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“If government policy does not match with the spirit of the Constitution, it is unconstitutional”

As government tries to make fundamental changes in the fabric of the Constitution, the issue of constitutional morality comes into play. Will it be a moderating factor in government’s adventurism? JUSTICE SHIV KIRTI SINGH, former judge of the Supreme Court, shared his ideas on several aspects of the issue with RAJSHRI RAI, editor-in-chief, APN channel. Excerpts:

Rajshri Rai: It was Dr Ambedkar who first used the word constitutional morality. Today again it has gained currency. Can you put the concept of constitutional morality in perspective?

Justice Shiv Kriti Singh: Dr Ambedkar played an important role in the making of our Constitution and when he used this word, his intention was very clear. He wanted to convey that among different sections of the population conflicts can arise. This conflict of interest should be resolved through cooperation and coordination. Whoever is involved in conflict resolution, including the administration and the government, should understand the problem and without escalating the conflict, a solution should be found. Constitutional morality is one way to remove social inequality and resolve social conflict.

RR: It is believed that constitutional morality promotes judicial activism and gives judiciary an opportunity to interfere in the work of the legislature, which is against the principle of separation of powers. For the last many years now, the courts, especially the Supreme Court, have given orders to the executive on the basis of constitutional morality. Should we consider this as a negative aspect of constitutional morality?

SKS: These allegations of judicial activism have been going on for a long time. Judicial activism is a dangerous word. I would not like to use it because I have been a part of the Supreme Court and we know many big problems come to the Court and the lawyers with the highest minds tackle them. The judges have to take a decision after listening to both sides. If the judiciary tries to make a law then it is wrong. If the courts start making law, then the matter of judicial activism arises.

RR: Former Attorney General KK Venugopal said the same thing when he was in office. He had said that using constitutional morality to test the validity of laws is dangerous. How do you view this comment? Do note that this is the government’s view. When does the use of constitutional morality become dangerous and why does the government thinks so?

SKS: KK Venugopal is a very good jurist and lawyer. He is very respectable and I agree with his opinion ninety to ninety-five percent because when the legislature makes laws, it keeps in mind that constitutional provisions are not violated. The Preamble is the spirit of the Constitution and reflects its basic aims and objectives. If policies of the government don’t match with the spirit of the Constitution then they are unconstitutional and against constitutional morality.

RR: It is said that the concepts like basic structure doctrine, classification test, manifest arbitrariness test and constitutional morality have been made by the judiciary. There is no mention of these concepts in the Constitution. Why were they needed?  

SKS: These concepts were needed because the jurists used legal language of synonyms. The concepts were inherent in the Constitution; words were created for them. Concepts like fairness, equality and rule of law are already there in the Constitution. They needed to be explained. The Supreme Court is the guardian of the Constitution. Take the example of fundamental rights, especially freedom of expression as mentioned in Article 19. All freedoms are qualified by reasonable restrictions. It is the duty of the Supreme Court to interpret these reasonable restrictions so that they do not become a tool of repression. This is not judicial subjectivity, but a duty of the Supreme Court as the guardian and interpreter of the Constitution. In the process of such interpretation, words and concepts have been coined.

RR: Chief Justice of India DY Chandrachud has said that judges do not work on the basis of popular morality, but on the basis of constitutional morality. The elected government works on the basis of popular morality. So, is the voice of the judiciary above the voice of the public?

SKS: The Constitution is supreme. No one is above the Constitution. Constitution is morality. Every one, big or small, has to abide by it. If the people in power say that that they know what public wants and violate the Constitution then it is a violation of constitutional morality. The judiciary safeguards the constitutional morality.

RR: As per the Constitution, the accused has a right to bail. However, there seems to be a continuous legal battle going on over bail. When arrests are being made under strict laws like UAPA, PMLA, NSA, it seems that bail is not a rule, but an exception. Courts seem to be hesitant in granting bail. People are being kept in jail without strong evidence. The question is: wither constitutional morality?

SKS: Bail is a very sensitive issue because personal liberty is involved. It is very clear that bail is the rule, jail is the exception. However, ground realities are different. There are some very strict laws where provisions hold that whosoever is detained under such laws and goes to jail will not get bail unless he proves himself not guilty. If we keep the accused in jail till the conclusion of the trial then it is an travesty of law. The lower courts refrain from giving bail because of the fear of censure. We should be able to ensure that no action is taken on grant of bail. An environment of no fear, no favour needs to be cultivated for the judiciary. Personal liberty is guaranteed under Article 21. I don’t understand why accused are kept in jail indefinitely for economic offences’ trial, but are given bail in heinous criminal cases like rape and murder. This discrimination has to stop.

RR: Today couples living in illicit or live-in relationships are approaching courts for protection. Why should protection be given to such couples who are going against social norms? What is the legal justification?

SKS: The decision of courts to provide protection to such couples has nothing to do with a type of marriage; anyone can go to the court if there is a threat to him or her, and should get protection. In a democratic society, there is liberty for consensual co-living. If there is a civil suit for, say property rights of a child born in such a relationship then the legality of relationship will come into play.

RR: Today one hears from many quarters about rewriting the Constitution. There had been two attempts at different times to rewrite or review the Constitution. One by the Congress and the other by the NDA government. How do you see both these attempts in today’s context? Should the Constitution be rewritten or reviewed or simply left to evolve on the basis of amendments?

SKS: In my understanding, there is no threat to the Constitution. Neither will our society demand that the Constitution be changed. Whoever wants to change the Constitution will face difficulties. There is always scope for reforms and constitutional amendments. The Constitution evolves and grows. It shouldn’t be dead letter. New laws are made in the light of the Constitution. Our Constitution is so mature that we cannot make a better document than it.

RR: The issue of reservation is making headlines. Every government is trying to give reservation to its favourite group. In the process, the legal limit of 50% reservation is being violated. Even the state governments are placing such amendments in the Ninth Schedule to protect it from judicial review. Is this not against constitutional morality?

SKS: The matter of reservation is a very sensitive issue. There is a demand to increase the reservation, which I think is not justified. Initially, reservation for 10 years was given, later on the timeframe was progressively increased. This shows that social inequalities have not been reduced. Governments have failed in their task to uplift the backward classes and castes. However, it is work in progress and the government shouldn’t give in to the demands of various groups to increase or give them reservation. Instead, efforts should be made to uplift the socio-economic level of the depressed castes and classes.

RR: Preparations for “One Country, One Election” is in full swing. The government has even formed a committee which is taking proposals from political parties. If “One Country, One Election” is implemented then many constitutional amendments will have to be made. Elections and federal structure come under the basic structure of the Constitution. How do you see the proposed changes?

SKS: In my opinion, this idea of “One Nation One Election” will not be legally or constitutionally wrong. If “One Nation One Election” is implemented, it can be challenged only on the basis of the idea being against federalism.

I think such challenges will also fail because there will be no violation of any such constitutional provision. It will be an experiment, but it can have good or bad effects. There is no doubt that there is a basic structure of the Constitution which has to be reckoned with. Regional parties have become very strong these days. National parties are not in every state, but regional parties have a lot of influence and people are supporting them because they know the issues of development of the region and they know the solution to the problem and people do vote for them. If there is “One Nation One Election”, then the regional aspirations may get stifled and their voices may not be heard.

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