There is a wry joke that the jurist Edward S Corwin once told: A doctor, an engineer and a politician were debating which of their callings was the most ancient. The doctor claimed that the removal of the rib from Adam’s side was clearly a surgical operation. The engineer replied that even before Adam, the world had to be created out of chaos, surely an engineering feat. “Very true,” said the politician, “but who do you think created the chaos?” Today, one might plausibly rewrite the joke: What might be called the “judicial complex” — that peculiar combination of Supreme Court judges and lawyers — could give politicians a run for their money as originators of chaos. The latest salvo in this vein is the debate over the term “constitutional morality.”According to reports, the solicitor general, in submissions before the Supreme Court in the Sabarimala case, has expressed scepticism about the judicial use of the term in recent judgments. There is, to be sure, a legitimate criticism to be made of some of its uses. For many, including this columnist, the term is not a judicial standard of adjudication. In an earlier formulation (“What is Constitutional Morality”, Seminar 615, November 2010), I had suggested that constitutional morality refers, instead, to the formal virtues of a constitutional sensibility: Self-restraint, respect for plurality, deference to processes, scepticism towards authoritative claims of popular sovereignty, and a commitment to an open culture of criticism that lies at the heart of constitutionalism. There is also a case, often made in this column, against judicial overreach, against excessive deference to the judiciary, and for restoring greater space for parliamentary sovereignty.AdvertisementBut the context of the present attack matters. It should be clear that the critique of “constitutional morality” is not offered in service of the Constitution. It is, rather, part of a broader attempt to hollow it out.There are at least two reasons to think so. One way of dismissing a term is to label it, what the philosopher J L Austin once called a “trouser term”: A concept so indeterminate that it derives its meaning only in opposition to something else. The charge, then, is that “constitutional morality” is vague, defined merely against “societal morality”. On this telling, it appears as a top-down, catch-all category. Its function is essentially to displace an organic, historically evolved, bottom-up set of norms. It becomes a judicial ruse, a means by which courts extend authority against society.But this is a critique in bad faith. “Societal morality” is more of a trouser term, indeed, arguably, an even more vacuous one. One may concede that “constitutional morality” is indeterminate and that it cannot, by itself, yield a standard of adjudication. Yet it has at least this virtue: It gestures towards the kinds of reasons that ought to be in play in adjudication. In a case like Sabarimala, it invites us to ask: How are liberty and equality to be reconciled with the autonomy of institutions? When does a practice so burden the standing of members that their civic equality is compromised? These are difficult questions, but they are the right questions.AdvertisementBy contrast, invoking “societal morality” in this context does not advance an argument; it forecloses one. It is less a reason than a refusal of reason, a device to insulate social practices from scrutiny. It is no accident that the objection to “constitutional morality” has been most strenuously voiced in cases like Navtej Singh Johar v Union of India, where entrenched social prohibitions were tested against the constitutional commitments to freedom and equality. Whatever its vagueness, “constitutional morality” at least orients us toward those values. It is their substance that matters, not the label. “Societal morality”, in this usage, is an attempt to immobilise reason, and that, precisely, is what makes it attractive.The second reason for scepticism is more troubling. Even if “constitutional morality” does not furnish a rule of decision, it does provide a standpoint from which to judge the Court itself. The anxiety it provokes is not about vagueness. It is, rather, that the term casts an unflattering light on the Court’s own trajectory, its drift, at times, toward a kind of judicial nihilism. The moral substance, procedural discipline, and predictive stability of law appear increasingly eroded, replaced by arbitrariness in process and uncertainty in outcome. It is not that plaintiffs cannot get relief. But which ones do, and on what grounds, appears increasingly random and contingent.you may likeNo one who takes the Constitution seriously can now say, with confidence, what it requires, or when the Court will choose to uphold its discipline. In recent weeks alone, several Rubicons seem to have been crossed. How, for instance, is one to assess the Court’s prickly and disproportionate handling of a minor episode involving an NCERT textbook, an episode in which segments of the Bar seemed more eager to appease judicial sensitivities than to defend principle, turning the proceedings into a theatre of the absurd? More gravely, how is one to come to terms with a situation in which the Court appears untroubled by the disenfranchisement of lakhs of voters in West Bengal without full due process, suggesting, in effect, that no serious constitutional injury occurs even when eligible citizens are unable to vote because the Court has endorsed a flawed process?“Constitutional morality” may not tell us what the right answer is in Sabarimala, how textbooks ought to be written, or which voters possess valid documentation. But it can still serve as a diagnostic. It alerts us to the presence of arbitrariness and unaccountable power; to moments when freedom and equality are treated with suspicion; to instances where a court ceases to enable reason and instead begins to immobilise it.Question constitutional morality by all means. But a reactionary assault on constitutional morality is a misunderstanding of its character. It is, in effect, to sow the seeds of moral and judicial chaos, an outcome to which our judiciary now seems, regrettably, determined to contribute.The writer is contributing editor, The Indian Express