Questions from this theme are increasing with time but solid narratives on the same are missing pushing aspirants to write substandard answers merely consolidating what they know.
Previous Year Questions
[2019] GSIV: What do you understand about the term “constitutional morality”? How does one uphold constitutional morality? (10M)
[2021] ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (10M)
[2022] “The most significant achievement of modern law in India is the constitutionalization of environmental problems by the Supreme Court.” Discuss this statement with the help of relevant case laws. (10M)
[2023] “The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society”. Illustrate with special reference to the expanding horizons of the right to life and personal liberty. (15M)
[2023] Explain the constitutional perspectives of Gender Justice with the help of relevant Constitutional Provisions and case laws. (15M)
Answer Writing Framework
Questions on this topic are mostly analytical. To get Maximum marks, need to add precise definitions, scholarly quotes, relevant Articles, and SC judgments.
Introduction
Start with definitions of the concepts. If the question is for 15 Mark, can also add context.
Main Body
If the demand is to explain the meaning of the question then use diagrammatic representation for highlighting elements/principles of that concept
For generating dimensions – Stakeholder Approach
- Constitution – Rule of law, Supremacy, Morality, constitutionalism, living or organic document, Coordination and equilibrium, Separation of Powers
- Executive – Accountability, Preventing majoritarianism, Checks and balances
- Legislature – Flexibility, Prevents Arbitrary Legislation
- Judiciary – Guardian of FR and Constitution, Independence, Activism, Judicial Review, Special powers (A 141, 142)
- Society – Social Justice, Trust and confidence, Modernization, Affirmative Action
- Substantiate these points using relevant examples, Articles and SC judgements – Keep elaboration brief and try to cover more dimensions
For critical evaluation – C-I approach
- Constitutional – Constitutional morality vs social morality, Subjectivity, vagueness, lack of definition, Against Representative Democracy
- Institutional – Judicial Overreach, Lacks popular legitimacy, Against Separation of powers, Policy Paralysis
In case of critical evaluation, provide a brief way forward of 2-3 points
Conclusion
- Add a quote of a scholar and link it with keywords like Egalitarian Society, Promotion of FR, etc.
- Keywords – Transformative Constitutionalism, magna carta of socio-economic transformation, Constitutional supremacy,
Constitution
The Constitution serves as the foundational law on which other laws are constructed and enforced. The Constitution establishes the fundamental structure of the political system, upholds the rule of law, and delineates the powers and duties of government organs.
Functions of the Constitution
Coordination rules for diverse groups: It establishes fundamental guidelines enabling minimal coordination among members of a diverse society. For instance, Part III outlines principles of equality, non-discrimination, and individual rights, fostering a cohesive and inclusive society.
It delineates the distribution of power in society and delegates specific decision-making authority to various entities or authorities. For eg. the 7th Schedule divides the legislative power between the Union and State governments.
The Constitution both empowers and constrains the State’s authority. It allows the government to realize societal aspirations and implement principles of justice, liberty, and fraternity. Simultaneously, it establishes boundaries on the government’s ability to impose restrictions on its citizens. For eg. while Articles 15 and 16 prohibit the government from discriminating against citizens, they also provide for affirmative action in favor of vulnerable groups.
The constitution also sets forth the fundamental principles and objectives that govern the establishment and governance of a state. Examples include the Preamble and the Directive Principles of State Policy (DPSP).
Indian Constitution as ‘Bag of Borrowings’
Indian Constitution is often criticized as a Bag of Borrowings, having its features picked up from various other Constitutions.
Arguments in favor
- Fundamental Rights borrowed from the United States Constitution.
- Directive Principles of State Policy is inspired by the Irish Constitution
- Parliamentary System including the bicameral legislature and the role of the Prime Minister, mirrors the British model.
- Federal Structure with a strong central government was influenced by the Canadian Constitution.
- Emergency Provisions were derived from the Weimar Constitution of Germany.
- Fundamental Duties was inspired by the Soviet Constitution.
- The concurrent List was borrowed from the Australian Constitution.
