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Constitutional Morality

Relationship between constitution/law and morality over the years:[1]

In ancient times, in the Indian, Greek and Rome civilizations, the concept of law and morals were circumscribed onto each other. The moral principles were also the law of the land. Similarly, in the middle ages, the Christian morals were considered as the law. The Church was the considered to be the primary up keepers of the morals and law in the society. 

Thus, till the 17th and 18th Century, the theories of natural law were heavily supported and propagated by all. It was only in the 19th Century post the Industrial Revolution and Renaissance that the analytical jurists start to emerge. The new statement that gained immense appreciation and recognition was ‘Law as the command of the sovereign’. The statement was initially used by someone else, but it gained its popularity after its usage by John Austin. By this, the new jurisprudence was that Law had nothing to do with morals and that it was a separate stream altogether. Not just that, by this acceptance gaining much popularity another concept very much existent in the society was now in danger of being extinct. Till the 19th Century, morality was the law of the land and therefore, the religious institutions were the adjudicators or judges of one’s activities at that time. By stating that ‘Law is the command of the sovereign’, the point put forth was also that the sovereign will be the adjudicator of the law and not the religious institutions.

Bentham wonderfully put out the relation between law and morals by saying that, “Law has just the same center as morals but by no means the same circumference.” 

Korkunov, also said that, “Morality furnishes the criterion for the proper evaluation of our interests; law marks out the limits within which they ought to be confined.” 

Professor H.L.A. Hart said that, “Difference between law and morals is connected with the contrast between the internality of the one and the externality of the other.

The famous jurist, Dean Roscoe Pound to understand the development and evolution of law with respect to morality has laid down four stages:

  1. In differentiated ethical custom, customs of popular action, religion and law. They were the two faces of the same coin.
  2. The second stage is that of strict law, codified or crystallized, which in time is outstripped by morality and has not sufficient power of growth to keep abreast.
  3. The third stage is the infusion of morality into law and reshaping it by morals.
  4. The final stage is that of conscious law-making, the maturity of law in which morals and morality are for the law-maker and that law alone is for the judge.

A study of the relationship between law and morals is made from three angles:

  • Morals as basis of Law (Ancient times): In the ancient times, the law of the land was basically the morality of the society. The religious institutions, were the judges of one’s activities. Thus, the concept of law separate from morality was absent. 
  • Morals as test of law (Middle Age): In the middle age, there started to come some differences between law and morality. It came to be recognized that Law and morality are not one and the same things. Having accepted that, still it was laid importance upon that although law may be different from morality but a law to be a law had to pass the test of morality
  • Morals as end of law (Present Day): In the present day it is accepted that law and morality are very much different, but still, it is believed that the aim of law is to secure justice which is very much based and has its origin in morals. The end of law is to secure justice to all the conflicting members of the society, and that is when the judges have to weigh the morals to bring greater benefit at the cost of the least sacrifice of the morals. 
Differences between Law and Morality:
1. Object: 

The object of law is to govern and control an individual’s behavior in accordance with the will of an organized society. This means that the adjudicator in law is the society.

The object of morality is to govern and control an individual’s behavior in accordance with the individual’s own conscience itself. This means that the adjudicator in morality is one himself.

2. Subject Matter:

Law has its basis in social conduct, as it concerns itself with one’s behavior in a society and is very extrinsic in nature.

Morals on the other hand are much more intrinsic in nature. They do not need a society to come into existence but a person exclusively in a closed system as a single individual can also be moral or immoral.

3. Study:

Moral is study of supreme goodness and righteousness, with a very huge ambit.

Law has a much smaller ambit of scope as compared to morals. Law is the basic set of morals necessary to be followed. Law lays down what is convenient for that time and place

4. Concern:

Morals as already stated are intrinsic in nature and therefore concern themselves with individual rather than the entire society at large.

Law as already stated is very much extrinsic in nature and therefore it concerns itself with the social relationship of an individual rather than the individual’s own excellence of character.

