Constitutional Morality as Tool in Interpretation of the Constitution - A Critical Analysis

Scholarly writing has identified six forms of constitutional argument or construction that may be used by courts or others in deciding a constitutional issue.² These are (1) historical, (2) textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential. The historical, originalist and textualist interpreters of the Constitution, (judges), are usually called conventionalists or traditionalists, and they are generally undermined by the other Judges. India, today is on the path towards a transformative justice that values individual freedom over collective freedom. Many cases by the Supreme Court, have marked this mode of transformative justice as a form of contemporary method ofjudicial review. One of the most prominent examples of this is the interpretation of ‘procedure established by law ’³ under Article 21, to mean ‘a law that is just fair and reasonable under Article 14,19 and 21 ²¹, to impliedly incorporate the ‘due process clause ’ into the Constitution, that was originally specifically excluded by the Constituent Assembly Debates. Again, decriminalising adultery⁵, protecting the right of privacy as a fundamental right⁶, decriminalising homosexuality⁷, removing the prohibition of entry of women into Shabarimala⁸ are examples of transformative constitutionalism. Thus, it is clear that historical, original and textual interpretations of the Constitution have little significance today. The intention of this Article is thus to observe the use of ‘constitutional morality’ as interpretated by the judges in the above-mentioned cases, as a tool in interpretation of fundamental rights. Can the courts completely disregard historical and textual interpretation of the term ‘constitutional morality’ and accord a new meaning to it, in the name of transformative constitutionalism? Is the judiciary creating a dangerous doctrine without so much as elaborating on the content or boundaries of its definition, thus opening doors to more abstraction rather than bringing out effective interpretative tools?