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White Black Legal – International Law Journal · ISSN 2581-8503
CONSTITUTIONALISM: AT THE HELM OF CONSTITUTIONAL INTERPRETATION
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Abstract
CONSTITUTIONALISM: AT THE
HELM OF CONSTITUTIONAL INTERPRETATION
AUTHORED BY - BABU BETHOVAN
ABSTRACT
Constitution
is first and foremost a forbearance upon the government that ensures the laws
and institutional structures does not hinder the social, political and economic
existence of the common man. Secondly, the Constitution bridges the gap between
the past of the nation that tells the tale of what the nation was, with the
more futuristic panorama of what the nation ought to be. Under the Indian
constitutional scheme, Fundamental Rights and Directive Principles of State
Policy - together referred to as the conscience of the Constitution – lays
foundation to the ideal of Constitutionalism by vesting inalienable rights to
individuals and groups and establishing a legal culture to be evoked by the
State while manifesting policy decisions. By incorporating independent
judiciary along with a vibrant judicial review mechanism, India poses a model
limited government paradigm in comparison to other world democracies. Over the
years, the Apex Court in exercise of its judicial creativity has breathed life
into the nuances of the constitutional text by bringing forth the basic
structure theory, the essential religious practice test and a plethora of other
judicial doctrines. Although these interventions have paved path for the
juridical materialization of constitutionalism, still it raises the question as
to in which direction the notion of constitutional morality is being navigated
by the judiciary under the arm twisting influence of social morality. This
paper argues that the concept of constitutionalism along with the proper
attribution of constitutional morality serves as an amicable tool for
interpretation of the Constitution and ensuring the perpetuation of the
Constitution with the changing times.
Keywords:
Constitutionalism, Constitutional morality, Social morality.
INTRODUCTION
"By
constitutional morality, Grote meant... a paramount reverence for
the forms of the constitution, enforcing obedience to
authority and 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 that the forms of constitution will not be less
sacred in the eyes of his opponents than his own."
-
Dr. B. R. Ambedkar
Constitution
in one word signifies a dogmatic change in the political atmosphere of a
territory. In case of India, Constitution of India marked the transition of a
colonial state into an independent nation founded on the ideological edifice of
justice, liberty and equality. These ideals fused with the definition of
government, its elaborate organs and various constitutional restraints paves
preliminary path for the premise that the Constitution of India inherently
indoctrinates the principle of constitutionalism within its operative sphere.
Constitutionalism and Constitutional morality are two imperative doctrines of
modern constitutional law. Though distinct in their theoretical foundations,
these doctrines emerge as a safeguard against the unfettered authority of those
wielding power and provides for certain permissible standards to be kept in
vigil during the course of constitutional functioning. By aligning the
intricacies of these doctrines, an acceptable approach of interpreting the
constitutional provisions maybe appropriated.
UNDERPINNINGS OF CONSTITUTIONALISM
At
its inception the Indian constitution too met with the dilemma of adopting a
model of constitutional arrangement, like in the case of every other
jurisdiction where a written constitution prevails. Among the existing
traditional models of parliamentary sovereignty (which was the norm for the
erstwhile imperial rulers) and judicial supremacy, the legal apparatus of
judicial supremacy was found befitting the Indian scenario at the first
juncture as it vested the constitutional courts with the power to review of
legislative acts on substantial and procedural grounds. Later, with the advent
of modern constitutional reforms that emerged in the commonwealth nations, a
new alternative approach was adhered to which was addressed as the new
commonwealth model of constitutionalism wherein the constitutional courts not
only exercise the power to question the validity of laws by the adopting the
mechanism of judicial review, the courts themselves remain independent and
neutral from the overarching authority of the government.[1]
Constitutionalism
essentially embodies the concept of legal limitation over the power wielded by
government. In India, the parliamentary democratic system that regulates the
affairs of the nation sources its legitimacy from the will of the people. Will
of the people, which in turn constitutes popular sovereignty remains yet
another cardinal principle of constitutionalism. By adopting a mode of
representative democracy, the will of the people is conveyed through the
elected representatives who ensures the policy decisions are made in
furtherance of the welfare and benefit of the general populace. Any action not
in consonance with the general consensus is met with political setbacks as in
transfer of power shifting towards another entity who acquires the political
legitimacy of the public during the forthcoming course of electoral process.
Though in theory this might appear as an ideal setup, the practicality of this
process has its shortcomings and that itself negates the application of
constitutionalism.
Under
the Constitution the Union and State legislatures along with Union and State
Executives exercise their distinct authority over the people. The doctrine of
separation of powers running comprehensively across the text of the
Constitution is yet another facet of constitutionalism. As put forward by
Montesquieu, separation of powers intends to avert the concentration of powers
in any particular organ of the government. A written constitution clearly
indicates such demarcation of powers of the three branches also ensures a
system of checks and balance that advertises and promotes accountability of the
branches to each other as well as maintaining transparency in the eyes of the
general public. In a modern democracy such as India, instances of executive
overreach by bureaucrats and extraneous judicial activism occurs repetitively
which actually threatens the fabric of constitutionalism.
Fundamental
rights and Directive Principles of State Policy – collectively identified as
the conscience of the Constitution provides for guaranteeing individual
liberties, ensuring protection of human rights and balancing the competing
claims of personal and collective interests. It is founded on the principle
that fundamental rights shall not be dishonored by the state and its
instrumentalities and such constitutional restraints shall serve as a failsafe
against the denial of any right at the cost of regulating yet another right.