- Judicial Review was adopted from the American system
Arguments Against
‘Nobody holds any patent rights in fundamental ideas of the Constitution’ – Ambedkar. The crafting and implementation of its provisions were guided and adapted by Indians to accommodate the diverse local realities. Eg – Federalism.
Indian civilizational values: Equality, fraternity, liberty, federalism, republic, democracy, etc. can be traced back to ancient Indian history and scriptures. For eg-
- The secularism in the Indian Constitution is influenced by ‘sarva dharma sambhav’
- The Rig Veda emphasizes the idea of the unity of all beings and the absence of discrimination based on caste or birth.
- The Arthashastra calls individual liberties and property rights as essential components of good governance
- The establishment of the “Mahasangha” or the Great Assembly in ancient India is considered an early form of a republic.
- The concept of “Sabha” and “Samiti” in ancient texts reflects democratic practices.
Not blind but innovative and modified borrowing– For eg. The U.S. Constitution envisions the Bill of Rights, whereas our Constitution includes not only Rights but also Fundamental Duties for all citizens of India.
Certain basic features are common in all the democratic constitutions in the world. Eg. Protection of individual rights, separation of powers, rule of law, and mechanisms for representative government, such as elections and checks and balances.
Extensive deliberation- The Constitution is the result of brainstorming for 2 years, 11 months, and 18 days where each provision was extensively debated.
Many provisions were of Indian origin. Eg. Finance Commission, Reservation, etc.
Even at present, the Indian judiciary remains open to applying foreign constitutional doctrines in domestic cases, aiming to stay current and embrace best practices. Eg. in the Maneka Gandhi case, the Supreme Court expanded the scope of personal liberty under Article 21 of the Indian Constitution by drawing on the U.S. concept of “due process of law.”
Constitution as a living document
According to Woodrow Wilson, living political Constitutions must be Darwinian in structure and in practice.
Although the Constitution is a permanent document, it is designed to apply to future situations and conditions. The words and expressions used must be interpreted with an understanding of social values and adapted to changing needs. Eg- SC’s interpretation of the Right to Privacy as an integral part of the Right to Life and Personal liberty under Article 21.
Balance between rigidity and flexibility Article 368 enables it to sustain the core basic structure while amending the rest according to the changes in society. Eg. Right To Education, Amending Article 370, GST Act, etc.
Social and Economic Changes: The Constitution has demonstrated its adaptability in addressing social and economic changes. Amendments related to land reform, reservation policies, and environmental protection reflect the responsiveness to evolving social dynamics.
Inclusivity: According to President Droupadi Murmu, the makers created a comprehensive Constitution due to their sensitivity towards each section of society and awareness of each level of democracy and each aspect of administration. As Constitution makers had clarity of thought about the rights of future generations to create systems according to their needs, the provision for Constitutional amendments was included in the Constitution itself
Achievements of the Indian Constitution
Thriving democracy: It established the framework delineating the fundamental political code, rights, and duties of both the government and citizens, earning the title of the world’s largest secular and democratic country.
The Constitution, owing to its dynamic nature, has facilitated the progressive realization of rights, adapting to emerging principles like the Right to Privacy, LGBTQ Rights, and Environmental Rights.
The Constitution’s transformative nature has served as a beacon for social progress, with India evolving to recognize various rights such as the Right to Information (RTI), Right to Education (RTE), Right to Sexual Orientation, etc.
The Constitution ushered in a new era of social justice in Indian society by prohibiting any form of social discrimination and instituting affirmative actions to rectify historical injustices. Eg- recent Constitution (106th Amendment) Act, 2023.
Limitations and Challenges
The Indian society continues to grapple with issues like caste oppression, untouchability, wealth concentration, and poverty, suggesting a perceived failure of the Constitution in fully realizing its objectives of ensuring comprehensive social and economic justice. Eg. the continuation of inhuman practices such as manual scavenging.
The principle of fraternity, which emphasizes a sense of brotherhood and unity among citizens, has faced challenges due to communal riots and secessionist movements in various parts of the country.
The multiple amendments, exceeding 100, are indicative of challenges in achieving a stable and enduring framework for governance.
Declaration of President’s Rule, Governors as agents of central government undermines the principles of federalism envisioned by the framers.