5. Importance to  Motive

Morality considers motive of outmost importance, as one himself is the adjudicator, therefore apart from conduct motive is also of primary importance. 

Law merely insists on conduct and seldom worries about motive as it is not the individual who is the adjudicator himself but the sovereign and sovereign rarely concerns itself with one’s intrinsic preferences instead it majorly concerns itself with extrinsic preferences and therefore Law does not give much importance to conduct.

Evolution of law and morality by the Indian Judicial System :

The term ‘constitutional morality’ was first used by Dr. B.R. Ambedkar in the Constituent Assembly. This term wasn’t either discussed upon but a simple pass by reference was made to the usage of the term ‘constituent morality’ as used by Grote of this phrase and thereby on as to what Grote meant by the term ‘constitutional morality’. Ambedkar said, “By constitutional morality Grote meant a paramount reverence for the forms of the constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure sure 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 not be less sacred in the eyes of his opponents than in his own.[2] 

Although the term ‘morality’ has been used 4 times in the Indian Constitution but still, the context in which ‘morality’ is to be read wasn’t discussed in the Constituent Assembly.

Owing to this fallacy, the Judges in the Indian Judicial system were in a state of confusion. Thus, the term ‘morality’ was initially read with the context of ‘popular morality’, but almost 70 years after the constitution came to be drafted, today the Judges have started reading the term ‘morality’ in context of ‘constitutional morality’. Why and how this change has come through isn’t a rocket science, a simple analogy can be drawn with the entire world. As the world had moved from morals as being law to morals as end of law or to law being the command of the sovereign. Similarly, the Indian judicial system has also evolved from morality being popular morality to being constitutional morality. 

In the 20th Century the Apex Court’s judgements were such that they established the principle that the term ‘morality’ should be read in context of ‘popular morality’, but today in the 21st Century, it would be right to say that we have evolved as a system and much credit for this should be provided to High Court of Delhi for delivering the Naz Foundation judgement. That was the judgement that put it out in the open that ‘public morality’ and ‘constitutional morality’ are two different concepts that are two different concepts. The court in that judgement took a major leap to lay down the various theories that would assist the court in deciding whether ‘public morality’ or ‘constitutional morality’ should be the concept used to read ‘morality’.

Thereafter, the Apex Court in the Sabarimala Judgement and Navtej Singh Johar Judgement established the importance of ‘constitutional morality’. 

Popular Morality overpowering and overshadowing the concept of ‘constitutional morality’

Even after almost 70 years of independence, the Indian society is still very much patriarchal and feudal in nature. We are still in developing stage and cannot be called to be a developed State. 

Therefore, today also, the feudal concepts of criminalizing homosexual activities is totally accepted by the majority of the Indian society and can therefore be called to be ‘popular morality’. The Courts had therefore found it tough to deal with this ‘popular morality’ and feared going against it in the 20th Century. In the 20th Century, although there was proof of reference made of the importance of ‘constitutional morality’ in the Constituent Assembly debate, still the concept used was not constitutional orality but popular morality and it can also be said that popular morality was clearly overshadowing constitutional morality.

But, today in the 21st Century, the Courts have taken the leap forward. By delivering judgements like Navtej Singh Johar and Sabarimala, the Courts have acted in contrast to ‘popular morality’ and have upheld ‘constitutional morality’. This leap cannot be said to be an easy one and has come with the help of numerous theories and jurist’s concepts.

John Rawl’s Theory of Justice as a tool to discredit popular morality :

John Rawls born in 20th Century was an American political philosopher who gained immense popularity for his book, ‘The Theory of Justice’.

 The theory that John Rawl propounds is a purely political theory saying that the State has the duty to consider each citizen as equal and therefore it should not be guided by the morals of the majoritarian population, instead it should make and implement laws in such a manner that each citizen has equal moral and religious liberty.[3]

This theory when read in context of morality, can be understood as being against popular morality as it discredits the concept that a particular set of values are bound to be correct if they are followed and agreed upon by the majority of the population of the State.

