The term morality occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. When there is a violation of the fundamental rights, the term morality naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution.
Manoj Narula v. Union of India
In Manoj Narula v. Union of India (2014), Supreme Court has reflected upon the predominant role that the concept of constitutional morality plays in a democratic set-up and opined thus:
“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.”
Government of NCT of Delhi v. Union of India (2017)
That apart, Supreme Court, in Government of NCT of Delhi v. Union of India (2017), observed thus:
“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 setup promised to the citizenry remains unperturbed.”
Navtej Singh Johar and others v. Union of India (2018)
Elaborating further, in Navtej Singh Johar and others v. Union of India and others, Supreme Court observed:
“The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.”
And again:
“115. The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen.
The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality”
The right guaranteed under Article 25(1) has been made subject to, by the opening words of the Article itself, public order, morality, health and other provisions of Part III of the Constitution. All the three words, that is, order, morality and health are qualified by the word public.
As regards public morality, we must make it absolutely clear that since the Constitution was not shoved, by any external force, upon the people of this country but was rather adopted and given by the people of this country to themselves, the term public morality has to be appositely understood as being synonymous with constitutional morality.
Reference
All India Young Lawyers Association v. State of Kerala (2018)