Constitutionalism
Technically speaking, Constitutionalism is “a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law.”
A Constitution alone does not ensure that the government will act in its spirit. Governments often justify increasing their powers, which can go against the people’s will. Constitutionalism ensures that government actions remain aligned with constitutional principles and the people’s will.
In the I.R. Coelho case, the Supreme Court held that “constitutionalism is a legal principle that requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based”. In the Rameshwar Prasad case, the Supreme Court held that “the constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself”.
Principles of Constitutionalism
Louis Henkin defines constitutionalism as constituting the following 9 elements:
- Government according to the constitution – The written constitution provides for the codification of fundamental laws and principles into a single, formal document that serves as the supreme law of the land.
- Separation of power – it prevents the concentration of power, ensures checks and balances, and safeguards against potential abuses, thereby promoting accountability and the rule of law within a constitutional framework.
- Sovereignty of the people and democratic government – The ultimate authority lies with the people who elect representatives, ensuring government accountability and participation in the democratic process.
- Constitutional review – SC in Raja Ram Pal case and I.R. Coelho case 2007 has reshaped the whole demarcation and established the superiority of principles such as Basic Structure Theory enhancing the spirit of constitutionalism.
- Independent judiciary – to ensure that laws are applied fairly, protecting individual rights and upholding the rule of law without external influence.
- Limited government subject to a bill of individual rights – The government’s powers are restricted by a constitution that protects personal freedoms, preventing arbitrary or unjust actions.
- Rule of law – ensures that laws are applied uniformly to all individuals, upholding equality and legal predictability, while also constraining government powers within defined legal limits to prevent arbitrary actions and protect fundamental rights.
- Civilian control of the military – Civilian elected authorities maintain control over the military, ensuring it remains subordinate to democratic institutions and preventing political interference.
- No state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.
Constitutional Morality
“Constitutional morality is not a natural sentiment. It has to be cultivated”.
Constitutional morality implies adherence to the core principles and spirit of the Constitution in a democracy. It is not just limited to following the constitutional provisions in their literal sense but includes a commitment to an inclusive and democratic political process in which both individual and collective interests of the society are satisfied.
Transformative constitutionalism: It entails instilling principles such as equality, liberty, fraternity, and dignity into society and achieving the Constitution’s primary goal of transforming society for the better. It tries to give paramount significance to Constitutional morality rather than what constitutes morality in society.
Elements of Constitutional Morality
Constitutional Morality under the Indian Constitution
Preamble: The Preamble of the Constitution articulates the guiding values, including justice, liberty, equality, and fraternity, which form the foundation of constitutional morality.
Fundamental Rights: The Constitution guarantees Fundamental Rights to citizens, reflecting the commitment to individual freedoms and liberties. The ever expanding scope of Fundamental Rights suggests alignment with the ideals of Constitutional Morality.
Directive Principles of State Policy(DPSP): Articles 38, 39, and 41, among others, within the DPSP outline socio-economic goals and principles for the state, reflecting a commitment to social justice, equality, and individual well-being.
Separation of Powers(Article 50): The Constitutional framework establishes separation of powers among the legislative, executive, and judicial branches, promoting a system of checks and balances that ensures accountability and prevents the abuse of power.
Judicial Review: The power of judicial review, inherent in the Constitution, allows the judiciary to assess the constitutionality of laws and government actions, ensuring they align with constitutional values and morality.
Amendment Process: The provision for amending the Constitution underscores its adaptability to changing societal values while maintaining its core principles, demonstrating a commitment to evolving constitutional morality.
Constitutional Institutions: The establishment of constitutional bodies and institutions, such as the Election Commission and the Comptroller and Auditor General, reinforces the adherence to constitutional principles and morality in the functioning of the government.
Significance of Constitutional Morality
Ambedkar saw constitutional morality as the ability to balance conflicting interests and encourage cooperation to resolve issues peacefully, without major confrontations or violence. He believed Constitutional Morality addresses societal disparities and emphasized respect for constitutional democracy as the accepted form of governance and administration.
Positive Transformation in Societal Morality – Constitutional morality can help update laws that are outdated. According to Granville Austin constitutional morality is a living principle that evolves with time, guiding society towards higher ideals and progressive change. Eg – Change in social attitude towards Sati after the law prohibiting Sati.
