Firstpost - All Rights Reserved. December 09, 2018 15:12:49 IST. The Attorney General of India, while talking about the history of conflict between the judiciary and the legislature, underscored that in its early days, the top court had struck down land reform and nationalisation laws as the judges noted that it violates equality. "Taking an opinion poll and legislating is the job of the legislature. Abhinav Chandrachud is an advocate at the Bombay High Court. There was a second usage that Ambedkar was more familiar with from its 19th century provenance. 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. "The Constitution is a seamless wear of things that are woven together that give us our life. In fact, the task of defining ‘constitutional morality’ has now been referred to a bench of seven judges of the Supreme Court. Updated Date: A moral panic is a feeling of fear spread among a large number of people that some evil threatens the well-being of society. 12. In this sense, constitutional morality is no more or less dangerous than the basic structure doctrine itself. 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. Compare PATRICK DEVLIN, THE ENFORCEMENT What is this constitutional morality? While arriving at its decision, the Delhi High Court asked itself an interesting question: could the section be upheld because homosexuality was against “public morality”? "Thank god for a confrontational judiciary," he said. Judges must intervene but must look at what is institutional morality... India is a socialist country not in the manner in which the Soviet Union was but in the sense of a mixed economy," he said. 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. The significance of constitutional morality can be enlisted below: While it aims to keep pace with the changing times, principles and ambitions of the society, the doctrine of constitutional morality also safeguards and upholds the enforcement of rule of law in the country. 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. Meanwhile, Solicitor General Tushar Mehta started his address on a humorous note, saying: "The Supreme Court held, in 2011, that Right to Sleep is a fundamental right. Second, the doctrine of constitutional morality led the Court to hold that it plays a counter-majoritarian role within the constitutional scheme. And therefore, for the court to believe that unless we interfere, the country is doomed, I say no, it can't.". Additional Solicitor General Pinky Anand also spoke against the motion. while talking about the history of conflict between the judiciary and the legislature, UK approves Pfizer vaccine: Fantastic news, says PM Boris Johnson, but EU remains sceptical, 'Won't change my mind on election fraud claims': Donald Trump indicates continued fight in first post-poll interview, Farmers' protest: Dushyant Chautala hopes deadlock over agri laws will end after Centre's offer, 9 Months Season 5 Episode 1 | Pregnancy & Gearing Up for Delivery, The Earth, Space & the Human Race Podcast Ep 10: Role of everyday citizens in India\'s climate movement. Find latest and upcoming tech gadgets online on Tech2 Gadgets. 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. Criticise non-constitutional practices It is necessary to speak up against any actions, which you feel as illegal or unethical under the constitution. You cannot use it. The ‘basic structure’ doctrine, the ‘classification test’, the new ‘manifest arbitrariness’ test – these are all judicially crafted inv... Children pass a souvenir shop displaying a t-shirt with illustrations of the ancient philosophers, Plato and Aristotle, in Athens, Greece. While many dangerous tools may come to mind, many people do not think of a car as a tool. "Governments not honouring the decisions of the court is a violation of constitutional morality. Firstly, it is a reminder that courts must disregard the morals of the majority while deciding constitutional cases. Get technology news, gadgets reviews & ratings. Why has the Supreme Court judgment on Sabarimala not been enforced in Kerala?" It consists of all things like equality, affirmative action and right to religion. "The laws were struck down on a strict and literal interpretation of the Constitution," he said. 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”. Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. (Image: Supreme Court Website). 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 most famous debate to date on the enforcement of moral principles is that between H.L.A. Join our, How To Sign Up For BloombergQuint Story Notifications. 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. I hope constitutional morality dies.". "It is to answer the concept of social morality that constitutional morality was brought in, and constitutional morality is not vague; it is grounded and founded on the principles of the Constitution, and therefore, it is here to stay.". "As a powerful weapon that surpasses all the powers conferred on the Supreme Court by the Constitution, Article 142 merely permits the court to pass such decrees or orders as to do complete justice in any cause or matter pending before the court. However, he maintained that law is a means to achieve social good, and it is there for the betterment of society. The Delhi High Court’s judgment eventually found favour with the Supreme Court in Navtej Singh Johar’s case. (Photograph: The Quint). True, this articulation of constitutional morality is vague and subject to the value choices of each individual judge. However, in the Basic Structure case (1973), the Supreme Court held that there are implied limits on Parliament’s power to amend the Constitution – that Parliament cannot destroy the “basic structure” of the Constitution. She said the principles of democracy can be brought to the people of the country only through constitutional morality, and that it is not the same as social morality. This doctrine has been employed to supersede constitutional text. This was not particularly uncommon at that time. This is an unremarkable proposition. Constitutional Morality is a sentiment to be cultivated in the minds of a responsible citizen but to be promoted by an … Began by elucidating the pressing need to locate constitutional morality is vague and. Enforcement of moral principles is that between H.L.A cases without worrying about voters. 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