New “CONSTITUTIONAL MORALITYaprasannakumar.org/s/Constitutional-Morality.pdf · 2020. 6. 3. · ‘constitutional morality’. Thereafter, I would explain the role and centrality

“CONSTITUTIONAL MORALITY –IS IT A DILEMMA FOR THE STATE,

COURTS AND CITIZENS?”

by

Shri Gopal SubramaniumSenior Advocate Supreme Court and

former Solicitor General of India

Centre for Policy Studies&

Visakhapatnam Public Library

VisakhapatnamMay 2016

1st D.V. Subba Rao Memorial Lecturedelivered on April 24, 2016

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Copyright @ CPS

All rights reserved by the publisher

First Edition : 2016

Copies can be had of : DIRECTORCENTRE FOR POLICY STUDIES47-7-23, Ba-Bapu BhavanDwarakanagar, 4th Lane,Visakhapatnam - 530 016.Ph : 0891-2531727Mobile : 9848191722e-mail : [email protected]

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PREFACE

Centre for Policy Studies and Visakhapatnam PublicLibrary of which late Shri D.V.Subba Rao was thepresident, jointly organized a memorial lecture to payhomage to his memory. Shri D.V.S.S.Somayajuluthoughtfully invited Shri Gopal Subramanium formerSolicitor General and legal luminary, on behalf of Centrefor Policy Studies and Visakhapatnam Public Library todeliver the memorial lecture in honour of his illustriousfather. To our good fortune Shri Subramanium graciouslyaccepted the invitation and chose April 24 which happenedto be the 85th jayanthi of late Shri D.V.Subba Rao. Such isthe respect of Shri Subramanium for late Shri Subba Raothat he refused to accept travel and hotel expenses. Prof.R.Venkata Rao, Vice Chancellor of National Law Schoolof India University gladly accepted our invitation to be aguest of honour on the occasion and came all the way fromBengaluru despite heavy work to participate in thefunction.

Shri Subramanium chose for his lecture the theme‘Constitutional morality: Is it a dilemma for state, courts andcitizens?’ The huge Dr.Y.V.S. Murthy auditorium on theAndhra University’s Engineering campus was packed tothe full with quite a few standing to hear the renownedadvocate who enthralled the audience with his oratory andprofundity. For two hours everyone heard him with raptattention and admiration. For a moment we felt how happylate Shri Subba Rao, himself an orator and lover of goodspeeches and intellectual meetings, would have felt if hewere present on the occasion in the midst of so many

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learned people being addressed by a brilliant advocate andeloquent speaker. Thanks to Shri Subramanium whogenerously sent us the text of his lecture we are able tobring it out in a small book form. We thank Shri V.Seetaramaiah, the respected elder, retired ChartedAccountant and educationist for his valuable suggestions,Shri D.S.Varma for his silent yet solid support and Prof.R.Venkata Rao for his kind gesture. To Shri M.K.Kumarof Sathyam Offset Imprints and his able assistant ShriK.Prakash and to Shri B.Ramana of our office for bringingout this publication in a short time. We deem it an honourto present this thought-provoking and scholarly work byone of India’s leading lights of the legal profession inmemory of an iconic elder statesman of the City of Destiny.

(Dr. S.Vijaya Kumar) (A. Prasanna Kumar)Chairman Director

Visakhapatnam Centre for Policy StudiesPublic Library

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Address by Shri Gopal SubramaniumLATE MR. D.V. SUBBA RAO AND HIS

CONTRIBUTION TO THE SOCIETY

Durvasula Venkata Subba Rao, a great legal luminary,who was also former Visakhapatnam Mayor and presidentof Andhra Cricket Association left us at the age of 83.

Late Mr. Subba Rao had the rare achievement anddistinction of being elected twice as Chairman of the BarCouncil of India, and was perhaps the only lawyer whocould reach to such zenith from a mofussil centre.Achieving renown in the field of law, Mr. Subba Rao,almost from the time of his enrolment in 1957 had beenassociated with the large and distinguished body of workfrom Vizag Steel Plant, Vishakapatnam Port Trust,Dredging Corporation of India, Hindustan ShipyardLimited and many others.

Being a man of great profundity, who participated invarious diverse branches of law, the late Mr. Subba Raowas an avid participant in the field of arbitration, bothinternational and domestic, and contributed to thedevelopment of a substantial body of law. Appearing invarious international arbitrations before the InternationalChamber of Commerce, he also had the privilege of sittingwith Lord Mustill as a Co-arbitrator. Mr. Subba Raoappeared before late Justice M. Hidayatullah, Late JusticeY. V. Chandrachud, and Justice P. N. Bhagawati (FormerChief Justices of India) not to mention the numerous Judgesof Supreme Court in a number of domestic arbitrations aswell.

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The late Mr. Subba Rao was one of the rare men whocontributed not only the legal field but made noteworthycontributions to academia, sports and social and culturalspheres. Coined an outstanding writer way back in 1975by the Lions International Oak Brook, Illinois, USA, heauthored many articles in different legal journals and editedSanjiva Row’s “Commentary On Advocates Act”. He trulymotivated the younger members of the Bar.

He was the only mayor selected out of 82 mayors inthe country to represent India at the World Conference ofMayors held in Dakar, Senegal Africa, organized byUNICEF on “Mayors as defenders of Children”. As Mayorof Vishakhapatnam from 1987 to 1992, he pursued thecompletion of Indira Gandhi Municipal Stadium whichbrought International Cricket to Vishakhapatnam. He alsooversaw slum improvement works in as many as 171 Slumsin the Municipal Corporation Area with the help of ODAGreat Britain Assistance which brought out aboutmeasurable positive change in people’s lives. He alsopersonally supervised many other public works.

He was a founder of Lions Cancer Hospital, Vice-chairman of Sankar Eye Foundation, President of GayatriVidya Parishad and President of Public Library,Vishakhapatnam are some of the examples which establishhis commitment to public life.

As Trustee of Visakha Music & Dance Academy, LateMr. Subba Rao was also President of the Bharatiya GanaSabha. He was a great connoisseur of music, culture, andart.

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During his younger days, the Late Mr. Subba Raowas a great sports enthusiast, a source of joy that stayedclose to his heart in his later years as well. He was Presidentof the Andhra Cricket Association from 1991 to 2003 andin that capacity, a Member of the Board of Control forCricket in India for 12 years. Anything said about the greatMr. Subba Rao would truly not suffice to convey theimmense contributions he has made to every sphere hetouched.

I met Late D.V. Subba Rao on many occasions. Hewas warm and affectionate. His smile would make me feelhow well he knew me. I miss him deeply.

I am honoured to have been invited to deliver theFirst D.V. Subba Rao Memorial Lecture titled“Constitutional Morality: Is it a Dilemma for State,Courts and Citizens?”

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CONSTITUTIONAL MORALITY:IS IT A DILEMMA FOR STATE,

COURTS AND CITIZENS?By

Gopal SubramaniumSenior Advocate, Supreme Court of India

(former Solicitor General of India and former Chairman,

Bar Council of India)

“The greatest of all the means for ensuring thestability of constitutions – but one which is nowadaysgenerally neglected – is the education of citizens in the spiritof their constitution. There is no profit in the best of laws,even when they are sanctioned by general civic consent, ifthe citizens are themselves have not been attuned by theforce of habit and the influence of teaching, to the rightconstitutional temper”1

- Aristotle

I. INTRODUCTION

1. Is Constitutional Morality a sentiment? Is the essenceof the sentiment self-imposed restraint?2 What is thatindispensable condition for a Government? Whatdoes disregard of Constitutional Morality mean? Isthat disregard constitutionally justiciable?

2. There can be no doubt that power has a tendency toat least corrupt one’s motives or exalt one’s individualmotives in a different light. There would beimpatience with constitutional restraints. One mustalso bear in mind that no institution can claim

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infallibility. No institution can claim that it can dono wrong. No institution can claim that its verdict isto be taken as the voice of God. What happens whenlegislatures are inefficient?

What happens when legislators are corrupt? Whathappens when people have fundamental distrust ofthe representatives of the people in legislative bodies?Is constitutional supremacy at stake? What is theextent of the power of judicial review? Is there ademocratic deficit in so far as the judiciary isconcerned to be able to substitute its judgment bothfor the executive as well as for the legislature? Ifsupreme power was vested in any one organexclusively, undoubtedly, there would be chaos. It isinconceivable that if all the power including judicialpower was vested in the legislature, then Parliamentcould well be a complete source of tyranny and peoplewould be subject to complete helplessness. If theexecutive was tyrannical, then again there would bea total breakdown and annihilation of the humanfreedoms of individuals. If the judiciary were to becompletely unbound by any form of self-restraint oradherence to the letter and spirit of the Constitutionand discover its true charter with reference to lawsmade by the legislature, it could well be held to be inbreach. It is important that the substance of the faithin the different organs of the State has to be restored.That can only be done by what I believe to be acts ofrestorative character which must be assiduouslyundertaken by those who adorn offices in

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government, legislature and the judiciary. It isthrough this process of restorative rebuilding ofconfidence that one will be able to ensure thatconstitutional morality is sufficiently ingrained thatconstitutionalism is no longer at stake because ofcaprice, whims and excessive power concentrated incertain individuals. In fact, one notices with greatprofit that William D. Guthrie in ‘Magna Carta AndOther Addresses’ (Columbia: New York) way backin 1916, noted that:-

“…..Of course, Judges make mistakes as the wisestand best men make mistakes. They are not infalliblebut neither are our legislative bodies infallible, nor isthe crowd. There must be the fullest liberty ofcriticism and if need be of centia of our Judges as ofall other public officials. Fair and just criticism,however, would be distinctly educational, and it couldtend only to restore the courts to public favour andconfidence. The danger is not in freedom of criticism,but in unfair and unfounded criticism supported bydistorted or false statements. Our judicial system issound enough and strong enough to withstand andovercome any fair criticism. We should, therefore,encourage the fullest discussion of judicial decisionsin constitutional cases in order that constitutionalprinciples may be adequately explained and thenecessity for the observance of constitutionalmorality brought home to the people….”

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Even he goes on to add that:-

“….Let us, however, insist that the facts be truthfullystated. If the reasons and principles of justice whichsupport most of the decisions criticize could beexplained to all classes in simple language and in termsintelligible to layman as well as to lawyers, much ofthe misapprehension of judicial decisions andprejudice against the courts and constitutionalrestraints would be dispelled…..”

3. In my speech, I would explore and ascertain the scopeof the term ‘Constitutional Morality’ and the effectthat the term has on the Indian Constitution, theCitizen, the State and the Judiciary. The initial partof my speech would deal with understanding theConstitution and Constitutionalism. I would thenspeak on the historical and juridical underpinning of‘constitutional morality’. Thereafter, I would explainthe role and centrality of the principle ofConstitutional Morality in India and why it has beenviewed as a dilemma, between the judiciary and theState, with rights of citizens being considered in theprocess. After describing the Indian position, I wouldspeak on parallels to the comparable principle ininternational law. I conclude by arguing that theprinciple of Constitutional Morality as introducedby Dr. B.R. Ambedkar in the Constituent Assemblyis of increasing significance, and the Indian society is‘yet to learn it’.

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II. A WRITTEN CONSTITUTION

4. The Constitution of a country may be regarded asfundamental law or reflection of grundnorm. Itnormally delineates the powers and responsibilitiesof the Government including the process of itsselection. It also embodies and strives to provide acommon national identity for the people for whomit is meant.

5. People generally, especially those of nascent nations,often start with a written document which they callthe Constitution. There may or may not be a writtendocument for every country. Examples of Britain,Israel or New Zealand evince that the Constitutionof a country need not necessarily be consolidated intoa single written document as has been done in thecase of India or South Africa. Whether it may be awritten or an unwritten document, changes to theConstitution, are generally avoided. Rules ofinterpretation have been deployed time and again tokeep the Constitution in line with the changes in thesociety and to accommodate the growing needs of amaturing society which may or may not be reflectedin the original text of the Constitution.

6. Generally viewed the Constitution is regarded asembodying the will of the people, who get togetherto form a (new) system, which is superior to theorgans of the government which are creatures ofConstitution itself.3 It does follow that constitutionscannot be written in “epistemic vacuum”4. Therefore,

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in view of the fact that there is always a history thatresults in making of the Constitution, theinterpretation and reading of the text of theConstitution, whether documented in writing orotherwise, cannot be divorced from the values thatare embodied in the Constitution.

7. Therefore, depending upon the historical context thatresults in the emergence of a document that can becalled a constitution, a constitution may be areflection of a dynamic and transformative socialprocess and may thus be a framework fordevelopment in addition to being a fully functionalmachine for governance. A constitution may be acontinuation of the earlier dispensation or may be asystem essentially embodying the functionalmachinery of the previous dispensation albeit with anew vigour of idealism and principles. In certain cases,a constitution may also be the basis for establishing acompletely new system for a new administration.However, given that it is difficult to divorce theConstitution from the historical context in which itemerges, it usually embodies functionalism of theprevious dispensation and combines it with the ideals,values, principles and experiences behind theemergence of the new dispensation. The Constitutionof India is a good example of the same.5

8. Because it is not possible to divorce or ignore thehistorical context from which the Constitutionemerges (except by perverting it), the complexity of

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the historical context is bound to have a reflectionon the Constitution itself. For instance, in the Indiancontext, even though today we stand as one nation,it took great effort during the freedom movement tounify various princely states into one unit havingquasi-federal character. It is for this reason that theIndian Constitution has extensively dealt with theCentre - State relationship, and the journey of post-Constitution has also not been free from politicalspeed breakers.

