P E R F O R M A N C E

E X C E P T I O N S : B O M M A I
 Rajasthan Report
…22 MLAs and 15,500 BJP workers
participated in the kar seva at Ayodhya. They
were given a royal send off and given a
similar royal welcome by the influential
people in the political set up running the
government. The law and order has been very
bad for more than a week, the dominant
character being the anti-minority on whom
largely atrocities have been committed. The
administration could not function effectively
under the present political set up.

S.R. Bommai Case

Governer [MP] Report to President

“Deteriorating law and order situation Himachal Pradesh Report
in the State in the wake of wide-spread
acts of violence, arson and looting” the Chief Minister and cabinet
instigated the kar sevaks from to
participate in the kar seva on the
“lack of faith in the ability of the State
6th December, 1992. Some
Government…primarily because of the
Ministers expressed their desire
political leadership’s support to openly, provided the party High
communal organisations…” command permitted to do so.
 President’s Rule
On December 15, 1992, the President issued three proclamations dismissing all the three
government in Madhya Pradesh, Rajasthan and Himachal Pradesh and dissolving their
Legislative Assemblies.

Article 356: If the President, on receipt of report from the Governor of the State or
otherwise, is satisfied that a situation has arisen in which the government of the State
cannot be carried on in accordance with the provisions of this Constitution, the President
may by Proclamation-
(a) assume to himself all or any of the functions of the Government of the State and all or
any of the powers vested in or exercisable by the Governor or any body or authority in the
State other than the Legislature of the State; (b) declare that the powers of the
Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be
necessary or desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State…

74. Council of Ministers to aid and advise President

(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and
advise the President who shall, in the exercise of his functions, act in accordance with
such advice: Provided that the President may require the Council of Ministers to
reconsider such advice; either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration.
(2) The question whether any, and if so what, advice was tendered by Ministers to the
President shall not be inquired into in any court.
 although Article 74(2) bars judicial review
so far as the advice given by the Ministers
is concerned, it does not bar scrutiny of the

…the exercise of power by the President
under Article 356(1) to issue Proclamation is
subject to the judicial review at least to the extent
of examining whether the conditions precedent to
the issuance of the Proclamation have been
satisfied or not. This examination will necessarily
JUSTICIABILITY
material on the basis of which the advice is
given. The courts are not interested in
either the advice given by the Ministers to
the President or the reasons for such
advice.

Kuldip Singh, J
involve the scrutiny as to whether there existed
material for the satisfaction of the President that a

Sawant J
situation had arisen in which the Government of
the State could not be carried on in accordance
with the provisions of the Constitution. Needless

&
to emphasise that it is not any material but
material which would lead to the conclusion that
the Government of the State cannot be carried on
in accordance with the provisions of the
Constitution which is relevant for the purpose. It
has further to be remembered that the article
requires that the President "has to be satisfied”.
Hence, it is not the personal whim, wish, view or
opinion or the ipse dixit of the President dehors The courts are, however, justified in
the material but a legitimate inference drawn from probing as to whether there was any
the material placed before him which is relevant material on the basis of which the advice
for the purpose. was given, and whether it was relevant for
such advice and the President could have
acted on it.
“... Article 355 ... is not an independent source of A mere internal disturbance short of armed
rebellion cannot justify a Proclamation of
power for interference with the functioning of the emergency under Article 352 nor such
State Government but is in the nature of disturbance can justify issuance of

JUSTICIABILITY
justification for the measures to be adopted under Proclamation under Article 356(1), unless
Articles 356 and 357. What is however, necessary it disables or prevents carrying on of the
Government of the State in accordance
to remember in this connection is that while with the provisions of the Constitution. [...]
Article 355 refers to three situations, viz., (i)
external aggression, (ii) internal disturbance, and
(iii) non-carrying on of the Government of the
States, in accordance with the provisions of the

Kuldip Singh, J
Constitution, Article 356 refers only to one
situation, viz., the third one. As against this,

Sawant J
Article 352 which provides for Proclamation of
emergency speaks of only one situation, viz.,
where the security of India or any part of the

&
territory thereof, is threatened either by war or
external aggression or armed rebellion. The
expression "internal disturbance" is certainly of
larger connotation than "armed rebellion" and
includes situations arising out of "armed
rebellion" as well. In other words, while a
Proclamation of emergency can be made for
internal disturbance only if it is created by armed
rebellion, neither such Proclamation can be made
for internal disturbance caused by any other
situation nor a Proclamation can be issued under
Article 356 unless the internal disturbance gives
rise to a situation in which the Government of the
State cannot be carried on in accordance with the
provisions of the Constitution.
ALTERNATIVE J.S. Verma, J.
(and Yogeshwar Dayal, J.)
“It would appear that situations where the failure of
constitutional machinery has to be inferred subjectively
from a variety of facts and…some imponderables and
inferences leading to a subjective political decision,
judicial scrutiny…is not permissible for want of judicially
manageable standards. These political decisions call for
judicial hands off envisaging correction only by a
subsequent electoral verdict, unless corrected earlier in
Parliament.”

