At a time when the Supreme Court has relied on the principle of “Constitutional morality” to address complex issues, including the Sabarimala case, Union Law Minister Ravi Shankar Prasad Monday said the nuances of the principle need to be defined more clearly.
Addressing a gathering to mark National Law Day, Prasad said: “We hear a lot of Constitutional morality…We appreciate these innovations…One respectful submission I would like to make is the nuances of Constitutional morality need to be defined with greater clarity. And it should not differ from Judge to Judge but there should be a consensus.”
This was necessary, Prasad said, because “if a government action is found to be in infraction of Constitutional morality, there must be judicially manageable standards whereby a determination can be made”.
The principle of Constitutional morality came into sharp focus after the Supreme Court’s 4-1 verdict in September that lifted the traditional age bar on women entering the shrine in central Kerala. The verdict was hailed for establishing the supremacy of Constitutional morality over customary laws, rituals and traditions. But in her lone dissenting judgment, Justice Indu Malhotra also wrote that “Constitutional morality would allow all to practise their beliefs” and that the “court should not interfere unless there is any aggrieved person from that section or religion”.
Pushback against the court’s orders
The Supreme Court has invoked the principle of ‘constitutional morality’ in several recent judgments, including those that decriminalised homosexuality, declared the adultery law unconstitutional, and allowed women of all ages to visit Sabarimala. The Law Minister’s remarks appear to be a veiled pushback against the Supreme Court’s generous reliance on the principle of constitutional morality, placed seemingly without the reasonable restrictions that are envisaged for other constitutional rights.
Meanwhile, delivering the inaugural address at Monday’s event, President Ram Nath Kovind stressed on the need for innovative thinking in understanding the concept of justice and said that it requires to be applied afresh to situations that may not have existed when the Constitution was being framed.
In his address, Chief Justice of India Ranjan Gogoi said that “the Constitution has become an integral part of the lives of the Indian people”. He stressed that “this is not an exaggeration” and that “one need only to look at the astounding variety of issues that courts hear daily” to understand.
“Our Constitution is the voice of the marginalised as well as the prudence of the majority. Its wisdom continues to guide us in moments of crisis and stability,” he said.
The CJI said that “it is in our best interest to heed the advice under the Constitution” and cautioned that “if we do not, our hubris will result in a sharp descent into chaos”.
Speaking later, Supreme Court judge Justice A K Sikri touched upon various approaches adopted by the court in interpreting the Constitution. “…I agree with the observations of the Law Minister… that in applying the aforesaid principles, which may be very high sounding principles, in the interpretation of the Constitution, the courts have to set definite norms. And it is the application of those norms in a particular case on the basis of which the cases are to be decided. It becomes necessary not only to ensure certainty and uniformity in judicial approach, it is also imperative to counter the argument of originalism,” he said.
Addressing the evening session, the Law Minister referred to the apex court order directing the constitution of special courts to try cases against legislators and said that at some stage, cases arising purely put of political movements, like breaking prohibitory orders under section 144, will have to be separated as such cases often arise during democractic movements.
CJI Gogoi, who also spoke at the evening session, said Rudyard Kipling was doubtful whether the Constitution would work in the country but if he were alive today he would have been surprised to find that India is a well-functioning polity. “Constitution has united immensely diverse people into one nation and it has done so without compromising cultural variations. Constitution is the very basis of our national identity. It is the source of our Indianness there is and there can be no other,” he said.
The CJI added that “at the heart of Constitutionalism is the demand that all power be accountable to the people”.
Earlier, President Kovind said: “No doubt the concept of justice — political, economic and social — has a resilient core but it needs to be thought of in innovative ways. It requires to be applied afresh to emerging situations — situations that may not have existed or been foreseen when our Constitution framers were at work.”
The President said that the word “justice” was “perhaps the most moving word in the Constitution”. It is “a complex and liberating expression. And justice is both the means and the goal of our Constitutional and nation-building process,” Kovind said.
“…in the narrow sense of our legal system, justice is served when right and wrong are adjudicated upon in a courtroom. And more so when justice is accessible, affordable and quickly available to all citizens, irrespective of background. But justice must also be seen in a wider context — in terms of society’s evolution and its changing beliefs, lifestyles and technologies,” Kovind said.
Stating that the Preamble “is the source code of the Constitution”, the President said that justice is not seen as uni-dimensional in the Preamble “but as having implications across political, economic and social spheres”.
“Political justice implies the equal participation of all adults in the political process and the just formulation and implementation of laws. Economic justice implies the ultimate eradication of poverty, equal opportunities to earn a livelihood, and fair wages. As such the expansion of economic, entrepreneurship and job opportunities are among examples of economic justice,” he said.
Elaborating on this line, Kovind said that political justice in the electoral arena does not stop with free and fair elections or universal franchise or the rights of citizens to contest elections.
“Improving transparency in campaign finance, as the government is trying to do, is also an example of promoting political justice”, he said. According to Kovind, some have suggested that disruptions in parliamentary proceedings “too be seen as encroachment on the citizen’s understanding of justice”.
When the judiciary tries to find solutions to frequent adjournments, it enhances the quality of justice, the President said.
The idea of social justice for India had now expanded to encompass modern civic parameters – such as clean air; less polluted cities and towns, rivers and water bodies; sanitary and hygienic living conditions; and green and eco-friendly growth and development, he said.