PRESERVING, PERFECTING AND PERPETUATING THE LAWS: CONSTITUTIONAL MORALITY
Author: Akshay Chugh
Symbiosis Law School, Pune
This article focuses on the concept of Constitutional morality and its effect on the Laws of Land. Judgment analysis has been made through an online database on Preserving, Perfecting and Perpetuating the laws in light of the above-mentioned concept. The article traces the evolution of Constitutional morality and the obligation it imposes on the signatory parties. It also focuses on India’s current scenario concerning the same. The various legal aspects relating to the laws laid and justice delivered have been discussed by the researchers, highlighting the main aspects of these qualitative fields, along with its success rate, implementation rate, and failures. It also focuses on the need to combine the concepts of Constitutional morality and Natural Justice in such a way that it leads to decrease levels of a miscarriage of justice as well as a decrease in the rate of judicial misinterpretation.
The researchers have also noted a few recommendations, which when implemented can lead to better construction of judicial problems.
Miscarriage of Justice has become a great concern for the global community due to the impending boom of misinterpretation of statutes at various circumstances. Everyone is aware of the increasing number of judgments that are rolling out which show the literal interpretation of laws that lead a non-convict to suffer the sanction. But is everyone aware of the steps which can be taken to prevent that from happening? This paper will focus on the preservation of laws of the land, perfecting the laws in action and perpetuating socially required laws.
In contemporary India, the potential weakness and strength of Constitutional morality have to be understood in the loop of a cyclic escalation of demands from the citizens and the curative responses of successive government. The obligation on this concept is expected to be equally binding to the government and the opposition. The same political party treats these obligations very peculiarly when it is in office and when it is out of it. This has been specifically contributed greatly to the popular perception of the political system as being amoral.
It is a sole duty to preserve the drafted laws of the land. The foundational debates with drafting committee chairman have been the evolutionary basis of analysis about Constitutional morality. Apart from its intrinsic importance, Constitutional morality is a subject on which B.R. Ambedkar spoke with extraordinary views and eloquence in the Constituent Assembly. He has been the chief and main architect of the present Constitutional order. His specific observations on Constitutional morality has made a critical juncture in socio-political life, that are of the utmost significance for the citizens.
The Constitution was suitably designed to serve the needs of modern society. It is farsighted than foresighted. The architects did not hesitate to draw upon such elements from the Government of India Act, 1935 as could be adapted to the needs of a free and democratic nation. It also drew the fine layer of inspiration from American, Irish and Australian Constitution. To be the effective implementation the perfection of the drafted laws has to be rested in the substratum of Constitutional morality.
In the absence of Constitutional morality, the operation of a well-drafted Constitution, no matter how carefully written, tends to highlight the erratic, arbitrary and capricious inferences that shall be deduced. Amendments to the Constitution have been in light for the adaptation of the current scenario of circumstances of injustice. Perpetuating the laid laws and its modification has seen its success rates at higher altitudes. When it comes to amending of Constitution, what seems to count for more than consideration of Constitutional morality, is the calculus of numbers for it.
STATEMENT OF PROBLEM
The words in usage are the vital incorporation of interpretation of laws. While most of these words have straightforward meaning but some have a shorthand for the discretion of the interpreter. Though the Indian Constitution is the longest one, it still leaves the citizens in a dark dome for anticipating the sanction.
The demarcation of independence of the Judiciary has carved out of the concepts which include federalism with its effect on social justice.
Constitutional morality and the Rise of Quasi-Law- Bruce Frohnen
This book sets out the development of the concept in a chronological order, which in the opinion of the researchers has done extraordinary change in justice delivery. The essentials of the concept are detailed.
Constitutional morality as a Restraint – Latika Vashist
This article gives insight into the brief of the contradiction of miscarriage of laws and interpretation of the law. It also provides numerous judgments of the Supreme Court showing the effect of the same.
