Constitutional Morality: Not Only Domain of Judiciary

The recent series of landmark judgments given by the Supreme Court before Chief Justice Dipak Misra retired had the common theme of constitutional morality running through all of them. It has become the touchstone for any judgment pronounced by the Court, the parameters of constitutional morality have to be met by any law, custom, or policy. While the phrase has come into the limelight quite a lot recently, it can rarely be found being discussed during the Constituent Assembly Debates. The most famous time the phrase was mentioned during the debates was when Dr Ambedkar used it in his last speech before the Constituent Assembly on 4 November 1948. He quoted the classicist Graham Grote at length while defining constitutional morality. According to Grote, constitutional morality meant a paramount respect towards the forms of the constitution, enforcing obedience to authority combined with the principle of free speech and only definite legal control over the actions of citizens. However, Ambedkar understood that adherence to constitutional morality was not a natural sentiment. It had to be cultivated among the people of India. The recent landmark judgements of the Supreme Court like striking downs. 377 of the IPC, Sabarimala Temple entry case, the decriminalisation of adultery and the Aadhar judgement all try to enforce constitutional morality ahead of public morality. The judiciary has taken up the mantle for social reform and protecting the state of our liberal democracy. While the other two pillars of our democracy – the legislative assembly and the executive have taken a back seat. This imbalance has a lot of consequences.

The paramount point to understand here is that it that when Dr Ambedkar talked about constitutional morality not being a natural sentiment and the need for it be to cultivated, it was not meant to be only the job of the judiciary. The legislature and the executive also have an equally important role to play in creating a culture where people adhere to the principles of constitutional morality. When a group of elected representatives do the job of developing a culture of constitutional morality, it has a far wider approach and impact. The process then happens from the grassroots, from the various constituencies and not by a top-down approach where a judicial diktat is imposed on the people. The government through its policies and laws can create an environment where people live by the ideas embedded in the concept of constitutional morality. For example – the Rights of Transgender Bill, 2014 which is pending currently in the Lok Sabha is an example of the legislative branch trying to bring about equality for all in the society. The transgender people who are one of the most discriminated people in society have the opportunity to live an equal and dignified life through this bill. Legislations like these and awareness programs of this sort are what will truly inculcate constitutional morality in the common people. However, the legislative and the executive branch have not always been pro-active in creating such a culture. Despite having the opportunity of striking down section 377 of the IPC for years they never took any steps towards it. Same is the case with the adultery laws. Even in the case of the Rights of the Transgender Bill, it was only drafted after the NALSA judgment by the Supreme Court which recognised the people from the transgender community belonging to the third gender and them having fundamental rights just like any other citizen. Hence, it is to be understood that the other two branches have not been steadfast and responsible enough in fulfilling their task of cultivating constitutional morality.

However, it has to be understood that the concept of constitutionalism which enshrines the principle of separation of powers among the three branches is the most fundamental aspect any democracy. The fact that the three branches are independent and act as checks and balances on each other is how a democracy works. Yet, when one of the branches is not doing its work, the other branch cannot suddenly take up the mantle of performing the duty of that branch. To put it in context, the judiciary is present to interpret the constitution and the laws and not to make them, that is the job of the legislature. Hence, when the Supreme Court decided to dilute the SC/ ST Prevention of Atrocities Act, 1989 by striking down the provisions relating to anticipatory bail and preliminary inquiry, it stepped out of its boundary and carried out the function of the legislature which is to make and amend laws. This is exactly where the judiciary has to understand that it needs to practice self-restraint. Something that Ambedkar spoke about in his speech while quoting Grote. He understood freedom and self-restraint to be the central elements of a constitutional morality. The Supreme Court of India cannot and should not become the third chamber of the parliament. While it can be argued on one hand that when the other branches are not doing their work, should not the judiciary step in and relive people from the injustice they are suffering from. However, on the other hand, it has to be understood that while this process might provide justice to the needful, it would also result in skewing the balance of our democracy which rests on separation of powers. The ends cannot justify the means in a situation like this. Judicial overreach into the realms of the legislature has long-term effects and is not at all healthy for maintaining our democracy.

Additionally, another major reason why we should not leave the job of cultivating constitutional morality in the hands of the judiciary, an unelected body, which self-appoint their members through the collegium system is the lack of diversity of representation in those high echelons of power. The judiciary does not exist in a vacuum, even when it does try to correct regressive social practices it is still a reflection of our society. Prof Oliver Wendell Holmes writes that the personal element is unavoidable in judges and it is unwise and dangerous to deny it. Judges by simply being in their position are not absolved of their human element. These personal biases and prejudices are bound to exist in every person living and breathing. But it becomes a dangerous mixture when people belonging to a particular type and class start to assemble in a branch of the government. Then these biases and prejudice assimilate and infuse into the whole system and are reflected in the work that they carry out. The Indian judiciary has had a terrible record when it comes to diversity of representation from marginalised groups. Only 12% of the lower judiciary come from the Other Backward Classes community while their population is 40% of India. Dalits constitute only 14% of the lower judiciary while their population comprises 17% of India. It is only in the case of Schedule Tribes that their representation in the lower judiciary (12%) is higher than their actual population (8.6%). However, the diversity of representation when it comes to female judges is abysmal. Among the states that have women in their high courts, the average percentage is a meagre 13%. This is disproportionately low with respect to the female population in India. There were 8 states as of December 2017 who had zero female judges in their respective High Courts. It is extremely disappointing to have such a lack of gender inequality in our judiciary. In the Supreme Court, there are only 3 judges out of 25 judges. Due to this lack of representation in class, caste and gender in our judiciary leaving it only on courts to impose constitutional morality is problematic. This lack of diversity threatens the imposition of certain biases and prejudices over and over again. When we contrast these numbers with the numbers of the Lok Sabha and the various state legislative assemblies, we understand even more than why the task of cultivating constitutional morality should emerge from the other two branches and not only the judiciary. The legislative assemblies are fared more diverse in class, caste and gender and that makes a huge impact in the decisions made.

A case in point can be the Sabarimala verdict where the majority opinion favoured allowing women of all ages to enter the temple and ended the custom of not allowing women aged 10-50 years to protect the sanctity of their lord. The consequence of this judgement has been huge. A lot of protests have broken out and people have expressed their outrage at the decision of the Supreme Court trying to impose constitutional morality from the top down and giving no regard to the customs of the believers of Lord Ayappa. The disconnect between what the people believe and what the Supreme Court believes could not have been clearer. While the Supreme Court is trying to impose radical equality in the name of constitutional morality being the touchstone for any custom or belief, the believers of Lord Ayappa are demanding their right to freedom of practising one’s religion as per one’s wishes. This situation could have been avoided if the state assembly had brought about this movement. Debates and discussions around this issue in the legislative assembly, in civil society and the common people, is how this issue could have been resolved. The government by fostering an environment of gender parity and inclusivity could have organically and gradually brought about this change. Yet what ended up happening is that a hammer from the top brought down the wall that barred the entry of women aged 10-50 years into the temple. It resembles the situation when the Britishers tried to implement their laws through the formal court system in colonial India system that they had established. People back then felt alien and strange about it and people now feel the same.

In conclusion, the fundamental point that needs to be understood here is that in the journey to achieving a society where constitutional morality is the guiding principle of the people, the task of building it cannot be only the task of the judiciary. The judiciary has to be careful and critical of its role it plays as a branch of the government and in the society as well. It should realize the importance of practising self-restraint and letting the other branches do their job on their own. When Dr Ambedkar talked about constitutional morality, he used the term ‘cultivating’, this should make us understand that it is from the grassroots level that it can actually happen and not in a top-down manner.