12 MAY 23

12-May-23

SL. PAGE
TOPICS
NO. NO.

1 Constitutional morality Vs social morality 09

2 ROLE OF GOVERNOR – vis-à-vis Floor Test 01

3 ROLE OF SPEAKER – vis-à-vis Floor Test 01

4 ROLE OF ECI in recognising Political party 01

12-May-23

1. UPSC Current Affairs: Constitutional morality Vs social morality | Page No. 09

UPSC Syllabus: Mains: GS Paper IV : Ethics, integrity and aptitude

Sub Theme: Constitutional morality Vs social morality | UPSC

Context: The recent issue with respect to same-sex marriage in India is a classic case of the tussle between
constitutional morality and social morality.

Constitutional morality v/s Social Morality

Constitutional Morality Social Morality

principles and values enshrined in the adherence to the principles and values that are
constitution. It means adhering to the spirit and held by the society or community in which an
conscience of the constitution in practices, laws individual life. They emanate from custom,
and conduct of citizens and governments. It religion and traditional values of a community.
upholds rights and principles enshrined in the They shape ideas of virtue, ethics and propriety
constitution. in social life.
based on the principle that the Constitution is based on the principle that the customs,
the supreme law of the land and every citizen traditions, and beliefs of the society are the
must abide by it. guiding principles for individual conduct.
Universal in nature and is applicable to all Social morality varies from community to
citizens, regardless of their background or community and may not necessarily be
beliefs. applicable to all citizens in the same way.
binding on all citizens, including the state and itsnot binding on the state or its agencies, and they
agencies. may act in ways that are not consistent with
social morality.
essential for the functioning of a democratic can sometimes be oppressive and may restrict
society and ensures that the rights of citizens are the rights of individuals, especially those who
protected. are part of minority communities.

The concept of constitutional morality has been an integral part of the Indian Constitution since its inception. Dr.
B.R. Ambedkar, the chief architect of the Indian Constitution, believed that constitutional morality was the key to
the success of Indian democracy. He defined constitutional morality as "a paramount reverence for the forms of the
Constitution and for the methods of the Constitution."

"Constitutional morality is the adherence to the principles of the Constitution even when it goes against one's
personal beliefs and interests." - Justice D.Y. Chandrachud

"Social morality cannot be a valid justification for denying constitutional rights." - Justice Rohinton Fali Nariman

“In matters of conscience, the law of the majority has no place.” – Gandhiji

“Wrong does not cease to be wrong because the majority share in it.” - Leo Tolstoy

Both seek to ensure harmonious living in a society, both deal with very different situations. In a society like India
which has long and rich history of civilization made of diverse traditions all coming together, the sense of social
12-May-23

morality is very high. But, there is potential conflict between the two as social morals may be parochial, prejudiced
and violate principles of justice, equality and dissent guaranteed under the constitution.

o We have in India a number of laws that reflect social morality. For instance the social stigma associated
with single male is reflected in adoption laws where a single male cannot adopt a girl child.
o Assisted Reproductive Technology Bill or Surrogacy Bill promotes use of assisted reproductive technology
for heterosexual couples or single women but not for single men, LGBTQ community. The underlying belief
is that single male, LGBTQ are not suitable to raise a child. This is the reflection of social morality in law.

Social morality is more suitable for a group that is homogenous. Constitutional morality is more suitable when more
than one group live together.

In a pluralistic society social morality is what the majority believes in and constitutional morality is to weave
together different beliefs, values, customs, practices together. When India became a nation-state after
independence, the ideals of liberty, equality, fraternity set out in the preamble became the fulcrum around which
the diverse traditions could be woven around. Further constitutional morality is reflected in Part 3, 4 and 4A of
Indian constitution although it is not restricted to these.

• Freedom of religion (Articles 25-28): Upholds moral principle of tolerance against potential social moral
view that privileges one religion.
• Abolition of untouchability (Article 17): Rejects social moral of ritual purity and pollution upheld by
orthodoxy. Affirms equal human dignity and worth.
• Protection of minorities (Articles 29-30): Prevents tyranny of majority based on social morals, protecting
dissent and diversity.
• Directive Principles (Articles 38-51): Gave constitutional obligation to achieve justice to enforce moral
principles of equity against class and gender inequalities sanctified by social morals. Guiding governance
beyond political expediency.
• Judicial pronouncements: Overruled social moral claims to uphold privacy, sexuality rights and free speech.
Struck down practices like triple talaq and adultery law. Upheld reformative laws on child marriage, dowry
prohibition, etc.

