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A new concept, ‘constitutional morality’, has been coined and aired in the public domain by the intelligentsia which include legal luminaries, media men, writers and academics. It attained currency after the enactments on the article 370 of the constitution, Mutthalakh (triple Talakh) and citizenship amendment act by the Indian parliament after fulfilling the procedural formalities of law-making. Those who oppose these enactments organized a series of protest marches and agitations especially after the CAA and they attained large scale media attention and support.

They argued that all these enactments are against the fundamental principles described in the preamble of the constitution of India. We the people of India, having solemnly resolved to constitute India into a sovereign democratic republic in 1956. Two terms, ‘socialist and secular’ have been inserted between the terms ‘sovereign and democracy’ by the constitution (forty second amendment) act 1976. The following objectives have been assured to be secured to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and unity and integrity of the nation. Nobody described or defined the term constitutional morality. As the term has been coined by connecting legality and morality, it will not be easy to describe or define it properly.

The supreme court of India in its judgement on the Keshav Ananda Bharati v. state of Kerala case, in 1973, declared that the objectives specified in the preamble contain the basic structure of the constitution which cannot be amended in exercise of the power under article 368 of the constitution. The article 368 of the constitution empowers both the houses of the parliament to amend the constitution if necessary. The logic behind the article 368 is that, since, the constitution has been framed by the people, submitted to the people and implemented by the people of India then, the representatives of the people of India who are members of the parliament have been logically empowered to amend the constitution if they find it necessary. Incidentally, the parliament amended the preamble itself in 1976 in exercising the power under article 368 of the constitution. Interestingly, the supreme court scrutinized and approved the amendment without any hesitation. The logical soundness and the constitutional validity of the 1973 judgement of the supreme court which curtailed the power of the people to make laws should be examined.

The judicial interference in the right of the collective wisdom of the people of India to make laws is arbitrary and illogical. It must be questioned before the supreme court. The functions of the legislature, executive and the judiciary have been clearly earmarked in the constitution and encroachment in the territory of one by the other has been reasonably restricted. Legislature is the right forum to make laws because the process of law-making needs wide-range discussions, deep debates and finally a decision on the basis of consensus or majority to reflect the will of the people.

The judiciary is fully empowered to scrutinize the enactments and is free to declare whether the enactments are constitutionally sound or not. But when the parliament is being prevented by the judiciary in the transaction of its business in advance, by giving a warning that the parliament should not go beyond the limit of the objectives of the preamble of the constitution which the bench of the supreme court think that as the “basic structure” then, it is nothing but the act of over-stepping into the boundaries of the legislature to prevent it from making laws freely and fairly. If, the legislature feels it necessary to add something to or to delete something from the preamble of the constitution then, the legislature must have the freedom to do so. The legislature should never be under the command of any institutional force including judiciary because such an action minimizes the sovereignty of the people of India. The masters, who framed the constitution, were aware of this fact hence, they incorporated the article 368.

It is illogical and illegal to prevent a constitutional body in the discharge of its functions by another constitutional body with pre-determined rules because that power has not been given to any constitutional forum by the constitution. Let the houses of the people, constituted by the representatives of the people, to make laws in exercising the powers under the relevant articles of the constitution and let the judiciary make interference with it if they find it in contravention to the constitution instead of preventing an institution in advance on the presumption that it may commit wrong actions.

Since to err is humane and since all the constitutional bodies have been managed by human beings, then the chances to commit errors cannot be ruled out and judiciary is not an exception to this general law. So, by the same logic the judiciary also can be prevented from the judicial review of enactments on the presumption that, they also can commit errors. It is to be reminded that, judiciary also can function only within the frames of the constitution. The constitution of India is a text written by a group of people who might have been the most reliable persons of that period, but that does not give the guarantee that the text made by them should remain untouched by human beings as if it is a text given by god. Even if a text is given by god, it can be edited if it is found illogical and unjustifiable. No constitution can be treated as an unalterable and ultimate text. It should be edited with the changing context observing the legal and procedural formalities.

