Constitutional Morality: An Indian Framework

American Journal of Comparative Law (forthcoming)

42 Pages Posted: 15 Jul 2021 Last revised: 20 Jul 2021

See all articles by Nakul Nayak

Nakul Nayak

London School of Economics and Political Science

Date Written: April 11, 2021

Abstract

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.

Keywords: Constitutional Morality, Ambedkar, George Grote, Chandrachud, Sabarimala, Naz Foundation, Dipak Misra

Suggested Citation

Nayak, Nakul, Constitutional Morality: An Indian Framework (April 11, 2021). American Journal of Comparative Law (forthcoming), Available at SSRN: https://ssrn.com/abstract=3885432

Nakul Nayak (Contact Author)

London School of Economics and Political Science ( email )

London WC2A 2AE
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
1,698
Abstract Views
4,439
Rank
20,195
PlumX Metrics