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Constitutional Morality And Judicial Values

Written by: Minu Elizabeth Scaria - Pursuing fourth year BBA, LL.B (hons.) in ICFAI Law school, Dehradun
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Justice and Rule of Law are perhaps two of the noblest concepts evolved by the wit of the man that survived the test of the time through out the world. To the Romans, Justice was a goddess whose symbols were a throne that tempests could not shake, a pulse that passion could not stir, eyes that were blind to any feeling of favor or ill-will, and the sword that fell on all offenders with equal certainty and with impartial strength. Ancient Indian culture pays a similar tribute to dispensers of justice and the Upnishads also proclaim that “Law is the King of Kings. It is more powerful and rigid than they (Kings). There is nothing higher than law. By its power the weak shall prevail over the strong and justice shall triumph” . Upholding Constitutional morality and judicial values is indispensable to ensure an individual his inalienable fundamental rights in the process of dispensing justice. But in the modern days there has been a precipitate diminution of admiration and a sharp erosion of the constitutional and judicial values which ought to actuate the administration of justice. Keeping the morality of the constitution or preserving, perfecting, and perpetuating it, has evolved as the greatest challenge for the contemporary States in the twenty first century. The essay aims at a critical evaluation of current status of Constitutional Morality and Judicial Values under Indian scenario.

In a democratic order the concept of constitutional morality and judicial values assume myriad dimensions and implies several consequences to the dignity and freedom of the individual. Constitutional morality means adherence to the core principles of the constitutional democracy. In Dr. Ambedkar’s perspective, Constitutional morality would mean an effective coordination between conflicting interests of different people and the administrative cooperation to resolve the amicably without any confrontation amongst the various groups working for the realization of their ends at any cost . For Ambedkar, moral fabric of the society, governed and the governance must be strong. In other words, public conscience, moral order and constitutional morality- ethics of politicians, that constitute the core of policy making, must be very sound and strong if democracy is to survive for the long period of progress and prosperity for the common people. Thus the scope of the definition of Constitutional Morality is not limited only to following the constitutional provisions literally but vast enough to ensure the ultimate aim of the Constitution, a socio-juridical scenario providing an opportunity to unfold the full personhood of every citizen, for whom and by whom the Constitution exists.
The values that are identified as fundamental by the Judiciary in administering justice are considered as judicial values. The courts being the intermediately between the people and the other organs of the state, is vested with power to scrutinize legislation and administrative actions on the anvil of the constitution and the law in matters brought before him. Sukra Neeti (IV-5-14-15) enumerates five vices,

(i) raga (leaning in favour of a party),
(ii) lobha (greed),
(iii) bhaye (fear),
(iv) dvesha (ill-will against anyone) and
(v) vadinoscha rahashruthi (the judge meeting and hearing a party to a case secretly, i.e. in the absence of the other party) which every judge should guard against to be impartial. Socrates counseled judges to hear courteously, answer wisely, consider soberly and decide impartially to guarantee judicial diligence.

Diligence, in the broad sense, is concerned with carrying out judicial duties with skill, care and attention, as well as with reasonable promptness. The constitutional umpires can’t always browse through the Articles for solutions to the constitutional deadlocks; they should be guided by the spirit of the constitution, political morality and democratic ethics. Independent and fearless judiciary is primarily responsible for retention of the parliamentary democracy, protection of constitutional values and fundamental rights of the people.

The implications of Constitutional Morality without Judicial Values and judicial values without Constitutional Morality are equally absurd. Constitutional Morality is a sentiment to be cultivated in the minds of a responsible citizen but to be promoted by an independent judiciary embodied with values and ethics. Where judicial diligence is absent and judicial integrity is questioned Constitutional Morality cannot be upheld. The fruits of the morality of Constitution are enjoyed where the people can come to the courts to redress their grievances, and it is pertinent to note that it is not only important they are heard, but it is important, they believe they have been heard. Constitutional morality and judicial values are both inextricably entangled to deliver justice to the sovereign mandate. Morality envisaged in the constitution is meaningful when it’s judiciously protected for the welfare of the people. The judiciary being the custodian of Indian constitution is entrusted with obligation to incorporate judicial values in its undertakings to ensure the achievement of constitutional goals. To uphold the majesty of law and constitution for the public interests the constitutional morality shall be complemented and supplemented by the judicial values.

