Constitutional Morality and Judicial Review
1.Constitutional Morality
Thursday, the 4th November 1948
The Honourable Dr. B. R. Ambedkar (Bombay: General):....Grote. the historian of Greece, has said that:
By
constitutional morality Grote meant
"a paramount reverence for the forms of
the Constitution, enforcing obedience to authority acting under and within
these forms yet combined with the habit of open speech, of action subject only
to definite legal control, and unrestrained censure of those very authorities
as to all their public acts combined too with a perfect confidence in the bosom
of every citizen amidst the bitterness of party contest that the forms of the
Constitution will not be less sacred in the eyes of his opponents than in his
own."
(Hear, hear.)
....While
everybody recognizes the necessity of the diffusion of Constitutional morality
for the peaceful working of a democratic Constitution, there are two things
interconnected with it which are not, unfortunately, generally recognized. One
is that the form of administration has a close connection with the form of the
Constitution. The form of the administration must be appropriate to and in the
same sense as the form of the Constitution. The other is that it is perfectly
possible to pervert the Constitution, without changing its form by merely
changing the form of the administration and to make it inconsistent and opposed
to the spirit of the Constitution. It follows that it is only where
people are saturated with Constitutional morality such as the one described
by Grote the historian that one can take the risk of omitting from
the Constitution details of administration and leaving it for the Legislature
to prescribe them. The question is, can we presume such a diffusion of
Constitutional morality? Constitutional morality is not a natural sentiment.
It has to be cultivated. We must realize that our people have yet to learn it."
2.Liberty,
Equality and Fraternity
"The
earliest formula of Wisdom promises to be its last, -God, Light, Freedom,
Immortality." These are the words of Sri Aurobindo from Life Divine .State
has been expected to be instrumental
in seeking theses ideals .This is the birds view of study
of human civilization on mother earth. Evolution of Human Race in Modern Times
can be traced from three words Liberty, Equality & Fraternity. The gift to
the word by French Revolution. Equality manifested in terms of Socialism,
Liberty expressed in Capitalism. But fraternity is yet to all the light of the
day in view of Sri Aurobindo. Human rights are bunch of rights, responsibility
and duty towards fellow being irrespective of race, colour, sex, nationality,
religion etc. Impact of French revolution can be seen in the form of
fundamental rights guaranteed, protected and upheld by legal provisions in the
form of constitution and statutory laws.
Having witnessed WWI ,
WWII and formation of League of Nations and United Nations ,
Constituent Assembly had the challenge of framing the constitution to fulfil
the aspiration of freedom struggle. But there was also opportunity to learn
from the lessons of the democracies across the world, weakness, shortfall of
the institutions to strike balance between rights and duties of citizens both
individual collective.
3.Constituent Assembly Debates
All
stake holders like legislation , executive , judiciary and media must look into approach adopted during the making of the
constitution. Accommodation
and consensus were the hallmark of all the decisions that were taken
during the making of the constitution. Whenever there was lack of consensus on any
issue, the approach adopted by the constituent assembly was
not imposing the mamajority view . Right to quality to women, right to vote to all the citizens of
India above a particular age, provisions of prohibition of untouchability were
some of the issues which
were not accepted by the people of India because they were adopted by the constituent assembly.But
because of the fact that there
was a long history of social preparation ,participation and acceptance.
Thereby raising the consciousness for consenting these provisions in form
of fundamental rights. Close reading of history of independence of India will reveal that there were social reforms which were going on side by
side on these issues.Indeed because of those social revolutions above
mentioned fundamental
rights were accepted by all the citizens of the country at the commencement
of the Constitution of India. Reading and perusal of the constituent assemblydebates clearly indicates that honorable members of the constituent
assembly were not in haste in taking important decisions. They left to the future generations some decisions
because at the time the consciousness of the masses was not ready for some
important issues. . Inclusion of right to education in the fundamental rights was rejected
at the time of commencement of the constitution.
Similarly when the question of national
language was raised it was expected from Republic of India thatin succeeding 15 years the Hindi
would become the national language. Even the Uniform Civil Code was
proposed to be included in the fundamental rights but was included under the Part IV, the directive
principles of the state policy. Interestingly, the debates on the present article 21 the
corresponding article was 15 in the draft constitution clearly mentions that reasonable restriction on the basis of due process of law was much debated and
finally it was decided by the constituent assembly that right to life be subject to the procedure established by
law. Hence law making in the constitution of India is the domain of the
legislature.
4.Article 21
Dr Ambedkar on Article 21(Article 15 Draft constitution )-
Article 21 (Article 15
in corresponding draft constitution )
The
Honourable Dr. B. R. Ambedkar : Mr. Vice-President, I must confess that I
am somewhat in a difficult position with regard to article 15 and the amendment
moved by my Friend Pandit Bhargava for the deletion of the words
"procedure according to law" and the substitution of the words
"due process".
It is
quite clear to any one who has listened to the debate that has taken place last
time that there are two sharp points of view. One point of view says that
"due process of law" must be there in this article; otherwise the
article is a nugatory one. The other point of view is that the existing
phraseology is quite sufficient for the purpose. Let me explain what exactly
"due process" involves.