The Supreme Court and Morality Policy Adoption- Dana Patton
This paper gives the outlook on the need for such a concept of Constitutional morality and how they have been incorporated in the Indian Constitution and the judiciary to perfect the interpretation of drafted laws. It also explains the scope and implications of the concept in amendments with respect to political and legal stance.
RESEARCH QUESTIONS & RESEARCH OBJECTIVES
This paper has entailed the following questions:
· Whether there was existence of Concept of Constitutional morality
· Whether there was the resilience of voice of citizens for the need for Constitutional morality
· What brought this concept in light in the current time?
This paper is to explore the current popularism that has brought Constitutional morality to light and factors that led to the extensive usage in today’s judgment delivery. Along with analyzing the impact of landmark case laws and judgments that led to the establishment of the concept of Constitutional morality
This paper is to study the usage of the concept of Constitutional morality in various aspects of legal fields and to draw citizen’s views, attitudes, suggestions regarding the same.
It represents the actual operationalization of a specific research question along with the updated search strategy. The information has been clustered and critically analyzed from various Law Review Journals published by International Law Schools, Published Research Papers and well-drafted books those which are published by eminent publishers.
The consolidated data is also collected from the working documents, manuals, procedures, law reports, policies, regulations and recent judgments or orders delivered by expert jurists.
RESEARCH & CRITICAL ANALYSIS
The research and analysis of the topic have been made through four-fold essentials of Constitutional morality.
India has adopted the doctrine of Rule of Law. As per Wade and Phillips, it means “the absence of arbitrary power, effective control of and proper publicity of delegated legislation, particularly when it imposes penalties, that when discretionary power is granted the manner in which it should be exercised as far as practicable be defines, that every man should be responsible to ordinary law, whether he be a private citizen or public officer, that private rights should be determined by impartial and independent tribunals, and that fundamental private rights are safeguarded by the ordinary law of the land.” Moreover, Bhagwati CJ has stated in one of the landmark judgments of Constitutional Law that “law in the context of the rule of law does not mean any law enacted by the legislative authorities, however arbitrary or irrational it may be. What is a necessary element of the rule of law is that law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of thy polity seeks to ensure this element by making the framer of law accountable to the people.”
Articles 14 to 18 of the Constitution of India deal with the Right to Equality. Article 14 lays down:
“The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
The two principles enshrined herein are equality before the law and equal protection of the law. While the former finds its origin in American law, the latter finds it in the English Law. Equality before the law means the absence of any privilege in favor of any person, thereby indicating a negative connotation. Equal protection of the laws means that the law provides equal opportunities to all those who are in similar situations or circumstances, thereby giving a positive connotation to it. As per the settled position, both these principles extend to citizens and aliens, to natural persons as well as legal persons, and are available both in respect of substantive and procedural law and in respect of administrative orders also. Furthermore, the guarantee of equal protection of the law is available against the state action only. It cannot be invoked against the action of a private individual. It is also not available against the action of a private individual, thereby making it a little efficient in practical scenarios. But the Court’s reasoning on the current matter has been discussed in the case of Harnam Singh V. Regional Transport Authority , in which it was stated that equal protection of laws means equal subjection of all persons to the law and amongst equals the law shall be equal and equally administered. But it does not mean that all laws must be uniform. Article 14 forbids class and not classification. Reasonable classification for legislation is justified.
While discussing the interpretation of the said article, the apex court in Food Corpn. Of India v. SEIL Ltd. Has stated that “Article 14 has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed this field to a great extent.” 
CONSTITUTIONALITY OF THE PROVISION
In Heena Kausar v. Competent Authority, the court held that a law is amended by the parliament having regard to its experience. It is a matter of legislative policy and for that purpose, mere inequality cannot be the sole factor for determining the Constitutionality of the impugned provision. A law may be Constitutional even though it affects an individual. There exists a presumption in favor of the Constitutionality of an enactment. The burden of proof that the legislation is unconstitutional is upon the person who attacks it.