9. The necessity for having a written Constitution arisesout of the necessity to assert the supremacy of theConstitution. Supremacy of the Constitution meansthat the Constitution is binding on the Federal andState governments. The Constitution limits thepowers of the government. The overriding authorityis accorded only to the provisions of the Constitution,and neither the individual nor any government hasany precedence over the Constitution. As Dicey putsit, “to base an arrangement of this kind uponunderstanding what conventions would be certain togenerate misunderstandings and disagreements”.6

10. Written documents also tend to lessen the erosion ofsubstance, and provide rigidity. It is to be noted thatthat rigidity may not be a natural corollary of thesupremacy of the Constitution, yet the safeguard ofimmutability provides a safe harbour for those whoserights are guaranteed by the Constitution. In thebackdrop of political competitiveness prevailing at

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the time of the framing of the Constitution of India,a written document was sine qua non. It promisedrights to everyone, a promise given in writing, witha guarantee of enforceability of the rights in relationto their freedoms, and limits on the power of theGovernments.

11. I am concerned at an important aspect ofconstitutional morality which is the nature andperception of fundamental rights in our country. Wehave an outstanding Constitution. Undoubtedly, theConstitution has given us the best possible charter ofrights. But are these clearly understood? Are theyunderstood in their full amplitude? Is it anunderstanding of an institution of these rights whichmatters or is it the understanding of these rights bythe individual citizen which matter? This is indeed aquestion which has vexed me for considerable periodof time while practicing constitutional law. Theemergence of judicial imposition of standards on whatcan be the liberty of a citizen is worrisome to mymind. Freedom and liberty must indeed to someextent be subjective.

12. What may appeal to one as right and righteousconduct or fair conduct, may not necessarily be co-equivalent with the idea of freedom as is capable ofbeing defined in the Constitution. Freedom todevelop, freedom to explore, freedom to learn,freedom to believe, freedom to disbelieve, freedomto contract, freedom to love, freedom to despair,

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freedom to be quiet, freedom to speak, and thefreedom to say anything under the sun which doesn’tget restricted by law. Man-made law is indeed a widearray of freedoms, in recognition of human natureitself. It is open to a citizen to discuss the widestpossible alternatives and constellations in philosophyand abstractions and real life ranging from the mostvociferous theories of absolute ideals in traditionaltexts of religious philosophy and the completenegation of an intelligent design as found in modernscientific teachings and philosophical writings. Thechoice must be left completely to the individualcitizen. Even the State cannot take a position inrespect of such beliefs and choices. However, the factthat such a wide array of knowledge is available as apart of growing education is indeed necessary evenfor any impartial stream of education to be availablefor young children and those for citizenry of acountry. They must elect to know, they must electto be informed and they must also come to theirconclusions by themselves.

13. It is important that doctrinaire education which issubtle, which can be creeping and which can lead toformations and crystallization of belief structureswhich may be formed by the individual in his middleage to be completely unsustainable must not beallowed to happen. It would mean that the State hasinterfered with the development of its citizens. Theminimal scope of interference by the State in the livesof its citizens is the hallmark of constitutional

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morality at least under our Constitution. The attemptto have educational academies espousing a certainbelief structure is completely an anathema to theConstitution. If it receives any sponsorship from theState, it destroys the very concept of the State beinga truly secular State which means it does not takepositions in matters of subjective belief. As AmartyaSen has rightly observed that demands for democracyare complex and manifold.7 I am afraid, this definitionof constitutional morality is one, which might haveto be tested over and over again, if we mean toprogress truly in realms of knowledge, in terms ofscientific, historical, economic, philosophical andarcheological research and further undertake auditof our own selves in coming years.

14. What about human rights? What is the properrelationship between human rights and democracy?We have certain institutional arrangements to protecthuman rights, such as the Human RightsCommission, the constitutional charter of rights andmore importantly, the constitutional remedies whichare vested in the Supreme Court and the High Courts.But I am afraid, that the appointment of HumanRights Commission was never meant to dilute theimportance of human rights. They were also notmeant to provide an alternative fora for enabling thecourts to abstain from taking on record any grievancewhich relates to violation of human rights. Thepresence of jurisdiction must always imply aneffective exercise of jurisdiction. It is easier to deny

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the exercise of jurisdiction. It is more challenging fora Judge to exercise jurisdiction and truly render justicein a case.

15. In my view, to employ parameters of judicial reviewin changed circumstances would mean to come asclose as possible to mathematical scrutiny of thedecision-making process because even a single errormay be completely fatal. Such an error could be vital.It may be small, yet monumental.

16. The decisions of courts fortunately in our countryare not described as undemocratic in the context ofhuman rights; that is because the founding fathers ofour Constitution were deeply inspired by the conceptof Bill of Rights and provided for fundamentalfreedoms in very clear and definitive terms. Thepreambular ideals of the Constitution do form thebasic structure. If liberty is indeed the ideal of men,if fraternity is the ideal of men, if justice and equalityare the ideals of men, obviously, these ideals are beingguaranteed by a Constitution. Thus, no governmentor any organ of the State can attempt to work in amanner which either obstructs justice or whichattempts to divide fraternity or which attempts todeny equality or which attempts to clog liberty. Iwould like to bring to your notice that we are farbetter off than England, and I quote that the HomeSecretary on 8th July 2013 in the House of Commons’debate said that:-

“…..We have to do something about the crazy

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interpretation of our human rights laws…. I havemade clear my view that in the end the Human RightsAct must be scrapped. We must also consider ourrelationship with the European Court very carefully,and I believe that all options – including withdrawingfrom the Convention altogether – should remain onthe table…..”

I found that this was extraordinary and I am gladthat no member of our legislature says anything tothis effect and hopefully will not say it as long asIndia is shining.

III. UNDERSTANDING CONSTITUTIONALISM

17. The Constitution is a unifying document. It capturesto the extent necessary cultural, economic, legal,political and social concepts of a society. It speaksabout the constitution of a society. It establishes Stateinstitutions. But the content of constitutionalism isthe manner in which institutions conduct themselvesto further the very objectives of the Constitution.The theory of constitutionalism is necessary tounderstand the division and limitation ofgovernmental power, the recognition and protectionof certain individual rights, the protection of propertyand the notion of representative or democraticgovernment.

18. One of the important functions of the Constitutionas explained earlier is to also limit the powers of thegovernment. The idea that government can andshould be legally limited in its powers, and that its

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legality and legitimacy depends on adherence to suchlimits is associated with the political theories of JohnLocke. While dealing with constitutionalism it isimportant, in my view, to look at the position ofLocke in the past and Ronald Dworkin in the present.Both Locke and Dworkin can be said to be twoimportant proponents of constitutionalism. Theywere concerned with ‘legitimacy of governance’ andfoundations of constitutional truthfulness. Absolute,unbridled and arbitrary power in government mayitself constitute a betrayal of the trust of the peopleby those who govern. The concept of rights inDworkin’s works is primarily the way in whichabsolute, unbridled and arbitrary power are meantto be checked. In other words, they can never beexercised in a manner to defeat rights. In my view,the theory of Locke of natural law of backgroundrights is translated into the rights, which flow fromdemocratic constitutionalism as described byDworkin. However, as pointed out again by UpendraBaxi, Dworkin does not have an explicit theory ofState.

19. Constitutionalism is associated with the followingfeatures:

“…a fundamental law expressed in a writtenconstitution drafted by a special convention orassembly, ratified by the people and amendable onlyby an extraordinary supralegislative process, whichprescribes the rule of general standing laws produced

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by representative institutions operating on the basisof some form of separation of powers and limited bya charter recognizing judicially enforceable basicrights reserved by individuals.”8

20. Thus, foundations of liberal Constitutionalism couldbe traced to the works of John Locke. ProfessorJeremy Waldron, while critiquing the concept, hasexplained the concepts in the following simple words:

“A ‘constitutionalist’ is one who takes constitutionsvery seriously and who is not disposed to allowdeviations from them even when other importantvalues are involved. ‘Constitutionalism’ thereforerefers to the sort of ideology that makes this attitudeseems sensible…. [And] includes the claim thatsociety’s Constitution matters, and that it is not justdecoration, that it has an importance that may justifymaking sacrifices of other important values for itssake.”9

21. It is, however, not necessary that the presence of aConstitution implies the presence ofConstitutionalism. Professor Paul Magnarella, hasexplained10 this in the following words:

“A key identifying criterion of constitutionalism isthe existence of limited government under a higherlaw. By definition, every state, even one with adictatorship, has a constitution-a set of legal normsand procedures that structure its legal andgovernmental systems. This, however, does notnecessarily imply the existence of a constitutional

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document. Further, the mere existence of aconstitutional document or a constitution, as definedabove, is not equivalent to the existence of a state ofconstitutionalism. In the absence of the ruling elite’scommitment to limited governmental powers underthe rule of law, a state may have a constitutionwithout constitutionalism. In such a case,comparativists would label its constitution “nominal”rather than “normative”.11

22. Different nations have come to embrace and expressconstitutionalism in various forms, be it rigidadherence to the written word contained in aConstitution or the constitutional norms that comethrough practice in an unwritten one.

23. In the United Kingdom, one of the only threedeveloped nations without a written Constitution,Lord Chief Justice Woolf observed that there hasnever been the need for a written Constitution dueto the constitutional ability to evolve with society’schanging needs. There can be both benefits as well asdisadvantages to this.12 The absolute presence ofconstitutionalism in the United Kingdom is apparentfrom the fact that there is a recognition of theimportance of the rule of law and the independenceof the judiciary. “Ultimately, it is the rule of lawwhich stops a democracy descending unto an electeddictatorship”13.

24. Lord Chief Justice Woolf has attributed the abilityof the United Kingdom to adhere to the precepts of

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constitutionalism due to traditions of mutual respect,restraint and co-operation. He has further, inexemplifying the tradition of self-restraint given theexample of the Human Rights Act wherein, byenacting Article 3 Parliament directed that judgesinterpret legislation in compliance with theConvention as far as possible. Here, in consonancewith Lord Chief Justice Woolf, Lord Hope hasobserved that while this is just an interpretative rule,it does not mean to allow judges to act as legislators.14

25. In the United States, another form ofconstitutionalism has been gaining traction, that ofprogressive constitutionalism. It envisions that to giveeffect to all the freedoms due to the people by virtueof the Constitution, sometimes it would be betterfor the Supreme Court to stand back and allowpolitical processes their head. The aim is that throughthis, political deliberation would be greater and morein-depth with a greater sense of constitutionalresponsibility.15 Justice Ginsberg, an eminentsupporter of women’s rights and gender equality hasbeen in agreement with this form ofconstitutionalism. While never abandoning sanctityof judicial review, judicial modesty and reluctance tooverstep into the legislative scope is a concept thatprogressive constitutionalism applauds.

26. While the idea put forth by progressiveconstitutionalism appears optimistic and idealistic inrelation to the abilities of legislators, I personally do

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not ascribe to the notion that power should be vestedor reliance should be placed so heavily in one arm ofthe government. To do so in the Indian context maynot be advisable.

27. Another view on constitutionalism in the UnitedStates is that of Justice Kennedy in adherence to thetheory of the ‘living constitution’. While sometimesbeing subject to criticism for this view, he subscribesto the stand that constitutional meanings must changewith changing circumstances16. While never assertingthat he subscribed to the theory of a livingconstitution, his judgments have shown a trendtowards the exemplification of that approach.

28. Evolving and expanding the scope of judicialinterpretation of the Constitution, in the landmarkdecision of Obergefell v. Hodges17 Justice Kennedy,explained ‘liberty’ as inclusive of sexual identity underthe Due Process Clause of the FourteenthAmendment in the followings words:

“The Constitution promises liberty to all within itsreach, a liberty that includes certain specific rightsthat allow persons, within a lawful realm, to defineand express their identity. The petitioners in thesecases seek to find that liberty by marrying someoneof the same sex and having their marriages deemedlawful on the same terms and conditions as marriagesbetween persons of the opposite sex.”

29. The idea of a living Constitution, to my mind, is tosome extent the manner in which the Courts in India

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seek to interpret our Constitution. To evolve andexpand the scope of the rights granted to us by theDrafting Committee in their wisdom and knowledgein meaningful ways has been one of the paramountcontributions of the Supreme Court and the HighCourts. The underlying impulse is no impulse – it isa principle to justice that means – to tailor the notionof rights as per facts, and to use right itself as a normto deal with similar situations.

30. In my view, it is this quest of normativity under therule of law that poses a dilemma for the State, Courts,and Citizens – and all of this arises in the backdropof ‘Constitutional Morality’.