Constitutional Morality And Judicial Values In India

, the largest democratic sovereign State has a Constitutional vision of justice which is lucid and lucent and its mission, committed towards people’s values. The Preamble spells out its pledge of justice, social, economic and political and We, the people of India are the beneficiaries of a Socialist, Secular and Democratic order. Constitutional morality and judicial values are both inextricably entangled to deliver justice to the sovereign mandate. Morality envisaged in the constitution is meaningful when it’s judiciously protected for the welfare of the people. The judiciary being the custodian of Indian constitution is entrusted with obligation to incorporate judicial values in its undertakings to ensure the achievement of constitutional goals. Ever since it’s inception the country witnessed the emergence of judiciary from a weak organ of the State to the most powerful instrument, with its judicial creativity, justly handcuffing the elements that are detrimental to Constitutional morality and judicial values. The founding father of our Constitution, Dr.B.R.Ambedkar warned the nation in its burgeoning stage itself the significance of strong adherence to the morality of the Constitution and judicial values. India

Constitutional Morality and Judicial Values: A Pre and Post Keshavandha Bharathi Case Analysis

Our constitution is a great evolving document whose meaning is so dynamic that new dimensions unfold themselves as time passes and zigzag developments overtake society. Inevitably, thoughts on the Constitution do not stand still as the dialectic of each period imparts fresh interpretation in the light of social change. The Constitutional history of India also has annals of such a pragmatic change in the construction and interpretation of the provisions of the Constitution. A critical analysis of the Pre- Keshavanandha Bharathi Case elucidates that an action is decided as in congruence to Constitutional Morality and Judicial Values when it falls within the ambit of the literal meaning of the constitutional provisions where the intention behind such provisions were generally ignored.

This permitted the plenary power of the Parliament to play with Constitution ensuing a tussle between the Judiciary pleading for the citizen’s inalienable fundamental rights and the State pleading for social welfare producing forty second Amendments in Indian Constitution soon after the country celebrated its independence’s silver jubilee. But, by a stoke of judicial creativity, in the Keshavandha Bharati Case, the court discovered the existence of a basic structure and basic features too inviolably paramount to be truncated even by the Constituent power of the Parliament and upheld the spirit of Indian Constitution which is easily discernable not only from the Preamble but the whole scheme of the Constitution. Thus the contemporary deduction is that an action in accordance with the Constitutional Morality and judicial values may be in congruence with the Constitutional provisions, but an action in accordance with the constitutional provision may not uphold Constitutional morality always.

Constitutional Morality and Judicial Values in imparting individual, social, political and judicial justice
The significance of Constitutional Morality and Judicial Values to impart individual, social, political and judicial justice is discussed in a nut shell with reference to Part III, IV and V of the Indian Constitution.

Part III, considered as the soul of the Basic structure of the Constitution is described as ‘transcendental’, ‘inalienable’ and ‘primordial’, occupies a unique place in the lives of civilized societies ensuring individual justice.

In A.K. Gopalan .v. State of Madras, a three pronged argument that:
# The word ‘law’ in Article 21 does not mean merely enacted law but incorporates principles of natural justice so that a law to deprive a person of his life of personal liberty cannot be valid unless it incorporates these principles in the procedure laid down by it
# That the reasonableness of the law of preventive detention ought to be judged under Article 19
# The expression ‘procedure established by law’ introduces into India the American concept of procedural due process which enables the courts to see whether the law fulfils the requisite elements of a reasonable procedure;
was all rejected by the Supreme Court, but after three decades, through a highly creative pronouncement in the landmark post-emergency case, Maneka Gandhi .v. Union of India , the Supreme Court overruled the judgment delivered in Gopalan Case. When the court followed the meaning incorporated in Article 21 without considering the intention behind the Article in nexus with Constitutional objectives, it resulted in a traumatic experience where personal liberty had reached its nadir to the citizens during emergency (1975-1977). The impenetrable question is whether the Judiciary is accountable to its earlier decision which was against judicial values and constitutional morality.

