is ‘constitutional morality’ a dangerous doctrine?

13 Dec is ‘constitutional morality’ a dangerous doctrine?

While speaking at the Second J Dadachanji Memorial Debate in Delhi, Venugopal said that if constitutional morality still breathed, first prime minister Jawaharlal Nehru's fear that the Supreme Court will become the third chamber of Parliament might come true. This doctrine has been employed to supersede constitutional text. while talking about the history of conflict between the judiciary and the legislature, UK approves Pfizer vaccine: Fantastic news, says PM Boris Johnson, but EU remains sceptical, 'Won't change my mind on election fraud claims': Donald Trump indicates continued fight in first post-poll interview, Farmers' protest: Dushyant Chautala hopes deadlock over agri laws will end after Centre's offer, 9 Months Season 5 Episode 1 | Pregnancy & Gearing Up for Delivery, The Earth, Space & the Human Race Podcast Ep 10: Role of everyday citizens in India\'s climate movement. However, he maintained that law is a means to achieve social good, and it is there for the betterment of society. Topic– Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure. Thereafter, in State (NCT of Delhi) v. Union of India (2009), Chief Justice Dipak Misra wrote that courts must interpret constitutional provisions “in the light of the spirit of the Constitution”. Updated Date: Id. Indian constitutional law is no stranger to judge-made tests. Constitutional morality is not by any means social or ideological morality," Khurshid said. 1637, 1639 (1998). To them, it was an aspiration – a hope that citizens would inculcate a love for the rule of law which would make it difficult for the constitution to be obliterated by the political powers of the day. Criticising the top court for depending on the Constitutional morality, the Attorney General while speaking at the Second J Dadachanji Memorial Debate said, 'The use of Constitutional morality can be very, very dangerous and we can't be sure where it will lead us to. The issue of constitutional morality was also touched upon by Solicitor General Tushar Mehta who emphasized on the need to exercise caution while relying on the doctrine of constitutional morality. "The Constitution is a seamless wear of things that are woven together that give us our life. "It is to answer the concept of social morality that constitutional morality was brought in, and constitutional morality is not vague; it is grounded and founded on the principles of the Constitution, and therefore, it is here to stay.". 1) What do you understand by constitutional morality in the context of Indian legal system. James Mill, for instance, wrote his history of India in the early 19th century without ever having visited India. I would then speak on the historical and juridical underpinning of ‘constitutional morality’. In order to preserve Athenian democracy, Cleisthenes, therefore, had to kindle, in the citizens of Athens, a “passionate attachment” to the Constitution, which Grote called “constitutional morality”. Florida’s Dangerous Instrumentality Doctrine establishes a law which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation. Popular gadgets including laptop, tablet and mobile specifications, features, prices, comparison. Since then, the Supreme Court seems to have grown wary of its use. According to Dr. Ambedkar, the doctrine of constitutional morality primarily translates to respect among stakeholders in a republic for Constitutional democracy as the accepted form of governance and administration. In this sense, constitutional morality is the morality of a constitution. In the string of significant judgments delivered by the court on the eve of Chief Justice Gogoi’s retirement in November 2019, involving questions as diverse as Ayodhya, Rafale, the Right to Information Act, and the Finance Act, constitutional morality was conspicuous by its absence. “Use of constitutional morality can be very, very dangerous and we can't be sure where it'll lead us to. A moral panic is a feeling of fear spread among a large number of people that some evil threatens the well-being of society. (Photograph: The Quint). Indian constitutional law is no stranger to judge-made tests. Only a year previously, in June 1912, a leading member of the New York Bar, William Dameron Guthrie, had delivered an address at the Pennsylvania Bar Association where he had spoken about Grote’s “constitutional morality”. Secondly, constitutional morality requires courts to look at the “spirit”, “soul” or “conscience” of the Constitution, and not just at the constitution’s words, while deciding whether the government has done something wrong. The ‘basic structure’ doctrine, the ‘classification test’, the new ‘manifest arbitrariness’ test – these are all judicially crafted inventions that find no express mention in the constitution. Firstpost - All Rights Reserved. But the other four judges dealt with constitutional morality. The concept of Constitutional Morality is present in the constitutional scheme, particularly in the Preamble, Part III (fundamental rights) and Part IV (Directive Principles of State policy). John Stuart Mill, one of the great defenders of free speech, summarize… We, the people, have given ourselves the Constitution, and lawmaking is the domain of the legislature. The statement quoted at the head of this article was one made by one of the “founding fathers” of this great nation. True, this articulation