What is "Constitutional Morality"?

Arup Kumar Sen

The Supreme Court as the apex court of the country is supposed to give meanings to the different provisions in the Indian Constitution. But, the fundamental differences of opinion among the judges in the same bench, noticed in some recent cases, put people in a great dilemma regarding interpretation of the Constitution and understanding of "constitutional morality".

In the Aadhaar case, while the four judges out of a five-justice constitution bench broadly upheld the Aadhaar Project of the government and ratified the Aadhaar Act as constitutionally valid on September 26, 2018, Justice D Y Chandrachud categorically recorded his dissenting opinion in a separate judgement. He said: "The passing of Aadhaar Act as money bill is a fraud on the Constitution". Regarding the linking of Aadhaar with the welfare benefits of the State, He stated: "Mandating Aadhaar for benefits and services under Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar". He also clarified his ethical position: "Constitutional guarantees cannot be compromised by vicissitudes of technology".

The writ petition filed by five eminent citizens, including Romila Thapar and Prabhat Patnaik, in the Supreme Court seeking immediate release of five noted human/civil rights activists arrested on August 28, 2018, came up for urgent hearing on August 29 in a three-justice bench of Dipak Misra, A M Khanwilkar and D Y Chandrachud in the Supreme Court. Justice Chandra-chud, hearing the case on that day, said: "Dissent is the safety valve of democracy. If you don't allow the safety valve, pressure cooker will burst". The rights activists have been kept under house arrest at their own homes according to the order of the apex court.

After a number of hearings, the Supreme Court bench in a 2-1 majority verdict ruled on September 28, 2018, that the house arrest will continue for four more weeks, and opined that "dissenting view expressed or difference in political ideology" had nothing to do with the case. Justice Chandrachud penned a dissenting opinion in his separate verdict. He reiterated his earlier position: "Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes...". While expressing doubts "as to whether the Maharashtra police can now be trusted to carry out an independent and impartial investigation", Justice Chandrachud opined that this was a proper case for a Court-monitored SIT investigation. To put it in his own words: "This case supports my view that in the interest of justice, and particularly when there are serious doubts regarding the investigation being carried out, it is not only permissible but our Constitutional duty to ensure that the investigation is carried out by a special investigation team or a special investigative agency so that justice is not compromised".

The above developments in the Supreme Court testify that the notion of "constitutional morality" carries contested meanings and suggests contending paradigms of justice.

Vol. 51, No.18, Nov 4 - 10, 2018