CONSTITUTIONAL morality, though spoken of in the Constituent Assembly, remained dormant for the rest of the last century and the first few years into the current millennium. My search indicates that the initial discussions on constitutional morality towards the end of the first decade of the current century started outside the discipline and forums of law, initially by a sociologist followed by a political scientist before its entry in judicial decisions and legal writings. This appears to be true of the discussion on constitutional morality in the West too which gave birth to the notion in the early part of 19th century and, as is noted below, a few hundred years before Christian era in Greece.

Let us first look at what transpired on the subject in our Constituent Assembly. Responding to the criticism of the Draft Constitution on administrative details drawn from the Government of India Act 1935, B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution, agreeing that administrative details need not be incorporated in the Constitution, justified their need in our Constitution by quoting from George Grote’s history of ancient Greece, as follows:¹

‘The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendency for themselves.’²

Following these words, which are as relevant today, as they wore at the time of making the Constitution, Dr. Ambedkar added what seems to be prophetic in the context of current issues that have surfaced and most clearly during the last few years in the administration of the Constitution and laws. Therefore, I consider it absolutely necessary to quote them for the purpose of realizing the reach of constitutional morality:

‘By constitutional morality Grote meant... a paramount reverence for the forms of the constitution, enforcing obedience to authority and 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 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.’³

 

He explained further: ‘While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.’⁴

 

Raising the question whether we could presume such a diffusion of Constitutional morality, he stated: ‘Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.’⁵ He ended by stating: ‘In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution.’⁶

Without reference to Ambedkar’s explanation of constitutional morality or his reliance on Grote, the well known sociologist, Andre Béteille, lectured on constitutional morality at the Administrative Staff College of India, Hyderabad in February 2008, which after revision he also published in a prestigious and widely read periodical.⁷ The highly erudite and comprehensive published version starts with Ambedkar’s lifelong engagement with caste based stratification of Indian society since time immemorial which in his view directly conflicted with, rather negated, democracy which requires equal participation or at least opportunities for equal participation of all members of a society in all walks of life. The stratification having acquired long and strong roots in Indian society that despite efforts of great men and social reformers since the Buddha, it continues to survive.

 

Expressing his engagement with the issue of equality and inequality in the country, Béteille found himself in agreement with Ambedkar, expressing no doubt on what he said from time to time in the Constituent Assembly or even after until his premature demise in 1956 as a Buddhist. Examining, however, the journey of the Constitution since its making, Béteille finds that even though the goals set in the Constitution remain unrealized, barring occasional and exceptional situations and factors such as the imposition of Emergency in 1975 or dynastic rule, the country has moved on the lines of the constitutional goal of upholding democracy.

Following the publication of Professor Béteille’s lecture, constitutional morality was invoked in the High Court of Delhi to invalidate Section 377 of the Penal Code to the extent it punished sexual relations between two consenting adults on the plea that it was against constitutional morality which for the purposes of that case was incorporated in the fundamental rights to equality and personal liberty of every person in our Constitution. The petitioners – Naz Foundation – also relied upon Ambedkar’s foregoing description of constitutional morality in the Constituent Assembly. Accepting the petitioner’s plea, the High Court of Delhi stated:

‘…it was necessary to provide such a constitution as would not only conciliate the goodwill, but kindle the passionate attachment, of the mass of citizens, insomuch that not even any considerable minority should be deliberately inclined to alter it by force. It was necessary to create in the multitude, and through them to force upon the leading ambitious men, that rare and difficult sentiment which we may term constitutional morality – 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.’⁸

 

Later, on appeal, though the Supreme Court overruled the High Court decision in the Naz Foundation case, it agreed with the High Court that public morality, as stated in the Wolfenden Committee Report in UK on the issue of homosexuality between the consenting adults, could not be the basis for denying the right of an individual. ‘Moral indignation, howsoever strong’, the court said, ‘is not a valid basis for denying an individual his fundamental rights of dignity and privacy.’ It added, ‘In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.’⁹

 

The Naz Foundation case invoked international attention mostly supporting the High Court decision and criticizing its overruling by the Supreme Court.¹⁰ Without going into the question of constitutional morality, I expressed my reservations with both of them and initially suggested reading down of unnatural sex to not cover sex between consenting adults or express a change in the law.¹¹ I have the satisfaction that in spite of much misunderstanding of my views, the Supreme Court finally settled the matter by applying my initial suggestion that the law does not cover sexuality between consenting adults.

