Constitutional morality: An Indian framework

Nayak, Nakul (2021) Constitutional morality: An Indian framework. American Journal of Comparative Law. ISSN 0002919X

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Over the last dozen years, Indian courts have formulated the idea that inherent to the Indian Constitution lies a morality called “Constitutional Morality” (“CM”). CM acts as an interpretive device to help courts ascertain the meaning of the Constitution’s text in contested cases. Fundamental questions around CM, however, remain unaddressed: what are the methodological moves that courts have taken to employ CM in the case-law? What are the judicial premises and logics that work internal to CM? And what implications does CM portend for Indian constitutional law and theory? I attempt to address these questions. I make three levels of analyses. First, I explore the global intellectual history of CM to ascertain how Ambedkar – the chief draftsperson of India’s constitution – conceptualized it. Ambedkar’s reading of CM was, in my view, both educated and critical, and if we are to faithfully invoke him in discussions about CM, we must recognise the meaning he intended. Second, I develop a framework that situates how Indian courts presently understand CM. Courts have given two distinct meanings to CM: one, as as a deemed fiction that anchors the meaning of “morality” in constitutional adjudication (which I call the Deeming Principle), and two, as a constitutional obligation on political actors to follow ethical political practices when the law does not guide their conduct (which I call the Political Ethics Principle). I make accounts of both the Deeming Principle as well as the Political Ethics Principle, and analyze them on their own terms. Finally, I sketch two problems for Indian constitutional theory that the development of CM presents: judicial monopolisation and unprincipled development. As the Indian Supreme Court gears to commence hearings on whether courts may continue to use CM as an interpretive device, CM's normative attractiveness will be tested. The framework and analyses I have developed here can act as a foundation on which critiques and defences of CM can take place.

Item Type: Article
Keywords: Constitutional Morality | Ambedkar | George Grote | Chandrachud | Sabarimala | Naz Foundation | Dipak Misra
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 22 Mar 2022 04:51
Last Modified: 22 Mar 2022 04:51
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