It is an unfortunate fact that, the terms ‘secular’ and ‘socialist’ have not been defined and it is improper and illogical to pronounce judgements on the basis of the undefined terms. The term constitutional morality also has not been defined. There are differences between legality and morality. Morality is an ethical term. Ethics has been defined as a normative science which deals with the voluntary actions of human beings living in society on the basis of the norm goodness. This is a euro-centric definition and euro-centric methodology divides science into two broad categories as positive and normative sciences.

Positive science deals with thing as it is while, normative science deals with things as what they should be. The conclusions of the positive science can be changed in tune with the changing nature of things. The positive sciences can be further classified into physical sciences, biological sciences etc. But in normative sciences, the norms remain unchanging whatever be the nature of facts. If, the facts do not agree with the norms then, the facts should be rejected retaining the norms, according to the methodology of normative sciences.

There are three normative sciences namely, logic, ethics and aesthetics based on the norms of truth, goodness and beauty respectively. The descriptions and definitions of these norms may be changing from person to person, time to time and place to place. Therefore, the ethical judgements of an action of person living in a society may be changing in tune with the changing space and time and the definitions of the term goodness acceptable to a group of people. An action which has been adjudged as immoral by a particular person or society at a particular time point may be adjudged as moral or a-moral by the same person or society at another point of time.

It is not the action of person that has been defined but the norm to be adopted to judge the action has been defined and pre-determined. It is deductive form of argument. If, a particular action of a particular person agrees with the norm then, it is adjudged as good action and if, it fails to agree with the norm then, it is called a bad action. The motive and intention of the action of a person is as important as the result of the action. An action culminates with bad results started with good intention and motive can be ethically adjudged as a moral action. The internal and external action contents of an action have been taken as an indivisible unit in judging moral actions.

Law deals with legality and illegality rather than morality. The legal codes define human actions as legal or illegal on the basis of the result of the actions. The inner feelings of the person who has done the action has not been the concern of law. The violation of the limits of the definition, unless it is testified by convincing external evidences otherwise, would be treated as illegal actions. The violators of the law should be punished on the basis of the criminal or civil procedural codes. The inner mind space of the violators of law can never be the concern of a court of law in awarding punishments unless it is testified by convincing external evidences.

A crime or an illegal action committed on good intention can have moral justifications. Naturally, those actions can be adjudged as a moral action in ethics. But if, an action is seen as illegal despite the good intentions then, a court of law has no other option but to punish the person who committed the illegal actions ignoring the inner goodness. Some actions can be both illegal and immoral at the same time. Looting, theft, murder etc. are immoral as well as illegal. But telling lie need not be illegal if it has not been done by a person who has been empowered to testify truth on the basis of the position one holds. Any type of understatement or over statement on anything can be termed as lie. But understatements and over statements are not lies according to law. But they have been treated as immoral statements as per ethical norms.

It is within this context that we have to think of defining the term constitutional morality. The constitution of India is not a romantic or a mystic text. It should not be mystified or romanticized when we interpret it, because, any act of mystification or romanticization would lead to ambiguity in meaning. The interpretation of the constitution with ambiguity is unaffordable to any democratic country. In the present context, we move with a constitution in which two major terms- socialist and secular- remain undefined. Interestingly, the court of law pronounces judgements on secular credentials without knowing the scope and limit of the term.

Whether, secularism means the pattern of socio-political life devoid of god and religion as it is meant by the euro-centric interpretations of the term or a pattern of life that gives equal importance to theists and atheists and religious and irreligious people alike. It is to be taken into consideration that blasphemy has not been treated as punishable offence in Indian context. Therefore, what we essentially need is to get the basic terms of the preamble of the constitution defined before coining new undefinable terms to increase more confusion.

Dr. K. S. Radhakrishnan
(Writer is the former Chairman of Kerala Public Service Commission and Former Vice Chancellor of Sree Sankaracharya University of Sanskrit, Kalady)

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