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Constitutional morality, public morality and moral diversity

The pith and marrow of this discussion is that constitutional morality may be invoked on the basis of the provisions of the Constitution to question the conduct of the State and to identify the metes and bounds within which the State must operate.

J. Sai Deepak

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In the last piece, in examining the relationship between constitutional morality and public morality, this author had raised the following questions:

‘Given that public morality gives recognition to societal norms and is therefore meant to foster moral diversity, would it not be fair to contend that constitutional morality lies in recognizing the moral diversity enabled by public morality? Would it not follow that synonymizing public morality with a judicially-fashioned version of constitutional morality would lead to undermining the constitutional mandate of moral diversity? Importantly, in the context of a diverse society such as Bharat, what would constitute the basket of accepted societal norms in order for it to rise to the level of public morality?”

Before addressing the above enumerated questions and those which flow from them or are subsumed in them, it is important to ask a much more fundamental question of power- under the Constitution, who has the power to invoke “public morality” to limit the scope of fundamental rights under Articles 19(1)(a), 19(1)(c), 25(1) and 26? Articles 19(2), 19(4), 25(1) and 26 make it either expressly or otherwise clear that the power to limit such fundamental rights citing public morality is vested in “the State”.

Is “the State” defined in the Constitution? Yes. Article 12 states that unless the context of Part III (Fundamental Rights) of the Constitution otherwise requires, “the State” includes the Government and Parliament of India, and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of India.

Is the Judiciary part of “the State” under Article 12? While there exists a significant amount of debate around this question, the Supreme Court has held that Courts are not “State” when they exercise judicial functions, but may attract the definition in the exercise of non-judicial or administrative functions.

What this means for the discussion at hand is that, for the purposes of imposing reasonable restrictions on fundamental rights available under Articles 19(1)(a), 19(1)(c), 25(1) and 26 citing “public morality” or “public heath” or “public decency” or “public order”, the judiciary does not fall within the definition of State. That power is exclusively available to the Executive and the Legislature, which constitute the State. This position is consistent with the history of the drafting of the Constitution on availability of (a) fundamental rights, and (b) constitutional remedies against the State to enforce fundamental rights through Courts of law either under Articles 32 or 226.

Ergo:

 1. Given that the Executive and the Legislature have elected members and are therefore presumed to represent the will of the people, the Constitution gives them the right to impose reasonable limits on fundamental rights citing, among other things, the preservation or protection of “public morality”;

2. It follows that “public morality”, as used in the Constitution, has a specific meaning and role assigned to it, and is not to be conflated or synonymized with “constitutional morality”.

Obviously, limiting fundamental rights on the basis of “public morality” is rife with subjectivity since every dispensation/government may have its own definition of public morality which caters to its core vote base. However, this is the very nature of democracy since every elected dispensation has the right and the mandate to implement its version of public morals. Then what prevents any elected dispensation from arbitrarily curbing fundamental freedoms in the name of public order, health or morality or decency?

The oft-cited checks and balances lie in the procedural, substantive and institutional safeguards which are contained in or are read into the Constitution by the judiciary, which act as limiting agents to prevent Executive or Legislative arbitrariness. As stated earlier, when the State arbitrarily or summarily invokes public morality to curb fundamental rights, that is the point when the role of the judiciary becomes relevant i.e. when an aggrieved person challenges the State’s action in a writ petition on the ground that the restriction imposed on her fundamental rights in the name of public morality is either procedurally or substantively unreasonable or is violative of other provisions of the Constitution. It is at this juncture that the judiciary steps in to examine whether the State’s conduct passes muster on the anvils of the Constitution, which may be restated as testing State action against the mandate of the Constitution or the values of the Constitution as expressed through its provisions a.k.a constitutional morality.

What emerges from this is that “constitutional morality” may be applied by the judiciary to assess the reasonableness of State action which is ostensibly based on public morality. However, in doing so, the distinction between constitutional morality and public morality must still be maintained. Critically, the role of the former, it could be argued, is limited to identifying the bright red lines that the State must act within even when it invokes a valid restriction on fundamental freedoms such as public morality. That said, in applying constitutional morality to evaluate State action, the judiciary must be able to identify those provisions of the constitution whose underlying message or spirit is violated by State action. After all, constitutional morality cannot be a vague doctrine in the hands of an unelected body which has the effect of taking away the State’s constitutionally recognized powers to invoke public morality as a valid limitation on fundamental rights. In the absence of clarity and restraint, the application of constitutional morality would, in fact, lead to:

  1. a monochromatic moral universe which defeats the Constitution’s express and original intent of allowing the State to rely on public morality to reasonably limit fundamental freedoms. This equally violates the doctrine of separation of powers which requires the Legislature, the Executive and the Judiciary to respect each other’s constitutionally recognized turfs; and
  2. arrogation of power in the hands of an unelected body which takes upon itself the task of fashioning public morality in the name of resisting majoritarianism;

The most disturbing consequence of the untrammeled use of constitutional morality by Courts would be that the role and the say of the society in laying down what constitutes public morality would stand completely ceded to a body which does not represent the will of the people and is a law unto itself on most matters relating to it. To claim that “the constitutional order/morality requires institutional leadership of constitutional courts” and “the responsive participation of the citizenry” is tantamount to saying that public morality flows from the Supreme Court and citizens merely “participate” by complying with the judiciary’s definition of morality, instead of the Court acting only as a check on the State’s arbitrary use of public morality. “Compliant participation” sounds like an oxymoron no matter how eloquently it is couched and postulated.

To claim that “the Supreme Court cannot afford to denude itself of its leadership as an institution in expounding constitutional values” since “any loss of its authority will imperil democracy itself”, is to instill and encourage in the public a general distrust of the Legislature and the Executive. It could be argued that this goes against the very republican character of the Constitution as well as the power of the State to enforce public morality through law, which is the very essence of democratic power. To dub and reduce this to “majoritarianism” is to impute negative connotations to the concept and consequence of democracy itself. After all, the Constitution is not meant to prevent the society from making moral progress through trial and error, which is not just the right of a sovereign society but is also consistent with social evolution. In a nutshell, no version of constitutional morality can take away the society’s right to experiment with its morals. On the contrary, neither transformative constitutionalism nor constitutional morality can be applied as top-down doctrines. They must necessarily be informed by the chaotic movement of the society, even if it is not to the liking of any institution, in particular an unelected institution.

While the Constitution certainly accords to the judiciary the role of its watchdog, surely it cannot be anyone’s case that constitutional morality requires an unelected and autonomous organ to encourage the public to put stock in the notion that some organs are more trustworthy than the other under the Constitutional framework. After all, the history of every organ is in the public domain for members of the society to draw their own conclusions about their respective commitment to constitutional values.

The pith and marrow of this discussion is that constitutional morality may be invoked on the basis of the provisions of the Constitution to question the conduct of the State and to identify the metes and bounds within which the State must operate. However, it cannot be used to emasculate the discretion and prerogative constitutionally vested in the State to define public morality by virtue of it being an elected body. In the next few pieces, this author will explore the following aspects of the same issue:

  1. the use of public morality in other jurisdictions to curb fundamental rights, and its treatment by their judiciaries;
  2. the relationship between judicial autonomy, independence, accountability and their impact on public morality; and
  3.  the contours of public morality in the context of a diverse society such as Bharat.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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