Part IV is the grund norm for social welfare legislations in the Indian Constitution and its harmony with fundamental rights is an essential feature of the Basic Structure of the Constitution that embodies the social justice principle. Insertion of the Ninth Schedule to the Constitution for validating the various Land Reforms Acts, amending the Constitution such as to remove the Ninth Schedule from judicial scrutiny and amending the fundamental Right to Property as a legal right, in the name of implementing Directive Principles of State Policy are classic examples of questioning the morality of the Constitution that has far reaching detrimental consequences to the society and it depicts how a political party with two-third majority in Parliament for five years can establish totalitarianism and enslave the people, the so called ‘sovereign mandate’!. The perplexing question is whether democratic justice can be achieved by curtailing individual justice guaranteed in Part III.

Part VI, Chapter II of the Constitution deals with the appointment of Governors in States, which is done in accordance to the whims and fancies of political parties ruling the Government, endowed by oath to impart political justice to the ruled. Dr. Ambedkar laid stress on the importance of Constitutional morality and called for a paramount reverence to the Constitutional forms ignoring the pressing demands of expediency of adversarial politics. Thereafter the governance of the country was bent to cater to the needs of adversarial politics. Imperviousness to Constitutional morality thereafter has become the tradition. Today Constitution has been wrenched to accommodate market and religious fundamentalism, though both have no place in the Constitutional scheme of things. The Governors post has been treated as a sinecure for mediocrities or a consolation prize for what are sometimes referred to as “burnt out politicians”. Governors have been used to topple ministries and for providing reports of Constitutional breakdown for imposing President’ Rule. . The confounding question arises is what/who will prevent the misuse of public offices and uphold the spirit of the Constitution.

Thus the justice envisaged in the Constitution is meaningless in the absence of individual or social or political justice and is a mirage if Constitutional Morality is not upheld and judicial values not preserved.

Diffusion of constitutional morality and judicial values for democratic justice?

Democratic justice envisages the principle ‘greatest justices to greatest number of people, but lead to several questions, can a relief granted by the court which is against the spirit of the Constitution not in congruence with the provisions of Constitution and judicial values but satisfies the majority needs be upheld? Whether the Basic Structure Doctrine which is built on the basic foundation, i.e. the dignity and freedom of the individual, be revoked alleging it limits the scope of executive actions and thereby against democratic justice.? Dr.Ambedkar pointed the importance of “diffusion of constitutional morality’ for successful working of a constitution. He opined, while introducing the Draft Constitution in the Constituent Assembly, that the form of administration has a close link to the form of the constitution and that “the form of administration must be appropriate to and in the same sense as the form of the constitution.” He was alive to the fact that “ it is perfectly possible to pervert the constitution, without changing its form, by merely changing the form of the administration and to make it inconsistent with and opposed to the spirit of the constitution” He points out that the community must be saturated with constitutional morality. There never was in these sixty years was there that diffusion of constitutional morality which he expected from the people who aspired for self governance.

Diffusion of Constitutional morality and lack of judicial values indicates fraud on constitution?

The question posed is whether colorable legislation amounts to diffusion of Constitutional morality and judicial values? The Doctrine of Colorable Legislation elucidates the principle that “what cannot be done directly cannot be done indirectly”, that can be well illustrated through this epitome.