The
question of "due process" raises, in my judgment, the question of
the relationship between the legislature and the judiciary. In a
federal constitution, it is always open to the judiciary to decide
whether any particular law passed by the legislature is ultra
vires or intra vires in reference to the powers of legislation
which are granted by the Constitution to the particular legislature. If the law
made by aparticular legislature exceeds the authority of the power given to it
by the Constitution, such law would be ultra vires and invalid. That
is the normal thing that happens in all federal constitutions. Every law in a
federal constitution, whether made by the Parliament at the Centre or made by
the legislature of a State, is always subject to examination by the judiciary
from the point of view of the authority of the legislature making the law. The
'due process' clause, in my judgment, would give the judiciary the power to
question the law made by the legislature on another ground. That ground would
be whether that law is in keeping with certain fundamental principles relating
to the rights of the individual. In other words, the judiciary would
be endowed with the authority to question the law not merely on the
ground whether it was in excess of the authority of the legislature,
but also on the ground whether the law was good law, apart from the
question of the powers of the legislature making the law. The law
may be perfectly good and valid so far as the authority of the
legislature is concerned. But, it may not be a good law, that is to
say, it violates certain fundamental principles; and the judiciary would have
that additional power of declaring the law invalid. The question
which arises in considering this matter is this. We have no doubt given the
judiciary the power to examine the law made by different legislative
bodies on the ground whether that law is in accordance with the
powers given to it. The question now raised by the introduction of
the phrase 'due process' is whether the judiciary should be given
the additional power to question the laws made by the State on the
ground that they violate certain fundamental principles.
There are two views on this point. One view is this; that
the legislature may be trusted not to make any law which would abrogate the
fundamental rights of man, so to say, the fundamental rights which apply to
every individual, and consequently, there is no danger arising from the
introduction of the phrase 'due process'. Another view is this: that it is not
possible to trust the legislature; the legislature is likely to err, is likely
to be led away by passion, by party prejudice, by party considerations,and the
legislature may make a law which may abrogate what may be regarded as the fundamental
principles which safeguard the individual rights of a citizen. We are therefore
placed in two difficult positions. One is to give the judiciary the
authority to sit in judgment over the will of the legislature and to question
the law made by the legislature on the ground that it is not good law, in
consonance with fundamental principles. Is that a desirable principle?
The second position is that the legislature ought to be trusted not to
make bad laws. It is very difficult to come to any definite conclusion.
There are dangers on both sides. For myself I cannot altogether omit the possibility
of a Legislature packed by party men making laws which may abrogate or violate
what we regard as certain fundamental principles affecting the life and liberty
of an individual. At the same time, I do not see how five or six gentlemen
sitting in the Federal or Supreme Court examining laws made by the Legislature
and by dint of their own individual conscience or their bias or their
prejudices be trusted to determine which law is good and which law is bad. It
is rather a case where a man has to sail between Charybdis and Scylla and I therefore
would not say anything. I would leave it to the House to decide in any way it
likes.
|
issues to be
decided by Present Generation -"We, the people of
India" |
|||||
|
sr |
Issues decided by Constituent Assembly |
Pending issues to be decided by Parliament |
Alternate solution to be decided by
Parliament |
Issues bad in implementation |
Issues to be decided by judiciary |
|
1 |
Prohibition
of untouchability |
Article 370(now removed) |
Affirmative action(EWS) |
Hindi-State
language |
scope
of Judicial review |
|
2 |
Equality of
women |
Declaration
of National song- Vandemataram |
Compulsory NCC
training in schools or colleges |
Judgment in
HC in mother/ state- regional language |
Laxman Rekha
on the issues of Faith , tradition and religion |
|
3 |
Universal
adult suffrage |
Uniform Civil
Code |
Minimum
education qualification for legislatures |
Right to
Education |
Balance
between freedom of Speech and Unity & integrity of India |
6.Mutual
appreciation and respect for the institutions by the institutions is the bed
rock of Constitutional morality. Having full vote of confidence in the
competence and wisdom of the institutions of governance as per the
scheme of the law of the land is one of the basic principle of
constitutional morality. Lack of constitutional morality worldwide gives
the liberty to the citizens of any country to
interpret that the
fundamental rights are the aim and object of the constitution. But the truth is fundamental rights are the only
means to achieve the aims and objects of the constitution which are enshrined , in India ,in the Preamble of the
Constitution of India as well in the directive principles of the state
policy. Indeed,
all the fundamental rights are subject to the reasonable restrictions except
Article 32. One of the reasonable restriction is the public
morality. Public
morality cannot be discarded or looked down upon as the view of the majority
only.Public
morality has legitimacy in legal jurisprudence since time immemorial
.It is the public morality with gives support to the institutions like the
wedding and the
family.
7.Now a days three words like secularism, pluralism and the diversity have become the fashionable
words which are most
misinterpreted and subject to the selective definition and interpretation
by some groups and individuals.
As
to the arguments on diversity, pluralism and egalitarianism , basic
principles of intelligible differentia are to be applied wisely and
holistically keeping the Indian society at centre . This ancient land has been
known for the integration, assimilation and synthesis. But it never compromised
the core values as found in the four phases of life, where married
life is one of them. Solutions are to found in the forms of institutions which
provide peace, stability and sustainability to the ideals of the society.
Reforms have always been welcomed but without negotiating
the soul of the civilization.
8.Assembly was not in haste in the name of
constitutional morality. Two regrets of President of Constituent Assembly is
the clear example .
Dr Rajendra Prasad Said
“there are only two regrets which I must share
with the honourable Members I would have liked to have some qualifications
laid down for members of the Legislatures. It is anomalous that we should
insist upon high qualifications for those who administer or help in
administering the law but none for those who made it except that they are
elected. A law giver requires intellectual equipment but even more than that
capacity to take a balanced view of things to act independently and above all
to be true to those fundamental things of life – in one word – to have
character (Hear, hear). It is not possible to devise any
yardstick for measuring the moral qualities of a man and so long as that is not
possible, our Constitution will remain defective. The other regret is
that we have not been able to draw up our first Constitution of a free Bharat
in an Indian language. The difficulties in both cases were practical and
proved insurmountable. But that does not make the regret any the less poignant.
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