Without any reference to either Béteille’s article or the Naz Foundation case, Professor Pratap Bhanu Mehta published a paper in Seminar titled: ‘What is Constitutional Morality?’¹² Quoting from Ambedkar’s foregoing speech in the Constituent Assembly and pointing out that Grote meant something different from what Ambedkar expressed in his statement, he states: ‘In contemporary usage, constitutional morality has come to refer to the substantive content of a constitution such as the entitlement to equality’ and to unwritten conventions of the Constitution, and states that Grote’s concerns were not the same as Ambedkar’s. Grote’s interest lay in saving the shortly realized Athenian democracy, while Ambedkar’s main concern was establishment of democracy in a fundamentally undemocratic society where democracy was only a top dressing. As is evident from his concern in the constitution making process from the beginning to the end, Ambedkar was actually concerned not merely in making a constitution but in establishing constitutionalism. While Grote’s concern was to ward off any kind of revolution and therefore he spoke of freedom and self-restraint, Ambedkar’s concept of constitutionalism contained the denial of coercive means, violent or non-violent, including civil disobedience. To this extent Ambedkar found even peaceful satyagraha (civil disobedience) the negation of constitutional morality.

 

The other aspect in Ambedkar’s constitutional morality included acceptance of plurality of opinions and views. Supporting the use of adjudicatory process for resolving differences of opinion, he was also opposed to socialism in spite of his faith in equality. Ambedkar also thought of negation of constitutional morality in hero worship or a person representing himself as the personification of all, though he himself was also deified by people for their personal or political gains. He was also opposed to the idea of arrogating supremacy in any organ of the government. Therefore, he justified administrative details in the Constitution. As no organ of the Constitution could claim to be speaking for the people, he supported the parliamentary form of government, making the executive answerable to Parliament on a day-to-day basis. Therefore, he also justified the authority of courts in spite of Nehru’s impatience on that issue.

In his approach to constitutional morality Ambedkar was also concerned about the question of ends and means. No good end should be achieved through bad means. The Constitution, according to Ambedkar, was not concerned with concrete persons but their views on different issues. Ambedkar gave prominence to the idea of fraternity because in his view liberty, equality or justice were of no avail without the spirit of fraternity. In spite of his affinity to Dalits, he did not collapse the Constitution into distributive justice but simply wanted their upliftment through a deliberative process prominently in the legislature. The Constitution gives enough space to both socialists as well as capitalists and a millionaire is equally expected to interact with a poor man. Distributive justice was, however, a serious issue in his mind for the survival of the Constitution.

 

In the final analysis, Ambedkar pitches for constitutional morality, an allegiance to constitutional forms, rather than collapsing the domains of constitutional and distributive justice. The final reason for focusing on constitutional morality was the lack in historicity of the Constitution. ‘In a very mundane sense’, claims Mehta, ‘with a handful of exceptions, there is no serious or deep historiography associated with our Constitution, one that can put it in proper historical and philosophical perspective.’

Finally, Mehta states that in spite of multiple and deep differences among members of the CA they worked together to produce a Constitution that accommodated all. Almost all members of the Assembly, he believes, were of high intellectual calibre and showed due respect to each other’s views in spite of sharp differences. In Mehta’s words: ‘They embodied the central element of a constitutional morality: to treat each other as citizens deserving equal regard, despite serious differences. Their faith in form as well as sense of judgement added to the achievement of constitutional morality that is represented in the Constitution.’¹³

Pratap Mehta’s concluding words are worth quoting: ‘The Constitution was made possible by a constitutional morality that was liberal at its core. Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present.’¹⁴

 

The foregoing discussion with reference to two publications and two judicial decision on the same issue, sufficiently establishes that a lawyer’s approach to the issue of constitutional morality is confined to the narrow and easy justiciability issue of claiming certain fundamental rights, which could have been availed even without raising the issue of constitutional morality, while the non-lawyerly approach looks at constitutional morality not only from the angle of an individual claiming and realizing one’s personal interests but the interests of the society and the nation as a whole.

