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Summary
Polity Class 16

A brief overview of the previous class and Q&A session (05:00 PM)

CONSTITUTIONAL MORALITY (05:04 PM)

  • Constitutional morality was used in the Sabrimala case and Section 377 case (SC decriminalized homosexuality). 
  • Morality means the ability to differentiate between good and bad. Also, a tendency to incline towards the good. 
  • When the conflict is between Individual freedom v/s societal welfare then SC stated that it will give importance to higher morals i.e. constitutional morality. Whenever they need to interpret the FR from a much higher and moral perspective then it would use Constitutional Morality.  
  • There are two types of laws- Primary laws and secondary laws. 
  • Primary laws means which are universal values/ Natural laws. They will always be true
  • Secondary laws can be tradition, and customs, culture, and even constitution. These are framed by the people. 
  • When there is a conflict between the primary law and secondary laws, then primary laws will be given importance. 
  • Dr. B R Ambedkar used the word constitutional morality for the first time. 
  • Dr. B R Ambedkar said "Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on Indian soil which is essentially undemocratic."
  • Problem with the term Constitutional morality
  • Definition of constitutional morality is not defined. 
  • Constitutional morality can give more powers to Judiciary
  • The term constitutional morality is mostly qualitative in nature. Ethics, Morals, and values are subjective in nature. 
  • How can 5 judges can decide the issue based on Constitutional morality for 140 crore people? 
  • Constitutional Morality definition (05:29 PM)
  • Constitutional morality means strict adherence to the core principles of constitutional democracy. According to Dr. B R Ambedkar, it means effective coordination between conflicting interests of different sections of society. It also means ensuring administrative coordination to resolve disputes without resorting to unwanted confrontation. 
  • It is regarded as of paramount significance from the constitution. It includes a pluralistic and inclusive society. It also means strict adherence to the principles of the constitution. 
  • Analyzing and interpreting the articles of the constitution from the perspective of democratic principles can be defined as constitutional morality. 
  • It can help the judiciary to resolve any ethical dilemmas while interpreting the constitution. 
  • According to SC, constitutional morality is not only limited to following constitutional provisions literally but understanding them in their true spirit as envisaged by our constitution makers. 
  • According to the SC, "When there is a violation of FRs, the term morality naturally implies constitutional morality, and any view taken by the courts must be in conformity with the principles and basic tenets of the concepts of constitutional morality"
  • Criticism against Constitutional Morality (05:44 PM)
  • The term constitutional morality is not clearly defined by our judiciary. 
  • It is highly subjective, Qualitative, and individualistic also. 
  • It can also be linked to conflicts with democratic and constitutional principles. 
  • It can be used by the judiciary to expand its powers and to enter into unknown territories. 
  • Traditions and customs and their validity can not be decided by a group of unelected professionals and it can become anti-democratic also. 
  • Our SC has used constitutional morality for the first time in the judgment related to section 377 of IPC (Homosexuality). In shah Bano's case also SC has used constitutional morality to come out with a sensational judgment.
  • More recently SC has used constitutional morality in the Sabarimala case wherein it ruled that women should be allowed to worship the deity. 
  • Conclusion of constitutional morality 
  • Indian society is characterized by high levels of diversity and plurality. Traditions and customs must be respected but at the same time, FRs should always be given more importance than any traditions and customs. 
  • SC by using constitutional morality has definitely become the protector of FRs of citizens which is the essence of our constitution.
  • But we can not expect the judiciary to resolve mostly social, ethical, and political problems. There should be a proper dialogue and discussion between different sections of society to resolve these crises. 
  • SC has been forced to interfere in these matters due to the unwillingness of the legislature and executive to solve these problems due to political reasons. Media, civil society organizations, and other pressure groups must come together to find constructive solutions

ARTICLE 29 & 30- CULTURAL AND EDUCATIONAL RIGHTS (06:08 PM)

ARTICLE 29 OF THE INDIAN CONSTITUTION

  • It provides that any section of the citizens residing in any part of India having a distinct language, Script, or Culture of its own, shall have the right to conserve the same. No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out-of-state funds on grounds only of religion, Race, Caste, or language. 
  • The first provision protects the rights of a group whereas the second provision guarantees the rights of individuals. This article also grants protection to both religious and linguistic minorities.
  • SC has ruled this article is not restricted to only Minorities but it can also include majority sections also because this Article uses the word "section of citizens" that includes the majority as well as the minority. 
  • SC also has ruled that political parties can seek a vote in the name of protecting the language and it does not come under corrupt practices under RPA 1951. 

