The Many Meanings of Constitutional Morality

Abstract

This paper examines the different meanings of constitutional morality in the Indian constitutional law context. It traces the doctrine's origins to George Grote’s history of Greece and explains how it was in vogue in the U.S. when Ambedkar arrived there to study at Columbia University. It was at Columbia that Ambedkar took courses on Greek history, where he might have been exposed to Grote’s writings. In the Constituent Assembly, Ambedkar justified including mundane details of administration in the Constitution by arguing that India’s people lacked a culture of constitutional morality, that democracy was a “top-dressing” on an otherwise undemocratic Indian soil. The paper then examines two contemporary uses of constitutional morality in Indian constitutional law: first, as a counterpoise to popular morality (in judgments concerning homosexuality, adultery, rape, and the Sabarimala temple), and second, as a reincarnated basic structure doctrine, involving an analysis of the “spirit”, “soul” or “conscience” of the Constitution. This paper then concludes by discussing whether constitutional morality can be considered to be dangerous as Attorney General KK Venugopal has argued.