No doubt the realization of fundamental or basic rights of the individual empowers the individual to support and protect the most important constitutional values of democracy, national unity and social transformation, but we should not forget that the guarantee of basic rights is also realizable only in an effective democracy with equally effective and socially oriented administrative set up. Therefore, these aspects cannot and must not be ignored while the lawyers and law courts are putting too much faith in basic rights alone.

From its late entry and slow movement in the first decade of the second millennium, more in the non-legal domain, constitutional morality has occupied a prominent place in the judicial forum towards the end of its second decade. It has expanded its domain beyond fundamental rights to cover issues that initiated the discussion on it in the Constituent Assembly. In the Manoj Nirula¹⁵ case, the appointment of some ministers to the Union Council of Ministers, against whom serious charges of moral turpitude and other offences were being tried in the courts, were challenged on the ground that they were appointed against the provisions of the Constitution as well as the Representation of People Act, 1951. Finding such appointments against the Constitution as well as the law, and existing precedents, the court also found them to be against constitutional morality.

 

Quoting from the foregoing statement of Ambedkar in the Constituent Assembly, Justice Dipak Misra in a Constitution Bench decision of five judges, in which he wrote the leading judgement for himself and two of his colleagues, including the then Chief Justice of India, stated:¹⁶

‘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. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality.’¹⁷

 

This statement covers almost all the points covered by Ambedkar in the Constituent Assembly as well as by Professors Andre Béteille and Mehta without specific reference to fundamental rights as was done in the Naz Foundation or Kaushal judgements, which confined constitutional morality only to fundamental rights. Recently, in 2018, the question of constitutional morality was raised in the Supreme Court in quite a few cases, which were all decided during the tenure of Chief Justice Dipak Misra mostly by the same set of judges. I try to place them in the same order in which they were decided.

The first among them is: Government of NCT of Delhi v. Union of India and others,¹⁸ in which the primary issue concerned the position of the council of ministers consisting of democratically elected members of the majority party in the legislature of the National Capital Territory of Delhi vis-a-vis the unelected executive head – the Lt. Governor – appointed by the President of India.

Speaking for himself and another colleague, the Chief Justice observed: ‘Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic set-up promised to the citizenry remains unperturbed.’¹⁹

 

This statement only adds something more to what was earlier said in the Nirula case without any reference to fundamental rights. The additional aspect also emphasizes on the quality of the Constitution that it must invoke affection of every person and segment of society. Such affection is possible only when the Constitution takes due care of each and every individual and groups definitely including all minority groups. That brings us closer to what Grote said about constitutional morality.

In the Navtej Singh Johar v. Union of India case,²⁰ Chief Justice Misra further fortified the scope of constitutional morality:

‘Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.’²¹

 

Here, besides adding the ‘espousal of pluralistic and inclusive society’, which every organ of the state including the courts is under an obligation to preserve and strengthen, it also brings in the difference between social and constitutional morality to emphasize that the former cannot be used for violating the fundamental rights of any person. Among the other three judges, only Justice Chandrachud deliberated on constitutional morality and also enriched its contents by drawing attention to the goals in the Preamble in the following words:

‘Constitutional morality requires that all the citizens need to have a closer look at, understand and imbibe the broad values of the Constitution, which are based on liberty, equality and fraternity. Constitutional morality is thus the guiding spirit to achieve the transformation, which above all, the Constitution seeks to achieve. This acknowledgement carries a necessary implication: the process through which a society matures and imbibes constitutional morality is gradual, perhaps interminably so. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against excesses of state power and democratic concentration of power.’²²

So far Sabarimala²³ is the last case in which Chief Justice Misra again spoke on constitutional morality. As is well known, the petitioners, all women, claimed the right to enter Lord Ayyappa Temple at Sabarimala (Kerala) for women of age between ten to fifty years, who were denied entry for reasons of some customary practice supported by the rules based on two enactments of the state of Kerala that prohibited their entry.²⁴