MINORITY (06:49 PM)

  • The word minority is not defined in the constitution.
  • SC has defined a Minority as one which is not the majority. 
  • SC defined minority in terms of population in that particular section which is less than 50% of the overall population. 
  • The government reacted by amending the constitution i.e. 1st amendment to the constitution by inserting Article 15(4) 
  • SC also in the case related to reservations to backward caste had ruled that these reservations were unconstitutional as they violated Article 29(2) of the constitution in the Champakam Dorairajan case 

ARTICLE 30 OF THE INDIAN CONSTITUTION (06:56 PM)

  • Article 30- Rights of minorities to establish and administer educational institutions
  • Article 30 grants the following rights to minorities whether religious or linguistic minorities. 
  • a) All minorities have the right to establish and administer educational institutions of their choice
  • b) The compensation amount fixed by the state for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment to the constitution to protect the right of minorities. 
  • c) The state shall not discriminate against any educational institution managed by a minority while granting aid to them. 
  • But these rights are not absolute. Rights conferred on minorities are to protect the interest of minorities but not to indulge in reverse discrimination i.e. they have to ensure equality with the majority but to place minorities in a more advantageous position with the majority community. 
  • The state can also make sure that general laws of the land relating to National interest, national security, Social welfare, Public order, Morality, Health, Sanitation, and taxation are equally applicable to minority institutions also.      
  • Minorities have the right to administer educational institutions but this right is not absolute. It does not mean that they have the right to mal-administer. 
  • The state can fix education standards. It can also fix qualifications for the recruitment of teachers and other employees. 
  • The state can also impose other conditions to maintain academic excellence
  • Minority institutions do not require to provide reservations. 

ARTICLE 32 OF THE INDIAN CONSTITUTION (07:21 PM)

  • FRs enshrined in the constitution would become meaningless if there is no effective mechanism to address the grievances of citizens if they are violated as rightly pointed out by Dr. B R Ambedkar without Article 32, our constitution would be a nullity. It would become meaningless. 
  • Article 32 is the soul of our constitution and is the very heart of it. 
  • SC has ruled that this right to approach SC for constitutional remedies is part of the basic structure of the constitution i.e. It can not be taken away or abridged by a constitutional amendment. 
  • SC judgment has the following features
  • 1) The right to move SC by appropriate proceedings for the enforcement of FRs is guaranteed
  • 2) SC has the power to issue directions or orders or, Writs for the enforcement of any FRs 
  • 3) Parliament can empower any other court to issue directions, orders, and writs of all kinds. Any other court does not include HCs as Article 226 has already conferred these powers on HCs but this can be done without prejudice to the powers conferred on the SC. 
  • 4) The right to move SC shall not be suspended except as otherwise provided by the constitution. The president can suspend the right to move any court during a national emergency (Article 359). 

TYPES OF WRITS (07:40 PM)

  • A writ is an order or a command issued by Judiciary. 
  • There are 5 different types of Writs that our SC and HCs can issue to protect the FRs of the citizens. 
  • HABEAS CORPUS 
  • Corpus means body. It is a Latin word that means "To have the body of ". 
  • It is an order issued by the court to a person who has detained another person. The writ of Habeas corpus can be issued against both Public authorities as well as private individuals. It will protect individual liberty against arbitrary detention by the state. The court can set the person free if it finds that the detention is illegal. 
  • But,
  • a) It can not be issued where the detention is lawful. 
  • b) The proceeding is for contempt of a legislature or a court. 
  • c) Detention is by a competent court
  • d) Detention is outside the jurisdiction of the court. 
  • MANDAMUS (07:55 PM)
  • Mandamus literally means "We command". 
  • It is a command issued by the court to a public official to perform the official duties that he has failed or refused to perform. 
  • It can be issued against any Public body, a corporation, an inferior court, a tribunal, or a Government for the same purpose. 
  • Question:-  Constitutional morality is rooted in the constitution itself and is founded on essential facets. Explain the doctrine of constitutional morality with the help of relevant Judicial decisions. (10 marks/ 150 words)

The Topic for the next class:- Other Writs mentioned in Article 32 and the Rest of the Fundamental rights.