The relationship between morality and the law has fascinated many minds over the ages. Some have regarded the enforcement of morals as the function of law. The famous Hart-Devlin debate in the 1960s saw an unparalleled exposition by two fine legal minds on the benefits and pitfalls of fusing morality into the veins of the law. The 1960s also saw the House of Lords declaring, in Shaw vs DPP (1962 AC 220), that there existed a residual power to enforce the "supreme and fundamental purpose of the law", viz., "to conserve not only the safety and order but also the moral welfare of the State".

The Supreme Court of India recognised the relationship in P. Rathinam vs Union of India (1994) 3 SCC 394, when it quoted with approval the observations of Justice Frankfurter in Solesbee vs Balkcom (94 L Ed 604: 339 US 9 (1949)) that the law "embodies a system of rights based on moral principles ... which comports with the deepest notions of what is fair and right and just". In ancient times there was no particular distinction between law and morals. There was the concept of dharma which embraced concepts of law and morality. The Tirukkural, for instance, has much emphasis on the virtue, Aram.

This complex relationship entails that, sometimes, law leads morality (abolishing untouchability before societal acceptance which is yet to happen) or law follows it (slow recognition of gender equality). The challenge is to ensure that laws remain just and representative of fundamental ethical imperatives -- not merely majoritarian opinions or transient popular sentiments.

A resurgence of the concept

In recent times, there has been a resurgence of the concept of morality in the constitutional scheme of things, under an umbrella term 'constitutional morality'. What is this term ? How does it empower courts to look at constitutional questions? These are the two key issues.

The term itself is not of recent vintage. In his book, History of Greece (1846), historian George Grote wrote that the Greeks found it necessary to protect their Constitution by kindling "a passionate attachment" which he termed "constitutional morality". Grote observes: "A paramount reverence for the forms of the constitution, enforcing obedience to the authorities acting under and within those forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts, combined too with a perfect confidence in the bosom of every citizen, amidst the bitterness of party contest, that the forms of the constitution will be not less sacred in the eyes of his opponents than in his own."

In the course of his fiery debates in the Constituent Assembly, Dr. B.R. Ambedkar invoked this passage to underscore the need for an elaborate and detailed administrative mechanism in the text of the Constitution. He added that "Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic."

Drawing a distinction

It is now discernible that constitutional morality may be termed as rules of constitutional propriety/conduct amongst constitutional functionaries. However, the question is whether breach of such 'rules' could give rise to action in courts. Professor Dicey observed that "constitutional law" consisted of two elements: the first is "the law of the constitution", which is a body of undoubted law relied upon and enforced by the Courts. The second is a set of rules consisting of conventions, understandings, habits or practices which regulate the conduct of several members of the state, but which are not enforced by the courts, which he termed as "conventions of the constitution" or "constitutional morality".

Thus, Prof. Dicey draws a clear distinction between constitutional morality and the law, in the positivist sense of the term. According to him, a breach of constitutional morality or the conventions of the constitution are not actionable in courts. Yet, they derive their binding force from the fact that a breach of constitutional morality or a constitutional convention would almost immediately bring the offender into conflict with the courts and the law of the land. In the S.P. Gupta case, Justice Venkataramiah pointed out: "A convention is a rule of constitutional practice which is neither enacted by Parliament as a formal legislation nor enforced by courts, yet its violation is considered to be a serious breach of constitutional morality leading to grave political consequences to those who have indulged in such violations".

In Indian Young Lawyers Association vs The State of Kerala (2018, Sabarimala case), (then) Chief Justice of India (CJI) Dipak Misra held that the expression "public morality" occurring in Article 25 ought to be understood as being synonymous with constitutional morality. This position has since been doubted, and the matter has now been referred to a nine-judge Bench.

The expression was once again considered in Manoj Narula vs Union of India. In Narula, the Supreme Court was invited to read into Article 75 of the Constitution a disqualification against Members of the Legislative Assembly/Members of Parliament who were facing charges for heinous or serious offences.

The CJI observed: "The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner."

The passage resembles Grote's appeal for a "paramount reverence to the forms of the Constitution". However, the Court ultimately held that it was not possible to re-write Article 75 by prescribing a disqualification which was plainly not there. It went no further than to say that it could "legitimately expect" that the Prime Minister would not choose a person accused of heinous offences as a Minister in his Cabinet, and concluded: "This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less."

In State (NCT of Delhi) vs Union of India, the Court went further and held that constitutional morality did not mean mere allegiance to the substantive provisions and principles of the Constitution. The Court identified liberal values and consensual decision making amongst state agencies as facets of this concept. To this were added responsibilities and duties that it imposed on those who held constitutional offices. In Justice K.S. Puttaswamy (Retd.) vs Union Of India, the Court once again was of the opinion that the requirement of constitutional morality required that the government not to act in a manner that violated the rule of law. By the same token, it was emphasised that the requirement of constitutional morality required the state from acting in a manner that violated the orders of the Court.

These decisions show that constitutional morality encapsulated morally acceptable standards of conduct by constitutional actors in the constitutional sphere of things. A breach of such standards may not, per se, be actionable in law courts. A breach of constitutional morality could breach a constitutional convention, triggering the violation of the constitutional principle of rule of law. It must be remembered that courts are not the sole arenas where the breach of constitutional norms can be remedied.

Such breaches may have consequences elsewhere, as, for instance, being held accountable on the floor of Parliament or at the hands of the electorate. The remedy in an appropriate case is, therefore, always contextual.

A vital role to play

The road forward for India lies in continually cultivating constitutional morality among citizens, lawmakers, and judges alike. It is the living ethos that will transform constitutional guarantees into tangible justice, fostering inclusion, protecting minorities, and ensuring equality in a rapidly changing society. As B.R. Ambedkar poignantly advised, constitutional morality is not inherited but must be nurtured and embraced. Its vitality is the difference between a constitution that is merely a document and one that is a vibrant, equitable reality for all Indians. It is only then that democracy can be a vital ingredient and not a mere top dressing on Indian soil.

Justice N. Anand Venkatesh is Judge, Madras High Court

The contours of constitutional morality