In Government of NCT of Delhi v. Union of India, the Supreme Court equated constitutional morality to a ‘second basic structure doctrine’, stating that it encompasses more than just the forms and procedures of the Constitution; it provides a framework that enables societal self-renewal.
Building Public Trust – In the Lt Governor of Delhi case, SC proclaimed constitutional morality as a governing idea that highlights the need to preserve the trust of people in the institution of democracy.
Upholds Fundamental Principles: Ensures that the core values of justice, liberty, equality, and fraternity guide the interpretation and implementation of laws.
Ensures Accountability: Holds government and public institutions accountable to the principles enshrined in the Constitution. According to Nani Palkhivala, constitutional morality serves as a safeguard against the tyranny of the majority and is crucial for preserving the rights of minorities and individuals.
SC judgments on Constitutional Morality
The phrase had been used in less than 10 reported cases by the Supreme Court till 2010 from the time the Constitution was adopted. However, in the year 2018 alone, it has been used in more than 10 reported cases by the Supreme Court.
In the Kesavananda Bharati case, two judges invoked the term Constitutional Morality but didn’t deal with it in detail. Also, in the SP Gupta case (First Judges’ case), it was stated that there was a serious breach of Constitutional Morality.
Holding that constitutional morality would prevail over social morality, the Supreme Court in the Navtej Singh Johar case, 2018 struck down Section 377 of the Indian Penal Code and declared such provision unconstitutional in so far as it criminalized consensual sexual conduct between adults of same-sex.
In the Sabarimala verdict, SC ruled that the exclusion of women aged 10-50 from worship at Sabarimala Temple violates four key principles of constitutional morality: justice, liberty, equality, and fraternity. SC reaffirmed religious freedom, gender equality, and the right of women to worship, by bypassing the “doctrine of essentiality”.
Joseph Shine Case – The Supreme Court noted that constitutional morality must guide the law and not the common morality of the State. Thus, it struck down Section 497 of IPC, which made adultery a crime.
Criticism of Constitutional Morality
Some critics argue that the concept of constitutional morality remains understudied and there is a need for a consensus to be reached for defining and applying this concept.
The application of this doctrine without proper limits or restrictions has the potential to result in judicial overreach, raising concerns about a violation of the separation of powers.
The concept of constitutional morality is subjective, with its interpretation varying based on individual or institutional perspectives. This subjectivity may lead to justifications for different actions and decisions, raising concerns about inconsistency and potential misuse.
Against social morality- Critics assert that constitutional morality lacks popular legitimacy as it may not always align with the prevailing public sentiment or morality. The argument suggests that imposing constitutional morality without considering broader public consent could lead to a perceived disconnect between legal principles and societal values. Ex- opposition to Sabarimala Verdict.
Difference between Constitutionalism and Constitutional Morality
| Constitutionalism | Constitutional Morality |
|---|---|
| It is a political philosophy emphasizing limited government powers defined by a constitution. | It goes beyond legal compliance, emphasizing adherence to moral principles in a constitution. |
| It promotes the rule of law, ensuring government actions adhere to established legal principles, and involves checks and balances to prevent the concentration of power in any one branch of government. | Involves an ethical foundation, recognizing the moral and ethical dimensions of constitutional principles. |
| Protects individual rights and liberties through constitutional provisions. | Guides the interpretation and application of constitutional provisions based on broader ethical considerations. |
| Focuses on the structural and procedural aspects of governance. | Acknowledges the evolution of societal values and the need for contemporary interpretations. |
| For eg. – The Indian Constitution, from a constitutionalism standpoint, doesn’t explicitly mention a right to privacy as a fundamental right. | In the Puttaswamy case (2017), the SC recognized the right to privacy as a fundamental right, interpreting the Constitution in a way that aligns with contemporary ethical values. |
SC Judgments on various aspects
Active Judiciary judgments
1. Kesavananda Bharati v. State of Kerala (1973): concept of the “Basic structure” of the constitution, asserting that certain core principles and features cannot be altered through constitutional amendments, ensuring the integrity and stability of the constitutional framework.