“Applying this principle, only the Meghalaya case is

justiciable and that Proclamation was invalid while those
relating to Madhya Pradesh, Himachal Pradesh, Rajasthan
and Karnataka are not justiciable.”

It is to this extent our view differs on the question of

justiciability. [No discussion on secularism]
Constitutional
Secularism
“…the 42nd Amendment
merely made explicit what
was implicit in it.”
…formalised the pre-existing
situation. It put the matter
beyond any doubt, leaving
no room for any controversy.
“...the manifesto of a
political party should be
consistent with these
fundamental and basic
features of the
Constitution.”
Secularism - more than a passive attitude of religious tolerance.
A positive concept of equal treatment of all religious.
This may be a concept evolved by western liberal thought or it may be, as some say, an
abiding faith with the Indian people at all points of time. That is not material. What is
material is that it is a constitutional goal and a basic feature of the Constitution.
Any step inconsistent with this constitutional policy is, in plain words,
unconstitutional…our [framers] read this concept into our Constitution not because it
was fashionable to do so, but because it was an imperative in the Indian context.
In this view of the matter, it is absolutely erroneous to say that secularism is a “vacuous
word” or a “phantom concept”.
We do not know how the Constitution can be amended to remove secularism from the
basic structure…it is enough to know that the Constitution does not provide for such a
course - that it does not provide for its own demise.
Any State government which pursues unsecular policies or unsecular course of action
acts contrary to the constitutional mandate and renders itself amenable to action under
Article 356.
Secularism is a part of the basic structure of the Constitution. The
acts of a State Government which are calculated to subvert or
sabotage secularism as enshrined in our Constitution, can lawfully
be deemed to give rise to a situation in which the Government of the
State cannot be carried on in accordance with the provisions of the
Constitution.
The Proclamations:

Madhya Pradesh - VALID

HP: VALID
Rajasthan – VALID

BUT

Karnataka – INVALID
Meghalaya – INVALID
Nagaland - INVALID
CONSTITUTIONAL MORALITY
 “In my reading… constitutional morality is as important for the smooth
working and survival of the Constitution as public morality is for the smooth
working and survival of a society.”
— Mahendra Pal Singh

“I hope constitutional morality dies”

— K.K. Venugopal (the Attorney General)

STAKES “After reading Professor Upendra Baxi’s comment on Attorney General KK

Venugopal’s concern over Constitutional Morality…I felt like raising some
fundamental questions on the debate….[the issue is] about the use and
abuse of the doctrine in constitutional decision-making.”
— NR Madhava Menon

“I do not know what theory of language Prof Menon adopts…CM, like all
metalinguistic concepts is an important aspect of judicial pedagogy of the nation
as setting a schema for interpretation of the related constitutional terms.”
— Upendra Baxi
 ENTERING THE §377. Unnatural offences.—Whoever voluntarily has carnal inte course
against the order of nature with any man, woman or animal, shall be
DISCOURSE: punished with imprisonment for life, or with impri onment of either
description for a term which may extend to ten years, and shall also be
CONSTITUTIONAL liable to fine.
§Explanation.—Penetration is sufficient to constitute the carnal
MORALITY AND intercourse necessary to the offence described in this section.

SECTION 377 s­
r­

NAZ FOUNDATION
VS
GOVERNMENT OF NCT OF DELHI
“popular morality or public disapproval of certain
acts is not a valid justification for restriction of the
fundamental rights under Article 21. Popular
morality, as distinct from a constitutional morality
derived from constitutional values, is based on
shifting and subjecting notions of right and wrong.
If there is any type of "morality" that can pass the
test of compelling state interest, it must be
"constitutional" morality and not public morality”
ASG: right to privacy is not absolute and can be
restricted for compelling state interest…Social
and sexual mores in foreign countries cannot
justify de-criminalisation of homosexuality in
India…in the western societies the morality
standards are not as high as in India.
Implication: “Constitutional morality is seen as purely
objective, free from the mess of history, transcending the
stuff of heterogeneity even as it upholds it.” — Ashley
Tellis
Question: Is Constitutional Morality completely devoid of
the Social? Could this Judgement have come in 1950s?
Read Down: We declare that Section 377 IPC, insofar it
criminalises consensual sexual acts of adults in private, is
violative of Articles 21, 14 and 15 of the Constitution.
Overturned in Suresh Kumar Koushal
 NAVTEJ SINGH JOHAR & ORS. VS UNION OF INDIA
Justice Misra and Justice Khanwilkar: [CM] is not limited to the mere observance
of the core principles of constitutionalism…sweep of constitutional morality is not
confined to the provisions and literal text which a Constitution contains, rather it
embraces within itself virtues of a wide magnitude such as that of ushering a Questions: 1) Where does
pluralistic and inclusive society”
Constitutional Morality
come from?
Nariman J: Constitutional morality is the soul of the Constitution, which is to be
found in the Preamble of the Constitution, which declares its ideals and aspirations, 2) What does
and is also to be found in Part III of the Constitution, particularly with respect to Constitutional Morality
those provisions which assure the dignity of the individual. Entail?

