Source: TH
Subject: Polity
Context: Senior advocate Kapil Sibal, in a 2026 dialogue with N. Ram, highlighted a complete breakdown of constitutional machinery in India, arguing that constitutional morality must transcend political friction to ensure justice without fear or favor.
About Constitutional Morality:
What is Constitutional Morality?
- Constitutional morality refers to the adherence to the core philosophies and spirit of the Constitution rather than just its literal text.
- It is the bridge between the law and ethics, requiring public officials and citizens to act in a way that preserves democratic institutions and protects individual liberties against the tyranny of the majority.
Key Features:
- Adherence to Constitutional Values: Prioritizing justice, liberty, equality, and fraternity over popular or religious sentiment.
- Institutional Restraint: Ensuring that no branch of government (Executive, Legislature, or Judiciary) oversteps its bounds.
- Protection of Minorities: Safeguarding the rights of marginalized groups from majoritarian impulses.
- Non-Arbitrariness: Guaranteeing that state actions are based on reasoned law rather than the whims of those in power.
- Public Conscience: Cultivating a civic culture where the habits of the people align with democratic norms.
Importance in Modern Times:
- Check on Majoritarianism: It prevents the rule of the many from becoming the oppression of the few.
E.g. The Supreme Court’s scrutiny of state anti-conversion laws ensures that individual choice in marriage isn’t sacrificed to communal narratives.
- Upholding Rule of Law: It ensures that the law is applied equally, regardless of political affiliation.
E.g. The granting of bail to activists and journalists by higher courts, despite stringent laws like the UAPA, reaffirms that liberty is the rule and jail is the exception.
- Ensuring Accountability: It mandates that the Executive remains answerable to the people and the law.
E.g. The 2024 judgment striking down the Electoral Bond Scheme highlighted the need for transparency in political funding to maintain a level playing field.
- Protecting Dissent: It recognizes that a healthy democracy requires the voice of the Opposition and civil society.
E.g. Court interventions regarding the suspension of a record number of Opposition MPs from Parliament in late 2023 emphasize the need for parliamentary deliberation.
- Adapting to Social Change: It allows the Constitution to be a living document that addresses modern ethical dilemmas.
E.g. The recognition of the Right to Privacy and the decriminalization of consensual same-sex acts (Navtej Singh Johar case) reflect evolving moral standards.
Challenges Associated:
- Judicial Overreach vs. Underreach: The thin line between interpreting the law and legislating from the bench (or failing to act).
E.g. Critics point to the sealed cover jurisprudence where the court accepts government info in secret, potentially undermining the principle of open justice.
- Executive Dominance: When a single party holds a massive majority, the legislature often becomes a rubber stamp.
E.g. The passage of significant bills (like the new Criminal Codes or Telecommunications Act) through voice votes without extensive debate in 2023-24.
- Politicization of the Judiciary: Perceived bias in case listing or post-retirement appointments can erode trust.
E.g. Public debates surrounding the master of roster powers, where specific sensitive cases are assigned to certain benches, leading to allegations of favoritism.
- Erosion of Federalism: Use of central agencies or Governors to interfere in state administration.
E.g. Frequent friction between Governors and elected state governments in Tamil Nadu, Kerala, and West Bengal regarding the passage of state bills.
- Weaponization of Law: Using colonial-era or stringent laws to silence critics.
E.g. The frequent use of Sedition (now under the new Nyaya Sanhita) and PMLA (Money Laundering) provisions to arrest political opponents before trials begin.
Way Ahead:
- Judicial Independence: Establish a transparent mechanism for judicial appointments and case listings to restore public faith.
- Strengthening Parliamentary Debate: Ensure that all major legislations undergo scrutiny by Standing Committees before being passed.
- Civic Education: Integrate constitutional values into school curricula (without the intent to intimidate specific institutions) to foster habits of democracy.
- Police and Administrative Reforms: Insulate investigative agencies from political interference to ensure justice without fear or favor.
- Protection of Federal Spirit: Establish clearer guidelines for the role of Governors to prevent them from acting as political agents of the Centre.
Conclusion:
Constitutional morality is the lifeblood of a democracy; without it, the Constitution becomes a mere skeleton of words. The ultimate test of this morality is the delivery of justice that is unswayed by the powerful. For India to remain a vibrant republic, its institutions must rediscover the courage to interpret the law for the greater good of all citizens, not just the majority.
