Recent Embrace of Constitutional Morality
Polysemous Concept: Constitutional morality is used by courts to interpret and test the constitutional validity of laws.
It is seen by some as a safeguard against public morality’s volatility, while others view it as a “dangerous weapon.”
Supreme court revived the concept in 2018 in cases like Navtej Singh Johar versus Union of India (2018) and Joseph Shine versus UOI (2018), framing it as an ideal of justice and a guide to law.
Constitutional Morality in Modern Debates
The concept is central in debates on issues like LGBTQ+ rights, women’s temple entry, free speech, and national security vs. civil liberties.
The term “constitutional morality” has its roots in British scholar George Grote’s writings.
Back to the Roots
Grote, in ‘A History of Greece’, linked constitutional morality to Athenian democracy.
It emphasized respect for the constitution’s forms and procedures, which ensures a stable and just society.
Constitutional morality requires citizens to respect constitutional principles, regardless of political disagreements, and it fosters public reason and self-restraint.
Dr. Ambedkar’s Invocation
Dr. Ambedkar highlighted the need to instill constitutional morality for India’s democracy.
He believed it must be “established and diffused” to ensure peace and freedom.
Ambedkar warned that the Constitution could be perverted if the administration is not aligned with its spirit, even if its form remains unchanged.
Commitment with Critique
Non-Transactional Morality: Constitutional morality demands adherence to the Constitution, even if the outcome is contrary to a citizen’s beliefs or expectations.
Balance of Respect and Reform: It allows questioning and reforming constitutional processes while maintaining respect for them.
This distinguishes it from blind allegiance to the Constitution.
Constitution as Framework for Managing Differences
Constitutional morality views the Constitution not as requiring blind allegiance, but as a framework for managing political and societal differences.
Unlike Jürgen Habermas’ idea of constitutional patriotism, which emphasizes solidarity based on values, constitutional morality balances reverence with critique, stability with change.
Importance of Process
Constitutional morality’s focus on process ensures commitment to the Constitution while preventing fundamentalism and encouraging reform.
The framers saw allegiance to the Constitution as allegiance to its form, recognizing that it must be upheld while allowing for changes and critiques.
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