 

Denying justification for the restriction on the ground of morality on the right of women to practice their religion, Chief Justice Misra, after referring to his own statements in the earlier cases, remarked that morality in Article 25(1), like public order, is also public morality which ‘has to be appositely understood as being synonymous with constitutional morality’; as such the restrictions imposed on the entry of women in the age group of ten to fifty years is in conflict with constitutional morality. And added that whenever it is a question of a fundamental right of an individual, morality implies constitutional morality and any view that is ultimately taken by the constitutional courts must be in conformity with principles and basic tenets of this constitutional morality that gets support from the Constitution.

In his concurring opinion Justice Chandrachud also interprets morality in Articles 25(1) and 26 as coterminous with constitutional morality in the light of the values founded in the Preamble and fundamental rights, especially in the rights of equality and liberty. The dissenting judge, Justice Indu Malhotra, also did not disagree on the interpretation of morality in terms of constitutional morality, but in her view the Constitution must be seen in the light of multiple religious groups in our country who all have to be protected in respect of their rights. In that case the religious rights of the devotees of Lord Ayyappa are also to be counted for the purpose of determining the scope and content of constitutional morality.²⁵

On the facts of the Sabarimala case, the court seems to have returned to its initial application to fundamental rights but without giving up or contradicting what it has propounded in between. Among the innumerable cases that the Supreme Court and different High Courts have decided so far, all those cases which establish the supremacy of the directly elected representatives of the people in Parliament or state legislatures, as well as at municipal and village level, cases supporting and expanding the rights of minorities, indigenous tribes, Dalits, other backward classes, women and children also fall in the category of cases or instances of constitutional morality.

 

Besides the court decisions covered above, law persons in our country have not contributed much to the understanding and application of constitutional morality even though in the context of court decisions, especially the last one – Sabarimala case – the present law minister Ravi Shankar Prasad is reported to have said:

‘We hear a lot of constitutional morality… We appreciate these innovations… One respectful submission I would like to make is the nuances of constitutional morality need to be defined with greater clarity. And it should not differ from Judge to Judge but there should be a consensus.’²⁶

A few weeks later the Chief Justice of India said: ‘Whether it is a criminal court or civil, when justice is done, it is ultimately the principles of morality which are upheld, which are entwined with the law… We do what is right, what we think is right, guided by constitutional morality.’²⁷

 

The assertion of such a claim is expected from the Chief Justice, but a satisfactory explanation of constitutional morality remains elusive. Almost all writings in the context of the Naz Foundation case discuss issues other than the nature or scope of constitutional morality. One that I considered closest to it makes a jurisprudential analysis of regulation of public morality and that aspect of it which does not justify such regulation because it involves no danger or risk of public disorder and therefore no justification for its regulation. The latter amounts to constitutional morality.²⁸

Similarly, Latika Vashist makes good use of the Naz Foundation case for the purpose of establishing harm to others as a useful and objective principle of criminality and on that basis draws a prophetic conclusion that the offence of adultery must also be outlawed from the Penal Code, which the Supreme Court has finally done.²⁹

But this paper too, does not add anything to the understanding or practice of constitutional morality. Among the other papers or literature I could lay my hands on only one short write up,³⁰ with reference to cases in which our parliamentarians united to defend favours to themselves which the court invalidated,³¹ emphasizes as to how our political class behaves contrary to constitutional morality despite the constitutional details which Ambedkar introduced and justified by invoking constitutional morality. The political parties in Parliament have no patience to listen to one another on matters concerning the common man, but they quickly get united when it comes to benefiting themselves.

 

On the other hand, a fair amount of literature is available in the United States, which along with the United Kingdom, Grote cited as examples of constitutional morality in operation.³² As the United Kingdom has not yet written its Constitution, any issues concerning constitutional morality are settled in Parliament, which represents the best in democracy, consistent with the rule of law and constitutional conventions. The same is not the case in the United States because of its written and very brief Constitution incorporating separation of powers, the bill of rights and federalism. Such a short Constitution with its unique features is also the oldest surviving and still flourishing Constitution in the world. Its survival and flourishing owes a lot not only to its inherent qualities but also the people who propel it.

