Constitutional morality: the origins and nuances of the concept

Origins of Constitutional Morality

• The concept of “constitutional morality” has been used by constitutional courts to interpret and test the validity of statutes.

• It is seen as a tool to control public morality and a “dangerous weapon” by some.

• The Supreme Court has revived the concept in Navtej Singh Johar versus Union of India (2018) and Joseph Shine versus UOI (2018).

Contemporary Debates on Constitutional Morality

• The concept has been a topic of debate on pressing issues like the rights of sexual minorities, women’s entry into temples, free speech limits, and the balance between national security and civil liberties.

• The origins of constitutional morality can be traced back to British classist George Grote.

Constitutional Morality and Democracy

• Grote argued that adherence to the constitution’s form and procedure was necessary for the longevity of a constitution.

• He advocated for a civic culture of respect for constitutional forms and offices, public reason, self-restraint, and critique.

• Dr. Ambedkar emphasized the need for constitutional morality in India to ensure a free and peaceable democracy.

Commitment with Critique

• This interpretation of constitutional morality emphasizes non-transactional adherence to the Constitution and the ability to critique its operation.

• It sees the Constitution as a framework for managing differences through agreed-upon procedures, contrasting with Jürgen Habermas’ constitutional patriotism.

• Constitutional morality emphasizes process over reverence and fundamentalism, pointing towards a mature constitutionalism that balances reverence and reform.