is ‘constitutional morality’ a dangerous doctrine?

The doctrine of constitutional morality is a relatively recent addition to this list. At some level, all constitutional doctrine is empty – judges’ words inhabit constitutional spaces on the basis of their own lived experiences. He said: “Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” “[I]t is only where people are saturated with Constitutional morality such as the one described by Grote the historian”, he added, “that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.”. Outside of the United States of America speech does not tend to have a specially protected status and it has to compete with other rights claims for our allegiance. Are you going to treat the whole of the population as illiterate and not able to think for themselves? 1995] Instrumentality Doctrine 179 14. Secondly, constitutional morality requires courts to look at the “spirit”, “soul” or “conscience” of the Constitution, and not just at the constitution’s words, while deciding whether the government has done something wrong. But the other four judges dealt with constitutional morality. It is true that many human rights documents give a prominent place to the right to speech and conscience, but such documents also place limits on what can be said because of the harm and offense that unlimited speech can cause, (I will discuss this in more detail later). 'Constitutional morality can be very dangerous': Attorney General KK Venugopal fears SC may become third Parliament chamber Criticising the top court for depending on the Constitutional morality, the Attorney General while speaking at the Second J Dadachanji Memorial Debate said, 'The use of Constitutional morality can be very, very dangerous and we can't be sure where it will lead us to. Topic– Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure. (Photographer: Kostas Tsironis/Bloomberg), The Drafting Committee for the Constitution of India, under the chairmanship of BR Ambedkar. Id. 13. Florida’s Dangerous Instrumentality Doctrine establishes a law which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation. In his treatise, Grote wrote of Cleisthenes of Athens (c. 570 BCE – c. 508), the founder of Athenian democracy. Further criticising the judiciary's dependence on constitutional morality in judgments, such as the Sabarimala temple dispute, he said: "In the Sabarimala case, the dissenting judge said we can't interfere with a matter of faith. Then came the Naz Foundation case in which Section 377 of the Indian Penal Code was challenged. In the 19th century, a British historian by the name of George Grote wrote an authoritative 12-volume history of Greece without ever having visited that country. On the other hand, much constitutional doctrine itself is vague. For several decades thereafter, stray references were made to the words ‘constitutional morality’ in Supreme Court judgments. Chief Justice AP Shah rejected this argument and found that “popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights”. How to uphold constitutional morality. Hart and Patrick Devlin. on Feb. 5, 2019. (Photograph: Ministry of External Affairs), Justice AP Shah (centre), and other eminent citizens at a press conference in New Delhi. 1637, 1639 (1998). Constitutional morality has been regarded as a paramount reverence for the constitution. Only a year previously, in June 1912, a leading member of the New York Bar, William Dameron Guthrie, had delivered an address at the Pennsylvania Bar Association where he had spoken about Grote’s “constitutional morality”. Concepts like “arbitrariness”, “manifest arbitrariness”, “reasonableness” – these are catchphrases, by themselves hollow vessels into which meaning is poured by judges who decide cases according to their own sense of right and wrong. "The Constitution is a seamless wear of things that are woven together that give us our life. Why has the Supreme Court judgment on Sabarimala not been enforced in Kerala?" Constitutional morality provides a principled understanding for unfolding the work of governance. Second, the doctrine of constitutional morality led the Court to hold that it plays a counter-majoritarian role within the constitutional scheme. It consists of all things like equality, affirmative action and right to religion. Similarly, the Supreme Court in the NCT of Delhi case held that the legality of a government’s actions can be tested not merely by looking at the formal provisions of the constitution itself, but also by ensuring that they do not violate the “spirit”, “soul” or “conscience” of the Constitution. In other words, Grote’s ‘constitutional morality’ was an excuse given by Ambedkar to justify why mundane details had been included in India’s Constitution. Another Senior Advocate Salman Khurshid spoke against the motion and debated that even though Indians believe that life is sacrosanct, we have a provision of death penalty in the country because according to the apex court, a person can be hanged in the rarest of rare cases. He believed in the Bible and the God of the Bible. In the string of significant judgments delivered by the court on the eve of Chief Justice Gogoi’s retirement in November 2019, involving questions as diverse as Ayodhya, Rafale, the Right to Information Act, and the Finance Act, constitutional morality was conspicuous by its absence. (Photograph: The Quint). The ‘basic structure’ doctrine, the ‘classification test’, the new ‘manifest arbitrariness’ test – these are all judicially crafted inventions that find no express mention in the constitution. It is, therefore, a non-sequitur to argue, as the attorney general did, that because constitutional morality is open to interpretation, it is a dangerous weapon that should be discarded. While many dangerous tools may come to mind, many people do not think of a car as a tool. Popular gadgets including laptop, tablet and mobile specifications, features, prices, comparison. KK Venugopal delivers the keynote address in Delhi. But what does ‘constitutional morality’ really mean and is it a dangerous weapon in the hands of unelected judges? Anand cited the examples of the Sabarimala case, the Section 377 judgment and the triple talaq verdict of the Supreme Court to differentiate between social and constitutional morality. ANI. Thereafter, in State (NCT of Delhi) v. Union of India (2009), Chief Justice Dipak Misra wrote that courts must interpret constitutional provisions “in the light of the spirit of the Constitution”. Criticise non-constitutional practices It is necessary to speak up against any actions, which you feel as illegal or unethical under the constitution. The doctrine of constitutional morality is an emphatic guarantee that the Supreme Court of India is committed to protecting all minorities, despite opposition from majoritarian governments. Join our, How To Sign Up For BloombergQuint Story Notifications. It came in for heavy criticism after the Supreme Court’s Sabarimala judgment and the Attorney General of India has called it a “dangerous weapon”. Updated Date: There was a second usage that Ambedkar was more familiar with from its 19th century provenance. Many of you may be familiar with the Doctrine of Basic Structure. Constitutional morality is an important concept that is a part of the polity segment of the UPSC syllabus. If a bench of the Supreme Court speaks in two different voices, one saying constitutional morality will permit the entry of women and the other one saying no, it's prohibited because of constitutional morality, which is a very dangerous weapon. 1) What do you understand by constitutional morality in the context of Indian legal system. This doctrine has been employed to supersede constitutional text. In this view, constitutional morality refers to the conventions and protocols that govern decision-making where the constitution vests discretionary power or is silent. Speaking against the motion, Senior Advocate KV Vishwanathan said it is better to have a judiciary that confronts the executive than to have a judiciary that is cosy with the executive. The statement quoted at the head of this article was one made by one of the “founding fathers” of this great nation. In this sense, constitutional morality is the morality of a constitution. Bloomberg | Quint is a multiplatform, Indian business and financial news company. But the article is treated as a 'Kamadhenu' from which unlimited powers flows to the apex court of the country," he added. At the same event, Senior Advocate Indira Jaising remarked that "constitutional morality is opposed to the morality of a mob". 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