Above: (L-R) Pratap Bhanu Mehta’s brilliant scholarship on constitutional morality is significant to understand the concept (Photo credit: World Economic Forum/Photo Eric Miller emiller@iafrica.COM ) ; Andre Beteille has made a value-added distinction between “constitutional democracy” and “populist democracy” (Photo credit: Facebook)

~By Inderjit Badhwar

When India Legal recently ran a story on remarks made by Attorney General KK Venugopal warning about the dangers of spreading the doctrine of “constitutional morality,” little did we realise that the subject would give rise to a heated debate—within the covers of this magazine—between some of the leading intellectual luminaries of this nation.

Pratap Bhanu Mehta has penned a superb essay elsewhere on this subject asking simply, what is constitutional morality? He explains that the phrase “rarely crops up” in discussions within India’s Constituent Assembly. “Of the three or four scattered uses of the phrase, only one reference has any intellectual significance. This is, of course, Ambedkar’s famous invocation of the phrase in his speech, ‘The Draft Constitution’, delivered on 4 November 1948.” In the context of defending the decision to include the structure of the administration in the Constitution, he quotes at great length the classicist, George Grote. The quotation is worth reproducing in full:

“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.”

What did Grote mean by “constitutional morality”? Ambedkar quotes Grote again:

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 will not be less sacred in the eyes of his opponents than his own.

Andre Beteille argues in a book that constitutional morality is important for constitutional laws to be effective. “Without constitutional morality, the operation of a constitution tends to become arbitrary, erratic, and capricious.” According to a review in Oxford Scholarship Online, he makes a distinction between “constitutional democracy” and “populist democracy”. He says democracy has survived in India by moving away from the ideal of a constitutional democracy towards a more populist form. It looks at the Emergency of 1975-77 to show the connection between anarchy and the abuse of power as two forces that are both antithetical to constitutional morality. He also examines the link between constitutional morality and the principle of civil disobedience, which under the leadership of Mahatma Gandhi became the cornerstone of India’s nationalist movement.

In a recent edit in this magazine, we referred to the most recent judicial pronouncements on this subject. Immediately after donning the mantle of chief justice of India, Justice Ranjan Gogoi offered some clue as to what the Supreme Court under him would be like. His priority, he declared, would be to focus on the vast backlog of cases and filling judicial vacancies. Those, however, are largely administrative in nature requiring strict discipline, qualities he is well known for. What assumes much greater importance was his attempt to revive a national conversation on “constitutional morality”. Stating that people are divided “more than ever” along the lines of caste, religion and ideology, Justice Gogoi’s core message was that judicial beliefs must be continuously evaluated on the touchstone of constitutional morality. He defined “true patriotism to the Constitution” as adherence to constitutional morality. For most people inured to political venality and muscular majoritarianism, that objective may seem utopian but viewed in the context of recent judgments by the highest court in the land, it is extremely significant.

Under his predecessor Chief Justice Dipak Misra, the Supreme Court had struck down Section 377 of the Indian Penal Code, saying it was upholding “constitutional morality” and not “majoritarian morality” while deciding to decriminalise homosexuality. The verdict overruled a previous judgment which held that only a small number of people were exercising their rights. As the former CJI said later at a conference of law students, “it’s not the number that determines the right. A right permissible under the constitution is a right that has to be respected”.

That right was also witnessed in the Supreme Court ruling on Sabarimala to allow women into the temple. It was seen as correcting a discriminatory social and religious practice that was violative of Part III of the Constitution. Constitutional morality basically rejects the transactional view of the Constitution or majority opinion which is the key to managing a vast country like India with its diversity of cultures, communities, castes, religions and customs.

But when Venugopal recently asserted that judicial reliance on this concept could upset the separation of powers doctrine and sabotage the right of the legislature to make and enforce laws, Professor Upendra Baxi, among the tallest in the firmament of legal luminaries wrote in India Legal: “Courts are constitutionally mandated to adjudicate matters which raise competing contentions regarding core human rights. Constitutional morality contains a set of goals and methods by which to address these conflicts. The apex court has never said that all public policy always offends constitutional morality, but only that the courts must choose the latter when the two are in visible conflict. The dialectic between public morality and constitutional morality serves well the promotion of constitutional good governance and the production of constitutionally sincere citizens. I hope that my good friend Venu {KK Venugopal} finds ample scope for re-examination of his current expostulations and exhortations.”

In this issue we carry yet another article, posed as a set of questions by none other than the venerable and redoubtable Prof Madhava Menon whose legal scholarship is also an international phenomenon. I reproduce here his concluding statement:

“The issue to my mind is not the importance or relevance of the concept of Constitutional Morality in working out the provisions of the Constitution. Rather, it is about the use and abuse of the doctrine in constitutional decision-making. No doubt, democracy as a system of governance may not serve the constitutional goal always. That is a price society has to pay for accepting a democratic form of government and polity. The remedy for preventing majoritarian excesses lies more in cultivating the natural sentiment of people for maintaining Constitutional Morality (as Dr Ambedkar seemed to think) rather than in showing ‘less deference to the legislature’ in the matter of constitutional values as some judges seem to think. The ugly consequence which resulted in forcible enforcement of the Supreme Court judgment in Sabarimala by a government controlled by a party of ‘non-believers’ cannot be dismissed as a conflict between public morality and Constitutional Morality. It is indeed a portent of what the attorney general believed to be the possible outcome for rule law and democracy if Constitutional Morality turns out to be yet another tool beyond ‘Basic Structure’ for exercising judicial power.”

Pratap Bhanu Mehta’s brilliant scholarship on this topic shines as he argues in what could be the defining statement on the issue—that the Indian Constitution was made possible by a constitutional morality that was “liberal at its core”. Not liberal in the “eviscerated ideological sense”, he continues,  but in the deeper virtues from which it sprang: “An ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.”