IV. THE IMPORTANCE OF JUDICIALINDEPENDENCE

31. It must be noted that there is a difference betweendemocratic deficit and constitutional deficit. Anindependent judiciary appointed in accordance withthe Constitution must necessarily be held to havebeen constitutionally appointed. However, in orderthat it can be said to have been truly appointed inaccordance with the Constitution, it must fulfil thethree-fold criteria of ability, impartiality and judicialindependence. These three are manifested into variousother subsidiary virtues which are meant to be foundin individuals. The Constitution, however, does notask our Judges to be elected or appointed throughParliament or through any procedure which is similarto other jurisdictions. As a consequence of the

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procedure which obtains in place today, the need forthe judiciary to establish its independence by self-evident processes of the quality of its appointmentsis very vital. It is important that in order to bear truefaith and allegiance to the Constitution, people trulylook forward to an independent judiciary. Thejudiciary for them is a vital organ. If indeed there is abreach of faith of the people in the performance ofjudicial functions, the breach is somewhatirreversible. In such cases, unlike democratic self-correction which can happen at regular intervals, itis not possible to do the same with the judiciary. Tothat extent, it is very essential that members of thejudiciary must indeed self-reflect on a continued andcontinuing basis almost to point of self-doubt thatthey are able to see and perceive as clearly as possiblewhere does truth and justice lie. It is indeed an arduoustask in today’s circumstances given amounts ofinadequate financial allocation to the judiciary,inadequate facilities, and also inadequate numericalstrength of the judges in the subordinate judiciary.

32. It was observed by Dr. Ambedkar during theConstituent Assembly debates that:

“There can be no difference of opinion in the Housethat our judiciary must be both independent of theExecutive and must also be competent in itself. Andthe question is how these two objects could besecured.”18

This observation goes to the heart of what the framers

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of our Constitution intended, a free judiciary, thevery foundation that underpins a democratic society.While all Constitutions provide for a free judiciaryto some extent, the realization of this independencecan subsist only when there is a favourableenvironment created by other organs of governmentas well.19

33. Judicial independence has to be understood not onlyto mean the freedom of the judicial arm of thegovernment, but also the individual liberty of eachand every judge so that they may discharge theirduties free from interference from other judges.20 Thistheory of independence has been universallyrecognized as the International Bar Association (IBA)Standards under Article 47 provide that “in thedecision making process, a judge must be independentvis-à-vis his judicial colleagues and superiors”21.

34. It is an accepted fact that for justice to prevail, thosewho are administering it must be free to do so withoutinterference or fear of censure, either from otherorgans of the government or from other judges. Thecreation of an independent and professional judiciarylies at the heart of the Constitution’s judicial articles.Judges have been offered more independence thanany other institution. The purpose of securing thisindependence has been clearly well thought out bythe founding fathers. The purpose of introducing alife tenure in the United States, according toHamilton, “….was to construct an excellent barrier

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to the encroachments and oppressions of therepresentative body….” but also because it offered“……the best expedient…… to secure a steady uprightand impartial administration of the law……”.

35. In 1972, Lord Reid in the UK hinted at the policyimplications of “Judges as Lawmakers”.

36. Lord Phillips when observing the necessity for anindependent judiciary stated:

“… It is the only basis upon which individuals, privatecorporations, public bodies and the executive canorder their lives and activities. If the rule of law is tobe upheld it is essential that there should be anindependent judiciary. … The citizen must be able tochallenge the legitimacy of executive action beforean independent judiciary. Because it is the executivethat exercises the power of the State and because it isthe executive, in one form or another, that is the mostfrequent litigator in the courts, it is from executivepressure or influence that the judges requireparticularly to be protected.”22

37. However, we must bear in mind that the UK’sHuman Rights Act departs from the traditional viewof how a Bill of Rights functions which is to invokethe machinery of the courts and to set bindingconstraints on political decision making and combinejudicial review with strong judicial remedial power.The Human Rights Act incorporates the EuropeanConvention on Human Rights into domestic law. Itdraws a greater distinction between judicial review

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and judicial remedies than in more conventionalmodels of a Bill of Rights. It does not authorize courtsto impose binding remedies such as to invalidatelegislation or refuse to enforce laws that areinconsistent with rights. Thus short of using theinterpretive power to render a rights friendlyapplication of otherwise inconsistent legislation,courts in the United Kingdom can only declarelegislation to be incompatible with protective rightsat which point redressing judicially identified rightsviolations is dependent upon a political willingnessto implement remedial measures. The Human RightsAct in England departs in a major way. Itcontemplates regular parliamentary arrangementwith questions of compatibility with rights. Thus,legislation needs to be justified from a rightsperspective in Parliament, i.e. a legislative rightsreview. The political decision to introduce legislativerights review is indeed significant. Proposedlegislation implications have to be studied in thecontext of rights. It does indicate a substantiallyidealized vision of how rights will be protected.

38. The idea of a legislative rights review arose out of theintroduction of the Canadian Bill of Rights in 1960.The Canadian Bill of Rights dealt with a novel idea.It married the idea of a statutory bill of rights withan expectation that the government and Parliamentconsider whether legislation is consistent with rightsas a regular part of policy and legislative processes.Thus, the Justice Minister was required to inform

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Parliament when government Bills are inconsistentwith rights which was expected to precipitate pre-legislative rights based review of proposed legislation.The introduction of a pre-legislative rights reviewwithin a Westminster based parliamentary system wasconsidered as a robust way to protect rights that couldrival if not surpass the kind of rights protectionassociated with the US goal of rights. It was explainedthat:-

“…..All future laws are …. purified before theybecome laws…. This process is possible only under aparliamentary system of government, where officialsare responsible to ministers, ministers to the Houseof Commons and the House of Commons to theElectorate. The whole machinery of government –apart from the courts – is enlisted by the CanadianBill of Rights to ensure that fundamental rights andfreedoms are safeguarded…. This kind of control isnot possible with a congregational system ofgovernment, where there is complete separationbetween the executive and the legislature and wherethe executive cannot control the content of Billssubmitted to the legislature…..”

39. New Zealand subsequently borrowed this idea whenit developed the New Zealand Bill of Rights Act. Thethen Prime Minister, Jeffrey Palmer included it inthe Bill of Rights Act in an effort to compensate fora weaker form of judicial power than initiallyproposed.

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40. The need for more effective national implementationof European Court of Human Rights judgmentsbecame the principal focus of the human rights workof the Council of Europe.

41. Of course, Parliament is supreme in the UK.However, the principle of parliamentary sovereigntymeans neither more nor less than this, namely, thatParliament has the right to make or unmake any lawwhatever. Parliamentary sovereignty according toDicey’s famous formulation is as follows:-

“The principle of parliamentary sovereignty meansneither more nor less than this, namely, thatParliament thus defined has, under the EnglishConstitution, the right to make or unmake any lawwhatever; and further, that no person or body isrecognized by the law of England as having a right tooverride or set aside the legislation of Parliament…..”

42. In India, this formulation would read as follows:-

“The principle of parliamentary sovereignty meansthat Parliament has under the Indian Constitutionthe right to make or unmake laws in accordance withthe Constitution subject to the Constitution.”

43. In India if Judges had to be periodically elected andthe principal mode of political accountability was alsomeant to be the norm to select Judges, then Courtswould have too great a disposition to consultpopularity to justify reliance that nothing would beconsulted but the Constitution and the laws. In my

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view, even though the Supreme Court has held thatwe do not have a provision like Article 3 of theAmerican Constitution, the provisions of the IndianConstitution sufficiently indicate that judicial powermust be vested in Courts and Tribunals which areanalogous to Courts. It was observed in the case ofR. Gandhi23 that:

“87. The Constitution contemplates judicial powerbeing exercised by both courts and tribunals. Exceptthe powers and jurisdictions vested in superior courtsby the Constitution, powers and jurisdiction of courtsare controlled and regulated by legislative enactments.The High Courts are vested with the jurisdiction toentertain and hear appeals, revisions and referencesin pursuance of provisions contained in severalspecific legislative enactments. If jurisdiction of theHigh Courts can be created by providing for appeals,revisions and references to be heard by the HighCourts, jurisdiction can also be taken away bydeleting the provisions for appeals, revisions orreferences. It also follows that the legislature has thepower to create tribunals with reference to specificenactments and confer jurisdiction on them to decidedisputes in regard to matters arising from such specialenactments. Therefore it cannot be said thatlegislature has no power to transfer judicial functionstraditionally performed by courts to tribunals.

88. The argument that there cannot be “wholesaletransfer of powers” is misconceived. It is nobody’s

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case that the entire functioning of courts in thecountry is transferred to tribunals. The competenceof Parliament to make a law creating tribunals to dealwith disputes arising under or relating to a particularstatute or statutes cannot be disputed. When aTribunal is constituted under the Companies Act,empowered to deal with disputes arising under thesaid Act and the statute substitutes the word“tribunal” in place of “the High Court” necessarilythere will be “wholesale transfer” of company lawmatters to the tribunals. It is an inevitableconsequence of creation of a tribunal for such disputesand will no way affect the validity of the law creatingthe tribunal.”

44. In my view, the election of the legislature in favourof tribunalisation in preference to regular courtsdischarging adjudicatory functions on the ground ofdomain expertise is not well founded. Furthertribunalisation eroded the credibility and the qualityassociated with the adjudicatory process, whichexpects trained judicial minds to apply their prowess.Prior to the introduction of the collegium system,under Articles 124 and 217 of the Constitution thePresident appointed the judges of the Supreme Courtand the High Courts in consultation with the ChiefJustice of the Supreme Court or High Courts alongwith the Governor of the State. Hence theConstitution expressed that the Chief Justice of Indiawas to be a ‘consultee’ during the appointing ofjudges. While considerable debate has taken place on

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this point, the evolution of law from the time of S.P.Gupta’s case24 where the term concurrence becamesynonymous with the term consultation. The errorin S.P. Gupta’s Case was sought to be corrected inthe Second Judges case25 where the Supreme Courtinterpreted that the opinion of the Chief Justice wasactually an ‘institutional opinion’ arrived at in acollegiate forum. Observing the need for anindependent judiciary Justice Pandian stated:

“203. Even though all the constitutional functionarieshave their own constitutional duties in makingappointment of Judges to the superior judiciary, therole of one of the principal constitutionalfunctionaries, (namely, the judiciary) isincontrovertibly immeasurable and incalculable. Thetask assigned to the judiciary is no way less than thoseof other functionaries — legislative and executive. Onthe other hand, the responsibility of the judiciary isof a higher degree. As frequently said, ‘judiciary isthe watchdog of democracy’, checking the excessiveauthority of other constitutional functionariesbeyond the ken of the Constitution. It cannot bedisputed that the strength and effectiveness of thejudicial system and its independence heavily dependsupon the calibre of men and women who preside overthe judiciary and it is most essential to have a healthyindependent judiciary for having a healthy democracybecause if the judicial system is crippled, democracywill also be crippled.”26

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45. While there is still need to strengthen the collegiumsystem, profiling of candidates/ judges is undesirableand leads to dilution of inner strength of the judiciary.It is expected that no judge in office carries hispersonal predilections or political views, and wouldnot allow such factors to influence decision making.

46. The Supreme Court by striking down theConstitution (Ninety-Ninth Amendment) Act, 2014has been successful in protecting the independenceof the judiciary from complete destruction. TheNational Judicial Appointments Commission Act,2014 was a complete deviation from the foundationalprecepts of an independent judiciary. Madan Lokur,J. observed correctly in NJAC case that:

“991. Fortunately for the people of the country, theindependence of the judiciary is not a ‘task ofadministration’ nor is the Constitution of India afailed experiment nor is there any need for ‘makingprovision for another’. If the basic structure of theConstitution is to be changed, throughexperimentation or otherwise, then its overthrow isnecessary. It is not a simple document that can beexperimented with or changed through a cut and pastemethod. Even though the independence of thejudiciary is a basic structure of the Constitution andbeing a pillar of democracy it can be experimentedwith, but only if it is possible without altering thebasic structure. The independence of the judiciary isa concept developed over centuries to benefit the

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people against arbitrary exercise of power. If duringexperimentation, the independence of the judiciaryis lost, it is gone forever and cannot be regained bysimply concluding that the loss of independence is afailed experiment. The independence of the judiciaryis not physical but metaphysical. The independenceof the judiciary is not like plasticine that it can bemoulded in any way.”27

47. The independence of the judiciary is critical to thenation, a part of the basic structure of the constitutionand the very bulwark that protects our democracy.

V. CONSTITUTIONAL MORALITY AS THEESSENCE OF CONSTITUTIONALISM

48. One of the prodigious democracies in the worldtoday, India possesses one of the largest writtenConstitutions. Yet it had to be kept in mind that as anation, we are one of the youngest democracies aswell. While providing for express provisions ofgovernance, the Indian Constitution embodies rights,limitations and duties. In addition to the obvious textof the Constitution, the sub-text and spirit of theConstitution also add force and understanding to itsimplementation. The essence of Constitutionalismthat gives immutable feature and serves as a moralcompass in the implementation and interpretationof the Constitution is the principle of ConstitutionalMorality.

49. There are many political theorists of the modernperiod who have used the concept of a political

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constitution. It can be used in a restrictive way or inan expansive way. However, by and large,constitutional law practitioners do employ it in anexpansive way to suggest governance in accordancewith the letter, the spirit and ethos of a Constitutionand also the fundamental concepts which underliethe Constitution. In the Indian context, it wouldnecessarily mean republicanism, democracy, integrityand sovereignty of India and above all, thefundamental four pillars, namely, equality, justicefraternity and liberty, and obviously, securingindividual dignity and human freedoms which are soimportant for living. The Indian Constitution seeksto respect the verdict of ‘We, the People’, ensuresparticipative democracy, regular elections to ensuredemocratic legislatures, but the underlying principleis that all will act in accordance with the Constitutionand not override it. The dramatis personae in Stateswho are appointed as Governors are not expected totopple the democratically elected Governments andallow their conduct to be questionable.

