OUR CONSTITUTION'S MORALITY: A TRIBUTE TO THE CONSTITUTION

Today is an auspicious day, for Law Students, Teachers, Judges, Lawyers and members of Society because; today is the day When Constitution was passed in its full "Letters & Spirit". It is always said that, “Constitution is a Living Document”, because it imbibes in the heart of the people and people imbibe in its Soul. Both protect, guard & nurture each other, with passing of time. Sometime, in the history of Constitution there are dark days, nonetheless in the lives of people there are days when they suffer through misfortunes, obstacles, defeats but the Life goes on and on. So, is the life our document, which goes on & on and stands the test of time. 

But, then question arises that Whether it has some “Morality”, because it is a living document and being “Living”, it should have some morals, as we have, being a human being, being Living Person. For, this question I would say that, yes it has “Morality”, then the question arises what kind of morality, how it could be found, whether it is similar to “Public Morality” & most importantly what is the use of such “Morality”. The answer to it lies in the Constitution itself. It is something which resides in the Constitution itself, only one need is to “see it” & “feel it”. Sometimes, the morality of Constitution over lapses with the morality of People but many a time it differs and that was said by Dr. B.R.Ambedkar in Constitution Assembly Debates, on 4 Nov., 1948 wherein he said that:-

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic."

Now, the question arise is that how to see it and what is the use of it? First, I would give the answer of Second question which in my submission is that “TO say that some acts, customs, statues are immoral & they should be struck down as Unconstitutional, What we need to see is that “Whether is the Act, Statues or Customs are “Constitutionally Immoral or goes against the ‘Morality of the Constitution’”, so to be ‘Constitutionally Impermissible’ and not that ‘Whether it goes against the “PUBLIC MORALITY” i.e. “Morality of the People of the Day”. So, strucking down a “Statue, Act or Custom” as “Immoral”, what we need to see is not that it goes against the “Morality of the People” but “Morality of the Constitution”.

Now, the question arises is that how it is different from People? Because, Constitution is nothing but the “Beautiful Creation of Legislature” representing the “Will of the People”. Then how its morals could be different from the People who made it and to whom it represents. The answer to it could be gathered by certain examples which I would write head by head:-

1. Abolition of Untouchability:- When Art. 17 was inserted into Constitution, the notion of Untouchability was in its full spirit and it was considered as “Publically Moral” as well as “Religiously Moral” but at the same time it was regarded by the Constitution as “Constitutionally Immoral” which the Constitution would never allow to perpetuate. It was considered by Constitution as an “Injustice perpetuating under Justice” and the Statue prohibiting such acts was Constitutionally upheld and was regarded as Salutary Measure in “Appavalu Ingale v. State of Karnataka”.

2. Dowry Prohibition:- One of the finest and Strongest example that I could lay before you is the ‘Dowry Prohibition’. The system of Dowry and its evil practices has been upheld by Indian Society as “Publically Moral” and it is still in practice among all parts of India from North to South and from “East to West”. But in the “Eyes & in the Heart” of Constitution, it regards such practices as “Constitutionally Immoral” and at the same time make it “Constitutionally Impermissible” and it does so, by giving full affect to “Dowry Prohibition Act”, by upholding it through its Constitutional Arms, which though has been criticized but has been proved to be a “Beneficent Piece of Legislation”.

3. Tripal Talaq:- The notion of Tripal Talaq was regarded by the Muslim Male Members as Publically Moral as well as Religiously Moral but the Constitution at the same time regard it as Constitutionally Immoral due to which it was certainly struck down on the basis of being Unreasonable & Arbitrary.

That how, the Morality of the Constitution sometimes differs from the Morality of Public  & the reason why I elaborate the Doctrine of “Constitution Morality” as somewhat opposed to “Public Morality”, is to make us understand that in case of Customs, Usage, Acts, Statues, Provisions in the Constitution or in any of Acts, to be struck down as Unconstitutional what we always need to pay heed to, is “Constitutional Morality”.  

Now, I would quit by justing putting a question before you, whose answers you have to find and the Question is that “Whether Sec. 377  of I.P.C which prohibits “LGBT Rights to have a Sexual Life” of their choice, should be criminalized or decriminalized, should be upheld Constitutional or Unconstitutional, should be held as “Moral or Immoral”? 

Thank You