- 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.
- 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”.
Constitutional morality is scarcely a new concept:
- 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.
Additional standards of constitutional morality:
- 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 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”.
Requires sound scrutiny from the Court:
- 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.
- 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.