Constitutional Morality A Dangerous Weapon, It Will Die With Its Birth: KK Venugopal

Attorney General KK Venugopal on Saturday reportedly expressed apprehensions about the use of Constitutional morality for testing the validity of laws.

Speaking at the Second J Dadachanji Memorial Debate organised by ILA Pasrich & Company, Mr. Venugopal warned that this approach could have very dangerous repercussions.

He began by tracing the history of “conflict” between the judiciary and the legislature, pointing out that in the early years, the Apex Court struck down land reform and nationalisation laws “on a strict and literal interpretation of the Constitution”.

This, he said, led to Constitutional amendment, after which the Supreme Court laid down the basic structure doctrine in Kesavananda Bharati, “which was a deathblow to the supremacy of the Parliament”.

He then asserted that he was citing history to emphasise on the dangers of using Constitutional morality, saying,

“Use of constitutional morality can be very, very dangerous and we can't be sure where it'll lead us to. I hope constitutional morality dies. Otherwise, our first PM Pandit Nehru's fear that SC will become the third chamber might come true.”

As per Indian Express report, Mr. Venugopal went on to criticise the Supreme Court for its use of Article 142 as a “Kamadhenu from which unlimited powers flowed to the apex court of the country”, stating, “Article 142 merely permitted the Court to pass such decree or make such order as to do complete justice in any cause or matter pending before the court…But the Article was treated as a Kamadhenu from which unlimited powers flowed to the apex court of the country.”

The Supreme Court of India, he said, has “garnered to itself vast powers, which no one apex court in the world has ever exercised”.

He added that he was apprehensive that Constitutional morality will now be used to test the laws, and also referred to the judgment in the Sabarimala case, saying, “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 which says no, it’s prohibited because of constitutional morality, that is a very dangerous weapon.You cannot use it. It can result in grave injury without anyone knowing where it’s going to end.

Therefore I’m hoping Constitutional morality will die with its birth.If it still persists with it, I’m afraid that Pandit Nehru’s belief that it would result in the Supreme Court of India becoming a third chamber will come true.”

He finally asserted that unless the practice of employing constitutional morality “dies”, there is always a possibility of Pandit Jawaharlal Nehru’s fear that SC would become the third chamber of Parliament coming true.

The AG, however, clarified that he was speaking in his personal capacity.