50. I use distinctly rationalist grounds for explaining thedesign of why constitutionalism and constitutionalmorality must be viewed literally as interchangeableand possible synonymous expressions. Whilemorality seems to have a more subjective connotationin its ordinary use, but in the understanding of aConstitution, it means literally the ethos orconstitutionalism. In particular, I think it is importantto bear in mind that the use of the expression

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‘republicanism’, ‘dignity’, ‘justice’ and ‘liberty’necessarily involve by themselves far reachingconcepts of ‘modernism’ as well as ‘liberalism’. Thisobviously implies that the founding fathers werefarsighted and very liberal and were agreed upondemocratic principles in the context of liberalism ofthought, behavior as well as respect for humandignity. However, it did not follow that theConstitution contemplated market economics in itsliberal sense when the country became a free republic.

51. First propounded by the English classicist GeorgeGrote in “A History of Greece”, the termconstitutional morality, despite its rather simpleappearance, attempts to convey the complex valueof what the written constitution stands for. For anyreal understanding of the term, it is pivotal that Grotehimself must be quoted to convey the gravitas of theexpression:

“… a paramount reverence for the forms of theconstitution, enforcing obedience to authority andacting under and within these forms, yet combinedwith the habit of open speech, of action subject onlyto definite legal control, and unrestrained censure ofthose very authorities as to all their public actscombined, too with a perfect confidence in the bosomof every citizen amidst the bitterness of party contestthat the forms of the constitution will not be lesssacred in the eyes of his opponents than his own.”28

52. It is apparent that the fact Grote was not speaking of

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the actual written word of the Constitution, ratherthe ideals it was meant to encapsulate. Locating theideals of the Constitution, especially by a generationthat did not draft it is not a simple task. It may requireascertainment of true historical facts andinterpretation of the thought process (and not justthoughts) of those who stood for the values or textsthat found their way into a written Constitution.

53. A simplistic approach to Constitutional Moralitywould be to assume that principles of fundamentalrights such as the right to life and liberty, the rightagainst discrimination and the freedom of speech arejust some examples of Constitutional Morality thathad been drafted into the Constitution.

54. Though this cannot be said to be entirely incorrect,the term ‘Constitutional morality’ is a term thatattempts to immortalize the very ideals, aspirations,and visions of the future that were held dear andimmutable by the Constituent Assembly.

55. It is necessary to understand that while there is arelationship between the Constitution andConstitutional Conventions, they are not necessarilythe same as Constitutional Morality. However, inview of the fact that Constitutional Conventions areexpressions of traditions and customs, in many casesthey may also be expressions of ConstitutionalMorality.

56. Constitutional convention, by its very nature, thoughambiguous and without written promise of

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enforceability is beneficial for this very reason. Munrodistinguishing the need for uncodified constitutionalconvention in relation to a written constitutionstated:

“…the greater the degree of constitutional rigidity,the greater is the need for the benefits of informaladaptation which conventions bring”29

57. The presence of Constitutional Conventions itselfindicates that not everything that a Constitutioncould contain ought to be put in writing. It assumesthat certain degree of tradition, conventions andcustoms would be followed in the matter ofconstitutional governance, which need not be speltout.

58. ‘Self-restraint’ and ‘freedom’, according to Grote werea precondition of ‘constitutional morality’. LikeGrote, Dr. Ambedkar was opposed to the concept ofrevolution and violence and believed that forconstitutional morality to exist, there needs to be anexercise of self-restraint. Dr. Ambedkar took it a stepfurther and staunchly stood against the idea ofsatyagraha as well. He believed that though satyagrahawas non-violent, nonetheless it was merely anotherform of coercion. Civil disobedience as a mechanismof protest was not capable of being justified withreference to defined legal and Constitutional methodsof seeking accountability.30

59. To further develop the concept Grote recognizedplurality in all its multifaceted forms. Unless the

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Constitution recognized plurality and differences (orspecial needs), it would lose its universal appeal aswell. As observed by Learned Hand, pluralism was:

“the temper which does not press a partisan advantageto its bitter end; it can understand and appreciate theother side and feels an unity between all citizens.”31

60. Grote postulated that, for constitutional morality toreign, there had to be a management and adjudicationof differences. Former Chief Justice M.N.Venkatachaliah while making an observation onplurality in the context of India observed;

“India, in particular, is such a typical pluralist society– a model of unity in the mosaic of diversities.”32

61. Constitutional morality hinged on the presuppositionthat there are differences of opinion in a politicalsociety. Despite the diversity, there would be aprofound understanding of opinions, claims, andbeliefs of others. Essentially, the ability to abstractfrom one’s beliefs. In a nation as diverse as India,pluralism of identity also plays a great role.

62. Contemporary India is a nation amassed with diversecultures, religions and faiths. For there to be pluralismof belief, there has to be complete acceptance of, andpromotion of individual identities of all people. It isonly through this nature of acceptance that there canbe peace and a collective furthering of society. In myopinion, in light of the nascent nature of ourdemocracy and our historical past, we have already

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taken great strides to further these aims, and theJudiciary has to a great extent attempted to furtherand embolden diversity of individuals.

63. There is an element of inter-connectivity that theConstitution propounded in the idea of “Fraternity”.The idea of fraternity was never meant to discouragethe idea of individual potential or full blooming ofthat potential but only meant that each one wouldalways respect the space and the freedoms of others.

64. Another tenet of Constitutional Morality was theadjudication and management of differences.Considering the above in the light of respect forpluralism, it was essential that there be reliance onadjudication by Courts and free discussions inParliament, and resort to peaceful methods.

65. Both Grote and Dr. B.R. Ambedkar were advocatinga kind of disassociation from one’s views and beliefsthat could lead to the understanding of the views andbeliefs of others. Perhaps, guided by the values of thefreedom movement and great leaders who also servedas a moral compass for the then generation of youth,despite odds and challenges, we were able to navigateand arrive at a Constitution, which contained certaincore values as an expression of morality. The abilityto offer guaranteed space to others to think and feeldifferently is the summum bonum of equality. Herethe State becomes the teacher and practitioner ofequality. The First practitioner of ConstitutionalMorality must be the “Indian State”.

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66. The next tenet of constitutional morality was a deeplyabiding suspicion of all claims that were said to be apersonification of the expression ‘will of the people’.A clear corollary of this is that such a manifestationwould lead to the usurpation of power oroverreaching of the fundamental provisions of theConstitution. The principle of ConstitutionalMorality cannot allow expressions of the will of thepeople, or alleged expressions of the will of the peopleto eclipse the values of the Constitution. One wouldhave to give credence to the claim that any organ ofgovernment, when asserting that they are amanifestation of the will of the people, would bevesting themselves with an extraordinary amount ofundeserved power over others. Recent expressionsof police power by the State exemplify the same. Tobe sworn in to act according to the Constitution is adaunting task. It requires constant inner scrutiny andself-awareness apart from the understanding of socialphenomena objectively.

67. Dr. Ambedkar, while a fierce supporter of theimportance of religious worship (bhakti) of God, (bywhatever name He be called) was against the conceptof hero worship in politics, observing that it was a“sure road to degradation and to eventualdictatorship”33.

68. This view took into its scope Dr. Ambedkar’saversion to the caste system in India as exclusionistand just another manner for the stronger majority to

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impose its will on the weaker minorities. He asserteda relationship between caste and class in India andheavily criticized as the concept that “closed doors”of one caste on another creating an endemic dividethat could not be transversed and ensuring that the‘lower varnas/castes’ would remain powerless whilesecuring further power for the ‘higher varnas/castes’.34

69. Next, constitutional morality negates any form ofagent or agency that promoted itself on the basis ofdoing the good of the whole. In other words, itdisallows absolute utilitarianism. All claims ofpopular sovereignty are therefore contrary to thatconcept.

70. For constitutional morality to subsist and proliferate,there has to be a culture of open criticism. Thepresence of the culture of ‘open criticism’ needed tobe encouraged in the Indian context. In the currentpolitical situation, one can say with certainty that hewas not very far from his estimate of the Indianpopulace and its cultural beliefs. Not long ago, in2006, Fali S. Nariman said:

“We will never be able to piece together a newConstitution in the present day and age even if wetried: because innovative ideas—however brilliant,howsoever beautifully expressed in consultationpapers and reports of commissions—cannot give us abetter Constitution. In Constitution-making there areother forces that cannot and must never be ignored—

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the spirit of persuasion, of accommodation and oftolerance—all three are at a very low ebb today.”35

71. When looking at these principles as a whole thereare some clear observations that come to the fore.Constitutional morality paid homage to a manner ofpolitical organization that could only survive if therewas constant adherence to its principles and constantvigilance against the desire to make outcomes takeprecedence over the method of reaching them. Theprinciple encourages every ‘citizen’ to be vigilant ofnot only his or her individual rights but also grouprights. It poses a dilemma for every citizen, in that itexpects of him to shun opportunism and distancehimself from circumstances of personal gain wherethey conflict with national or public interest. Asimilar dilemma exists for Governments which findtheir agenda driven programs forbidden by theprinciple of Constitutional morality that does notallow its ‘supreme’ power to be used for a contextother than for which it was granted. Thus, it is nowsettled (for instance) that the power of eminentdomain, though available, could not be invoked to‘steal’ private property. I would not be off the markif I say that it took the judiciary a little over threedecades to reach this position, reference to which firstmade by Ambedkar in 1952 by exhorting the doctrineof “spirit of the Constitution”.

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VI. THE PLIGHT OF INDIA & PROMULGATIONOF THE CONSTITUTION

72. When the Constitution was being drafted, it was bydesign being created to serve in a modern society(which was not yet modern) and was intended to bea futuristic document. Inheritors of a hierarchicalsocial structure and burdened with a pervasive castesystem, India was still recovering from the violentand bloody fight for freedom it had just endured.Construction of a new social order based on the tenetsof liberty, fraternity and equality were a rather uphilltask. Dr. Ambedkar was aware that India had neverbeen possessed with any manner of democratictradition and to bring order at such turbulent socialtimes and heal the damages wrought by colonialismwas difficult at best.

73. While introducing the Draft Constitution to theConstituent Assembly, Dr. Ambedkar quoted Grotewho had said:

“The diffusion of constitutional morality, not merelyamong the majority of any community butthroughout the whole, is an indispensable conditionof government at once free and peaceable; since evenany powerful and obstinate minority may render theworking of a free institution impracticable withoutbeing strong enough to conquer the ascendancy forthemselves.”

Thereafter, Dr. Ambedkar added further and stated:

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“While everybody recognized the necessity ofdiffusion of constitutional morality for the peacefulworking of the democratic constitution, there are twothings interconnected with it which are not,unfortunately, generally recognized. One is that theform of administration must be appropriate to andin the same sense as the form of the Constitution.The other is that it is perfectly possible to pervertthe Constitution, without changing its form bymerely changing its form of administration and tomake it inconsistent and opposed to the spirit of theConstitution.

……The question is, can we presume such a diffusionof constitutional morality? Constitutional moralityis not a natural sentiment. It has to be cultivated. Wemust realize that our people have yet to learn it.Democracy in India is only a top-dressing on anIndian soil which is essentially undemocratic.”36

74. Unlike the United Kingdom, a nation that has had along and illustrious Parliamentary democracy, andyet has had no need for a written Constitution, Indiawas unprepared for the task that lay before it. It waserosion of democratic tradition and social trust duringthe colonial regime that leads to one of the lengthiestwritten constitutions. As critically observed by SirIvor Jennings in 1951 while delivering a speech atMadras University he said, that Indian Constitutionwas:

“Too long, too rigid, too prolix”37

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I must respectfully disagree.

75. Dr. Ambedkar justified the length by stating thatsince there was a patent lack of diffusion ofConstitutional Morality, it was necessary that theConstitution be written out in much greater detailas guidance for people. It could be said that thestronger the tradition of Constitutional Morality ofa nation, the lesser was needed to put downeverything in black and white.38 This is the reasonwhy the Indian Constitution goes to great lengths inexplaining the complex web of administration,something that normally absent from a‘constitutional document’.

76. It is further to be remembered that ‘diffusion ofconstitutional morality’ is a necessary preconditionfor working of the Constitution. This is more sobecause written constitutions often require persistentand unspoken efforts to ensure continued adherenceto the principle. In fact, there is a silent assumptionof an independent judiciary in every writtenConstitution guided by the principle ofConstitutionalism.

VII. JUDICIAL ROLE IN DIFFUSINGCONSTITUTIONAL MORALITY

77. As observed before, there are matters enumerated inthe Constitution that could be considered expressionsof Constitutional Morality. Fundamental Rights andDirective Principles of State Policy enumerated inPart III and Part IV respectively are actual expressions

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of the guarantees and aspirations of the framers ofthe Constitution. Such expression of guarantees andidealism may also hold a key to understanding thesilence of the Constitution where constitutionalmorality is eloquently encapsulated. In my view, suchrights or ideals by themselves are not the goals thatthe Constitution seeks to achieve.

78. With a fierce and independent judiciary, the attemptson the incursion of rights and subversion of theConstitution (including by attempting to change theflavor of rights) have successfully been repelled. Yetthere are no full stops of complacency. In the process,tools of interpretation traditionally available tolawyers and judges have been adequately deployedto build a perimeter fence around the Constitution.