2.Maneka Gandhi v. Union of India (1978): In this case, the Supreme Court expanded the scope of personal liberty under Article 21, declaring that it includes all freedoms guaranteed by the Constitution.
3.SR Bommai Case (1994): The judgment emphasized the importance of constitutional norms and federalism in dealing with issues related to the dismissal of elected state governments.
4. Vishaka v. State of Rajasthan (1997): The Supreme Court, in the absence of specific legislation, laid down guidelines to prevent and redress sexual harassment, showcasing the judiciary’s proactive role in protecting fundamental rights.
5. Right to Privacy (Puttaswamy case): The judgment expanded the scope of Article 21 to include the individual’s right to privacy, marking a significant development in the protection of personal autonomy.
6. Right to Marriage (Hadiya case): The judgment reinforced the autonomy of individuals in matters of marriage and upheld the principle of individual choice as an integral part of the right to life and personal liberty..
7. Decriminalization of Section 377 (Navtej Singh Johar case): The judgment affirmed the rights of LGBTQ+ individuals and upheld the principles of equality and non-discrimination.
8. Prevent Honor Killing (Shakti Vahini case): The judgment emphasized the need for preventive measures and protection of couples exercising their right to marry outside traditional societal norms.
9. Address Environmental Pollution (MC Mehta case).
SC Judgments on Environment
Vellore Citizens Welfare Forum case: The Court emphasized the polluter pays principle and held that Article 21 of the Indian Constitution includes the right to a healthy environment.
M.C. Mehta case (1986): This case laid the foundation for the “Public Trust Doctrine,” which holds that natural resources are held in trust by the state for the benefit of the public. The court issued orders to close down several polluting industries.
Subhash Kumar v. State of Bihar (1991): The court recognized the right to a pollution-free environment as an integral part of the right to life under Article 21.
A.P. Pollution Control Board v. Prof. M.V. Nayudu (2001): The court reiterated the importance of the “Polluter Pays” principle and held that industries causing environmental degradation must pay compensation for the damage caused.
T.N. Godavarman Thirumulpad v. Union of India (2012): The court established the concept of “intergenerational equity” and directed the closure of illegal mining and unauthorized construction within forests.
Centre for Public Interest Litigation v. Union of India (2011): The court took a strong stance against illegal mining in Goa and Karnataka, emphasizing the importance of sustainable mining practices and environmental conservation.
SC Judgments on Gender Justice
Vishaka & Ors. v. State of Rajasthan: The court observed that as per Articles 14(2), 19(1)(g), and 21(4), every profession, trade, or occupation should provide a safe working environment to all the employees. Using powers under Article 141, the court provided certain guidelines to deal with cases of Sexual Harassment of women at workplaces.
Laxmi v. Union of India: This case led to the enactment of Section 357-A in the CrPC which provides compensation to the victims of acid attack or their dependents. The Supreme Court announced a minimum compensation of 300000₹ to all the victims. Section 357-C was also inserted in the CrPC which provides that all hospitals be it a centrally run hospital, a state-run hospital or a private hospital shall provide first aid to an acid attack victim free of cost.
Shayara Bano v. Union of India (Triple Talaq case): The Supreme Court held the practice followed by Muslim husbands of taking divorce by saying talaq thrice as unconstitutional.
Naz Foundation v. Government of NCT of Delhi: the apex court held Section 377 of the Indian Penal Code, 1860 as unconstitutional for violating Article 14, 15, 19, and 21 of the Constitution to the extent of criminalizing consensual intercourse between two adults.
State Of Maharashtra And Another vs Madhukar Narayan Mardikar(1991): According to the Supreme Court, every woman has a right to sexual privacy, which cannot be subjected to invasion by anyone at any time.
Independent Thought v. Union of India(2017): In this landmark case, the Supreme Court of India held that the exception to Section 375(2) of the Indian Penal Code, which allows for non-criminalization of marital rape, is unconstitutional and violates the rights of women. The court also held that sexual intercourse with a minor wife below the age of 18 would constitute statutory rape, irrespective of marital status.