3) Can Constitutional
Chandrachud J: The Preamble to the Constitution recognises these rights as Morality achieve
“Liberty of thought, expression, belief, faith and worship” and “Equality of status
and of opportunity…Constitutional morality leans towards making Indian
Fraternity and
democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous Inclusivity?
population…. the broad values of the Constitution, which are based on liberty,
equality and fraternity”
 "By constitutional morality, Grote meant... a paramount reverence for the forms of the
constitution, enforcing obedience to authority and acting under and within these forms,
yet combined with the habit of open speech,
Constituent Assembly Debates, Vol. 7 (4th November 1948), Cited in Navtej Johar

“[For CM it is important to recognise: One…that the form of administration must be

AMBEDKAR: appropriate to and in the same sense as the form of the Constitution. The other is that it is
perfectly possible to pervert the Constitution, without changing its form by merely
changing its form of administration...Constitutional morality is not a natural sentiment. It
HISTORY OF has to be cultivated…Democracy in India is only a top dressing on an Indian soil which is
essentially undemocratic.”
CONSTITUTIONAL Cited in Navtej Johar at different parts; Cited in Naz

MORALITY Reason for Constitutional Morality: “Rightly or wrongly, [Ambedkar] felt the lack of a
living democratic tradition in India. Indian society was a society of castes and
communities…Ours is a very lengthy and elaborate Constitution…Dr Ambedkar’s
justification was that the absence of a democratic tradition required the provisions in the
Constitution to be written out in much greater detail than in the more mature
democracies where there was greater consensus on how democratic institutions should
function”
André Béteille: Democracy and its Institutions
 AMBEDKAR OUTSIDE CAD: CONSTITUTIONAL MORALITY,
NECESSARY BUT NOT SUFFICIENT
“If in a populace these habits [constitutional morality] are
present, then according to Western writers on Politics, self-
government can be a reality and nothing further need be
considered… I have no hesitation in saying that both
[constitutional morality and adult suffrage] these notions
are fallacious and grossly misleading. If democracy and
self-government have, failed everywhere, it is largely due to
these wrong notions. Habits of constitutional morality may
be essential for the maintenance of a constitutional form of
government. But the maintenance of a constitutional form
of Government is not the same thing as a self-government
by the people.”
“But unfortunately Western writers on Politics from
whom the foreigner draws his notions have failed to take
such a realistic view of democracy. Instead, they have
taken a very formal and a very superficial view of it by
making constitutional morality, adult suffrage and
frequent elections as the be-all and end-all of democracy.
Those who propound the view that democracy need
involve no more than these three devices are probably
unaware of the fact that they are doing nothing more than
and nothing different from expressing the point of view of
the governing classes.”
-What Congress & Gandhi Have done to the
Untouchables
“If the problem of the Untouchables was one of denial of political and
economic rights it could be solved by legal and constitutional methods.
The denial of political and economic rights is the result of the social
psychology of the Hindus. The problem for the Untouchables arises
directly out of the social behaviour of the Hindus. Untouchability will
vanish only when Hindus will change their mentality….How can this
happen ? Only when it is realised that what is tragedy for the
Untouchables is the crime of the Hindus. How long shall the
Untouchables have to wait for this revolution in the religious psychology
of the Hindus? Let those who have a gift for prophecy answer”.
- Civilization or Felony
“[Section 377] ... relate[s] to an odious class of offences respecting which it
is desirable that as little as possible be said. We leave without comment to OUR
the judgment of his Lordship in Council the two Clauses which we have
provided for these offences. We are unwilling to insert, either in the text, or
in the notes, anything which could have given rise to public discussion on
PROPHETS ANSWER:
this revolting subject; REVISITING
—§[Note M on Offences Against the Body in Penal Code of 1837 – Report of
the Indian Law Commission on the Penal Code, October 14, 1837.] NAVTEJ JOHAR
“Constitutional morality is the guarantee which seeks that all
inequality is eliminated from the social structure and each individual is
FAMILY? LOCATION OF assured of the means for the enforcement of the rights guaranteed”.
OPPRESSION?
VIOLENCE OF RUSHING INTO
— DYC, Navtej Johar
INCLUSIVITY AND FRATERNITY?
“OBJECTIVE AND UNCHANGING”? “History owes an apology to the members of this community and their
PREDESTINATION? families, for the delay in providing redressal for the ignominy and
ostracism that they have suffered through the centuries”.
— Malhotra, Navtej Johar
“Justice Chandrachud also abrogates all claims of the
social, giving the Constitution/constitutional morality the
job of challenging, liberating, establishing, promoting,
reversing, transforming, checking, guaranteeing, guiding, “an erasure of the messiness of the social and
facilitating, vigilantly safeguarding, monitoring, the psychic in the production of the Indian
preserving, fostering, authoritatively leading, assuring, homosexual subject as much as subjects
declaring, impacting, superseding, requiring, discharging, resistant to it.”
just some of the verbs and verbal phrases he uses, all of
which show the masculinist anxiety behind his
theorization”.

