Taking a potshot at the powers of the Supreme Court, Attorney General KK Venugopal on Saturday said it "has garnered to itself vast power, which no apex court in the world has ever exercised". Criticising the top court for depending on constitutional morality, the Attorney General of India said, "The use of constitutional morality can be very, very dangerous, and we can't be sure where it will lead us to. I hope constitutional morality dies."
While speaking at the Second J Dadachanji Memorial Debate in Delhi, Venugopal said that if constitutional morality still breathed, first prime minister Jawaharlal Nehru's fear that the Supreme Court will become the third chamber of Parliament might come true.
"As a powerful weapon that surpasses all the powers conferred on the Supreme Court by the Constitution, Article 142 merely permits the court to pass such decrees or orders as to do complete justice in any cause or matter pending before the court. But the article is treated as a 'Kamadhenu' from which unlimited powers flows to the apex court of the country," he added.
The Attorney General of India, while talking about the history of conflict between the judiciary and the legislature, underscored that in its early days, the top court had struck down land reform and nationalisation laws as the judges noted that it violates equality.
"The laws were struck down on a strict and literal interpretation of the Constitution," he said.
Further criticising the judiciary's dependence on constitutional morality in judgments, such as the Sabarimala temple dispute, he said: "In the Sabarimala case, the dissenting judge said we can't interfere with a matter of faith. But the other four judges dealt with constitutional morality. It's one thing for the Supreme Court to deal with an individual, but here you're dealing with a whole population. What is this constitutional morality? If a bench of the Supreme Court speaks in two different voices, one saying constitutional morality will permit the entry of women and the other one saying no, it's prohibited because of constitutional morality, which is a very dangerous weapon. You cannot use it. It can result in grave injury without anyone knowing where it's going to end."
Recalling the statement made by the then chief justice Hidayatullah on amendments in the Constitution, the attorney general said that the former said the only purpose of the amendments was "to neutralise the judgments of the Supreme Court." Venugopal added that given the circumstances it is "very difficult to say whether the court was right.
Expressing dissent over the interference of the top court, Venugopal said, "The Preamble of the Constitution reads, 'we, the people'. We gave to ourselves this Constitution. Are you going to treat the whole of the population as illiterate and not able to think for themselves? I say no. Maybe the illiteracy today is 26 percent, but even those (people living in the villages and rural areas), they have basic wisdom and they know what is good for them. And therefore, for the court to believe that unless we interfere, the country is doomed, I say no, it can't."
At the same event, Senior Advocate Indira Jaising remarked that "constitutional morality is opposed to the morality of a mob".
"Governments not honouring the decisions of the court is a violation of constitutional morality. Why has the Supreme Court judgment on Sabarimala not been enforced in Kerala?" she asked.
Speaking against the motion, Senior Advocate KV Vishwanathan said it is better to have a judiciary that confronts the executive than to have a judiciary that is cosy with the executive.
"Thank god for a confrontational judiciary," he said. "It is to answer the concept of social morality that constitutional morality was brought in, and constitutional morality is not vague; it is grounded and founded on the principles of the Constitution, and therefore, it is here to stay."
Another Senior Advocate Salman Khurshid spoke against the motion and debated that even though Indians believe that life is sacrosanct, we have a provision of death penalty in the country because according to the apex court, a person can be hanged in the rarest of rare cases.
"The Constitution is a seamless wear of things that are woven together that give us our life. It consists of all things like equality, affirmative action and right to religion. All things that are fundamental to govern our lives. Constitutional morality is not by any means social or ideological morality," Khurshid said.
He also pointed out that it is not the job of the judges to go by popular opinion."Taking an opinion poll and legislating is the job of the legislature. Judges must intervene but must look at what is institutional morality... India is a socialist country not in the manner in which the Soviet Union was but in the sense of a mixed economy," he said.
Meanwhile, Solicitor General Tushar Mehta started his address on a humorous note, saying: "The Supreme Court held, in 2011, that Right to Sleep is a fundamental right. Now, the Supreme Court has held that the right to sleep with anyone is a fundamental right."
However, he maintained that law is a means to achieve social good, and it is there for the betterment of society. "The problem started when constitutional morality started to be used interchangeably with social morality; what is socially moral has to be constitutional," Mehta remarked.
"There are several realms where the legislature, having jurisdiction, has chosen not to enter in all its wisdom... Morality of the people cannot be divorced from constitutional morality. We, the people, have given ourselves the Constitution, and lawmaking is the domain of the legislature. Upon their failure, the judiciary can step in till the legislature either ratifies or rejects the judicial decision."
Additional Solicitor General Pinky Anand also spoke against the motion. She said the principles of democracy can be brought to the people of the country only through constitutional morality, and that it is not the same as social morality. Anand cited the examples of the Sabarimala case, the Section 377 judgment and the triple talaq verdict of the Supreme Court to differentiate between social and constitutional morality.
With inputs from ANI and Bar&Bench