§ In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court of India
held that the basic structure of the Constitution cannot be amended, as it would violate the principles
of constitutional morality.
§ Freedom of religion must give way to the values of liberal constitution. (Shabrimala judgement)
§ Individual freedom prevails over purported group rights (Shabrimala judgement)
§ In Navtej Singh Johar Vs UoI case

o An individual’s right to develop one’s individuality against the demand of social conformity
must be recognised
o Majority opinion does not become law of the land
o Social morality cannot overshadow constitutional morality

§ Section 497 subordinates’ women and creates a dent on individual identity of women.
(Joseph Shine Vs UoI 2018 (Adultery Judgement))
12-May-23

Importance of social morality

While constitutional morality must always prevail over social morality, sometimes the interpretation of
constitutional morality may be problematic.

For instance in the Sabarimala case the court ruled that closing the temple gates to menstruating women is a
violation of right to equality. What the courts failed to recognise is the freedom of belief of certain sections of
people. (in this case the devotees of lord Aiyyappa).

"The Constitution of India is not a mere lawyer's document, it is a vehicle of life, and its spirit is always the spirit of
the age." - Dr. B.R. Ambedkar

"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 an Indian soil which is essentially undemocratic." - Dr.
B.R. Ambedkar

UPSC PYQ

2021 GS 2

2019 Ethics paper

2019 GS 1
12-May-23

2. UPSC Current Affairs: ROLE OF GOVERNOR – vis-à-vis Floor Test | ROLE OF SPEAKER – vis-à-vis Floor Test | ROLE OF ECI in
recognising Political party | Page No. 01

UPSC Syllabus: Mains: GS Paper II: Polity & Governance

Sub Theme: ROLE OF GOVERNOR – vis-à-vis Floor Test | ROLE OF SPEAKER – vis-à-vis Floor Test | ROLE OF ECI | UPSC

ROLE OF GOVERNOR – vis-à-vis Floor Test

Observations of Supreme Court

The Court noted that the Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor
of the House “because he did not have reasons based on objective material before him, to reach the conclusion
that Mr. Thackeray had lost the confidence of the House.”

The Indian Constitution does not explicitly mention the term "objective material" in the context of calling for a floor
test. However, the term "objective material" has been used by the Supreme Court in several judgments related to
the power of the governor to call for a floor test.

In the landmark judgment of SR Bommai vs Union of India (1994), the Supreme Court held that the governor's
power to call for a floor test is not absolute and must be based on objective material. The court held that the
governor cannot act on vague or speculative grounds but must have concrete and specific material to support their
decision.

The court further stated that the objective material should be such that it would satisfy a reasonable person acting
in a responsible manner that the government has lost its majority. The material should not be based on the
subjective satisfaction of the governor alone.

Governor Bhagat Singh Koshyari “erred” in calling for a trust vote, which triggered the fall of the government in
mid-2022. The discretion to call for a floor test is not an unfettered discretion.

“A Governor must be aware of the fact that his very calling for a trust vote may precipitate the loss of majority for
a government. Calling for a trust vote may itself lead to the toppling of a government… Governors must not lend
their offices for effectuating a particular result… The Governor cannot enter into any area by which his action would
precipitate the fall of a government,” he had observed.

“Communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a
floor test,” a Constitution Bench held.

Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed
under the party constitution. Floor test cannot be used as a medium to resolve internal party disputes or intra-
party dispute.

There is a marked difference between a party not supporting a government, and individuals within a party
expressing their discontent with their party leadership.
12-May-23

The court also said that Governor Koshyari was right in inviting Mr. Shinde to form the new government as Mr.
Thackeray had resigned before the floor test. This means that the Shinde government will continue in power for
now.

A floor test is a procedural mechanism for determining the majority support for a leader, party or alliance in the
legislative assembly. In India, governors have the power and duty to call for floor tests under certain circumstances
to resolve disputes over choice of chief minister, prevent misuse of Article 356 or ensure transparency.

In the Indian political system, a governor can call for a floor test or trust vote under the following circumstances:

i. When the chief minister loses majority in the assembly: If the governor believes that the chief minister
has lost the confidence of the majority members in the assembly, he/she can ask the chief minister to prove
majority support on the floor of the assembly. This usually happens in case of defections or a no-confidence
motion.
ii. When there is a dispute over the leader of legislative party: When there are two rival claims to form the
government from different leaders or parties, the governor may call for a floor test to resolve the dispute
and determine who has the majority support.
iii. Appointment of chief minister after election: Article 164(2) states that the chief minister shall be
appointed by the governor and shall be the leader of the majority party or coalition in the assembly. This
implies the need to determine the majority. If the majority is not clear or there are disputes, the governor
may call for a floor test to determine the choice that has the maximum support.
iv. Merger/split in a party: When there are mergers, splits or factionalism in a party resulting in disputes over
the leadership of the legislative party and rival claims to form the government, the governor can intervene
and call for a floor test to resolve the deadlock.
v. Hung assembly: In case of a hung assembly where no party or coalition has a clear majority, the governor
may invite those attempting to form the government to prove their majority through a floor test.