“The concept of equality has to be patently infringed by a provision before that provision or any part thereof can be declared as unconstitutional. The mere fact that there is some inconvenience arising from the language of a provision and its due implementation cannot be a ground for declaring a provision violative of fundamental rights.”
Recently, the Indian Courts have evolved a new approach to Article 14, taking into consideration the Constitutional morality embodied within the same. The Supreme Court now no longer depends only upon the theory of reasonable classification in order to decide the violation of Article 14. From Maneka Gandhi Case onwards, the Supreme Court has been considering that an action which is unreasonable and arbitrary is also violative of the Constitution. In Nergesh Meerzacase, the Court has laid down, “Even though the conditions may not be violative of Article 14 on the ground of discrimination but if it is proved to our satisfaction that the conditions laid down are entirely unreasonable and absolutely arbitrary, then the provisions will have to be struck down.”
Thus, the rule of Right to Equality has been evolving in consonance with the Constitutional morality, and the principles enshrined therein.
“The necessary limits of space confine this discussion to the aspect of Constitutional morality which is presented by the present agitation against the judicial power as exercised under our Constitution. It is the most dangerous of all the lines of attack. Other aspects not now to be considered are equally vital and interesting, such as the movement for the recall of judges and judicial decisions and the growing practice, on the part of legislatures and executives, to abdicate the consideration of Constitutional questions and leave them to the courts, thus casting upon the judges the sole responsibility and frequently the odium and unpopularity of enforcing Constitutional restraints.”
INDEPENDENCE OF JUDICIARY
The framers of the Constitution ensured that the judges of the Supreme Court and the High Courts would be independent of the executive and the legislature. The judges holding office during their good behavior can be removed only when an address is presented to the President by both houses of parliament and are protected from any criticism even on the floor of the legislature.
Independence of the Judiciary is the only guarantee of the successful functioning of democracy. For, in a parliamentary democracy, after every 5 years, persons in the executive are likely to be replaced by those who may hold different political philosophies. Thus, apart from the principles that the judiciary must be independent, it is also desirable that the judiciary must be independent, even from the narrow point of view of the self-interest of persons working in the political field.
The essence of independence of the judiciary is laid down on the fact that judges should have unbiased and dedicated conduct towards their duty. Constitutional morality in this regard accounts for the reasonableness of the judges in performing their duties. A judge must behave as a judge and must not have favorites in the bar, nor must he entertain prejudices against certain members of the bar or a certain section of the bar. Such an attitude affects the faith of the common man in the judiciary and thus the independence of the judiciary is compromised by the judge himself.
In the context of independence of the judiciary, sometimes it is urged that the method of appointment of judges of the Supreme Court and the High Courts ought to be changed. One of the methods suggested is to follow that of the method followed in the United States. Another method would be to authorize the chief justice of India to have a final and binding say in this matter.
Nevertheless, the present system of the operation of the Judicial System in India seems to be working efficiently, in the context of the Independence of Judiciary. The Constitutional morality in this regard is deemed to be fulfilled in the present scenario, as opposed to the time of the 1970s where the independence of the judiciary was hindered.
The Government of India Act, 1935 introduced for the first time in the Constitutional history of India the framework of a federal government. The three important characteristics of any federal government are essentially embodied in the Constitution of India, in accordance with its Constitutional morality. The three characteristics referred herein are the supremacy of the Constitution, distribution of powers, and authority of the Federal Court to interpret the Constitution.
As per various provisions mentioned in the Articles of the Constitution, it is inferred that the Constitution makers intended to highlight that the Constitution is the supreme law of the land. The president of India, Governors and other important officers have to take an oath or affirmation to act according to the Constitution. No one is above it. No law inconsistent with any of the provisions of the Constitution can prevail.
Furthermore, the concept of distribution of powers between the general and the regional governments is laid down under Articles 245 and 246 and enshrined in the seventh schedule of the Constitution in the three lists included therein. Another aspect concerning the distribution of powers in a federal Constitution is the location of residuary powers. Under the Indian Constitution, Parliament has exclusive power to make any law with respect to the residuary powers.