 

Among the propelling lot are not only the ones who represent the three organs – executive, legislature and judiciary – but also legal and other scholars who have been constantly reminding members of the three organs as well as the people at large about their role in ensuring that the Constitution moves on expected lines in a changing society. Among them are also the ones who invented the phrase constitutional morality at the beginning of the 19th century and applied it to democratic traditions in ancient Greece as Grote has done. But that may also be said about J.S. Mill and other contemporary thinkers.

Almost all issues concerning constitutional morality in the US move around the rule of law which the executive violates by non-observance of their positive and negative obligations imposed by the Constitution as well as by the usurpation of legislative powers which deprives the people’s representatives in the Congress to present and implement the wishes and expectations of their electors.³³ One of the recent books on constitutional morality states:

‘We use the term constitutional morality to denote the felt constitutional duty of government officials in particular to abide by the restrictions and imperatives imposed on them by a constitution. Such morality is only part of the wider unwritten constitution of a people. But it is of special importance because it holds, in a sense, the keys to the rule of law.’³⁴

 

The book adds: ‘Constitutional morality requires that those holding public office under a particular constitutional structure act with a requisite virtue or set of virtues. We refer here not to an abstract conception of the virtuous "abstract person", but rather to the requirements for a good member of Congress, good Supreme Court justice, good president and a good administrator.’³⁵

The book also discusses in detail the virtues of a good administrator as laid down by political thinkers and practitioners such as J.S. Mill, Woodrow Wilson, Goodnow and several others which was also one of the primary concerns of Ambedkar for the inclusion of administrative details in the Draft Constitution. The book concludes that public officers instead of people’s representatives in Parliament are wielding many powers at the cost of lawmakers who represent the people in the Congress and suggests:

‘It would be better for us to recur to a public morality in which national leaders are praised for refusing power rather than for seizing it, for restraining themselves rather than asserting themselves, for respecting the limits of tradition rather than "innovating" at the expense of the people’s reasonable expectations.’³⁶

And again it states: ‘Only the virtue of restraint, practiced at the centre of power, can foster the rule of law and the local self-government necessary for us to join with our fellows in forming our own and our common characters in the associations in which persons by nature live.’³⁷

 

The same is happening with greater vigour in our country too. The executive takes major decisions with little or no discussion in Parliament, which represents the democratic will of the people. In our parliamentary form of government there is less justification for this development than in the executive – presidential – form of government in the United States.³⁸ This is also a good example of democratic deficiency in our country, which Ambedkar called top-dressing on an Indian soil which is essentially anti-democratic.³⁹ Thus, besides the instances of disregard of constitutional morality brought before the Supreme Court, such and even more serious disregard has happened and noticed in several ways and instances since the commencement of the Constitution.

 

Subsequent to the Union Law Minister’s query from the Chief Justice of India, the Attorney General K.K. Venugopal expressing concern from the use of constitutional morality hoped for its death because otherwise the Supreme Court would become the third chamber of Parliament.⁴⁰ Disagreeing, legal scholar Upendra Baxi argues that constitutional morality is not a new phenomenon. It was explained by Ambedkar in the Constituent Assembly, later by Pratap Mehta and relied upon in Naz Foundation, initially in Delhi High Court and on appeal also in the Supreme Court. Citing some other judgements prior to its application by Chief Justice Misra in Manoj Nirula and subsequent cases in 2018 he concludes: ‘The dialectic between public morality and constitutional morality serves well the promotion of constitutional good governance and the production of constitutionally sincere citizens.’⁴¹

In my reading of the cases in which the court discussed and defined the concept of constitutional morality, it did not apply it to any legislation except invalidating a rule found ultra vires of the parent act in Sabarimala case. A few weeks later, Professor Menon expressed his apprehensions ‘about the use and abuse of the doctrine in constitutional decision-making’ by raising eight questions in the same online journal.⁴² Defending once again the validity of the concept of constitutional morality in principle as distinct from its use, Baxi asserted that the standards of constitutional morality ‘have to be observed in each case, regardless of a judge’s views about morals.’ In his view questions of constitutional morality cannot be left to the legislature alone without the possibility of judges to examine them.⁴³

 

In my reading and understanding of constitutional morality as explained by Ambedkar in the Constituent Assembly, by scholars like Andre Béteille and Pratap Bhanu Mehta and the cases cited above, constitutional morality is as important for the smooth working and survival of the Constitution as public morality is for the smooth working and survival of a society.