Ronald Dworkin’s concepts to overpower the popular morality in some instances :

Similar to John Rawl, Ronald Dworkin also in the 1970’s authors a book titled Taking Rights Seriously, wherein he lays down the difference between the two concepts, personal and external preferences. He states that each person by virtue of being a human being enjoys two types of preferences, one set being personal preferences and the other set being external preferences. Personal preferences are those that do not affect any other person per se, but are limited to the person alone, whereas external preferences are those that affect the entire society at large. Dworkin put forth the view point that the State has the complete right to control one’s external preferences but the personal preferences should and cannot be control by the Sovereign and thus no laws should be made in this regard.[4] 

This view point when read and analyzed in regard to criminalization of homosexuality gave the view point that the law on criminalization of homosexuality should and needs to be struck down. Herein, Dworkin clearly ignored and laid zero importance to the concept of ‘popular morality’.

Existence of constitutional morality in the present day and latest judgements :

Today, post the last year’s Supreme Court’s strong judgements, it can be said that the concept of ‘Constitutional Morality’ is clearly established in the Indian Judicial System. Be it the Sabarimala Judgement wherein the Court heavily and unflinchingly struck down the law banning the entry of young women in Sabarimala temple totally ignoring the fact that the law was strictly adhered to by the society of that region, or be it the Navtej Singh Johar judgement wherein the Court struck another blow upon Sec 377 of IPC, and decriminalized homosexuality totally knowing the fact that the majority population was in complete acceptance of Sec 377.

These judgements have totally laid the foundation stone of ‘constitutional morality’ and have surely put a stop upon the previously much prevalent ‘popular morality’.

Popular Morality, Majoritarian Morality and Constitutional Morality :
  • Popular Morality

The term popular morality as the words state is the set of moral values that are popular in a region. These set of moral values are not tested on the touchstone of the constitution but on the touchstone of populism, meaning that these set of values are bound to change with advent of time and change in the society as one set of values which were very popularly accepted some years ago may not be popular anymore. Therefore, these set of moral values are very ambiguous and vague in nature. For example: In the present day, mob lynching is an act that is heavily looked down upon by majority of the population but is still very much prevalent in the Indian society as it is an aspect of popular morality.

  • Majoritarian Morality

The term majoritarian morality as the word states is the set of moral values that are followed by majority of the population of a particular region. These set of moral values are not tested on the touchstone of the constitution but instead on the touchstone of majoritarianism, meaning that these set of moral values will lose their significance and importance the moment they are no more given the faith that they originally are by the majority of the population. Therefore, these set of moral values are very ambiguous and vague in nature. For ex: In earlier times, sati was a very much existent culture in the Indian society. The practice of sati was not tested on any constitutional ground but was followed and enforced only because it passed the test of morality in the majority of the society.

  • Constitutional Morality

The term constitutional morality, as the word states is the set of moral values that are followed and in accordance with the constitution of the state. These set of moral values are tested on the touchstone of the constitution of the state, meaning that these set of moral values will always be existent and relevant till the moment the Constitution is present. Therefore, these set of moral values are very relevant and to the point till the constitution exists. For ex: The decriminalization of homosexuality by the supreme court of India was an act of laying down the moral values that homosexuality is an acceptable moral principle and concept. Although this morality is clearly in contrast to the majoritarian or popular morality but is still the law of the land, as it is the command of the sovereign.

——–

[1] Mahajan, V. (2012). Jurisprudence and legal theory (5th ed., pp. 85-94). Lucknow: Eastern Book Co.

[2] Constituent Assembly Debate on 4th November 1948, Volume VII, 7.48.228

[3] Rawl, J. (1971). A theory of justice. Cambridge (Mass.): Harvard University Press.

[4] Dworkin, R. (2013). Taking rights seriously. London: Bloomsbury.

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Law Wire Team
Law Wire Teamhttps://lawwire.in/
Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.
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