Evidently, interpretation of the Constitution is needed for achieving various objectives, which are hidden in between the meaning of the statutes. Division or distribution of powers being an essential aspect of the federal Constitution that division is expressed in words. Words have different meanings to different minds. Hence, the need of the Supreme Court to interpret the Constitution is the natural outcome in a federal government. It has to ensure that the supremacy of the Constitution is maintained, and the general government and the regional governments operate only within their own spheres.
Apart from this, the other two features of federalism which are followed in India are having a written Constitution which must be rigid. Therefore, it can be inferred that the Indian Constitution can be considered as a federal Constitution which fulfills all the criterion of being considered as federal.
In India, strict federalism is not followed. As opposed to strict federalism, the Constitution Framers had come up with a concept of ‘Quasi-Federalism’, a concept recognized only in India. This was done in accordance with popular Constitutional morality, so as to keep proper checks and balances within the central and state governments.
Therefore, the Constitutional morality has been upheld and fulfilled in the element of federalism enshrined in the Constitution, by not following it in its strict sense and making it quasi-federal to consistent with the Constitutional morality.
It is difficult to define social justice. Allen has rightly observed that “social justice has no definite content and it means different things to different people.”
An analysis of the provisions of the Constitution reveals that Articles 18, 38 and 39 refer to social and economic justice, Article 19 to liberty of thought and expression, Articles 14, 15 and 16 to equality of status and opportunity and Articles 25, 26, 27 to freedom of belief, faith, and worship. The effect of the inclusion of the ideal of Social Justice as one of the aims of the state has increased the powers of the government. Mathew, J. observed: “But when social justice becomes a conscious end of State Policy there is a vast and inevitable increase in the frequency with which ordinary citizens come into a relationship of a direct encounter with State Powerholders. The citizen’s significant encounter now is not with the policemen or the criminal magistrate but with the official representing a regulatory authority, and administration of social insurance, or a state-operated economic enterprise- authorities empowered to issue licenses and permits, etc. It is the dramatically increased incidence of encounter that sets the task of the rule of law in the welfare state.”
The principle of social justice, as enshrined in the preamble, has been incorporated in the provisions mentioned in the articles of the Constitution, which is an essential element of the Constitutional morality in Indian Context. It can be inferred that the principles of Constitutional morality enshrined therein have been taken into account by the Constitutional Framers while drafting it, and its very functions are taken care of by the Judiciary.
After critical evaluation and analysis of the pertinent issues, it is hereby concluded that the need for the embodiment of Constitutional morality in the statutes currently in force is of utmost significance, in accordance with the present issues faced by the public at large. Furthermore, it is concluded that the elements of Constitutional morality in the Indian context, namely egalitarianism, Independence of Judiciary, Federalism and Social Justice are enshrined in the current law, which is evolving in nature, and the laws, rules, statutes, and articles in force have to be preserved, perfected and perpetuated in line of Constitutional morality, to ensure proper drafting and implementation of laws and good governance.
E.C.S. Wade and G. Philips, Constitutional Law, 59 (1959).
Bachan Singh v. State of Punjab, A.I.R. 1982 S.C. 1325.
INDIA CONST. art 14.
Harnam Singh v. Regional Transport Authority, A.I.R. 1954 S.C. 190.
Food Corpn. Of India v. SEIL Ltd., A.I.R. 2008 S.C. 1101.
Heena Kausar v. Competent Authority, A.I.R. 2008 S.C. 2427.
 K.B. Nagur v. Union of India A.I.R. 2012 S.C. 1774.
Maneka Gandhi v. Union of India, A.I.R. 1979 S.C. 478.
Air India v. Nergesh Meerza, (1981) 4 S.C.C. 335.
George Grote, History of Greece, 211 (1846).
Kuttyil Kurien Mathew, K. K. Mathew on Democracy, Equality, and Freedom49 (Upendra Baxi ed., Eastern Book Company, 1978).