is ‘constitutional morality’ a dangerous doctrine?

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Firstpost - All Rights Reserved. It consists of all things like equality, affirmative action and right to religion. The doctrine of constitutional morality is a relatively recent addition to this list. Missing BloombergQuint's WhatsApp service? Concepts like “arbitrariness”, “manifest arbitrariness”, “reasonableness” – these are catchphrases, by themselves hollow vessels into which meaning is poured by judges who decide cases according to their own sense of right and wrong. Criticising the top court for depending on the Constitutional morality, the Attorney General while speaking at the Second J Dadachanji Memorial Debate said, 'The use of Constitutional morality can be very, very dangerous and we can't be sure where it will lead us to. I say no. While many dangerous tools may come to mind, many people do not think of a car as a tool. The doctrine of constitutional morality is an emphatic guarantee that the Supreme Court of India is committed to protecting all minorities, despite opposition from majoritarian governments. In this article, you can read all about the term, its meaning and significance for the IAS exam.. Venugopal added that given the circumstances it is "very difficult to say whether the court was right. 10. Abhinav Chandrachud is an advocate at the Bombay High Court. For several decades thereafter, stray references were made to the words ‘constitutional morality’ in Supreme Court judgments. the most fallacious and dangerous doctrine that has ever appeared among men, that the people are infallible and can do no wrong, that their cry must be taken as the voice of God, and that whatever at any time seems to be the will of the majority, however ignorant and prejudiced, must be accepted as gospel.” "The problem started when constitutional morality started to be used interchangeably with social morality; what is socially moral has to be constitutional," Mehta remarked. Constitutional morality is an important concept that is a part of the polity segment of the UPSC syllabus. There was a second usage that Ambedkar was more familiar with from its 19th century provenance. Attorney Genaral KK Venugopal on Saturday, 8 December said that the use of constitutional morality can be dangerous and can lead to the Supreme Court becoming the third chamber of the Parliament. Thereafter, I would explain the role and centrality of the principle of Constitutional Morality in India and why it has been viewed as a dilemma, between the judiciary and the The strength or weakness of constitutional morality in contemporary India has to be understood in the light of a cycle of escalating demands from the people and the callous response of successive governments to those demands. Shukla began by elucidating the pressing need to locate constitutional morality in the Indian Constitution. Topic– Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure. Since then, the Supreme Court seems to have grown wary of its use. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. We gave to ourselves this Constitution. It can result in grave injury without anyone knowing where it's going to end.". The Attorney General of India, while talking about the history of conflict between the judiciary and the legislature, underscored that in its early days, the top court had struck down land reform and nationalisation laws as the judges noted that it violates equality. Popular gadgets including laptop, tablet and mobile specifications, features, prices, comparison. Thereafter, in State (NCT of Delhi) v. Union of India (2009), Chief Justice Dipak Misra wrote that courts must interpret constitutional provisions “in the light of the spirit of the Constitution”. But the article is treated as a 'Kamadhenu' from which unlimited powers flows to the apex court of the country," he added. (Photograph: The Quint). The doctrine of constitutional morality is a relatively recent addition to this list. We combine Bloomberg’s global leadership in business and financial news and data, with Quintillion Media’s deep expertise in the Indian market and digital news delivery, to provide high quality business news, insights and trends for India’s sophisticated audiences. She said the principles of democracy can be brought to the people of the country only through constitutional morality, and that it is not the same as social morality. 1) What do you understand by constitutional morality in the context of Indian legal system. KK Venugopal delivers the keynote address in Delhi. ANI. By going against the convention and taking a moral high ground, you act as a preserver of constutional values. “Constitutional morality”, he added, “means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution.” Another judge in that case wrote that constitutional morality was “an expectation of behaviour that will meet not just the text but the soul of the Constitution.”