CONSTITUTIONAL MORALITY AT THE CROSSROADS-Judicial Propriety, Institutional Trust and the Rule of Law

 CONSTITUTIONAL MORALITY AT THE CROSSROADS-Judicial Propriety, Institutional Trust and the Rule of Law

Sitting  judge of Supreme Court  passing comments on a matter that is not before him—does it fall within the bounds of judicial propriety? Does it not violate the principle of judicial self-restraint? Does this not violate a basic principle of constitutional morality?It is relevant here to discuss the doctrine of precedent.  The Constitutional Bench in matter of 1965 AIR 1767  observed “It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is rounded on healthy principles of Judicial decorum and propriety.” Hence, the comments made by Justice Ujjal Bhuyan’s  comes near the boundary of judicial impropriety  It can be said that Justice Bhuyan needs to be reminded of the oath administered to him under the Constitution of India.

Now, consider reaction of the retired judges, Retd Justice Lokur of Supreme Court, and other retired judges forming a commission to look into the allegations against the ECI. It is very shocking that, when the subject matter is pending before the apex court of India and no case for an interim measure has been found to the satisfaction of the Court presided over by the CJI, a retired judge heading  commission  on the same subject matter appears to have lost judicial restraint and judicial propriety, thereby bearing the signature of a vote of no confidence in the institution of the judiciary.The above-mentioned situation satisfies the essential conditions of distrust in the rule of law by persons who themselves are part of the judicial fraternity. One is a sitting judge and the second is a retired judge. It may be said that the conduct of both judges has lowered their dignity, and an effort to cause a dent in the judiciary is clearly visible, not only in relation to the apex court but also in relation to a constitutional institution like the ECI.

It would be incomplete to refer to the role of the Leader of the Opposition, Rahul Gandhi, and the role of the media in this discussion. The demand for the resignation of the ECI is nothing but a manifestation of a trust deficit in the Constitution of India, as well as a lack of confidence in the rule of law and in the judiciary. He is blind to the constitutional procedure for the removal of the Election Commission, which is laid down within the constitutional framework and reflects the safeguards applicable to constitutional authorities. This bears the signature of a lack of confidence in democracy and constitutes an insult to constitutional institutions.

The media, too, cannot be given a clean chit in this episode for referring to the comments and remarks of the CJI while dealing with the Election Commission of India case. In the absence of a judicious appreciation of the court proceedings, the interaction between the Bar and the Bench is being  presented as though those remarks were findings of the Court. However, if such remarks are nowhere found in the judicial  order, they do not possess the same legal sanctity as the final judicial determination and cannot be treated as having attained finality.

On the other hand, the CJI refused to grant an interim order. Hence, the media trial has already begun, in which the Leader of the Opposition, a sitting judge, and a retired Supreme Court and High Court  judges—persons vested with the responsibility of upholding and defending democracy—are said to be compromising the   constitutional consciousness of the  India.

In the name of protest in a democracy, and adverting to the above sequence of events, a group of retired judges, and bureaucrats  has written a letter condemning the attack on the Election Commission of India. The question also arises concerning the conduct and role of the retired judges of the Supreme Court who have come forward to defend the Election Commission of India.Just as the morality of peace and the morality of war cannot be equated, the conduct of different constitutional actors must also be assessed according to the circumstances and context in which they act. Therefore, the second group must  be welcomed. They have  referred to India’s electoral safeguards, including the presence of polling agents at polling stations, readiness to respond to legitimate questions concerning Electronic Voting Machines (EVMs), sealing and secure custody of EVMs, the arrangement of strong rooms, and verification through the Voter Verifiable Paper Audit Trail (VVPAT) system. It is appropriate to remind ourselves that it is the silence of good people that encourages evil to perpetuate its bad objectives. Hence, people of high virtue must defend constitutional institutions in proportion to their capacity and within the limits of constitutional propriety. 

I am reminded of Dr. B. R. Ambedkar, who said ,on 4 Nov 1948, that in India, constitutional morality is not a natural sentiment; it has to be cultivated.

Thereafter, on 25 November 1949, he cautioned the Constituent Assembly that the Republic of India must take note of three important things. First, hero-worship must not be allowed to advance at the cost of the aims and ideals of the Constitution. Second, social democracy must form the foundation of the pyramid of equality and freedom. Last but not least, in the Republic of India, any attempt to resort to non-constitutional methods, including the comparison of such methods with Gandhiji’s movements or the equating of an elected representative government with the British colonial government, would amount to a fundamental misreading of the freedom that India had achieved.

His warning was, therefore, not merely about political methods; it was about preserving faith in constitutional democracy and constitutional methods.