constitution of India. Not limited by provisions of constitution but it is mandate to accomplish the aim of the constitution. I would then speak on the historical and juridical underpinning of ‘constitutional morality’. Abolition of untouchability altogether its forms, as well as scavenging, remains an associate unsuccessful constitutional right “The issue of the rights of sweepers and scavengers has ne’er entered the thought legal consciousness within the country,” wrote Upendra Baxi in Law and Poverty: important Essays. It relates to parliamentary form of government which is self-restraint by providing limitation on the functioning of state to curtail liberty of citizen. Indian constitutional law is no stranger to judicially invented tests and doctrines. The Daily Guardian The pith and marrow of this discussion is that constitutional morality may be invoked on the basis of the provisions of the Constitution to question the conduct of the State and to identify the metes and bounds within which the State must operate.… Continue reading Constitutional morality, public morality and moral diversity However, this concept appears to have come under severe criticism with Sabarimala Temple Case. Change ). In recent doctrine is applied in number of landmark cases which turns out year 2018 as a watershed for judiciary. Answer: ‘Constitutional morality’ can be defined as a moral responsibility of an individual to be faithful towards constitutional values and uphold them with utmost integrity, without any compromise. Justice Venkataramiah in S.P. The concept of Constitutional Morality was used in an important case of Navtej Singh Johar which employed this concept in an innovative manner to strike down Section 377 of the Indian Penal Code and decriminalize homosexuality. The salient features of doctrine of constitutional morality can be stated as follow: There are many landmark judgements which was given by supreme court by applying this doctrine, they are as following: To pass constitutional muster and get rights under Article 25 & 26 must be in conformity   with these four tests, the same principle was used by court in TripleTalaq case. Introduction– write a few introductory lines about the term, constitutional morality. Change ), You are commenting using your Facebook account. Ray and Justice P. Jaganmohan) Reddy in celebrated Basic structure case Kesavananda Bharati v. State of Kerala (1973). Print. Morality and right to religion 5. Upholding Constitutional morality is not just the duty of the judiciary or state but also of individuals. Justice Krishna Iyer in Raj Kapoor v. NCT of Delhi, invoked Babasaheb Ambedkar’s delineation of constitutional morality in asserting the urgency of decriminalising consensual sexual relations proscribed by Section 377 of … Another example of constitutional morality is the case of Navtej Johar Singh Vs. Union of India . 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. Enter your email address to follow this blog and receive notifications of new posts by email. Shukla began by elucidating the pressing need to locate constitutional morality in the Indian Constitution. In other words, public conscience, moral order and constitutional morality- ethics of politicians, that constitute the core of policy making, must be very sound and strong if democracy is to survive for the long period of progress and prosperity for the common people. Comparative constitutional analyses of the concept of morality Facebook. We all know each coin has two faces, same here with the doctrine. These judgments assume ‘constitutional morality’ to be a theory of individual rights unfettered by moral considerations by dubbing such considerations as either majoritarian or ‘subjective fetters on rights’. The Daily Guardian The pith and marrow of this discussion is that constitutional morality may be invoked on the basis of the provisions of the Constitution to question the conduct of the State and to identify the metes and bounds within which the State must operate.… Continue reading Constitutional morality, public morality and moral diversity Rather, ‘constitutional morality’ must shape ‘social morality’. The Supreme Court of India, on February 2nd 2016 decided to revisit the much controversial section 377 of the Indian Penal Code, 1860. The principle of constitutional morality can be used for reading down laws or statutes which are inconsistent with the incumbent time and can be used to bring about a positive transformation in the perception of societal or public morality. Justice Krishna Iyer in Raj Kapoor v. Public morality can be understood alongside the concepts of public health and public safety. The question here is are we now headed into uncharted territories where we are going to see more conflict and more confusion and what brings more clarity. Pornography, Public Morality, and Constitutional Rights October 17, 2011 November 2, 2018 By Robert P. George Every member of the community has an interest in the quality of the culture that will shape their experiences, their quality of life, and the … The article speaks about the concept of constitutional morality. The constitutional supremacy and equality. Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. Gupta v. Union of India (1981) also known as First Judge Case found that violation of constitutional convention would “be a serious breach of constitutional morality.” In 2003, Justice S B Sinha held that affirmative actions might be valid but it would violate “constitutional morality” if it is not in consonance with doctrine of equality. Post was not sent - check your email addresses! Change ), You are commenting using your Google account. While addressing he said quoted Grote’s word that constitutional morality was not a “natural sentiment” and said that Indians “Have yet to learn it”. Constitutional morality is not a ‘dangerous weapon’ ... the state’s defence could not merely be that the law was justified because it conformed with public morality. ... One of the freedoms, the major freedom, of our kind of society is the freedom to choose to have a public morality. Constitutional Morality is a sentiment to be cultivated in the minds of a responsible citizen. of the term ‘Constitutional Morality’ and the effect that the term has on the Indian Constitution, the Citizen, the State and the Judiciary. 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