As constitutions in general and modern constitutions for sure are made to change and discard what the people of a country consider bad in public morality, in case of conflict between public morality and constitutional morality, the latter must trump the former. This principle is primarily reflected in the preamble of the Constitution, fundamental rights and duties as well as in the formation of institutions that are expected to be the instruments of such change, besides any special provisions for uplifting the discarded and excluded sections of the society. Accordingly constitutional conventions must also be developed to ensure that any deviations from those provisions and their operations are always carefully watched and brought on the right track.

 

Footnotes:

1. Constitutional Assembly Debates: Official Reports Vol. VII, 4 November 1948, p. 38.

2. G. Grote, A History of Greece: From the Time of Solon to 403 B.C. Condensed and Edited by J.M. Mitchell and M.O.B. Caspari, Routledge, London and New York, 2001, p. 93. Grote, whose father was German, lived and studied in England, where he was also a Member of Parliament from London and therefore familiar with politics and a great supporter of democracy. Preceding the words quoted above by Dr. Ambedkar, Grote writes that at a time when in Greece there was a danger to democracy in Athens by internal feuds between two ambitious claimants for rule, Kleisthenes had to protect the democratic constitutions: first, by throwing impediments in their way and rendering it difficult for them to procure the requisite support; next, by eliminating them before any violent projects were ripe for execution. To do either the one or the other, it was necessary to provide such a constitution as would not only conciliate the goodwill, but kindle the passionate attachment of the mass of citizens, insomuch that not even any considerable minority should be deliberately inclined to alter it by force.

3. Constitutional Assembly Debates: Official Reports Vol. VII, 4 November 1948, p. 38. Emphasis added.

4. Ibid., emphasis added.

5. Ibid.

6. Ibid.

7. A. Béteille, ‘Constitutional Morality’, Economic and Political Weekly 43(40), 4-10 October 2008, pp. 35-42.

8. Naz Foundation v. Govt. (NCT of Delhi), (2009) 160 DLT 277. The bench consisted of the then Chief Justice of the Delhi High Court and Justice Muralidhar.

9. Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1, at p. 20.

10. Mahendra P. Singh, ‘Decriminalisation of Homosexuality and the Constitution’, NUJS Law Review 2(3), 2009.

11. Id.

12. Pratap Bhanu Mehta, ‘What is Constitutional Morality’, Seminar 615, November 2010, pp. 17-22. In the absence of any reference to the Naz Foundation Case in his paper, it is unclear whether Professor Mehta was aware of it.

13. Supra Note 12.

14. Ibid.

15. Manoj Narula v. Union of India, (2014) 9 SCC 1.

16. The two other judges were Chief Justice of India R.M. Lodha and Justice S.A. Bobde. The other two judges, Justice Lokur and Justice Kurian, did not rely upon constitutional morality in their concurring opinions.

17. Supra Note 15 at para 64.

18. (2018) 8 SCALE 72.

19. Id at para 57.

20. (2018) 10 SCALE 386.

21. Id at para 253 (v).

22. Id at para 601.

23. Indian Young Lawyers Association v. State of Kerala 2018 SCC Online SC 1690. While Chief Justice spoke for himself and Justice Khanvilkar, the other judges did not touch upon the question of constitutional morality. Dissenting Justice Malhotra briefly read it as morality for every religious group to have the right to exercise its religion.

24. Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, ‘the 1965 Act’) as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India.

25. Supra Note 23 at para 298-313.

26. The Indian Express, 27 November 2018, p. 8. Every year on 26 November, Law Day is celebrated as the day of adoption of the Constitution of India.

27. The Indian Express, 2 Feb. 2019, p. 10.

28. Rohit Sharma, ‘The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation Judgement’, NUJS Law Review 2(3), 445, 2009.