79. In my view, the enunciation of the Doctrine of BasicStructure is a manifestation of one of the ways inwhich the judiciary has protected the Constitution.The Doctrine, it appears, was evolved to implement‘Constitutionalism’ and to protect the Constitutionfrom what Dr. Ambedkar termed as efforts to‘pervert’ the Constitution.39

80. An ideal description of Doctrine of Basic Structureis given by Carl J. Friedrich is as below:

“A Constitution is a living system. But just as in aliving, organic system, such as the human body,various organs develop and decay yet the basicstructure or pattern remains the same with each ofthe organs having its proper function, so also in a

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Constitutional system the basic institutional patternremains even though the different component partsmay undergo significant alterations. For it is thecharacteristic of a system that it perishes when oneof its essential component parts is destroyed.”40

81. In the initial days, way back in 1952, in the case ofState of Bihar v. Kameshwar Singh41, reference wasmade to the spirit of the Constitution The tenor ofDr. Ambedkar’s arguments reflect the ideals of whatthe Drafting Committee was attempting to protect.The Constitution (First) Amendment Act, 1951 thatinserted Articles 31-A and 31-B into the Constitutionrelated to agrarian reforms. Dr. Ambedkar, whohimself appeared for some of the Zamindars fromState of Uttar Pradesh submitted that:

“Dr. Ambedkar… maintained that a constitutionalprohibition against compulsory acquisition ofproperty without public necessity and payment ofcompensation was deducible from what he called the“spirit of the Constitution”, which, according to him,was a valid test for judging the constitutionality of astatute. The Constitution, being avowedly one forestablishing liberty, justice and equality and agovernment of a free people with only limitedpowers, must be held to contain an impliedprohibition against taking private property withoutjust compensation and in the absence of a publicpurpose.”

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Notwithstanding the erudite submissions of Dr.Ambedkar, the Supreme Court held that:

“In the face of the limitations on the State’s power ofcompulsory acquisition thus incorporated in the bodyof the Constitution, from which “estates” alone areexcluded, it would, in my opinion, be contrary toelementary canons of statutory construction to read,by implication those very limitations into entry 36of List II alone or in conjunction with entry 42 ofList III of the Seventh Schedule, or to deduce themfrom “the spirit of the Constitution”, and that, too,in respect of the very properties excluded”.

The Court expressly rejected Dr. Ambedkar’sargument that “…the spirit of the Constitution is avalid test for judging the constitutionality of theimpugned Act.”42 An argument rejected – butresurfaced as the “basic structure”!

82. In 1967, in I.C. Golaknath v. State of Punjab43, theSupreme Court (through Chief Justice K. Subba Rao)had laid down that even Constitutional Amendmentis “law” within the scope of Article 13, and thus, alaw that abridges fundamental rights guaranteed inPart III of the Constitution is invalid. The SupremeCourt held:

“98. This brings us to the question whether the word“law” in Art. 13(2) includes an amendment of theConstitution, and therefore, there is an expressprovision in Art. 13(2) which at least limits the powerof amendment under Art. 368 to this extent that by

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such amendment fundamental rights guaranteed byPart III cannot be taken away or abridged. We havealready pointed out that in Sankari Prasad’s case, aswell as Sajjan Singh’s case, it has already been held,in one case unanimously and in the other by majority,that the word “law” in Art. 13(2) does not include anamendment of the Constitution, and it is thecorrectness of this view which is being impugnedbefore this Bench, Article 13 is in three parts. Thefirst part lays down that “all laws in force in theterritory of India immediately before thecommencement of this Constitution, insofar as theyare inconsistent with the provisions of this Part, shall,to the extent of such inconsistency, be void”. Furtherall previous constitutional provisions were repealedby Art. 395 which provided that “the IndianIndependence Act, 1947, and the Government ofIndia Act, 1935, together with all enactmentsamending or supplementing the latter Act, but notincluding the Abolition of Privy Council JurisdictionAct, 1949, are hereby repealed”. Thus it is clear thatthe word “law” in Art. 13(1), does not include anylaw in the nature of a constitutional provision, forno such law remained after the repeal in Art. 395.”

83. Late Member of Parliament, Sri Nath Pai had moveda Bill in the Parliament to “restore” the power ofParliament to amend the chapter on fundamentalright as he believed that the Supreme Court had(wrongly) doubted the wisdom of the elected.Perhaps, this could be regarded as the origin of the

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phrase “Tyranny of the Unelected”.44 However,looking back, it can be safely said that the SupremeCourt was only attempting (bravely) to locate andpropagate constitutional morality amongst thecitizens and the State. Though Nath Pai was notsuccessful, however, others later did move a Bill calledthe Twenty Fourth Constitutional Amendment Bill,1971 to get over the difficulties posed by Golaknath.The Twenty Fourth Constitutional Amendment wasan attempt by Parliament to overcome Golaknath.

84. The Twenty Fifth Constitutional Amendment Billintended to irrevocably divest the Supreme Court ofthe power to go into the quantum of ‘compensation’for take-over of property for public purpose, andaccordingly the word ‘compensation’ was to bereplaced by the word ‘amount’. The Bill wasdescribed by the then Government as a “small butnecessary step” towards the fulfilment of the goal ofsocialism.

85. In my view, the Twenty Fifth ConstitutionalAmendment was a significant affront to the principleof Constitutional Morality, which sought to dilutethe promises of a written Constitution, just bychanging a few words in the document. This is exactlythe perversion that Dr. Ambedkar had referred to inhis Motion re Draft Constitution on 4th November1948.

86. The Twenty Fifth Constitutional Amendment hadtwo main amendments. Firstly, to Article 31(2) that

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allowed the State to acquire any person’s property,subject to the payment of an ‘amount’ instead of‘compensation’. This would essentially lead to theexpansion of the powers of the State/ Executive toconfiscate the property of the citizens and the citizenwould be subject to the convenience of the State forreturn on the requisite amount. The obviousintention of Parliament (in the exercise of itsconstituent powers) was to obviate judicial review insuch matters. The second addition was the insertionof Article 31-C. Any law under the guise of beingbeneficial to the economic system would find safehaven under its provisions.

87. This amendment, one can clearly see was a weapon.A weapon that not only could be used against theFundamental Rights most effectively but even moreso, was a weapon of convenience, one that any lawcould use to protect itself, while it destroyed Rightsof the citizens and through that, constitutionalmorality. W. B. Yeats had said:

“No Government has the right, whether to flatterthe fanatics or in mere vagueness of mind, to forgean instrument of tyranny and say that it will neverbe used”45

88. The case of R.C. Cooper v. Union of India46 was acall for such realization. Popularly called the BankNationalization case, here it was observed that thereneeds to be a balance between the public good andthe needs of the State. There can be no overturning

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of this fine balance and negation of either one wouldbe catastrophic to all. Fundamental rights cannot beabrogated by the State. The Court had made it clearthat Fundamental Rights are a gamut of rights andhave to be viewed as being indispensable. Thus,constitutional morality involves not merely theobservance of restraint but requires a greaterparticipation in plainly self-democratisation whichmeans to a considerable degree, self-negation andyielding to concepts of social good and public trust.

89. A case that truly identified the judicially manageablestandard of ‘Constitutional Morality’ by evolvingwhat came to be called the Doctrine of Basic Structurewas that of Kesavananda Bharati47. More popularlyknown as the Fundamental Rights case, many haveobserved that it was truly the pinnacle of the Stateaction to mould the Constitution to fulfil a need thatwas considered prevailing at the time.

90. In Kesavananda Bharati, it was observed that whilethe power of amendment is unreserved, nonethelessthere could be no alteration of the essence of theConstitution. The Supreme Court allowed Article31-C to stand to the extent that it did not alter thebasic structure of the constitution. Hence, all featuresthat were held integral to the Constitution wereimmune to the amending powers of the Parliament.

91. It is fair to heed Baxi’s warning that:

“…it is simply unforgivably naïve, for anyone to lookfor, or to claim to have discovered, the ratio decidendi

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of a case; all that one can aspire to do is to elucidate aset of principles and to indicate the weight ofagreement or disagreement attaching to eachprinciple.”48

92. N. A. Palkhivala, who also appeared in KesavanandaBharati commented that:

“Parliament cannot, in the exercise of its amendingpower, alter the basic structure or framework of theConstitution. For instance, it cannot abolishsovereignty in India or the free democratic characterof the State; nor can it impair the integrity and unityof India or abolish the States. The amending powercannot be so exercised as to make the Constitutionsuffer a loss of identity”49

93. Various subsequent judicial pronouncements showthat courts began to prioritize Fundamental Rightsafter guidance was made available in the KesavanandaBharati case, recognizing the importance of societalrights, sometimes over those of the individual.Considering themselves as trustees of theConstitution, the Judges of the Supreme Court couldnot allow State sponsored abrogation of theConstitution, and devised a method to limit theConstituent power of Parliament.50 It was reasonedby the Supreme Court that if Basic Structure of theConstitution was distorted to fulfil any presentlyprevailing need, it would leave the Constitutionunrecognizable, and all the commitments made bythe Drafting Committee in 1950, and constitutional

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morality itself, would be left as a vague memory.

94. One of the dark periods that comes to my mind wasthat of the case of A.D.M. Jabalpur case v. ShivkantShukla51 or the Habeas Corpus case. This, in recentmemory, was a divestiture by the Supreme Court ofmany of the principles that have come to hold greatpreeminence in our Constitutional scheme. Inessence, the judges of the Supreme Court abrogatedrights in relation to life and liberty.

95. The judgment disallowed any person, in light of thePresidential order passed to file any writ in the natureof Habeas Corpus or any other, against an order ofdetention on the ground that the order was not inconsonance with the statute or was malafide. Thiswas truly the darkest of hours, when we forgoteverything that made us a democracy. Justice H.R.Khanna’s lone dissent in A.D.M. Jabalpur appearedas a ray of hope and he has gone down in the historyas one of the most valiant judges of India.52

96. It is evident that the various opinions of individualjudges in Kesavananda Bharati clearly show thatthere is an unspoken dilemma arising out of theprinciple of Constitutional Morality.

97. The fact that we have to keep in mind is vigilance,Constitutional Morality demands continuousvigilance, against oneself, against all organs ofgovernment and against the arbitrary use of power.During ADM Jabalpur, that is what we lacked, and

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as a result, we came very close to losing who we are,a democracy.

98. In Dr. D.C. Wadhwa & Ors. v. State of Bihar &Ors.53, it had been held that any challenge to theconstitutional validity of a law could be tested onthe touchstone of the ‘core of our constitutionalscheme’54. Laws needed to be tested on a value thatwas outside the black and white text of theConstitution. There could not be promulgation lawsthat would not adhere to the very core values thatthe Constitution stood for. This also, to my mind,exemplifies the judicial discovery of ‘constitutionalmorality’, although without specific regard to it.

99. From rejection of Dr. Ambedkar’s argument of“spirit of the Constitution” in 195255 toD.C.Wadhwa’s test of the core of the Constitution– the theory of Constitutional Morality hasaccompanied the Supreme Court in its journey.

100. Another case that made a severe impact was that ofI.R. Coelho v. State of Tamil Nadu56. The case isone of the recent judgments that delineated theenigmatic nature of basic structure. At this stage arather appropriate quote in M. Nagraj v. Union ofIndia57 (a case that came before Coelho’s) comes tomind, one that can bring to mind the idea that thebasic structure doctrine, though not found in text,was indeed an expression of constitutional morality;“Systematic principles underlying and connecting theprovisions of the Constitution, these principles give

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coherence to the Constitution and make it an organicwhole. These principles are part of Constitutionallaw even if they are not expressly stated in the formof rules”.

101. It was observed in Coelho’s case that it was necessaryto examine “whether invasion was necessary and ifso to what extent.”58 Coelho’s case developed adistinction between two types of values that formpart of the Constitution. The textual provisions andthe overarching values that form part of basicstructure. It may be considered that this is the firsttime that constitutional morality was actually beingexpressed with reference to its definition, albeit byanother name. This recognition of the preeminenceof the foundational values behind textual rights is justan expression of what the Drafting Committeeenvisioned.

102. The case lead to the “rights test” and the “essence ofrights test”. The names of these tests make theoutcome clear, it is the essence of the right that wouldfall within the ambit of basic structure. In my view,the essence of the right is close to the principle ofConstitutional Morality, and I would say is anexpression of Constitutional Morality. It was heldthat the very essence of rights that have to beprotected and adhered to, no matter what themotivation might be to contravene them.

In Coelho, the Supreme Court has further held that

“147….The point to be noted is that the application

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of a standard is an important exercise required to beundertaken by the Court in applying the basicstructure doctrine and that has to be done by theCourts and not by prescribed authority under Article368….”

103. In Supreme Court Advocate on Record Associationv. Union of India59 or the NJAC Case, the SupremeCourt repelled the suggestion that Basic StructureDoctrine was outside the Constitution. Speaking, ina judgment written with great care and strength ofreasoning, Khehar, J. held that:

“348.This Court, while carving out each of the above“basic features”, placed reliance on one or moreArticles of the Constitution (sometimes, inconjunction with the preamble of the Constitution).It goes without saying, that for carving out each ofthe “core” or “basic features/basic structure” of theConstitution, only the provisions of the Constitutionare relied upon. It is therefore apparent, that thedetermination of the “basic features” or the “basicstructure”, is made exclusively from the provisionsof the Constitution…”

104. Thus, while constitutional morality is an importantfeature of the Constitution, grounded inConstitutionalism, the doctrine of basic structure, isonly an expression of that principle of constitutionalmorality.

