The Kashmir Monitor
By UPENDRA BAXI
It is not often that India hears the Attorney General (AG) speak outside the courtroom, although he (there has been no woman AG so far) has the constitutional right to address Parliament. It is, therefore, refreshing to listen to what he said at the Second J Dadachanji Memorial Debate and that too on a recent decision of the Supreme Court in the Sabarimala case, a case subject to explosive protests by the devotees and activists, two major political parties, and now scheduled for review.
The AG articulates alarm at the invocation of the concept of constitutional morality and expresses a hope that it “dies with its birth”. The observation that “if (the court) still persists with it… Pandit Nehru’s belief that it would result in the Supreme Court of India becoming the third chamber will come true” (IE, December 10) should cause concern to us all.
Contrary to the AG’s strong observations, I believe that constitutional morality is scarcely a new concept; it is writ large on the Constitution itself since the inception of Indian democracy, as amply shown by the Preamble, Fundamental Rights, Directive Principles of State Policy, and now, Fundamental Duties of all citizens.
Nor has it been ever doubted that these enunciations establish standards of critical morality by which state power, whether legislative, adjudicative, or administrative, stands adjudged. For example, the Directive Principles, which cast “paramount” and solemn constitutional duties on the legislature and executive, have always been deployed by the courts in determining the reasonableness of restrictions on Fundamental Rights, and the entire edifice of administrative law rests on the foundation that militates against arbitrariness in the exercise of public power.
It is, however, true that additional standards of constitutional morality have been more recently articulated, notably since Naz (2007) where Chief Justice A P Shah and Justice S Muralidhar read down Section 377 of the Indian Penal Code. They clearly said not any type of “morality” can pass the test of compelling state interest, only “constitutional morality and not public morality” should prevail. In that view, “moral indignation, howsoever strong” may not provide any “valid basis for overriding individual’s fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view”. This “dignity-plus” reasoning made a precious beginning for the removal of legal discrimination against sexual minorities, finally upheld by the Supreme Court in 2018. In the same year, in the Lt Governor Delhi case, Justice Chandrachud (for the Court) proclaimed constitutional morality as a “governing ideal” that “highlights the need to preserve the trust of the people in institutions of democracy”. As such an ideal, it “allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly”. It “encompasses not just the forms and procedures of the Constitution”, but provides an “enabling framework that allows a society the possibilities of self-renewal”.
In the now politically contested decision in Sabarimala, four justices (Justices Dipak Misra, A M Khanwilkar, DhananjayChandrachud, and Indu Malhotra) considered apt standards of constitutional morality. The first three justices fully affirmed the concept while Justice Malhotra held that a “secular polity would imply the harmonisation of the fundamental rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical”. The AG hails this as an “enlightened” dissent but overlooks that it is based on the very same concept that he wishes to be dead on arrival! What the dissent is really saying is that constitutional morality requires sound scrutiny from the Court concerning the tenets of religion, with which her brethren are in complete agreement. The difference between the justices does not concern the standard of constitutional morality, but the applicability in a given case. Justice Malhotra finds the “religious practice of restricting the entry of women between the ages of 10 to 50 years… in pursuance of an ‘essential religious practice’.”
The AG finds it “dangerous” that the “Supreme Court speak in two different voices, one says permit and other says no”, adding, that “no one knows where this fight will go”. Perhaps, the point is well taken that in construing Article 25 and 26, the Court should try to speak in one voice because of the volatility of public and political opinion. However, the Court deals with many more matters that have heavy political implications. The suggestion that the Court should always speak unanimously is neither constitutionally permissible nor desirable. We should read the AG as reiterating the suggestion that the practice of delivering a cache of decisions on the eve of the retirement of a justice leaving no time even for sharing drafts of the judgment should now cease. Instead, the CJI and the Court should devise a system of judicial conferences, which provide room for dialogue before the writing of judgments.
The AG is right to observe that it “was not proper for the court to believe that unless they interfere, the country is doomed”. But as far as I know, such a preposterous claim has never been made by the Court. Nor has it ever claimed “the powers of legislation” transcending “the supremacy over Parliament” in its appointed sphere.
The Court has the constitutional power coupled with a duty to interpret and affirm the fundamental rights and provide constitutional remedies, which is itself a fundamental right under Article 32. If these are to be castigated as “unlimited powers”, one should always recall that they are constitutional, not celestial or cosmic powers, and certainly, there are no constitutional “Kamadhenu” powers. The exercise of judicial power is subject to internal dissent and public debate, but neither should be exercised in questioning the constitutional architecture as a whole.
