“On Justice and Morality”
Prof. G. Mohan Gopal
Former Director, National Judicial Academy
A. Justice
1. Human well being depends crucially on how we treat each other. Generally accepted standards on the right way for humans to treat each other are therefore the cornerstone of a nation and fundamental to its survival.
2. These standards of right conduct are what we call in law “justice”. “Justice” means, literally, ‘the existence’ (ontos) of righteousness in some thing or state of being (please see endnote). As the law is concerned only about the rightness and wrongness of human conduct, the legal idea of justice is that justice is the standard of right human conduct.
3. A standard of human conduct consists of a set of ethical values to which human conduct must conform. There are strong differences, amongst different groups of people, and between individuals on what values constitute “right” human conduct. What is justice to one may therefore be injustice to another.
4. The idea of justice set out in the Constitution, the highest legal instrument, is a standard of human conduct required to be followed by all persons and by the the State itself. It is backed by the sovereign power of the State.
5. The idea of justice has a central place in the Constitution:
(i) The Preamble to the Constitution sets “securing to ourselves justice” as the first objective of the Republic.
(ii) Article 38 (1) sets the mandate of the Republic: “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life”.
(iii) Article 39A defines the mandate of the legal system as promoting justice: “The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
(iv) Article 46 provides that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
6. The values of conduct that constitute the Constitutional vision of justice are found in the Preamble and in Parts III, IV and IVA of the Constitution. The core values of human conduct that constitute the Constitutional vision of justice consist of: (1) freedom; (2) liberty; (3) equality; (4) fraternity; and (5) dignity of the individual (6) secularism; (7) socialism; (8) democracy; and (9) rule of law.
7.Courts do not have the option of applying values of human conduct established by religion or ideas of justice of jurists, or even the personal idea of justice of judges as individuals.This would lead to arbitrariness and would lack both legality and legitimacy. Courts may only follow and apply the Constitutional vision of justice — the standard of right conduct specified in the Constitution.
8. The Supreme Court held in Kalpana Mehta and Ors. v. Union of India and Ors. (2018) that “The Constitution is the fundamental document that provides for constitutionalism, constitutional governance and also sets out morality, norms and values which are inhered in various articles and sometimes are decipherable from the constitutional silence.”
B. Morality
9. Morality refers to informal, non State system of rules of ethical conduct . Each community typically has its own morality, drawing from its own idea of justice.
10. Where courts are required to secure morality by statutes, they can lawfully only secure Constitutional morality. They cannot follow or enforce any other morality.
11. It has been well recognized that a Constitution works not only through its letter but also through constitutional practices, conventions, customs and traditions which are essential for upholding the Constitution and achieving its goals. Austin referred to the ‘positive morality’ of the constitution and Mill to the ‘unwritten maxims’ of the constitution. A.V. Dicey spoke of constitutional conventions which are not laws in the strict sense, but which are obeyed because a breach of the rules would ultimately lead to a breach of the law.
12. The phrase Constitutional morality was introduced into our Constitutional discourse by Dr. B.R. Ambedkar on November 4, 1948 in the Constituent Assembly. Dr. Ambedkar said, citing “Grote, the historian of Greece” that constitutional morality refers to “a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest thatthe forms of the Constitution will not be less sacred in theeyes of his opponents than in his own.“ In other words, at the heart of Constitutional morality, Dr. Ambedkar saw respect for the Constitution and the rule of law, in letter and in spirit.
13. ‘Constitutional morality’ is nothing but the values inculcated by the Constitution” said the Supreme Court of India succinctly in Kantaru Rajeevaru vs. Indian Young Lawyers Association and Ors. (2019). The Supreme Court also said that “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…. Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.” (Government of NCT of Delhi vs. Union of India (UOI) and Ors. (2018).
14. “The rule of law” is a core value of the Constitution, identified by the Supreme Court as part of the basic structure of the Constitution. Central to the rule of law is the unwritten principle of Constitutional morality that litigants shall obey the judgments of the Court not only in letter but also in spirit, that they shall not act in such a manner as to undermine the core purpose of Court orders. To do so would subvert the Constitutional order. It is the responsibility of Courts and the Bar to ensure that this aspect of Constitutional morality is secured.
Footnote:
Jus denotes the quality of ‘rightness’. Whatever is infused with the quality of rightness (jus) is considered “just”. The word “justice” comes from the Latin word ‘justitia’ which means “righteousness”. Justitia is also the ancient Roman personification of justice.
Prof. G. Mohan Gopal 