Doctrine of Constitutional Morality in the Context of Indian Legal System: A Transformative Tool

Helan Benny and Lavina Laju
Bharata Mata School of Legal Studies, India

Volume III – Issue II, 2021

The constitution of India is a living document rather than a book of words. It provides moral guidelines while deciding matters of utmost importance. The constitutional morality means adherence to the core values of principles and philosophy enshrined in the constitution. Law should be based on acceptability of the constitutional parameters. Constitutional morality is not limited only to following the constitutional provisions literally but is based on values like individual autonomy and liberty; equality without discrimination; recognition of identity with dignity; the right to privacy.  Recently, the “constitutional morality”; has become much more relevant while interpreting the laws. The Supreme Court has applied different facets of this transformative doctrine in various judgements.  Naz Foundation’s case determined that the distinction between popular morality and constitutional morality is the distinction between moralities enshrined in the constitution. Navtej Singh Johar v. Union of India reaffirmed this distinction and decriminalized section 377 of I.P.C. The genealogy of Ambedkar’s signposting of constitutional morality may be traces to the strength of anti-caste resistance and the abolition of untouchability. The central elements of constitutional morality are freedom and self-restraint. In this paper we would like to highlight “doctrine of essentiality” need to uphold constitutional morality and recent Supreme Court landmark judgements. The paper also examines two contemporary uses of constitution morality: first, as an equilibrium to popular morality (in judgments concerning homosexuality, adultery, rape, and the Sabarimala temple), and second, as a reincarnated basic structure doctrine, involving an analysis of the “spirit”, “soul” or “conscience” of the Constitution.

Keywords: Constitutional morality, Public morality, Constitutional parameters, Individual autonomy and liberty.


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