This principle is yet another pinnacle of constitutionalism. Of late it is this
facet of constitutionalism that seems to be debated in the precedential glyphs
of judiciary.[2]
STRANDS OF CONSTITUTIONAL MORLAITY
The
major premise upon which the concept of constitutional morality is founded is
based on the notion that the foundational norms of the Constitution must always
be abided by and does transgress the norm of rule of law established within the
constitutional apparatus. Further, parliamentary and democratic values, dues
process of law, liberties and freedoms all contributes to the texture of
constitutional morality. At the outset, constitutional morality intends to
balance conflicting interests arising from the diversified society with the
measures taken by administrative authority to resolve the conflicts by
incorporating self-restraints present within the constitutional plane.
For
instance, while the question of constitutional validity of Right to Information
Act 2005 and criminal antecedents of ministers in Central and State governments
was brought before the Apex court, the doctrine of constitutional morality was
vehemently employed to highlight the aspects of good governance.[3]
Further protection of fundamental rights, adherence to constitutional
principles, independence and impartiality of institutions, significance of
judicial review and scrutiny were also identified as connected concerns with
constitutional morality.
Later,
in the instance of interpreting morality under Article 25 of the Constitution,
the Apex court further explained that constitutional morality requires courts
to interpret the Constitution in a progressive manner, evolving with the
changing social norms and values and a progressive interpretation of
constitutional provisions to strike down a discriminatory practice that was
based on patriarchal and outdated beliefs.[4]
The concept of constitutional morality can be applied in judicial
decision-making to uphold the principles of equality, non-discrimination, and
individual rights. It introduced the trend of challenging discriminatory
practices based on gender or any other arbitrary grounds and reinforced the
supremacy of the Constitution in ensuring justice and equality for all
citizens.[5]
AN INTERPLAY AND AN AFTERMATH
Constitutionalism
intends to accomplish a non-arbitrary government. By establishing a
non-arbitrary government, an institutional framework for good governance is
advanced simultaneously. In order to ensure this protocol is properly
administrated a standard of guidelines such as in the case of constitutional
morality. Constitutional morality and constitutionalism are integral components
of democratic governance, providing the framework for the rule of law,
protection of rights, and the functioning of institutions. While
constitutionalism establishes the structure and principles of governance,
constitutional morality guides the interpretation and application of these
principles, ensuring adherence to democratic values. The two concepts are
interrelated, with constitutional morality reinforcing the foundational
principles of constitutionalism and ensuring their adherence in practice.
Upholding constitutional morality is vital for the sustenance and advancement
of democracy, ensuring that governments serve the interests of all citizens and
uphold the ideals enshrined in the constitution.
Constitutionalism
in the contemporary sense is often identified through the lens of
transformative constitutionalism. In traditional context, a constitution was
subject to transformation by the means of amendments. Judiciary while
interpreting the constitutional morality has given priority to social morality
rather than constitutional morality. Most of the recent interpretations of both
constitutionalism and constitutional morality are lost in the psyche of the
personal morality of the judges.
Social
morality, refers to the moral values and norms that prevail within a society.
It encompasses cultural, religious, and ethical beliefs that guide individuals'
behavior and interactions within the community. While constitutional morality
and social morality are distinct concepts, they are interconnected and mutually
influence each other within a society. Constitutional morality provides the
framework for governance, ensuring adherence to democratic principles and the
protection of fundamental rights, while social morality reflects the cultural,
ethical, and community standards prevailing within a society. While both are
concerned with moral principles and values, they operate within different
spheres and contexts. It encompasses cultural, religious, and ethical beliefs
that guide individuals' behavior and interactions within the community. In
cases where social morality contradicts constitutional principles, there may be
tension between the two, requiring careful consideration and resolution. Social
morality can influence public opinion and political discourse, shaping policies
and laws enacted by governments. Constitutional morality serves as a safeguard
against the imposition of discriminatory or unjust laws that may be influenced
by prevailing social norms. The judiciary plays a crucial role in reconciling
conflicts between constitutional morality and social morality through judicial
review and interpretation. Courts must ensure that laws and policies adhere to
constitutional principles, even if they diverge from prevailing social norms.
[1] Chintan
Chandrachud, Balanced Constitutionalism Courts And Legislatures In India And
The United Kingdom 5 (Oxford University Press 2017)
[2] P. ISHWARA BHAT,
FUNDAMENTAL RIGHTS A STUDY OF THEIR INTERRELATIONSHIP 17 (Eastern Law House
2004)
[3] Manoj Narula v.
Union of India, (2014) 9 SCC 1
[4] Indian Young
Lawyers Association & Ors v. The State of Kerala, (2019) 11 SCC 1
[5] ibid
How to Cite This Article
BABU BETHOVAN, CONSTITUTIONALISM: AT THE HELM OF CONSTITUTIONAL INTERPRETATION., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. 4, Issue 1, September 2026, pp. 569-576, DOI Link: https://www.doi-ds.org/doilink/09.2026-76541627/CONSTITUTIONALISM: AT THE HELM OF CONSTITUTIONAL I. Available at: https://www.whiteblacklegal.co.in/public/details/constitutionalism-at-the-helm-of-constitutional-interpretation
Author & Publication Record
Authors: BABU BETHOVAN
Registration ID: 107080 | Published Paper ID: WBL7080
Year: Sep- 2026 | Volume: 4 | Issue: 1
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 569-576
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