29. Latika Vashist, ‘Re-thinking Criminalisable Harm in India: Constitutional Morality as a restraint on Criminalisation’, Journal of the Indian Law Institute 55(1), 2013, p. 73.

30. Shambo Nandy and Vasujith Ram, ‘The Political Class and the Decline of Constitutional Morality’, Journal of Indian Law and Society 4(2), 2013, p. i.

31. Lily Thomas v. Union of India, (20013) 7 SCC 653; Chief Election Commissioner v. Jan Chowkidar (2013) 7 SCC 507 and Subhash Agrawal v. Indian National Congress & Others, File No. CIC/SM/C/2011/001386.

32. The sentence following what we have cited from Grote in fn. 1 reads: This coexistence of freedom and self-imposed restraint, of obedience to authority with unmeasured censure of the persons exercising it, may be found in the aristocracy of England (since about 1688) as well as in the democracy of the American United States; and because we are familiar with it, we are apt to suppose it a natural sentiment; though there seem to be few sentiments more difficult to establish and diffuse among a community, judging by the experience of history. We may see how imperfectly it exists at this day in the Swiss Cantons; while the many violences of the first French revolution illustrate, among various other lessons, the fatal effects arising from its absence, even among a people high in the scale of intelligence. Yet the diffusion of such constitutional morality, not merely among the majority of any community, but throughout the whole, is the indispensable condition of a government at once free and peaceable; since even any powerful and obstinate minority may render the working of free institutions impracticable, without being strong enough to conquer ascendancy for themselves. Nothing less than unanimity, or so overwhelming a majority as to be tantamount to unanimity, on the cardinal point of respecting constitutional forms, even by those who do not wholly approve of them, can render the excitement of political passion bloodless, and yet expose all the authorities in the State to the full license of pacific criticism.

33. See, eg, B.P. Frohnen and G. W. Carry, Constitutional Morality and the Rise of Quasi Law. Harvard University Press, 2016, for example, William Van Alstyne, ‘Introductory Remarks: The Relationship of Law and Morality in Respect to Constitutional Law’, William and Mary Law Review 48(5), 2007, pp.1571-1577; William D. Guthrie, ‘Constitutional Morality’, The North American Review, 196(681), August 1912, pp. 154-173; Bruce P. Frohnen and George W. Carey, ‘Constitutional Morality and the Rule of Law’, Journal of Law and Politics 26(497), 2011.

34. Id. B.P. Frohnen and G. W. Carev, p. 10.

35. Ibid.

36. Id. at p. 240.

37. Ibid.

38. It clearly happened during the 1975-1977 Emergency and currently without any declaration of an emergency. Constitutionally controversial decisions, even to amend the Constitution, are taken and cleared through both Houses of Parliament without prior information to the opposition. One recent example of that is the 124th Amendment of the Constitution on providing 10% reservation in public (state) educational institutions as well as in employment to economically backward classes of people in spite of the Supreme Court decisions that economic condition alone cannot be the basis of any such revision. Available at http://egazette.nic.in/WriteReadData/2019/195175.pdf (last accessed on 18.04.2019). The same may be said with greater emphasis in respect of The Constitution (Application to Jammu and Kashmir) Order, 2019 which was issued on 5 August 2019 without giving any information to the people of Jammu and Kashmir or seeking their consent to the changes made in the Constitution by this Order in the light of what Grote has said in footnote 32 above.

39. See, Dr. Ambedkar’s speech in the Constituent Assembly in defence of administrative details in the Draft Constitution quoted above.

40. This is what Baxi has noted down from Attorney General’s remarks at Second J Dadachanji Memorial Debate cited in Baxi’s paper titled, ‘A Dangerous Precedent?’ Available at www.indialegallive.com/viewpoint/ a-dnagerous-precedent-58450 (last accessed on 18.04.2019).

41. Ibid.

42. Id., 12 January 2019.

43. Upendra Baxi, ‘Constitutional Morality: No Entry in Adjudication?’ Available at http://www. indialegallive.com/viewpoint/constitutional-morality-no-entry-in-adjudication-62817 (last accessed on 18.04.2019).