Morality: Social and Constitutional Aspects in Democracy

The Weighting Of Moralities

Abstract

In recent times, we have heard a lot about morality particularly in our judiciary system. Morality is human nature or deportment to know right or wrong of a particular act or action. It helps people or a person to assess their decision for betterment of self and society. For cooperation and maintaining the peace and harmony of the society, that leads to the growth of the each other. In this article, I am explaining, how the social morality and constitutional morality interact with each other. how they balance each other in changing circumstances of the society and it’s needs.

The judiciary is one of the vital pillars of democracy; it is responsible for adjudicating friction between different ideas and upholding individual integrity in consensus with liberal ideas. There are many judgements, we are going to explore them in particular context. Also recent judgements regarding definition of Aravali heights discusses the conflict between society’s needs and constitutional morality. Cases are:

The Concept Of Morality:

In general terms, it means norms, rules, regulations, behaviour, faith and values, or combination of value of a particular society or an individual person at a particular time of a given geographical region. It can be good or bad depending on the survival and conditions of society or person. It tends to change with culture to culture and from time to time.

Kalpana Kannabiran in her book “Tools of Justice Non Discrimination and the Indian Constitution” said that “the concept of social morality as a system of discrimination and exclusion of the vulnerable class of people by the dominant classes in the society”. By this writer give the concreate rule of constitutional morality.

Social Morality:

It is an essential element for maintaining peace, harmony and mutual respect in any society or civilization. A set of values or norms of behaviours that are acceptable in society, comes under the social morality. The principles of right and wrong, Personal values, religious and cultural beliefs are catalysts of the social morality. It differs from place to place and from time to time. It has higher acceptance rate in society but sometimes it results in preserving the taboo or derogatory practices and continuing it.

I.e. Triple talaq(instant divorce), a type of divorce of Islamic divorce has abolished by the Supreme court, by upholding personal right over community, religious or customary right[1].  

Although this is not unlawful in Islamic law, in developing society or liberal society this is highly opposed because of favouring one gender. This is against the idea of equality of liberal or modern societies. 

Constitutional Morality:

This is generally based on some kind of legal document i.e. constitution of the land prevalent or supported by people’s will of that demographic region. That is based on liberal ideas like equality, the rule of law, Individual liberty and has willingness to be governed by a limited political entity, that has chosen by them like in thin constitutionalism[2].

It mandates the people to act under the constitutional norm even when their view or actions conflict with social, customary, ethical and individual perspectives. it has progressive nature i.e., has flexibility to adapts to society’s evolving approach.

The Court has the authority to check and balance between different institution including norms of the society with constitutional ideas of democracy and dignity of individual. It prevents the majority from acting arbitrarily. The court also accepts some social norms or customs constitutional, envisages in Article-13, Article 15, Article 25, Article 371A and Article 371G, even when they are conflict with the constitutional ideas. Like in the case of Supriyo v. Union of India, 2023[3], where Supreme court took different view asiding Navtej Singh v. Union of India, 2018 [4]verdict. The Court held that personal rights or individual dignity has upper hand, but in later on, they changed their decision and compromise with social norms. Same sex marriage was upheld unconstitutional. They also upheld the minority rights but did not create new legislative task or make new statue.

Social morality is one of the sources of modern law i.e. constitutionalism. Writers and thinkers of Historical School of Jurisprudence like Savigny, Puchta, Maine and Blackstone said “custom is a law that shows majoritarian consensus and collective spirit (Volksgeist} of people, but it does not require any recognition from state”.

Interplay of social Morality And Constitutional Morality

On the other hand, the Analytical Source of Jurisprudence (Austin, Holland, Grey and Bentham) talks about custom is a source of law, that is backed by state or recognized by law. For recognizing a custom as law, courts see custom’s Antiquity, Continuity, Reasonableness, Morality and Conformity with statue. If they are fulfilling these criteria, then they become the part of the constitution or legal entity.

In Dolly Rani v Manish Kumar Chanchal 2024[1], the Supreme Court ruled that Hindu Marriage is sacrament and not a contract or merely a transaction between parties. Marriage is only valid if it is followed by essential rites and ceremonies like Saptapadi as mandated by Hindu Marriage Act, 1955.

Indian Young Lawyers Association v State of Kerala (Sabarimala entry case, 2018), [2]The Supreme court has ruled that ban on certain ages of women is violating constructional right and impose a majoritarian rule on the subclass of the women. The court ruled that entry of women should be allowed and ban was unconstitutional. 

Social morality is generally recognized and practised by majority of the society. Also in today’s democracy a polarized society forms the government. it tries to change and adapt both constitution and social custom. Then constitutional morality prevents them by applying liberal principles envisaged in our constitution. it saves minorities from arbitrariness and uphold human dignity.

In Electoral Bond Case, 2024[3], where the Supreme court univocally struck down the Electoral bond scheme.

The court said that the anonymity of donors, in political donations violated the Article 19.1.A, Right to information of constitution of India.it also violated the representation of people’s act 1961 and helped in whitewashing the black money. the supreme court halted the scheme and ordered State Bank of India to disclose the information of donors. Also, social morality with constitutional morality defines foreign policies and geo political moves aligning with national interest. Particularly a civilization morality is work as the seabed for making laws and statue aligned with the changing needs and circumstances of the society. India is generally seen as a soft power

 Conclusion:

As the former Chief justice of India, Justice Dipak Misra stated that the Constitution has one goal, that is provide an inclusive and pluralistic society. It is constitutional morality that can help uphold the principles of our Indian Constitution.

Also in S. Khushboo v. Kanniamaa recent CJI DY Chandrachud said “that constitutional morality reflects how the struggle for the existence and ideals of justice should override any other prevailing notions of social acceptance”. It is a balancing act against the populist faith prevailing in society. It is a side of same the coin.

Social morality and constitutional morality are nothing but two sides of coin, influencing each other and evolving with each other. We have to make consensus between both and need to concreate some basic ideas of constitutionalism for betterment of democracy and good governance. While balancing both we have to see moral fabric of society because it largely prevails within the society. All the doctrines, concepts, policies were criticized at some stage of their development, but they proved to be the factors that were necessary for the development of the nation. Constitutional morality guides society towards pluralistic and right respecting future