Governor must mandatorily call for floor test in the following cases

• Before imposition of President’s rule: Article 356(1) empowers the president to impose president's rule if
the governor reports that a government cannot be formed or there is a breakdown of law and order in the
state. A floor test can preclude the need for such a report by establishing the majority. Supreme Court
verdict in Bommai case (1994): The court ruled that before invoking Article 356 in case of defection of
MLAs, the governor must conduct a floor test to determine if the government has lost majority following
the defections.

• Chief minister requests for dissolution of assembly: Supreme Court verdict in Rameshwar Prasad case
(2006) ruled that if a chief minister requests dissolution of assembly, the governor must conduct a floor
test first to determine that the chief minister has lost majority support. Mere claim is not enough.

• Supreme Court verdict in Nabam Rebia case (2016): The court ruled that a governor can direct the Speaker
of the assembly to hold a floor test to determine the majority for one or the other rival claimant to become
chief minister. The test must be held within a 'reasonable' period, say within 7-15 days.

Floor tests should follow principles of transparency and fairness (Maharashtra trust vote case, 2019)
12-May-23

Floor tests determine and establish that one choice commands the confidence of the majority to form government.
They strengthen the governor's judgment, force rivals to prove majority claims and failing which require fresh
elections.

Floor tests have been instrumental in ensuring principles of democracy, constitutional morality and public trust in
governance. They deter political manoeuvrings and ensure functional integrity of institutions.

In summary, provisions of the constitution, governor's discretion and Supreme Court verdicts have conclusively
established the centrality of floor tests in situations necessitating determination of majority support within a
democratic assembly. Floor tests are the most transparent and judicially sanctioned means to resolve political
deadlocks, uphold public confidence in constitutional offices and facilitate smooth functioning of governments. The
duty to call for them is an empowerment of governors for objectives fundamental to India's democratic polity.

Role of speaker

Observations of Supreme Court

The court also declared Mr. Narwekar’s decision recognising Bharat Gogawale as Chief Whip of Shiv Sena as
“illegal”.

The 'whip' refers to enforceable commands issued by a political party to its members regarding attendance in
the House or voting in the legislature as per party policies. The 10th Schedule of the Constitution deals with
disqualification of members for failing to follow party whips.

Strict adherence to whips by legislature members is considered crucial for party/alliance unity, discipline and
ensuring passage or blocking of bills and motions in a democratic system. Defection invites penalty. Key points:

1. Each party may appoint one member from the House as chief whip, and additional whips for
coordination and ensuring attendance/voting of its members as per party direction.
2. However, a party can issue whips only for those bills/motions it has a stated policy or consensus decision
on. Whips cannot be issued arbitrarily or retrospectively on issues not discussed within the party.
3. Independent members or those nominated to the House are not covered under the anti-defection
provisions of the 10th schedule regarding violation of whips.
4. A legislator who votes or abstains from voting contrary to the party whip in the House can face
disqualification under the 10th Schedule.
5. The court also stated that a whip applies only when a bill or motion is being voted in the legislature, not
at earlier stages of discussion, debate or introduction of the measure. So members can express dissent
or opinions freely in discussions before voting.
6. The court ruled that a member disqualified under the anti-defection law for violating a whip is entitled
to approach the court if the whip itself was issued in violation of party procedure or rules, or the
Speaker's decision suffered from 'proportionality' or absence of reasons.
In the Kihota Hollohan case (1993), the court upheld the validity and constitutional necessity of the anti-
defection law but struck down one provision which barred judicial review of the Speaker's decision on
disqualification. The court said its power of judicial review cannot be excluded.
12-May-23

The court found that the Speaker’s decision to recognise Mr. Shinde as the “Leader of the Shiv Sena Legislative
Party” was “illegal” too. “The Speaker, by recognising the action of a faction of the Shiv Sena Legislative Party (SSLP)
without determining whether they represented the will of the political party, acted contrary to the provisions of
the Tenth Schedule,” the judgment said.

Court has also clarified that whips and leaders of the party in the House ought to be appointed by the political
party, and not the legislature party. This has a bearing on whose whip is binding on legislators in the event of a
party splitting into two factions. It has also decided that the judgment in Nabam Rebia (2016), holding that a
Speaker who is facing a notice for removal from office should not adjudicate a disqualification matter under the
anti-defection law, should be reconsidered by a larger Bench. This is welcome, as legislators who have incurred
disqualification should not be allowed to use a frivolous petition to remove the Speaker to ward off their own
disqualification.

