Constitutional Morality, the Glass-like Idolatry of an Unknown and 'Free' Soul of a Constitution, Cannot Last Long in India
Just recently, the former CJI of the Indian Supreme Court, Ranjan Gogoi was appointed in the House of States of the Parliament of India this march. Scholars, lawyers and journalists argue this appointment as a stain to the very values of the Indian Constitution, especially the very model of Separation of Powers.
I would argue on the cracks that Constitutional Morality may have, which is indeed important to understand.
First, let us remove the element of observance of morality by conduct and understand the hid nature of the arguments made on this issue. I know there are counter-arguments like when the Government of India had appointed Former Judge Shukla a member of the same Upper House. I am not supporting either of the two sides in this issue.
So, well — was it legally unlawful to appoint Mr Gogoi into the House? No.
There are legal arguments where it can be proved why. Even Mr Gogoi in a recent interview said that the duration of appointment does not matter in this case. He may turn out to be biased and defensive, but I argue that public morality — regardless of its numbers, and gravity, count null to oust the point that constitutional morality was stained. Why? We all know that public morality, unlike constitutional morality is a dynamic, uncontrollable and I should say become I am pro-privacy, uncensorable concept. Be it any case, public morality cannot dethrone Constitutional Morality. Even if the reasonable restrictions of a Constitutional Right granted to a person would have to resort to the ideals of constitutional morality because if you understand the morale of the Basic Structure Case (1973), you will find in that even if the amending power of the Parliament under the Indian Constitution is restricted via Article 13’s mandate, then the same Article 13’s immunity has been reconciled and kind of stuck with the mandate of Article 368, which means it is a zero-sum case. None of the articles’ legislative, executive and judicial utility can hold an existential tug-of-war between the two forever. Thus, the Basic Structure Doctrine itself tenders Constitutional Morality primacy over public morality.
It's not about the duration of appointment as well.
Even in a prolific Article available at Deccan Herald (I have tagged it) , the Article 102-A issue was raised where a member of the Constituent Assembly had urged to include an Article 102-A to completely separate the Judiciary and the Executive from each other, even in certain areas where appointment of judicial officers does happen. This request in those old times was a crucial moment, which has not been possible because it was rejected. However, it is important to understand that in the Indian aspect of separation of powers, we can see a jurisdictional model where with a lot being saved for the judiciary, some powers and administrative capillaries are tied to the executive (maybe the legislature too, I don’t know).
The Eyes of Law and a Constitution’s ‘Free’ Soul
The way we define "eyes of law" signifies that an isolated, pure, and I am harder, a purely idealized idolatry of a Constitution, which eminent author Dr Shashi Tharoor and many others quote as the 'soul of the Indian Constitution' is not held captive to question.
That's why in a pure law case, it is justified.
I would not comment on the applied legal and evidence case because the proceduralist nature of applied law and matters related to are never static, idolatory and morally blindfolded. They are, to be honest - one of the best ways to hold, magnify and capture the unheld soul of the Indian Constitution. That’s exactly the similar analogy we can draw from the arguments kept by Sh. Harish Salve in his commentary pieces on the recently passed Citizenship Amendment Act, 2019.
However, at least, it may be contended that constitutional morality, which seeks its own legitimation through a rule of law in the eyes of law, where the model of checks and balances is so monolithic that the outcomes of such checks and balances seems to be stood on an old model.
However, in the Indian case, for other legal entities, under applied law - there are various dimensions of checks and balances available to be brought into recourse to achieve justice, we must not ignore that our living Indian Constitution cannot bear an isolated model of separation of powers still or that as in the case, even if it does not seem it is an injury to the moral guiding force of constitutional morality, it, in the noted reference as I quote it - "eyes of law" as kept sanguine and secretive.
It makes me remember a statement from former Union Minister P Chidambaram. On the protests organized by the people against the Union Government on the CAA-NPR-NRC issue, I was fascinated by Mr Chidambaram’s words, when he said that the demands of the Indian youth are not something ‘tangible’, like as it happens in the case of labour unions, but indeed intangible, where the proposal of such demands in the protests, I believe may show up that the protesters are trying to save that same glass idol — the unheld non-captive soul of the Indian Constitution. It is a good point despite the fact that the protests may have moral and social outcomes, which do not align with the values that Mr Chidambaram was trying to highlight.
So, anyways, it shows how fragile Constitutional Morality is, and we do not have ethical autonomy among the people to make the case of constitutional, political and public moralities strong when they combat each other. Once that autonomy is acquired by the people, we can expect our democracy to be more vibrant and self-repairable than before. At least it would be better than the 'more-perfect-union' conception of the European Union and the United States.