The entire basis of Article 123 in bestowing legislative power to the executive rests on two factors:
(i) Though the ordinance is issued in the name of the President, the responsibility for making the ordinance rests wholly with the Cabinet; and
(ii) even if an ordinance is promulgated during the inter-session period, the Cabinet, while issuing the ordinance, should depend on the existence and the continued support and confidence of Parliament.

From this it is clear that, only a Cabinet that enjoys continued support in both Houses of Parliament has, constitutionally and morally, the competence and power to go in for an ordinance. If a government issues an ordinance when it lacks the legislative strength to have a bill containing the same provisions of the ordinance passed by Parliament, then it is an abominable misuse of the constitutional powers provided in Article 123. In issuing the proclamation of POTO, the Janatha government relied on the words of Article 123 without following the spirit and morality of the Constitution. Unless the moral values of a Constitution are upheld at every stage, mere written words in it will not protect the freedom and democratic values of the people. This aspect of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent Assembly itself.

While moving the Draft Constitution in the Assembly on November 4, 1948, Dr. Ambedkar quoted Grote, the historian of Greece, who had said: "The constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves." It is quite possible to pervert the Constitution without changing its form. That is exactly what is taking place in India. That was exactly what Adolf Hitler did in Germany. Without altering the form of the Weimar Constitution, he destroyed the entire constitutional spirit and, in the end, the Constitution itself. Prof. Wadhwa in D.C.Wadhwa .v. State of Bihar gives a quotation from the Roman legalist Julius Paulus (B.C. 204): "One who does what a statute forbids transgresses the Statute; one who contravenes the intention of a Statute without disobeying its actual words, commits a fraud on it.”

Auto-limitation and Self-scrutiny by the judiciary: vitiates Constitutional morality and judicial values?
Judiciary, an independent branch of government constitutionally entrusted with the fair and just resolution of disputes is pledged to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the Land. It is entrusted to provide equal access to a fair and effective system of justice for all without excess cost, inconvenience, or delay, with sensitivity to an increasingly diverse society and quality service that continuously improves, that meets or exceeds public expectations, and that ensures that all are treated with courtesy, dignity, and respect, maintaining its independence from other branches of the Government and upholding justice.

But a potential question is when the Judiciary ensures Constitutional Morality who guarantees promotion of judicial values. There are allegations that some judges are showing favoritism and some are inefficient, some judgments usurp the powers of executive and legislature, some judgments are trying to rewrite the Constitution by giving innovative interpretations of the Constitutional provisions in order to restrict the power of parliament in making laws and to capture more powers for the judiciary, some judgments ignore the interest of the poorer sections and oppressed and restrict the efforts to ameliorate their condition by social intervention, some judgments show intolerance to mass struggles and mass organizations and some judgments ignore the interest of the common people by their complete surrender to the globalization philosophy.

With the advent of time the ordinary men reasoned these allegations as truths rather than a mere allegation, and resulted in increasingly loosing confidence in the judicial system. Judiciary which auto limited it’s on jurisdiction reasonably and ousted its jurisdiction judiciously when it required to do so is outside the scope of public scrutiny and lacks accountability, unlike the other organs of the State. When it emerges as a tyrant the little man’s final hope to get justice becomes a delusion which raises the serious question, whether the morality of the Constitution ensuring Justice- social, economical is upheld?. When the judiciary, obliged to ensure judicial values like fairness, equality and integrity lacks accountability whether it has rendered justice? Such a scenario signifies the need for a vigilant public determined to safeguard the Constitutional objectives.

Conclusion
The Constitution embodied with the will of the people to govern them is not an end but a means to an end i.e. Justice, Social, Economic and Political, a triune phenomenon inscribed as a pledge in the Preambular glory of our Constitution and the adherence to Constitutional Morality and Judicial Values is inalienable in accomplishing it. Let heaven falls, but justice shall triumph! In the presence of a Constitution embodying every human aspect for safeguarding the morality of individual and ensuring judicial values, “if things go wrong under the Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man is vile!”

The author can be reached at: minumedayil@legalserviceindia.com / Print This Article

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