of constitutional morality is vague and subject to the value choices of each individual judge. I hope constitutional morality dies.". But what does ‘constitutional morality’ really mean and is it a dangerous weapon in the hands of unelected judges? At the same event, Senior Advocate Indira Jaising remarked that "constitutional morality is opposed to the morality of a mob". Second, the doctrine of constitutional morality led the Court to hold that it plays a counter-majoritarian role within the constitutional scheme. Attorney General of India K K Venugopal is reported to have said, in his personal capacity, that constitutional morality is a dangerous weapon and that he hoped it would “die at birth”. In other words, Grote’s ‘constitutional morality’ was an excuse given by Ambedkar to justify why mundane details had been included in India’s Constitution. Similarly, the Supreme Court in the NCT of Delhi case held that the legality of a government’s actions can be tested not merely by looking at the formal provisions of the constitution itself, but also by ensuring that they do not violate the “spirit”, “soul” or “conscience” of the Constitution. He also pointed out that it is not the job of the judges to go by popular opinion. It specifies norms for institutions to survive and an expectation of behaviour that will meet not just the text but the soul of the Constitution. He was convinced, and so stated, that without the application of Biblical principles in the establishment and building of this nation that it could not and would not be done. She said the principles of democracy can be brought to the people of the country only through constitutional morality, and that it is not the same as social morality. Constitutional morality is an important concept that is a part of the polity segment of the UPSC syllabus. The constitution originally set no limits on parliament’s power of amendment – theoretically, parliament could delete any of its provisions, including our fundamental rights. In this article, you can read all about the term, its meaning and significance for the IAS exam.. This was not particularly uncommon at that time. KK Venugopal delivers the keynote address in Delhi. I say no. He was a man of integrity and a God-fearing leader. What are its sources. In this article, we will be dealing all important Indian Judicial Doctrines. This overview is based on the premise that two primary goals of tort law are Those who argue that constitutional morality in this formulation is dangerous must equally argue against doctrines like the basic structure test, the tests of manifest arbitrariness and reasonableness, indeed against all of the ubiquitous catchphrases used in constitutional law. Concepts like “arbitrariness”, “manifest arbitrariness”, “reasonableness” – these are catchphrases, by themselves hollow vessels into which meaning is poured by judges who decide cases according to their own sense of right and wrong. L. REV. The implications of Constitutional Morality without Judicial Values and judicial values without Constitutional Morality are equally absurd. It is, therefore, a non-sequitur to argue, as the attorney general did, that because constitutional morality is open to interpretation, it is a dangerous weapon that should be discarded. In the academic year 1914-15, Ambedkar took a course called ‘History 121’ at Columbia, which included elements of Greek history. dangerous instrumentality doctrine in light of social policy and traditional tort law objectives, particularly when the vehicle owner is a for-profit enterprise.13. Judges must intervene but must look at what is institutional morality... India is a socialist country not in the manner in which the Soviet Union was but in the sense of a mixed economy," he said. It can result in grave injury without anyone knowing where it's going to end.". "Governments not honouring the decisions of the court is a violation of constitutional morality. Maybe the illiteracy today is 26 percent, but even those (people living in the villages and rural areas), they have basic wisdom and they know what is good for them. Get technology news, gadgets reviews & ratings. 1995] Instrumentality Doctrine 179 14. The ‘basic structure’ doctrine, the ‘classification test’, the new ‘manifest arbitrariness’ test – these are all judicially crafted inv... Children pass a souvenir shop displaying a t-shirt with illustrations of the ancient philosophers, Plato and Aristotle, in Athens, Greece. 'Constitutional morality can be very dangerous': Attorney General KK Venugopal fears SC may become third Parliament chamber Criticising the top court for depending on the Constitutional morality, the Attorney General while speaking at the Second J Dadachanji Memorial Debate said, 'The use of Constitutional morality can be very, very dangerous and we can't be sure where it will lead us to. While arriving at its decision, the Delhi High Court asked itself an interesting question: could the section be upheld because homosexuality was against “public morality”? Join our, How To Sign Up For BloombergQuint Story Notifications. The constitutional morality is nowhere located in Constitution of India and it is necessary to do the same, as there is evident danger that might concept be used in constitutional Courts as per the whim and fancies of Judicial brains as in absence of definite clarity and consensus being reached on the doctrine. 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