“Desires are social and psychic and so is what is lawful

and constitutional…The implicit idea is that social
morality is regressive and constitutional morality per The Lack of Honest Toil, Ashley Tellis,
se progressive but worse, that constitutional morality LGBH Activist
hovers above the social and can be plucked in to smother
the social at will”.

Ambedkar, 1955: Lok Sabha; “wanted to burn the
Constitution”: “We built a temple for a god to
come in and reside, but before the god could be
installed, if the devil had taken possession of it,
what else could we do except destroy the temple?”
WHICH AMBEDKAR? :
LIFE OF
CONTRADICTIONS
A constitution is a mnemonic for a community, a
list of what we do not want to repeat and a dream of
what we need to create…[Can we have] a heuristic
of understanding for a world which lies mute,
inarticulate in the formal eloquence of
constitutions.
Shiv Visvanathan, The Tacit Constitution
There are moments when I think that the
future of Democracy in India is very dark.
But, I do not want to say that I have not other
moments when I feel that if all of us put our
shoulders together and pledge ourselves to
“constitutional morality” we should be able to
build up a regular party system in which there
could be liberty, equality and fraternity.
Dr Babasaheb Ambedkar, Writing and
Speeches Vol 17 Part II (first published 2003,
Dr Ambedkar Foundation 2013) 378.
“Constitutional morality is thus the guiding
spirit to achieve the transformation which,
above all, the Constitution seeks to achieve.
[This] acknowledgement carries a necessary
implication: the process through which a
society matures and imbibes constitutional
morality is gradual, perhaps interminably so.”
— Navtej Johar
 CONSTITUTIONAL MORALITY: BEYOND NAVTEJ

Nariman J: “are contained in the Preamble read with various

other parts, in particular, Part III and Part IV thereof.”
(Sabrimala Review) —
*Shift from Preamble and FR to DPSPs*
Is Constitutional Morality a Floating
Chandrachud J: “Constitutional morality requires filling in Signifier?
constitutional silences to enhance and complete the spirit of the
Constitution.” (GNCTD, 2018); Sabrimala — Read it within
Articles 25 and 26’s Restrictions;

*Shift from Abstract Conception in Navtej which primarily

focused on Liberty, Equality, Fraternity (Preamble Primarily)*
PERVERT’S GUIDE
TO IDEOLOGY:
SLAVOJ ŽIŽEK
 “It may be argued that the idea of constitutional morality has no specific content and is again a place
holder which creates a large space for discretion. This argument however is implausible. By
constitutional morality the court seems to be referring to a morality which is justified by constitutional
values. This at once places the burden of coherence and institutional history on any court which wishes
to provide further content to the term. Any component of constitutional morality must be justifiable on
the basis of values which are coherent with the text of the constitution and valid past decisions. Thus, the
reference to the idea of constitutional morality means no more than fidelity to the constitutional text and
values”.

Pritam Baruah, Logic and Coherence in Naz

Foundation

IS IT THIS SIMPLE? IS THIS

ALWAYS A GREAT THING???
 LACLAU AND MOUFFE:
HEGEMONY AND SOCIALIST STRATEGY: TOWARDS A RADICAL
DEMOCRATIC POLITICS
Example: “If we ‘quilt’ the floating signifiers through ‘Communism’
for example, ‘Class Struggle’ confers a precise and fixed signification
to all other elements: to democracy (so called ‘real democracy’ as
opposed to ‘bourgeoisie formal democracy’ as a form of legal
exploitation); to feminism (the exploitation of women as a resulting
from the class-conditioned division of labour)”
Slavoj Žižek, Sublime Object of Ideology