What do you understand by
constitutional morality and public morality? Whether the Indian
judiciary has applied the principle of constitutional morality while deciding cases?
As per the demands of the society, every country prepares a set of basic rules to be followed
by all the citizens of that country, and also a set of rights that every citizen gets just by virtue
of being a citizen of that country. By and large, the constitution consists of these sets of rules
and rights. Since the world we live in is not a perfect communist one, there happen to be
imbalances which have to be resolved by an authority above all the citizens. This is where the
constitution helps, since it has blanket rules and laws which are applicable to everyone,
without discrimination. It facilitates the smooth running of the government so that there is
peace and harmony in the society and it helps to maintain a perfect balance between freedom
and restrictions on those freedoms. It also ensures constitutionalism is practiced so that the
societal equation does not change with change of the government. Constitutional morality is
when all the citizens of a particular country unfailingly and religiously follow the rules laid
down in the constitution of their country.
Public morality is the prevalent cultural or social opinions and beliefs of right/wrong in a
society. It is the moral and ethical standard enforced in a society by the people. It comes from
traditions and practices that may have been followed in a society since time immemorial.
Since it got formed or was carried forward for ages, it was often slow to change. However,
with the advent of the internet age, reaching out to people in order to spread ideas has become
easier and hence nowadays public morality can change at a faster pace.
It is important that public morality and constitutional morality are in-sync with each other,
because if they are not, it can lead to utter chaos in society. It could destroy the very purpose
for which the constitution is incorporated, that is, to maintain peace and harmony in society.
However, when the Indian constitution was formed, syncing public morality with
constitutional morality would have been a difficult feat to achieve (at least in some areas).
This was simply because the makers of the constitution were highly educated people,
probably ahead of their times, but most of those who had to abide by the constitution were
not so enlightened, still carrying the age-old ethical and moral standards. Leave alone
practicing, even accepting the equality of gender, caste, and status was a challenge for many.
Abolishing the practice of Sati or Untouchability faced my frowns. Homosexuality is a taboo
subject even after getting decriminalized. On the other hand, cow vigilantism is gaining
popularity in many states. These examples show that constitutional morality often leads to a
change in public opinion (although gradually), and public morality also influences the
changing of laws to some extent.
Every now and then we get cases where the Indian Judiciary applied the principle of
constitutional morality while making a decision. I feel that this trend is increasing as we see a
number of amendments in the laws based on constitutional morality, for example
decriminalizing adultery (Section 497 of the Indian Penal Court), decriminalizing
homosexuality (Section 377 of the Indian Penal Court), and marital rape (2nd exception of
Section 375 of the Indian Penal Code).
A society comprises of all sorts of people. No society can claim to be free of anti-social
elements. The constitution protects the rights of all its citizens from these anti-social
elements. With the size of population of India, we will be a “work in progress” for a long
time in making people follow complete constitutional morality. However, as long as we are
moving in the right direction, the speed can be overlooked. In order to become a true
democratic country, it is important for the judiciary to remain free of public morality and
adopt complete constitutional morality.
References:
Hegde, S R.: A truly independent judiciary cannot be subverted from within or outside; The
Indian Express; 13 January 2018 <https://indianexpress.com/article/opinion/sc-cji-a-truly-
independent-judiciary-cannot-be-subverted-from-within-or-outside/> accessed on 12
November 2021
Mishra, N.: The Making of Constitutional Morality by Indian Judiciary: History, Significance
and Concerns, June 10, 2021 <https://www.lawctopus.com/academike/constitutional-morality-
india/#:~:text=Ambedkar%20invoked%20the%20phrase%20%27constitutional,the
%20colonial%20ideas%20of%20subordination.>
Rawat, A. and Chaudhary, D.: Competing challenges of public morality to constitutional
morality: comparative study of mob justice in sub-continent countries; 5(1) Comparative
Const. L. Administrative L. Quarterly (2021).
<https://en.wikipedia.org/wiki/Public_morality> accessed on 12 November 2021