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VIII.OTHER TOOLS TO REALISECONSTITUTIONAL MORALITY

105. The nature of the relationship between the citizenand the State is a rather tenuous one. The citizenry,by nature are suspicious and skeptical of the State as,in exercising its powers, it has been known to impingeon the rights of the people. It is this situation thatconstitutional morality attempts to ameliorate.

106. When formulating the Constitution, the DraftingCommittee, and Dr. Ambedkar were cognizant ofthe fact that the nation was unprepared for the taskthat lay ahead. To propagate constitutional moralityinto the general populace, there needed to be certainchecks in place, to control the new regime ofgovernment and arm the citizens with certain toolsthat would further these aims. The Courts,interpreted the provisions of the Constitution in wideterms to aid in realizing the aims of the DraftingCommittee and provide safeguards against theunilateral action of the State in the exercise of itspowers. This aided in realization of constitutionalmorality.

107. What could be considered one of the most effectivetools in enabling constitutional morality, and againstarbitrary action by the State is the right of freedomof the press. Read into the right of freedom of speechand expression under Article 19(1)(a), the right offreedom of the press is critical to buttress the tenet ofconstitutional morality.

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108. Unlike the Constitution of the United States, whilethere is no express written provision for the freedomof the press, the Courts while interpreting the ambitof the right to freedom of speech and expression underArticle 19(1)(a) have come to read the right to freedomof the press into its provisions. The freedom of speechand expression is an expression of one’s opinions,beliefs, and thoughts by word of mouth, the writtenword or in any other form.

109. The right of freedom of the press grants the peoplewith intrinsic power in relation to the decision-making processes. A free press, that is neither directednor controlled (directly or indirectly) by the State isessential to a democracy. The role of the freedom isto keep the citizen informed, so when the time comesto make political decisions, the citizenry is completelyinformed and keeps the roads of dialogue andinformation between the State and Citizens open.60

110. It is apparent that the Supreme Court wheninterpreting Article 19(1)(a) was intent to enablingthe citizenry to have the most comprehensiveknowledge of the workings of the State. Thisknowledge would both educate the citizens of thenation and would effectively impart information sothat they may make informed decisions when relatingto their government. While subject to reasonablerestrictions as laid out by Article 19(2) it was aptlyobserved by Patanjali C.J., in the case of RomeshThapar that:

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“9. … Thus, very narrow and stringent limits havebeen set to permissible legislative abridgement of theright of free speech and expression, and this wasdoubtless due to the realisation that freedom of speechand of the press lay at the foundation of all democraticorganisations, for without free political discussion nopublic education, so essential for the properfunctioning of the processes of popular Government,is possible.”61

Undoubtedly, free speech and expression is notpossible unaccompanied by education. In fact, theRight to Education may well have been incorporatedas a fundamental right, or alternatively courts couldhave interpreted as subsidiary to right to speech andexpression. What could one speak if one is noteducated ?

111. The right to education was a duty, put upon the Statethrough the provisions of Articles 41 and 45.Enshrined in Part IV of the Constitution, a duty wascast upon the State to provide both effectiveprovisions for education, within a State’s financialcapacity62 and the more stringent demand thateducation is provided to all children up to the age of14 years within a period of 10 years63.

112. While this could be seen as effective steps towardseducating the populace, the Courts of India havefurthered the ambit of these Directive Principles ofState Policy by likening them to Fundamental Rights.As the end aim is to have an educated and free

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thinking nation, in my opinion, no step towardsfurthering these aims, in adherence to the law is toogreat. It was observed in Mohini Jain (Miss) v. Stateof Karnataka64 by Kuldip Singh J. that:

“9. The directive principles which are fundamentalin the governance of the country cannot be isolatedfrom the fundamental rights guaranteed under PartIII. These principles have to be read into fundamentalrights. Both are supplementary to each other. TheState is under the constitutional mandate to createconditions in which the fundamental rightsguaranteed to individuals under Part III could beenjoyed by all. Without making “right to education”under Article 41 of the Constitution a reality thefundamental rights under Chapter III shall remainbeyond the reach of large majority which is illiterate.”

113. In Unni Krishnan, J.P. and Others v. State ofAndra Pradesh and Others65 the Supreme Courtagain observed :

“165. It is thus well established by the decisions ofthis Court that the provisions of Part III and IV aresupplementary and complementary to each other andthat fundamental rights are but a means to achievethe goal indicated in Part IV. It is also held that thefundamental rights must be construed in the light ofthe directive principles. …”

114. These observations make it patently clear that theCourts understood the pressing need to ensure thatthe right to education be given to all. Indeed the

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intervention by the State lead to inclusion of Article21A in the Constitution.

115. In furtherance of the aim to grant an education toeveryone, the Eighty-sixth Amendment Act, 2002inserted Article 21-A into the Constitution thatprovides the right to education under Part IIIformalizing it as a fundamental right. Article 51-A(k) under Part IV-A was also inserted, that cast a dutyon parents or guardians to provide opportunities foreducation for their children or wards. This requiresthe State to take concrete steps to provide high qualityeducation in schools as well as colleges. Reliance uponprivate sector schools is hardly an answer. Thefloating of schemes including mid-day meal schemesfor children is not sufficient by itself unless the Stateacts out of conviction and ensures that deliverablesare qualitatively commensurate with true intent.

116. When the Preamble was being drafted, despite thefact that the word “secular” was not present (it wasinserted by the Constitution (42nd Amendment) Act,1976) there can be no doubt that despite the lack ofnomenclature, India was indeed a secular country.In other words, there could not be an asymmetrybased on religion.

117. In a nation that is both vast in size and divergent inbeliefs, Dr. Ambedkar and the Drafting Committeewere aware of the fact that State can never be eithertheocratic or anti-religion66. Articles 25 to 28constitute the freedom of religion, and putting those

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rights outside the amending power of the State makesit clear that they are (as intended by the DraftingCommittee) indeed a basic feature of theConstitution.

118. While the term religion was not defined anywherein the Constitution, likely due to the foresight of theDrafting Committee to not limit the word bydefining it, the Supreme Court has in Commr.Hindu Religious Endowments v. Sri LaxmindraThirtha Swamiar of Sri Shirur Mutt67 observedthat:

“17. …Religion is certainly a matter of faith withindividuals or communities and it is not necessarilytheistic. There are well known religions in India likeBuddhism and Jainism which do not believe in Godor in any Intelligent First Cause. A religionundoubtedly has its basis in a system of beliefs ordoctrines which are regarded by those who professthat religion as conducive to their spiritual well being,but it would not be correct to say that religion isnothing else but a doctrine or belief. A religion maynot only lay down a code of ethical rules for itsfollowers to accept, it might prescribe rituals andobservances, ceremonies and modes of worship whichare regarded as integral parts of religion, and theseforms and observances might extend even to mattersof food and dress.”

119. This necessary expression of the people has to beprotected as, in India, personal identity is intrinsically

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entwined with one’s religious beliefs. Articles 25 to28 are the Drafting Committee’s commitment toallowing true expression of a person’s most personalbeliefs, no matter if they are not in consonance withothers.

120. The Supreme Court, in a true enunciation of theprogressive expression of the rights enshrined inArticles 25 to 28 and while expressing trueunderstanding of the religious rights of the individualand promoting expression of the same observed inBijoe Emmanuel and Others v. State of Kerala andOthers68 on the question of expulsion of Jehovah’sWitness students for not singing the NationalAnthem but instead standing respectfully while it wassung that:

“18. … Article 25 is an article of faith in theConstitution, incorporated in recognition of theprinciple that the real test of a true democracy is theability of even an insignificant minority to find itsidentity under the country’s Constitution. This hasto be borne in mind in interpreting Article 25.”

121. In my opinion, while religion plays a crucial role andis part of the very bedrock of our nation, it has alsobeen a cause for social division and stratification. Andwhile critical to the history of a nation, it could beconsidered to be an antithesis to the ideals ofconstitutional morality.

122. Yet, it is apparent that the Courts are aware of this

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fact. In Bal Patil v. Union of India69 the SupremeCourt took the view that:

“37. …Differential treatments to linguistic minoritiesbased on language within the State is understandablebut if the same concept for minorities on the basis ofreligion is encouraged, the whole country, which isalready under class and social conflicts due to variousdivisive forces, will further face division on the basisof religious diversities. Such claims to minority statusbased on religion would increase in the fond hope ofvarious sections of people getting special protections,privileges and treatment as part of the constitutionalguarantee. Encouragement to such fissiparoustendencies would be a serious jolt to the secularstructure of constitutional democracy. We shouldguard against making our country akin to a theocraticState based on multinationalism. Our concept ofsecularism, to put it in a nutshell, is that the “State”will have no religion. The States will treat all religionsand religious groups equally and with equal respectwithout in any manner interfering with theirindividual rights of religion, faith and worship.”

This view, I believe has the right of it, whilemaintaining the freedom of religion,it ensures thatno single faith can reign supreme.

123. India is home to a vast array of minorities. Acornerstone of the nation is the fact that despite thedivergence of religion, caste, creed etc., all minoritiesshould live together in peace and amity. They should

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be able to contribute unhesitatingly to the commonculture and have a right to participate in the mouldingof the political destiny of the nation.70 This aim isessentially the furtherance of constitutional morality.

124. There is an intrinsic danger in this as well. Aspropounded by Grote, there should never be anyform of popular majority. Any form of power thatputs itself forward as being the will of the peoplewould be in very real danger of turning despotic andoverpowering the minority.

125. Couched in negative language, Article 21 is a rightthat the Drafting Committee saw that would protectboth citizens and non-citizens as well. Conciselyobserved by Field J. in Munn v. Illinois71 the rightto life was:

“By the term ‘life’, as used here, something more ismeant than mere animal existence. The inhibitionagainst its deprivation extends to all those limbs andfaculties by which life is enjoyed”

126. The security of Article 21 is a safeguard againstexecutive encroachment. For the citizenry to beempowered and free to make decisions regarding theirfuture and their nation they cannot fear the State.The objective of the Drafting Committee was simplyto restrain the State from proceeding against the lifeor personal liberty of the individual without theexpress backing of law.

127. The judgment of Kharak Singh72 was the first time

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that the Supreme Court made a defining judgmenton the term ‘personal liberty’. While granting theterm the widest possible amplitude, it was observed:

“13. …The right to move about being excluded itsnarrowest interpretation would be that itcomprehends nothing more than freedom fromphysical restraint or freedom from confinementwithin the bounds of a prison; in other words,freedom from arrest and detention, from falseimprisonment or wrongful confinement. We feelunable to hold that the term was intended to bearonly this narrow interpretation but on the other handconsider that “personal liberty” is used in the Articleas a compendious term to include within itself all thevarieties of rights which go to make up the “personalliberties” of man other than those dealt with in theseveral clauses of Article 19(1). In other words, whileArticle 19(1) deals with particular species or attributesof that freedom, “personal liberty” in Article 21 takesin and comprises the residue…”

128. It is clear from this decision that, the Supreme Courtintended that the widest possible amplitude is givento the provisions of Articles 21 and 19(1)(d). There isa clear basis for this, and in my opinion, this is thebest manner to effect constitutional morality, andthrough that a fearless and confident nation whereideas and thoughts cannot be the subject ofpenalization.

129. In the landmark judgment of Maneka Gandhi v.

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Union of India73 the amplitude given by the SupremeCourt to Article 21 can be considered a truemanifestation of the essence of both the Article, aswell as a true intention of the Courts to elevate thecitizens of the nation, thus empowering them.

“76. To sum up, personal liberty makes for the worthof the human person. Travel makes libertyworthwhile. Life is a terrestrial opportunity forunfolding personality, rising to higher states, movingto fresh woods and reaching out to reality whichmakes our earthly journey a true fulfilment—not atale told by an idiot full of sound and fury signifyingnothing, but a fine frenzy rolling between heavenand earth. The spirit of Man is at the root of Article21. Absent liberty, other freedoms are frozen.”

130. In my opinion, this right is pivotal to aid the citizensof the nation and here I believe that the SupremeCourt has, by vesting the nation with this safeguard,has taken strides towards the end goal that isconstitutional morality.

131. In my view, the study of Indian constitutionalism isindeed one of the most fertile grounds for scholarsand sociologists to understand the way in which theConstitution is written and the way in which itsuffers, its sprit being violated on more than oneoccasion. I must add that in his characteristicallyperceptive way Baxi describes that: -

“…the Indian Supreme Court’s impressiveachievements perhaps disturb the culture of sentiment

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and sensibility that regards the American SupremeCourt as both an exemplar of judicial process andpower in the global paradigm…”.74

132. The importance of a State and the criticism pointedout by Baxi is relevant because the idea of State itselfhas undergone tremendous change. If the State is aprotector, in what way does it protect its citizens?Does it de-nationalise them? Does it disinvest itsnatural resource? Does it mean greater de-regulation?What does “de-nationalisation, disinvestment and de-regulation” called ironically the three Ds by Baxi leadto the status of citizens? Where do rights stand whencitizen feels de-nationalised or disinvested or de-regulated? But who are citizens? Is it the majoritywho are still struggling to keep the body and soultogether much less to dream of the ideals which arecontained in the Constitution? There would be aninstance where the rights of individuals would bepitted against the rights of corporations (where suchrights are not group rights of the citizens themselves).