. "Thank god for a confrontational judiciary," he said. It would behoove us all to read more about him and learn from his example. Expressing dissent over the interference of the top court, Venugopal said, "The Preamble of the Constitution reads, 'we, the people'. To be governed by a constitutional morality is, on this view, to be governed by the substantive moral entailment any constitution carries. Then came the Naz Foundation case in which Section 377 of the Indian Penal Code was challenged. Indian constitutional law is no stranger to judge-made tests. The significance of constitutional morality can be enlisted below: While it aims to keep pace with the changing times, principles and ambitions of the society, the doctrine of constitutional morality also safeguards and upholds the enforcement of rule of law in the country. (Photograph: Ministry of External Affairs), Justice AP Shah (centre), and other eminent citizens at a press conference in New Delhi. Second, the doctrine of constitutional morality led the Court to hold that it plays a counter-majoritarian role within the constitutional scheme This doctrine has been employed to supersede constitutional text. Are you going to treat the whole of the population as illiterate and not able to think for themselves? Further criticising the judiciary's dependence on constitutional morality in judgments, such as the Sabarimala temple dispute, he said: "In the Sabarimala case, the dissenting judge said we can't interfere with a matter of faith. L. REV. Upon their failure, the judiciary can step in till the legislature either ratifies or rejects the judicial decision.". 13. The ‘basic structure’ doctrine, the ‘classification test’, the new ‘manifest arbitrariness’ test – these are all judicially crafted inventions that find no express mention in the constitution. It is true that many human rights documents give a prominent place to the right to speech and conscience, but such documents also place limits on what can be said because of the harm and offense that unlimited speech can cause, (I will discuss this in more detail later). True, this articulation of constitutional morality is vague and subject to the value choices of each individual judge. How to uphold constitutional morality. "Governments not honouring the decisions of the court is a violation of constitutional morality. MICHAEL PERRY, MORALITY, POLITICS AND LAW 102 (1990). It is, therefore, a non-sequitur to argue, as the attorney general did, that because constitutional morality is open to interpretation, it is a dangerous weapon that should be discarded. "Taking an opinion poll and legislating is the job of the legislature. December 09, 2018 15:12:49 IST. He was a man of integrity and a God-fearing leader. Morality of the people cannot be divorced from constitutional morality. Additional Solicitor General Pinky Anand also spoke against the motion. I hope constitutional morality dies. Its purpose was to ensure that the principles of the constitution prevailed over the fickle morals of the people. A mural inside the Supreme Court of India complex. 'Constitutional morality can be very dangerous': Attorney General KK Venugopal fears SC may become third Parliament chamber Criticising the top court for depending on the Constitutional morality, the Attorney General while speaking at the Second J Dadachanji Memorial Debate said, 'The use of Constitutional morality can be very, very dangerous and we can't be sure where it will lead us to. In the string of significant judgments delivered by the court on the eve of Chief Justice Gogoi’s retirement in November 2019, involving questions as diverse as Ayodhya, Rafale, the Right to Information Act, and the Finance Act, constitutional morality was conspicuous by its absence. This understanding of constitutional morality is akin to the “basic structure” test invented by the Supreme Court in 1973. This overview is based on the premise that two primary goals of tort law are In his treatise, Grote wrote of Cleisthenes of Athens (c. 570 BCE – c. 508), the founder of Athenian democracy. Peter Liese, an EU lawmaker and a member of Angela Merkel's party, in a statement called the decision as problematic and said the process followed by the European regulator EMA was better, Despite Trump's unprecedented attack on the validity of the US election system, his legal team has yet to provide any evidence that stands up in court, Chautala, who faces pressure to withdraw from the BJP-led government in Haryana, reiterated that he will resign if the minimum support price (MSP) system is threatened. However, he maintained that law is a means to achieve social good, and it is there for the betterment of society. As far as Indian Judiciary is concerned, there are many doctrines. In this sense, constitutional morality is the morality of a constitution. Attorney General of India K K Venugopal is reported to have said, in his personal capacity, that constitutional morality is a dangerous weapon and that he hoped it would “die at birth”. The most famous debate to date on the enforcement of moral principles is that between H.L.A. The constitutional morality is nowhere located in constitution and it is necessary to do the same, as there is evident danger that might concept be used in constitutional courts as per the whim and fancies of judicial brains as in absence of definite clarity and consensus being reached on the doctrine. It came in for heavy criticism after the Supreme