Debate on "Constitutional Morality"
The concept of "constitutional morality" has sparked significant debate, especially in the context of the Indian judiciary. This debate centers on its interpretation and application, particularly in cases like the Sabarimala judgment.
Definition and Criticism
- Edward S Corwin's Joke: A humorous analogy was drawn comparing politicians as creators of chaos, suggesting that the judiciary might now share this role.
- Judicial Definition: Constitutional morality is often described as the formal virtues of a constitutional sensibility, emphasizing self-restraint, respect for plurality, deference to processes, skepticism toward claims of popular sovereignty, and a commitment to open criticism.
- Criticism: The term is criticized for being vague and not providing a clear judicial standard. It is accused of being a "trouser term," defined only in opposition to "societal morality."
Context and Application
- Judicial Overreach: There are concerns about judicial overreach and the erosion of parliamentary sovereignty, with some arguing that "constitutional morality" undermines organic norms.
- Case Examples:
- Sabarimala Case: Raises questions on how liberty and equality reconcile with institutional autonomy.
- Navtej Singh Johar v Union of India: Tested entrenched social prohibitions against constitutional commitments to freedom and equality.
Judicial and Societal Implications
- Judicial Critique: The term "societal morality" is criticized as vacuous and resistant to scrutiny, serving to insulate social practices.
- Court's Role: The anxiety surrounding constitutional morality is its potential to highlight the Court's drift towards arbitrariness and erosion of moral substance in law.
Recent Judicial Actions
- NCERT Episode: Raised concerns about the judiciary's disproportionate response to minor issues.
- West Bengal Voter Disenfranchisement: Illustrated the Court's perceived indifference to serious constitutional injuries.
Conclusion
"Constitutional morality" serves as a diagnostic tool, alerting to arbitrariness and unaccountable power. However, a misunderstanding of its character could foster judicial chaos, a troubling trend the judiciary seems inclined to contribute to.