133. In my view, the Government as the custodian ofpower, and often, in compliance of or in discharge ofits obligations and responsibility to protect thecitizens must make active choices in favour of thecitizens. If such choices are exclusively in aid of capitalinflow, they might be loaded with questionable valuejudgments and irreversible repercussions. Thus, theflow of capital into a country must never compromisedignity, justice, equality and fraternity.

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134. I am not very clear what would have been the positionof the Union of India which enacted a law to act as‘parens patriae’ to protect the interest of the Bhopalvictims if such an accident had happened now and ifthe shareholding of Union Carbide India could notbe directly traced to the American parent companyin a corporate structure incorporated in variousinternational jurisdictions.75 Thus, the fundamentalaccess of judicial functions in constitutionalism is alsoto question legitimacy of such structures, which mayprovide a smoke-screen from direct accountabilityto law as well as due process in India. The ultimatebeneficiary of any due process in a democracy are itscitizens. Legitimacy is not only an outcome ofConstitutionalism but is also its ingredient.

135. In India, while the due process clause was notincorporated per se but over a period of time themanner in which the fundamental rights have beendefined, expanded and understood, the SupremeCourt did become conscious of moral intendmentthe founding fathers as if the founding fathers werealive when the Constitution came up forreinterpretation.76

136. Baxi says that “the sheer bulk as well as the stunningverbosity of the Indian Constitution remainsunparalleled in the annals of contemporaryConstitutionalism…”.77

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IX. THE INTERNATIONAL PERSPECTIVE

137. In my experience, Constitutional Morality is notsimply a concept that prevails in India. Thoughdifferently named, Constitutional Morality hasindeed surfaced in different jurisdictions in differentguises the world over. One that, I feel could be takenas a direct corollary in relation to our concept ofconstitutional morality is the doctrine of ‘Margin ofAppreciation’ promulgated by the EuropeanConvention on Human Rights. Surfacing at aroundthe same time that India was gaining independence,this can be seen as an international representation ofattempts to locate the immutable feature of aConstituent document, which cannot becompromised.

138. As a body of law, developed by the Strasbourg Court,under the European Convention on Human Rights,the “Doctrine of Margin of Appreciation” wasessential to understand whether any practice or lawadopted by a State contravened the Convention.Aptly put, the doctrine allows a limited latitude thatcould be given to States in their observance of theConvention78, who could not make a law or actcontrary to the core of the rights contained in theEuropean Convention.

139. In my view, the doctrine is similar to that ofconstitutional morality to the extent that it regardsConstitutionalism and rule of law as supreme andmakes them incapable of being compromised. Often

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to apply the doctrine, there is a ‘balancing exercise’that has to be done, i.e. what is the extent the right inquestion is at a cross-roads between communityinterest and individual liberty. The doctrine ofMargin of Appreciation is aimed at resolving inherentconflicts between the individual’s rights and nationalinterests,79 without sacrificing the core.

The adjudication of margin of appreciation involvesexamination of (a) what is the right; (b) what is theincursion; (c) was it necessary at all; (d) and if it was,what was the extent of justification.

140. Thus, State claims of public interest are not going tobe unverified dogmas but will necessarily involve‘strict scrutiny’ of Governmental action. The theoryof margin of appreciation according to ConstitutionalMorality will necessarily involve strict scrutiny ofGovernmental behavior. Theory of margin ofappreciation is different in respect of legislation,whose validity for the purposes of reasonableness istested on the principles of reasonable classification.Even while determining how reasonable is the class,the theory of margin of appreciation has beenfarsightedly explained by the Indian Supreme Courtas the furnishing of nexus between the classificationand the object sought to be achieved. In view of theadvancement of the principles of equality to includenon-arbitrariness, the theory of margin ofappreciation in the Indian context will also enablethe courts to examine the nature of the class and isthe class well formed.

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141. The principle of margin of appreciation furtherdeploys doctrine of proportionality. It may beobserved that the main aim of the doctrine is thatmember States exercise self-restraint. It is hardlynecessary to state that in essence, this is exactly whatconstitutional morality intends to impart as well.

X. CONCLUSION

142. We have, as a nation, understood the principle ofConstitutional Morality, and have through trial anderror tried to implement it. Most recently theSupreme Court, while balancing constitutional valuesand Fundamental Rights observed in Adi SaivaSivachariyargal Nala Sangam v. State of T.N.80;

“48. …The requirement if constitutional conformityis inbuilt and if custom or usage is outside theprotective umbrella afforded and envisaged byArticles 25 and 26, the law would certainly take itsown course. The constitutional legitimacy, naturally,must supersede all religious beliefs and practices.

49. The difficulty lies not in understanding orrestating the constitutional values. There is not aniota of doubt on what they are. But to determinewhether the claim of State action is furtherancethereof overrides the constitutional guarantees underArticle 25 and 26 may often involve what has alreadybeen referred to as a delicate and unenviable task ofidentifying essential religious beliefs and practices,sans which the religion itself does not survive. It is inthe performance of this task that the absence of any

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exclusive ecclesiastical jurisdiction of this Court, ifnot other shortcomings and adequacies, that can befelt...”

143. This observation makes it clear that the SupremeCourt is making a conscious effort to diffuseconstitutional morality during the process ofinterpretation of the Constitution and impartingjustice.

144. To leave you with the words of Nani Palkhivala,(during the Privy Purses case81 where a midnightexecutive order by the Government of Indiaderecognized Princes, in flagrant disregard ofprocedure) said that:

“The survival of our democracy and the unity andintegrity of the nation depend upon the realizationthat constitutional morality is no less essential thanconstitutional legality. Dharma (righteousness; senseof public duty or virtue) lives in the hearts of publicmen; when it dies there, no Constitution, no law, noamendment can save it.”82

145. We must admit that there have been times when wehave lost all that we hold dear through one arbitraryact of the Legislature, the Executive or the Judiciary.Further, in a nation as political as ours, there are timeswhen political motivations move the Judiciary as wellas they may move any other organ of theGovernment. We have to be ever vigilant of thetemptation to act arbitrarily. We as individuals,nation, and a democracy need to be ever watchful.

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146. The rising trajectory of Indian youth has perhapsmore rational foundations. They observe and thereis something of “the rational humanist in them”which seems to be exercised. When Nirbhayahappened they decided to make their protest felt andperceived. The Justice J.S. Verma Committeeattempted to respond to it as best as it could.Legislative amendments happened in record time.Where there is a will there is always a way. India’scitizenry is enlightened. It is considerate. It iscompassionate. We must place faith in our ownpeople. At the same time, we must develop a certainindigenous respect for our own genius. We mustrespect what we produce, what we can make for ourown selves.

147. More importantly and above all, we all have tocultivate and propagate Constitutional Morality.This, in my view, is the unwritten ConstitutionalDuty on every citizen and obligation of every officerof the State.

148. The Constitution was drawn up under the leadershipof a man like Dr. Ambedkar whose writings displaya unique understanding of his knowledge of worldhistory. If one reads carefully, one should be able todiscern in his writings the glimpses of world historywhich fashioned his beliefs. It is necessary that wepay tribute to him by living up to his ideals of secularas well as rational living under the Constitution.*

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References :

1 Barker, Ernest. “Politics of Aristotle.” (1962), p. 233.

2 Ref. President’s Speech on perils of judicial activism - http://indianexpress.com/article/india/india-news-india/president-pranab-mukherjee-judges-judicial-activism-2756135/ - last accessedon 20th April 2016.

3 See Richard Nobles and David Schiff, Civil Disobedience andConstituent Power, International Journal of Law Context (2015),11(4), 462-480, at 464: “Democracy offers a grounding forexpressing power once a democratic constitution has come intoexistence, but it cannot establish the constitution itself, as thepolity or nation which is to exercise democratic power does notexist prior to the constitution. It is the constitution whichretrospectively brings this polity into existence. The people areno less of a fiction or presupposition than the other aspects ofthe grundnorm - the norm which must logically pre-exist anyclaim to exercise constituent power in order to give that exercisethe requisite normative meaning”.

4 Shukla, Vijaya Narain, ed. The Constitution of India. EasternBook Company, 2013, pp. A1-A3.

5 On 4th November, 1948, while moving the Motion re DraftConstitution, Dr. Ambedkar said: “As to the accusation that theDraft Constitution has produced a good part of the provisionsof the Government of India Act, 1935, I make no apologies.There is nothing to be ashamed of in borrowing. It involves noplagiarism. Nobody holds any patent rights in the fundamentalideas of a Constitution. What I am sorry about is that theprovisions taken from the Government of India Act, 1935, relatemostly to the details of administration.”

6 Dicey, Albert Venn. The law of the constitution. Vol. 1. OUPOxford, 2013, p. 146.

7 See Sen, Amartya Kumar. “Democracy as a universal value.”Journal of democracy 10.3 (1999): 3-17.

8 Ward, Leed, Canadian Journal of Political Science / Revuecanadienne de science politique Vol. 38, No. 3 (Sep., 2005), pp.719-744.

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9 Waldron, Jeremy. “Constitutionalism: A skeptical view.” NYUSchool of Law, Public Law Research Paper 10-87 (2012).

10 See Magnarella, Paul J. “Comparative Constitutional LawEnterprise, The.”Willamette L. Rev. 30 (1994): 509, 510. Regardto rule of law comes across the true value that marks the differencebetween mere adherence to the text of the Constitution andConstitutionalism.

11 Id.

12 Woolf, Lord. “The Rule of Law and a Change in theConstitution.” The Cambridge Law Journal 63.02 (2004): 317-330.

13 Id.

14 Id.

15 Spindelman, Marc. “Toward a Progressive Perspective on JusticeGinsburg’s Constitution.” Ohio St. LJ 70 (2009): 1115.-p. 1116

16 Parshall, Lisa K. “Embracing the Living Constitution: JusticeAnthony M. Kennedy’s Move Away From a ConservativeMethodology of Constitutional Interpretation.” NC Cent. L.Rev. 30 (2007): 25. pg. 30

17 135 S. Ct. 2584 (2015)

18 Constituent Assembly Debates, Vol. VIII, pg. 258.

19 Singh, Mahendra P. “Securing the Independence of the Judiciary-The Indian Experience.” Ind. Int’l & Comp. L. Rev. 10 (1999):245, pg. 246

20 Shetreet, Shimon. “Challenge of Judicial Independence in theTwenty-First Century, The.” Asia Pac. L. Rev. 8 (2000): 153,pg. 156

21 International Bar Association Standards, Article 47, http://www.jiwp.org/#!mt-scopus-standards/c14de - last accessed on20th April 2016.

22 Lord Phillips, P. “Judicial Independence and Accountability: AView from the Supreme Court.” UCL Constitution Unit, launchof research project on The Politics of Judicial Independence,London 8 (2011).

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23 Union of India v. R. Gandhi, President Madras Bar Association,(2010) 11 SCC 1.

24 AIR 1982 SC 149

25 AIR 1994 SC 268

26 Id. - pr. 204

27 Supreme Court Advocates-on-Record Association and Anotherv. Union of India – 2015 SCC Online SC 964

28 A History of Greece by George Grote – Reissue by Routledge,London 2000 at page 93: cited in Pratap Bhanu Mehta, “What IsConstitutional Morality?,” Seminar 615 (November 2010), 17–22. 87.

29 Munro, Colin R. “Laws and Conventions Distinguished.” LawQuarterly Review 91. 362 (1975): 218-235.

30 Supra Note 3, at 477: “Civil disobedience represents resistanceand conflict, with disagreement being communicated as protest.Here, to succeed, the acts of protesters have to be understood aspotential breaches of the law. It follows that some contradictionmay arise. If civil disobedience protest is a claim that acts of law-breaking are justified, to achieve that claim others, and especiallyother subsystems of communication, must not in principle acceptthat claim.

31 Learned Hand, “The Contribution of an independent Judiciaryto Civilization” in Irving Dillard (Ed) The Spirit of Liberty, (AA Knopf, 1960) p. 155.

32 Venkatachaliah, M. N., “Common Law, Humanism andConstitutions”, Constitutionalism and Constitutional Pluralism,Ed. P. Ishwara Bhat. Gurgaon: Lexis Nexis, (2013) 53-64.

33 Baxi, Upendra – How not to recall an icon - http://indianexpress.com/article/opinion/columns/how-not-to-recall-ambedkar-2758030/ - last accessed on 19th April 2016

34 Bandhopadhyay, Sibaji – Four shades of irony, one of fury -http://www.outlookindia.com/magazine/story/four-shades-of-irony-one-of-fury/296953 - last accessed on 19th April 2016. Inmy view, The rights of political participation to millenniallyexclude Dalits, the scheduled casts and the scheduled tribes in

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derogation through reservations is also an importantconstitutional feature. Although I have described the pursuit offour sovereign virtues as equality, justice, liberty and fraternity,I appeal to Baxi that they do involve rights, justice, developmentand governance.

35 Nariman, Fali S., The Silences in Our Constitutional Law, (2006)2 SCC (Jour) 15.

36 Id. See also Naz Foundation v. GNCT of Delhi, (2009) 160 DLT277, para 79 (Cf. reversed by Supreme Court in Suresh KumarKoushal v. Naz Foundation, (2014) 1 SCC 1).

37 Supra Note 35. However, as the article notes, when Ivor Jenningsattempt to write a Constitution for Ceylon, he took about 7years.

