Above: Attorney General KK Venugopal/Photo: Anil Shakya

One of India’s top legal scholars sparks off a new debate by pondering the issue of the basic structure of the Constitution 

 

~Prof NR Madhava Menon

After reading Professor Upendra Baxi’s comment on Attorney General KK Venugopal’s concern over Constitutional Morality being used by the Supreme Court as yet another weapon to strike down laws (India Legal, December 24, 2018), I felt like raising some fundamental questions on the debate. This is in order to clarify to myself and citizens like me about the implications of the debate for the future of rule of law and constitutional governance.

The questions are as follows:

1. As an overarching principle of constitutional governance, is not the concept of Constitutional Morality and whatever it means applicable to all three wings of the State and the citizenry? If so, when the legislature, which represents “WE, THE PEOPLE”, makes a law, is it not fair to say that such a law can be presumed to incorporate Constitutional Morality? Should the Court in such circumstances be obliged to seek strict scrutiny and positive evidence to strike it down through judicial review?
2. Is there any justifiable fear in the public mind that too much power is getting concentrated in the judicial wing without proper checks to prevent judicial excesses and that works to the detriment of not only Constitutional Morality and Rule of Law, but to the basic structure of democracy itself?
3. Given the fact that there is no single Supreme Court to decide on constitutional questions and there are multiple courts, depending on the constitution of benches, and also given the fact that often important constitutional questions are decided by benches with a one- or two-vote majority and further, given the general impression that the rule of collegiality is very often missing among judges, how does the power dynamics of the bench impact on constitutional governance and rule of law?
4. Is the Court free to invoke Constitutional Morality to decide against the text of the Constitution as in the case relating to appointment of judges to the higher judiciary?
5. When Constitutional Morality is invoked by judges of the same bench to come to opposite conclusions as during the Sabarimala judgment, what is the message it gives for constitutional governance and rule of law?
6. Is the Court the custodian of people’s faith and belief as well? Can it possibly interdict on customs and practices traditionally followed by religious denominations on grounds other than what are provided for in Article 26? Are there judicially manageable standards to evaluate every religious practice in every religion? Is not complementarity of constitutional institutions also part of Constitutional Morality?
7. What happens when two Fundamental Rights, one guaranteed to individuals and the other to groups of people, contradict each other? If right to privacy is interpreted to mean the prevention of the State taking necessary steps to ensure security, what will happen to right to life and right to freedom of individuals? Who is best to judge the right balance between liberty and security in the era of terrorism and digital transaction?
8. Could Dr BR Ambedkar be wrong when he said that Constitutional Morality is a “sentiment” which has to be cultivated among the people as it is not natural to them? Can the attorney general be faulted when he said that as far as Dr Ambedkar’s invocation of the doctrine is concerned, it was more a mandate to the people and their representatives, rather an additional source of power for the Court?

The issue, to my mind, is not the importance or relevance of the concept of Constitutional Morality in working out the provisions of the Constitution. Rather, it is about the use and abuse of the doctrine in constitutional decision-making.

No doubt, democracy as a system of governance may not serve the constitutional goal always. That is a price society has to pay for accepting a democratic form of government and polity.

The remedy for preventing majoritarian excesses lies more in cultivating the natural sentiment of people for maintaining Constitutional Morality (as Dr Ambedkar seemed to think) rather than in showing “less deference to the legislature” in the matter of constitutional values, as some judges seem to think. The ugly consequence which resulted in forcible enforcement of the Supreme Court judgment in Sabarimala by a government controlled by a party of “non-believers” cannot be dismissed as a conflict between public morality and Constitutional Morality. It is indeed a portent of what the attorney general believed to be the possible outcome for rule of law and democracy if Constitu­tional Morality turns out to be yet another tool beyond “Basic Structure” for exercising judicial power.

—The author is a former Director of the National Judicial Academy and is presently Hony. Director of the Kerala Bar Council MKN Academy for Continuing Legal Education, Kochi