Constitutional morality: the origins and nuances of the concept 

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In the recent past, our constitutional courts have embraced the polysemous concept of “constitutional morality” as a tool to interpret and as a test to adjudicate upon the constitutional validity of statutes. Today, it is seen by some as a bulwark to keep a check on the volatility that is attached to public morality, and to others, as a “dangerous weapon”. In its judgments in Navtej Singh Johar versus Union of India (2018) and Joseph Shine versus UOI (2018), the Supreme Court reinvigorated the ancient concept to frame it as an ideal of justice and a “guide (to) the law.”

As such, it is not a surprise that constitutional morality and its meaning(s) have become the cynosure of debates on some of the most pressing issues of our time — the rights of sexual minorities, women’s entry into temples, the limits of free speech, and the balance between national security and civil liberties. However, amidst these swirling debates of ownership, it is worth revisiting the origins of this evocative but elusive phrase. British classist George Grote’s original conceptualisation of the phrase offers a nuanced and constructive path forward for popular political engagement.

Back to the roots

For Grote, whose A History of Greece was as much a reflection of the Victorian passion for —and self-identification with — ancient Greece as it was an attempt to champion Athenian democracy from the condescension of its critics such as the Scotsman John Gillies and William Mitford, the democracy at Athens was “one of the most important and prolific events in all Grecian history” and the result of a “rare and difficult sentiment which we may term a constitutional morality.” This rare and difficult sentiment was “a paramount reverence for the forms of the constitution”. This involves adherence to both the form and procedure of the constitution to resolve disputes that arise, with the actions of citizens being only subject to the rule of law, unrestrained by the “censure of those very authorities as to all their public acts.” Grote claimed that eloquently drafted rules and procedures were insufficient to ensure the longevity of a constitution. It required the instillation of “constitutional morality” — a civic culture of respect for constitutional forms and offices, along with the vigilant application of public reason, self-restraint and critique. Pertinently, it requires the creation of confidence in citizens that the constitution’s rules are sacred even to those with different political views, even during heated political debates.

It is this civic culture that Dr. Ambedkar spoke of during his famous invocation of the concept in his speech ‘The Draft Constitution’, delivered on November 4, 1948. Dr. Ambedkar believed that democracy in India would have to learn the ideal of constitutional morality, as it was not a “natural sentiment” to a polity and had to be “established and diffused” so as to ensure a free and peaceable democracy.

However, Dr. Ambedkar, who had mainly invoked Grote to stress on the necessity of providing for even minor administrative details in the Constitution, knew that the birth of such constitutional morality was a rarity in history. He knew that it was “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.”

For him, self-restraint was a prerequisite for preserving freedom under a properly constituted government.

Commitment with critique

This interpretation of constitutional morality emphasises on the fact that adherence to the Constitution must be non-transactional and that it cannot be based on an expectation that it would result in outcomes that reflect the value judgments or beliefs of a particular group of citizens. In other words, it demands the acceptance of a result that is vastly different from what these citizens had envisioned. The framework’s genius lies in how it navigates between competing imperatives. It demands respect for constitutional forms while enabling critique of their operation. It requires following established processes while allowing those processes to be questioned and reformed.

Most crucially, it sees the Constitution not as demanding blind devotion but as a framework for managing differences through agreed-upon procedures. This is in stark contrast to the ideal of Jürgen Habermas’ constitutional patriotism, which designates political allegiance as solidarity born of the norms and values of the constitution. While the former stresses on the liberalising effect of moderate cultural nationalism, the latter often pushes forward a form of singular-identity democracy purportedly constructed on the principles espoused in the constitution.

Constitutional morality’s emphasis on process is especially important given the present rhetoric. It shows how we can maintain constitutional commitment without descending into fundamentalism. It points toward a more mature constitutionalism that balances reverence and reform, stability and change. One should not forget the fact that the founding fathers also saw the promulgation of the constitution as allegiance to constitutional form.

Saai Sudharsan Sathiyamoorthy is advocate, Madras High Court.