Stressing the difference between the political and legislature wings of a party, the court said, “To hold that it is the
legislature party which appoints the whip would be to sever the figurative umbilical cord which connects the
member of the House to the political party. It would mean that legislators could rely on the political party for the
purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of
the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation
with the party, but that they can later disconnect themselves entirely from that very party and be able to function
as a group of MLAs which no longer owes even a hint of allegiance to the political party.”

The Court ruled that direction to vote in a particular manner or abstain is issued by the political party, and not
the legislature party.

The Bench also found fault with Mr. Narwekar’s decision to stay the disqualification proceedings “in anticipation”
of the decision of the Election Commission on which of the two rival factions was the original political party of the
Shiv Sena. The apex court held that the decision of the ECI on the pleas before it need not be consistent with the
decision of the Speaker of the Maharashtra Assembly as per the Tenth Schedule of the Constitution, which laid
down the anti-defection law. This is because the decisions of the Speaker and ECI are each based on different
considerations and are taken for different purposes.

The court asked the Speaker, before deciding disqualification issue, to first determine which of the factions
constitute the ‘political party’ and take a call without being influenced by the ECI order in that regard.

Absent exceptional circumstances, the Speaker is the appropriate authority to adjudicate petitions for
disqualification under the Tenth Schedule [anti-defection law]

The petitioners wanted the Court to give its decision on the issue of disqualification of Mr. Shinde and his
supporters. However, the Court said it “cannot ordinarily adjudicate petitions for disqualification under the 10th
Schedule. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by
this Court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a
reasonable period.”

Split vs defection

The court drew a map of factors for the Speaker to consider while deciding the disqualification petitions:

• First, the Speaker could not accept the Shinde group’s sole defence that they had merely “split” from the
Shiv Sena party, and not defected.
12-May-23

• Second, the Speaker, while considering the question of which faction was the “real” Shiv Sena, must
consider the version of the party constitution submitted to the Election Commission with the consent of
both factions.
• Third, the judgment said that the Speaker must not be swayed by the numbers in the House. The Speaker
must not base his decision as to which group constitutes the political party on a blind appreciation of which
group possesses a majority in the Legislative Assembly.

The question of whip

As for the recognition of Sunil Prabhu, who was originally appointed as the Chief Whip by the Shiv Sena, experts
have opined that Mr. Narwekar must disqualify the 16 MLAs who violated the whip issued by Mr. Prabhu.

P.D.T. Achary, former Secretary-General of the Lok Sabha, said, “The Speaker has no other option except to
disqualify the MLAs from the Shinde faction. Because the Supreme Court has said that the whip can be issued by
the political party, i.e. party headed by Uddhav Thackeray. This means the Shinde faction which defied the whip, is
naturally liable to be disqualified.”

Nikhil Wagle, political analyst, said, “The Supreme Court has said the selection of the whip is illegal, then the entire
process is illegal, so the Speaker doesn’t have much option. But Mr. Narwekar is openly partial, so I think he will
delay the process.”

Referral to a larger Bench of seven judges

The court further referred to a larger Bench of seven judges the question of whether a Speaker facing removal could
decide disqualification petitions against MLAs under the Tenth Schedule.

The Rebia judgment had held that a Speaker who was himself under a cloud should not hear and decide
disqualification petitions of legislators under the anti-defection law until his own name was cleared.

“It is a caution to the Speaker and ultimately it is for the Speaker to take a call whether there is frontal assault on
his continuance or whether he would like to go ahead with the hearing of the disqualification petition,” Chief Justice
Chandrachud had observed.

Second, the Constitution Bench had wondered whether MLAs facing disqualification for causing a ‘split’ in the party,
and unsettling the ruling government, could be allowed to benefit from a subsequent floor test.

Allowing an MP or an MLA who is facing disqualification under the anti-defection law to participate in a floor test
caused by his own doings will defeat the very purpose of the Tenth Schedule, Chief Justice Chandrachud had
observed.

“Allowing such MLAs to attend a trust vote would amount to legitimising a constitutional sin… One the one hand,
you have the Tenth Schedule, which is to prevent the constitutional sin of defection. On the other, you say
somebody who defects, causes a split within the party, is liable to be disqualified… At the same time, you say that
even if that person is liable to be disqualified, in the meantime, he can participate in the trust vote in the House…”
Chief Justice Chandrachud had asked senior advocate Neeraj Kishan Kaul, who appeared for the Shinde group.