On Constitutional Morality and the Ethics of Political Silence

Aditya Anand Singh

Aditya Anand Singh is a PhD Student, Department of Political Science, Purdue University, West Lafayette, USA

In the Indian federal democratic structure, a bill passed by the State Legislative Assembly (elected by the citizens of the states) becomes law only after gaining gubernatorial consent. Once a bill is passed by the House, it goes to the Governor (appointed at the discretion the President of India), who can give their approval, withhold approval and send the bill back to the Legislative Assembly with suggestions, or “reserve” the bill for the President of India (Article 200 of the Constitution). Once a bill is sent to the Governor a second time, they must give it their approval. Notably, the Constitution of India does not prescribe a set timeline for how long the Governor can withhold approval for a bill.

The framers of the Constitution envisioned certain constitutional offices, such as those of State Governors, as nonpartisan, impartial “constitutional functionaries”. However, in recent times, such positions have become increasingly politicized. Such an instance occurred in Tamil Nadu. It should be noted that in Indian politics, the actions of the President – who appoints the Governor – are reflective of the Union or central government, which has been led by the Bhartiya Janta Party (BJP) since 2014. At the same time, Tamil Nadu is governed by Chief Minister MK Stalin of the Dravida Munnetra Kazhagam (DMK), an opposition party to the BJP.

Ten bills passed by the state government of Tamil Nadu were withheld by the Governor without any action – neither assent nor the reason for withholding assent was given to the government by the office of the Governor. Upon encountering this constitutional and procedural wall, the state government filed a petition in the Supreme Court of India in 2023. When the bills were held by the Governor for around three years, the state government re-passed the bills and sent them back to the Governor. The Governor, this time, reserved the bills for the President despite the fact that the Constitution demands that a re-passed bill must receive gubernatorial approval.

This complex matter, involving the separation of powers among the most essential governmental figures, was addressed by the Court in the The State of Tamil Nadu v. The Governor of Tamil Nadu (2025) case, which ruled that the practice of prolonged action on state bills (or “pocket veto”) is unconstitutional. Furthermore, the decision also establishes that the Governor does not have the right to exercise an absolute veto (since the Governor must give assent after a bill is sent to their desk a second time). The judgment was based on Article 142 of the Constitution, which allows the Court to do “complete justice” in any matter pending before it. This Article has been called a “nuclear missile against democratic forces” by the Indian Vice President Dhankhar, who claims that the “Parliament is Supreme” and the Court often oversteps its scope. However, this view has been challenged by those who argue that Article 142 is instead an important constitutional safeguard that allows the judiciary to better protect justice and constitutional values.

On “Constitutional Morality”

Over the last decade, while adjudicating contentious rights-based or public interest matters, the Court has articulated and invoked the principle of “constitutional morality.” Simply put, the principle means that the citizens, especially governmental officials like politicians and the judiciary, shall act in a manner that is consistent with the principles and values (such as equality, liberty, and fraternity) that the spirit of the Indian Constitution demands. In the Manoj Narula v. Union of India (2014) case, the judgment affirmed the value of the constitutional morality doctrine as a “laser beam in institution building,” a moral guide for judicial interpretation and ethical conduct, especially when explicit codes of behavior for a specific situation are absent. While the Court was tasked with deciding whether individuals with a criminal history can be elected as Ministers, the broader implication was the established understanding that certain public officers in a democracy carry with them unwritten duties and constitutional expectations of restraint and propriety.

In Navtej Johar v. Union of India (2018), the Court used the principle to strike down Victorian era Section 377 of the Indian Penal Code that criminalized same-sex sexualities; the judgment emphasized that popular notions of rectitude or “popular morality” cannot override constitutional morality that guarantees dignity and justice to all. The Supreme Court has fashioned a culture of creative judicial interpretation. In cases such as Kesavananda Bharati v. State of Kerala (1973) and Puttaswamy II (2019), the Court has established the boundaries of action for government officials when no explicit legislative or constitutional rules of conduct exist or are in practice.

Applying the Doctrine to Tamil Nadu

The Tamil Nadu case provides a compelling test for the relevance and robustness of the constitutional morality principle as a juridical lens and a tool of justice. Under Article 200 of the Constitution, the Governor has three choices, as discussed above. However, the Constitution is silent on the timeframe for these decisions. It is precisely in moments such as these, when encountering procedural or institutional gaps, that the constitutional morality framework should serve as a guide for actions of constitutional authorities. Legal scholar Nakul Nayak has described an aspect of the doctrine “as an obligation on institutional actors to follow ethical political practices even when the law does not guide their conduct.” Governors are not mere agents of the President (or, indirectly, of the central government), they are functionaries who are expected to respect the will of the democratically elected legislature in the state. The Court, in the 2025 case, established that delaying assent indefinitely is a form of “pocket veto,” which is undemocratic, constitutionally impermissible, and violates both the letter and spirit of the Constitution.

Indeed, constitutional morality requires conscious efforts to cultivate norms of fidelity to constitutional values and ethos, such as respect for the nature of one’s high constitutional office. The “obligation,” as Nayak has termed it, insists on politically open, transparent, and civil deliberative engagements, restraint, and reason-giving. When a Governor fails to provide justifications or manipulates the absence of specific procedures in the Constitution to serve partisan ends, such conduct violates implicit but fundamental norms of the office.

In affirming that re-passed bills must be assented to, and that if they are not given gubernatorial approval for over a month, the bills shall be “deemed” to be approved, the Court caused the President of India to invoke Article 143 and ask the Court’s opinion on 14 questions about the judgment. The five-member Constitution bench of the Supreme Court is expected to respond to the Presidential Reference. In this post, I argue that engagement with the constitutional morality perspective would be quite fruitful, both for societal and judicial reasons. The original judgment, spanning over 400 pages, only briefly mentioned the constitutional morality principle, and that too, while quoting the Governor’s letter to the Chief Minister, dated 2024. Given the nature of the case and the constitutional questions it has raised, both by President Murmu and civil society, there is indeed a demand for answers to questions such as: What does the constitutional morality principle entail regarding the actions that individuals in positions of such power must take? How does the Court see its past invocations of the doctrine with respect to this case? If the framers’ intent for government officials was to be constitutionally moral, does this set up certain clear boundaries of political action? If so, what might those be?

Aditya Anand Singh is a PhD Student, Department of Political Science, Purdue University, West Lafayette, USA

Suggested citation: Aditya Anand Singh “On Constitutional Morality and the Ethics of Political Silence” IACL-AIDC Blog (10 June 2025) On Constitutional Morality and the Ethics of Political Silence — IACL-IADC Blog