Court’s Sabarimala judgment and the Attorney General of India has called it a “dangerous weapon”. while talking about the history of conflict between the judiciary and the legislature, UK approves Pfizer vaccine: Fantastic news, says PM Boris Johnson, but EU remains sceptical, 'Won't change my mind on election fraud claims': Donald Trump indicates continued fight in first post-poll interview, Farmers' protest: Dushyant Chautala hopes deadlock over agri laws will end after Centre's offer, 9 Months Season 5 Episode 1 | Pregnancy & Gearing Up for Delivery, The Earth, Space & the Human Race Podcast Ep 10: Role of everyday citizens in India\'s climate movement. on Feb. 5, 2019. Indian constitutional law is no stranger to judge-made tests. Get technology news, gadgets reviews & ratings. In connection with my earlier point I think what should be emphasized is that the drone program is actually moral if it is legal, and this is so not because one is equating law with morality, but because the law in question which governs the issue regarding the drone program, is underwritten by Just War Doctrine which is a moral doctrine. In other words, Grote’s ‘constitutional morality’ was an excuse given by Ambedkar to justify why mundane details had been included in India’s Constitution. In fact, the task of defining ‘constitutional morality’ has now been referred to a bench of seven judges of the Supreme Court. It's one thing for the Supreme Court to deal with an individual, but here you're dealing with a whole population. The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team. He believed in the Bible and the God of the Bible. Decades later, in November 1948, Ambedkar made a speech in the Constituent Assembly in which he explained why India’s constitution was so long – why seemingly banal details concerning governmental administration had been incorporated into it. I hope Constitutional morality dies. In this sense, constitutional morality is no more or less dangerous than the basic structure doctrine itself. Constitutional morality has been regarded as a paramount reverence for the constitution. To them, it was an aspiration – a hope that citizens would inculcate a love for the rule of law which would make it difficult for the constitution to be obliterated by the political powers of the day. Recalling the statement made by the then chief justice Hidayatullah on amendments in the Constitution, the attorney general said that the former said the only purpose of the amendments was "to neutralise the judgments of the Supreme Court." For instance, the principle of non-discrimination is often taken to be an element of our modern constitutional morality. On the other hand, much constitutional doctrine itself is vague. John Stuart Mill, one of the great defenders of free speech, summarize… Maybe the illiteracy today is 26 percent, but even those (people living in the villages and rural areas), they have basic wisdom and they know what is good for them. Speaking against the motion, Senior Advocate KV Vishwanathan said it is better to have a judiciary that confronts the executive than to have a judiciary that is cosy with the executive. "It is to answer the concept of social morality that constitutional morality was brought in, and constitutional morality is not vague; it is grounded and founded on the principles of the Constitution, and therefore, it is here to stay.". Criticising the top court for depending on constitutional morality, the Attorney General of India said, "The use of constitutional morality can be very, very dangerous, and we can't be sure where it will lead us to. In this article, we will be dealing all important Indian Judicial Doctrines. The oral arguments at the Supreme Court on Tuesday made clear that Justice Anthony Kennedy’s biggest contribution to the gay-marriage debate is his expansion of constitutional … If a bench of the Supreme Court speaks in two different voices, one saying constitutional morality will permit the entry of women and the other one saying no, it's prohibited because of constitutional morality, which is a very dangerous weapon. But the other four judges dealt with constitutional morality. He also pointed out that it is not the job of the judges to go by popular opinion. The concept of Constitutional Morality is present in the constitutional scheme, particularly in the Preamble, Part III (fundamental rights) and Part IV (Directive Principles of State policy). According to Dr. Ambedkar, the doctrine of constitutional morality primarily translates to respect among stakeholders in a republic for Constitutional democracy as the accepted form of governance and administration. In the academic year 1914-15, Ambedkar took a course called ‘History 121’ at Columbia, which included elements of Greek history. Constitutional Morality is a sentiment to be cultivated in the minds of a responsible citizen but to be promoted by an … While speaking at the Second J Dadachanji Memorial Debate in Delhi, Venugopal said that if constitutional morality still breathed, first prime minister Jawaharlal Nehru's fear that the Supreme Court will become the third chamber of Parliament might come true. 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