Secretary, Ministry of Defence v. Babita Puniya (2020): The Supreme Court, in this case, held that the Short Service Commission (SSC) women officers in the Indian Army are entitled to Permanent Commission (PC) on par with their male counterparts. The judgment emphasized gender equality and recognized the commitment and service of women officers in the armed forces.
Lt. Col. Nitisha v. Union of India (2021): This case involved a plea by a woman officer seeking direction from the Army to grant her Permanent Commission. The Supreme Court directed the Indian Army to grant Permanent Commission to women officers who had opted for it and completed 14 years of service, reiterating the principles of gender equality and non-discrimination.
Mary Roy v. State of Kerala: It is a landmark judgment of 1986 pronounced by the Supreme Court of India recognizing the rights of Christian women related to intestate successions. Gaurav Jain v. Union of India (1997): The Supreme Court held that the denial of maternity leave to a female employee due to her pregnancy was discriminatory and violated the principles of equality.
SC Judgments on Children
Bachpan Bachao Andolan vs Union of India: In the PIL filed by BBA, the Supreme Court issued notice to the central government and the NCPCR following a BBA PIL seeking the implementation of guidelines for the safety of children in schools.
Society of Private Unaided Schools vs. Union of India: The apex court upheld the constitutional validity of the Right of Children to Free and Compulsory Education Act, 2009.
Bachpan Bachao Andolan vs. Union of India: The Supreme Court recognized trafficking as an organized crime and defined it in accordance with the United Nations Convention Against Transnational Organised Crime (UNCTOC). The court also ordered a total ban on the use of children in circuses.
J. K. Mittal v. State of Haryana (2002): The Supreme Court directed the state government to take measures to prevent child labor and ensure the welfare of children involved in the hazardous industry of firecracker manufacturing.
Vishal Jeet vs Union of India: The Supreme Court issued directions to the State Government for eradicating child prostitution and setting up rehabilitative homes for such children.
Court on its own motion vs State of Delhi: The Delhi High Court laid down guidelines – to ensure sensitivity of the criminal justice system towards victims of child sexual abuse; the responsibilities of the police, the manner in which medical examination should be conducted, recording of a statement by the magistrate, and the procedure before the trial court.
SC judgments on Tribals
Samatha v. State of Andhra Pradesh(1997): The judgment clarified that tribal land cannot be transferred to non-tribals without the approval of the government, protecting the land rights of tribal communities.
Nandini Sundar v. State of Chhattisgarh(2011): The Supreme Court issued guidelines to ensure the protection of tribal rights and prevent human rights violations in conflict zones.
Gram Sabha, Village Khamti v. State of Arunachal Pradesh(2019): The judgment highlighted the significance of tribal self-governance, the protection of their customary rights and the autonomy of Gram Sabhas in decision-making processes related to land and resources..
Forest Rights Committee, Tikamgarh v. State of Madhya Pradesh(2019): The judgment emphasized the need for proper implementation of the FRA to protect the rights of tribals over forest land.
Kailas & Others v. State of Maharashtra(2011): The Supreme Court emphasized the importance of fair compensation, rehabilitation, and the need to safeguard the rights and interests of tribal communities affected by development projects.
SC judgments on Minorities
T.M.A. Pai Foundation v. State of Karnataka(2002): The Supreme Court upheld the autonomy of minority educational institutions, recognizing their right to establish and administer institutions of their choice.
Mohd. Hanif Quareshi v. State of Bihar(1959): The judgment balanced the religious practices of minorities with the state’s interests in preserving public order and preventing cruelty to animals.
St. Xavier’s College Society v. State of Gujarat(1974): The Supreme Court, in this case, affirmed the autonomy of minority educational institutions, emphasizing that they have the right to admit students of their choice and administer their internal affairs without interference from the government.
Bal Patil v. Union of India(2005): This case dealt with the interpretation of the term “linguistic minorities” under Article 30 of the Constitution, which provides rights to minorities to establish and administer educational institutions. The Supreme Court clarified the scope of linguistic minorities and their rights under the Constitution.S.R. Bommai v. Union of India(1994): While not specific to minorities, the judgment emphasized the secular nature of the Constitution and the importance of protecting minority rights in the political context.
