CJI Chandrachud recalls Delhi vs Centre verdict: 'Applied concept of Constitutional morality…'

The text of our Constitution does not use the expression constitutional morality. The Constitution uses the expression morality. Why are we discussing a phrase which is not used in the Constitution at all? I was one of those who applied this concept of constitutional morality when I wrote the judgment in the first round of the battle between the NCT of Delhi and the Union of India about six or seven years ago. Essentially, this conference speaks of contemporary judicial developments and strengthening justice through law and technology. The word contemporary is very important because it does not speak about the work which we do in the abstract, but in the context of contemporary societal challenges which we as judges face in the work which we do. We therefore look at law and its intersection of technology from the perspective of the societal conditions in which those whom we serve exist in our societies because the true merit of our work lies in addressing the challenges faced by those at whose feet we are intended to serve, namely the common citizens of India. The first important theme that we are going to discuss is the principle of constitutional morality. Now if you look at the Constitution, the text of our constitution does not use the expression constitutional morality. This phrase into invert commas. Constitutional morality is not found anywhere in the Constitution. The Constitution uses the expression morality, but it does not use the expression constitutional morality. Now all of you may be asking a basic question which is why are we discussing a phrase which is not used in the Constitution at all? What is the relevance to district judges, High Court judges, to the officers of the state, to civil Society of a phrase which is not used in the Constitution? The Constitution uses the expression morality, but morality in the Constitution is used as a restraint on fundamental rights. The Constitution allows for restrictions to be imposed by law on the right to freedom of speech and expression under Article 19 one. A by Article 19 two on various grounds, including morality. Likewise, the Constitution contemplates that restrictions can be imposed on the right to freedom of association in Terelia on grounds of morality. So morality in Article 19 two and Article 19 four is a restraint on the rights of the citizens. Is that the morality that we speak of when we talk about constitutional morality? Now, that's one of the basic questions which we have to address. If constitutional morality has not been addressed in the Constitution as a textual expression, what is the value addition to the constitutional discourse that we in a regional conference, a high-powered conference of senior judges from across the region, are discussing this concept. There's a first question which I must very briefly try and make you all perhaps reflect on. How do you define what is undefined and what is not explicitly stated in the Constitution? Who will define the concept of constitutional morality? We exist in a federal structure. We exist in a federal structure which is marked by a great deal of diversity. I was born in Mumbai, belonged to a small village about 6070 kilometers away from Pune. My work took me to Elabad as Chief Justice for three years. And now I look at the broader context of the Indian nation and one thing which cannot but leave a very imperceptible mark on your heart and soul in the work which we do as judges in Delhi is to realize the importance of preserving the diversity of India. So how do we then dwell on the concept of constitutional morality? At one level, constitutional morality is founded in the preambular values, the values which the constitutional Preamble sets out. But if these rights have already been enunciated elsewhere in the Constitution, then why constitutional morality? In fact, I was one of those who applied this concept of constitutional morality when I wrote the judgment in the first round of the battle between the NCT of Delhi and the Union of India about six or seven years ago, and responding to that judgment, did learn it. Attorney General for India Mr. Venugopal asked me in another case. He says, Judge, where do you find this doctrine in the Constitution? It was an academic discourse as constitutional cases involved at a certain level. The Preamble defines concepts and defer refers to concepts such as justice, social, economic and political liberty of thought, expression, faith, belief and worship, human dignity, equality, fraternity. Now these rights which the pre that preamble refers to are found in the text of the Constitution, Article 21, the right to life and personal liberty, equality in Article 14. Then why are we evolving this concept of constitutional morality? There is a more deeper reason. And that deeper reason for us to dwell on the concept of constitutional morality is that constitutional morality is an overarching principle which is derived from, but is not confined to specific rights or values which are enshrined in the Constitution. Constitutional morality gives you a unifying constitutional ethic. It gives you a unifying constitutional ethic. So every Indian citizen can think as she wishes to think. Every Indian citizen can speak as she wishes to speak. Every Indian citizen can worship as they intend to worship. Every intense citizen is entitled to follow whoever they want to follow. Every Indian citizen is entitled to eat what she or he wants to eat. Every Indian citizen is entitled to marry whoever she or he wants to marry or not marry at all. In other words, what constitutional morality really opens up as a universe for all of us, particularly as judges, is to create a whole way of life which the Constitution has created. And that way of life is deeply cognizant of the fact that India does not exist only in large cities, but it goes down to the smallest village in the smallest taluka across the nation, connected or not connected, communicable or not communicable, accessible or otherwise. And that is the true merit of the doctrine of constitutional morality. Constitutional morality, unlike morality, as I began by telling you, morality is a restraint on the rights of citizens. Constitutional morality, on the other hand, addresses itself to the State. Constitutional morality is a restraining factor on the State. But besides being a restraining facet of what the State has to respect, it imposes a duty on the State to facilitate the achievement of the kind of society which the converse a constitution envisages. Constitutional morality addresses itself to every component of society and to society as well. The Constitution is not merely a dialogue between the State and its citizens or between the Union and the States or between the States and States. Its a dialogue within and between societies. And constitutional morality address itself to every component of society and the society itself, telling society that you must allow for conditions which respect diversity, promote inclusion and pursuit. Tolerance, the heart of the nation, is our realization of the importance of diversity, the need for inclusion, and the ultimate pursuit of tolerance, which defines why we are, 75 years after the birth of the nation, still a nation with such beautiful diversity and colors. But above all, since we are judges, constitutional morality reflects an institutional commitment of the court system, the institutional commitment of each one of us, that we are but subservient to these values of the Constitution too. Very often when we are addressed as honor and we are addressed as lordships or ladyships, there is a very, very grave danger. And people say that, well, the court is a temple of justice. There is a very danger that we perceive ourselves as the deities in those temples. Therefore, speaking for myself though I am, I have my own set of personal values which are deeply personal to me. I'm a little reticent when I'm told that this is a temple of justice because temple postulates that the judges are in the position of a deity. I would rather recast the role of the judge as a server of the people. And when you regard yourselves as people who are there to serve others, then you bring in the notion of compassion, of empathy, of judging others but not being judgmental about others, allowing other people to lead the lives as they lead. All of us know as judges that in the worst of criminal cases which come before us, we have a human being who is before us. And even when we exercise the power of sentencing, we do that with a sense of compassion, just as we do it with a sense of duty to the family of the victim who has been wrong. So it is these concepts of constitutional morality which I think are the key, not just for the judges of the Supreme Court or the High Court, but for the district judiciary itself, because the engagement of common citizens begins first and foremost with a district judiciary. The Supreme Court is the court of last resort. Notwithstanding Article 32, the Court of First Resort are the district courts across the nation.