38 See also Beteille, Andre. “Constitutional morality.” Economicand political weekly (2008): 35-42.

39 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 at page616.

40 Friedrich, Carl Joachim. Man and his government: An empiricaltheory of politics. McGraw-Hill, 1963. p. 272.

41 AIR 1952 Supreme Court 252.

42 Id., Para 74.

43 (1967) 2 SCR 762.

44 There is a strange coalescence in the opinion of the Baxi andSeervai when Baxi remarks that the makers of the IndianConstitution installed detailed conceptions of equality andfraternity. Because they were ‘….distrustful of judicial powerwhose colonial face was oppressive and whose future visage wasillegible…’. (See Infra Note 73)

45 Foster, Robert Fitzroy. WB Yeats: The arch-poet, 1915-1939.Oxford University Press, 2003. p. 376

46 Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 24.

47 Supra Note 38.

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48 Baxi, Upendra. “The Constitutional Quicksands of KesavanandaBharati and the Twenty—Fifth Amendment.” (1974) 1 SCC Jour45.

49 Palkhivala, N. A., “Fundamental Rights: Case Comment” : (1973)4 SCC (Jour) 57 p.

50 In my view the lack of perception of a State, and understandingof the true obligation of a State has been foundational causes ofinsufficient discharge of constitutional duties. While those whooccupies the positions of power do not realise that it is their lackof ‘concept of State’ or ‘perception of State’ which leads to abreach of constitutionalism. In other words a State is meant tobe a protector, a symbol, a guarantor, one which stands forsovereign protection of the Constitution, one which is meant tomaintain and work through the Constitution, by theConstitution and for the Constitution at all points of time.

51 A.D.M. Jabalpur v. Shivakant Shukla, (1976) Supp S.C.R. 172

52 See Khanna, H.R., Role of Judge, (1979) 1 SCC Jour 17.

53 (1987) 1 SCC 378.

54 Id., at 393-94, pr. 7.

55 In my view, in 1952, Ambedkar was cautious that diafferentprevailing “needs” (or projection of needs by the Government)could muddy the values behind the Constitution in an attemptto solve any presently emerging dilemma. There seemed to bevarious amendments to find ‘quick fixes’ to problems,overlooking the immutable principles behind them. This wasessentially the fear that the Drafting Committee had had. Thefear that indiscriminate promulgation of laws by the majoritywould eclipse the values of Constitutional Morality.

56 I. R. Coelho (Dead) by Lrs. v. State of Tamil Nadu, AIR 2007SC 861.

57 M.Nagaraj v. Union of India, AIR 2007 SC 71.

58 Supra Note 56.

59 2015 SCC OnLine SC 964.

60 Shukla, Vijaya Narain, ed. The Constitution of India. EasternBook Company, 2013, pg. 134

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61 Romesh Thappar v. State of Madras, AIR 1950 SC 124.

62 The Constitution of India, Article 41.

63 Id., Article 45.

64 (1992) 3 SCC 666.

65 (1993) 1 SCC 645.

66 Supra Note 60, Pg. A-23.

67 AIR 1954 SC 282.

68 (1986) 3 SCC 615.

69 (2005) 6 SCC 690.

70 Bachal, V. M. “Judicial Interpretation of Article 21 of theConstitution of India.” The Indian Journal of Political Science25.3/4 (1964): 231-240.

71 24 L Ed 77 (1877).

72 Kharak Singh v. State of U.P., AIR 1963 SC 1295. It may berelevant to note that the majority rejected the Respondent’sargument that the Petitioner’s claim would lie before civil courtas the gravamen of the case is essentially a tortious act. TheSupreme Court noticed that they were unwilling to read anyrestrictions on the right (in the nature of exhaustion of remedies)to approach the Supreme Court for enforcement of fundamentalright under Article 32 of the Constitution. Thus, while there isan element of tort in almost all cases of violation of fundamentalrights, they are often not considered in that perspective. It is forthis reason that despite allowing the writs under Article 32,payment of damages is not the rule.

73 (1978) 1 SCC 248.

74 Baxi, Upendra. “Known But an Indifferent Judge: SituatingRonald Dworkin in Contemporary Indian Jurisprudence, A.”Int’l J. Const. L. 1 (2003): 557, 558. The story of reservationshas also been one by which the Indian State has attempted toempower people who were clearly marginalised and were deniedthe title deeds as Baxi refers to ‘….The Title deeds of humanity…’.However, it must be borne in mind by the State that action infavour of the one by way of a reservation must never lead to an

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under utilisation of talent in the general pool. This needs creativeand effective planning, imaginative constructs and above all theoptimum utilisation of resources within the availability of theGovernment in a positive, honest and determined manner. Thiscaveat is necessary because even while strengthening the judicialinstitutions the Government had a great role to play. To providejudiciary with infrastructure, with tools and ensure that the basicrequirements of judicial functioning, both in numbers, qualitativeassistance as well as component assistance were suitably handled.

75 In the contemporary development of the law, the Fundamentalrights of Indian citizens will stand definitely superior to rightsof multinational corporations which might have purely businessinterests and may even be at variance with those of theFundamental Rights of the Indian citizens. The Supreme Courtin my view, while protecting Foreign Direct Investments andmeans of tax structuring in case Vodafone International HoldingsB.V. v. Union of India, (2012) 6 SCC 613 did not consider whatwould be its implications in terms of tortious liability. It wouldbe an interesting academic analysis if one were to apply the factsof Bhopal Gas Case (1989) 2 SCC 540 to the corporate structurein Vodafone case, and still a similar exercise could be done.

76 Baxi’s criticism that Indian justices rely upon the same passagesfrom the Constituent Assembly Debates only to reach differentoutcomes is a valid point. In my view, the correct way to readthe Debates would be to read them as a whole, and speechestherein need to be read over a number of times to determine the(common) principles that were being communicated. Perhaps,it was too early to discern a principle at that point of time becauseit was still a draft that was being discussed. Many rights came tobe judicially pronounced using such tools of interpretation,including the right to privacy.

77 Supra Note 74, at 571. This article would not have been possiblewithout remembering Upendra Baxi. Upendra Baxi, in myopinion, is perhaps one of the all-time great philosophical andlegal scholars, and it was unfortunate that Baxi despite being a‘distinguished jurist’ was not appointed as a judge of the SupremeCourt in terms of Article 124(3)(c) of the Constitution. The samecan be said in respect of Prof. Lotika Sarkar and Prof. P. K.Tripathi.

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78 See O’Donnell, Thomas A. “Margin of Appreciation Doctrine:Standards in the Jurisprudence of the European Court of HumanRights, The.” Hum. Rts. Q. 4 (1982): 474.

79 Benvenisti, Eyal. “Margin of appreciation, consensus, anduniversal standards.” NYUJ Int’l L. & Pol. 31 (1998): 843.

80 (2016) 2 SCC 725.

81 Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.

82 Kumar, Maj Gen Nilendra, ed. Nani Palkhivala A Role Model.Universal Law Publishing, (2014). pg. 50

* I acknowledge the research assistance of my junior Mr. TalhaAbdul Rahman and Ms. Aakanksha Sinh in research assistancefor this lecture.

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Shri D.V. Subba Rao

The quintessential Vizagite"THE justice delivery system in

the present economic dispensation, i.e,market economy, has become mostessential, if not vital. Hence it requiresregulation, both statutory and self.The challenge before the system is toinspire the respect and regard of theentire nation."

That is the belief of D.V. Subba Rao, the first mofussillawyer to adorn the seat of the Bar Council of IndiaChairman. "Lawyers and judges continue to be the sentinelsof our democracy. With my experience of over 40 years inthe profession, I am convinced that subordinate courts andmofussil lawyers who constitute 90 percent of the nationalbar are the backbone of the judicial system."

Inside the court or the tribunal, for that matteroutside too, the soft-spoken Subba Rao's views are heardwith respect and admiration because beneath the eloquentand skilful presentation is his unwavering adherence to highideals. That is why eminent judges like Chandrachud,Bhagawati, Jeevan Reddy and Kirpal and jurists likeNariman, Sorabjee, Parasaran and Venugopal hold him inhigh esteem.

Says the former Chief Justice of India, P.N.Bhagawati: "I was deeply impressed not only by hisintellectual calibre but also by the great sincerity anddiligence with which he argued his client's case. He is aman of high integrity and exceptional character, with large

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experience in public life and breadth of vision which is notconfined to law but extends to a wide range of activities."

As a member of the prestigious Justice V.S. MalimathCommittee on reforms of criminal justice system - it hassince submitted its report - and of the Justice M. JagannadhaRao Committee, constituted by the apex court to suggestways for effective implementation of Section 89(2) of Codeof Civil Procedure, besides being associated with theNatioanl Judicial Academy, which provides training forjudges, lawyers and teachers of law, Subba Rao has doneAP - and Vizag in particular - proud. It must be a mostsatisfying and rewarding work for Subba Rao to be soactively involved in the reform and reconstruction of thenational judical system and legal education and professionin general which he has been serving with distinction anddedication for 46 years.

All this work is in addition to the arduous taskundertaken by him as BCI chief in laying down standardsof legal education and in initiating steps for inculcatingdiscipline in the legal profession. The BCI, which he headsfor the second term now, has embarked upon severalprogrammes to refurbish the image of the bar and the legalprofession by organising seminars and workshops.

He was born with a '`legal spoon' in his mouth asboth his grandfather, Srirama Sastry, and father,Somayajulu, were lawyers of repute. It was, however, hisfather's borther, Seetaramamurthy, popularly known asSeetababu, who was a source of strength and support foryoung Subba Rao when he enrolled as a lawyer in 1957. Bythen Subba Rao was already popular in Vizag as formerpresident of the Andhra University Law College Society,

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as a debater and as captain of the AU cricket team thatwon the inter-collegiate championship for the TirumurthiShield in 1955. The university's famous physical director,the late K. Sudarsana Rao, made a correct assessment ofthe university's sports potential. The cricket team of 1955had players who were individually good but collectivelyineffective. The physical director chose Subba Rao to weldthe team into a match-winning outfit and the result wastriumph for the team in the zonal match at Vizag and thefinals at Anantapur. Twenty years later Subba Raodisplayed similar leadership qualities as Lions Governorwhen Lions International Oak Brook, Illinois, called him"an outstanding writer".

Jawaharlal Nehru was Subba Rao's icon and TennetiViswanadham his role model. But it was N.T. Rama Raowho drafted him into politics first as Chairman ofVisakhapatnam Urban Development Authority in 1985 andtwo years later as Mayor of Visakhapatnam, The decisionto plunge into politics was as hard as the election he foughtto become the Mayor in 1987.

Some of his friends advised him against getting intopolitics, first as VUDA chief and later as Mayor. His replywas that if all good people shied away, politics would neverbecome good. He proved his friends and critics wrong bydemonstrating that honesty and integrity do count in publiclife if only one had the will and the vision to achieve agoal. His term as VUDA Chairman and Mayor saw manythings happening in the 'City of Destiny'. Beautificationof the beach and the city's environs, the completion of theCorporation Stadium where eight international cricketmatches, including a World Cup tie, had been played,launching such projects like Gurazada Kalakshetram,

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museum, Appu Ghar, VUDA Park and aquarium,widening of roads and greening the hill range were amongthe gains for Visakhapatnam. He was the only Mayorselected from India to participate in the UNICEFConference, held at Dakar (Senegal) in 1991, known as`Mayors as Defenders of Children".

For the last 12 years, he is heading the Andhra CricketAssociation. Subba Rao went to the West Indies with theIndian cricket team led by Sachin Tendulkar as itsadministrative manager in 1997. He is a life-member ofPrema Samajam and of several socio-cultural andeducational organisations, including Ramakrishna Mission,Bharati Gana Sabha and Viskha Music Academy. Amoment he cherishes was the welcome he extended to M.S.Subbulakshmi when she and her husband T. Sadasivamcame to Vizag. Touching her feet in respect, Subba Raorecalled the famous words of Jawaharlal Nehru adding that"after all he was a city Mayor before the Queen of Music".

Subba Rao's only disappointment has perhaps beenhis inability to get elected to Parliament. To represent thecity he so passionately loves, to articulate its needs and pleadfor its development, who is better qualified than SubbaRao whose family has ties with the place and its ethos forover a hundred years?

Durvasula Venkata Subba Rao is the quintessentialVizagite. His rise in public life coincided with the city'srise to national and international prominence. Fame andexalted positions have failed to corrode his innate goodnessjust as age has not dimmed his capacity for hard work. Heembodies the spirit of Vizag marked by cultural catholicity,vibrancy of outlook and enduring humility. He is gentle

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in disposition but firm in conviction; soft in expressionbut uncompromising in his adherence to values. Anaccomplished public speaker, he is also a delightulconversationalist with a penchant for anecdotes laced withhumour. His broad and disarming smile puts even strangersat ease. A secret of his smooth and quiet completion of theBiblical span of three score and ten is his ability to take therough and smooth of life in the stride, to laugh at himselfand to strive to live up to the ideal of doing good to societywithout any quid pro quo. Service with humility transcendsevery boundary, including that of law and justice.

A. Prasanna Kumar

THE HINDU Metroplus(Vizag Edition) April 14, 2003

Documents

New “CONSTITUTIONAL MORALITYaprasannakumar.org/s/Constitutional-Morality.pdf · 2020. 6. 3. · ‘constitutional morality’. Thereafter, I would explain the role and centrality