Pratap Bhanu Mehta writes: A modest plea for constitutional morality
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Context
Eminent political scientist Pratap Bhanu Mehta defends the concept of 'constitutional morality' against recent criticism by government law officers. The editorial argues that while the term may seem indeterminate, it is a crucial diagnostic tool to protect liberty and equality against majoritarian 'societal morality.' Furthermore, it serves as a yardstick to evaluate the , warning against a recent drift towards judicial arbitrariness and procedural inconsistency.
UPSC Perspectives
Polity
Constitutional morality is a foundational UPSC concept (frequently tested in GS2) referring to the strict adherence to the core principles of the Constitution, such as liberty, equality, and fraternity. Dr. B.R. Ambedkar famously noted in the Constituent Assembly that it is not a natural sentiment but must be cultivated among citizens and administrators. In recent years, the has utilized this doctrine to strike down archaic, prejudiced laws, most notably in the case which decriminalized homosexuality. Critics, including government officials, often argue the term is vague and acts as a tool for judicial overreach (courts expanding their authority into the executive or legislative domain). However, Mehta counters that constitutional morality is essential to ensure that fundamental rights like (Right to Equality) and (Right to Life and Liberty) are not overshadowed by historically entrenched social prejudices. Without it, the state risks prioritizing majoritarian orthodoxies over democratic constitutionalism.
Governance
The editorial highlights a concerning shift in India's highest judiciary from principled adjudication to what the author terms judicial nihilism (a state where the moral substance, predictability, and procedural discipline of the law are heavily eroded). For governance to be effective and citizens to feel secure, courts must provide predictive stability; citizens must know what the Constitution requires. Mehta points to recent instances of arbitrariness, such as the apex court allegedly ignoring the disenfranchisement of voters in West Bengal without proper due process (fair and established legal procedures). When the judiciary acts with uncertainty or appeases political sensitivities rather than defending constitutional principles, it creates institutional chaos. In this context, constitutional morality does not just tell judges how to rule, but acts as a diagnostic tool for citizens to evaluate the judiciary itself, alerting them to the presence of unaccountable power and a breakdown in the rule of law.
Ethics
From the lens of moral philosophy in GS4, the debate fundamentally pits Constitutional Morality against Societal Morality. Societal morality often reflects the status quo, majoritarian views, or entrenched traditional orthodoxies, which can inherently compromise the civic equality of marginalized groups. This conflict was highly visible in the , where traditional practices restricting women's entry were tested against modern constitutional commitments to gender equality and freedom. Invoking 'societal morality' is often used as a device to insulate discriminatory social practices from rational scrutiny, effectively acting as a 'refusal of reason.' Constitutional ethics, by contrast, demands self-restraint, respect for pluralism, and a commitment to rational criticism. It requires public institutions and citizens to elevate their moral compass above historical prejudices, ensuring that civic equality is the ultimate metric for public life.