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Subject: Constitutional Morality

  • Let’s curb misuse of a legal relic that elevates the mob over the individual

    Why in the News

    Section 295A of the Indian Penal Code, 1860, re-codified as Section 299 of the Bharatiya Nyaya Sanhita (BNS), is under fresh criticism for converting subjective offence into a cognisable, non-bailable criminal charge. The provision was introduced by the British in 1927 during the “Rangeela Rasool” controversy, after a provocative Urdu pamphlet satirising the Prophet Muhammad’s personal life sparked widespread communal riots. It survives in independent India under Article 19(2) of the Constitution, which permits speech restrictions in the interests of public order. The tension is between a criminal provision built to preserve public order and a constitutional guarantee of expression that the provision’s procedure defeats before any court examines malice.

    What does Section 299 of the Bharatiya Nyaya Sanhita cover?

    1. The offence: It penalises deliberate and malicious acts intended to outrage religious feelings, which was the stated purpose when Section 295A was enacted in 1927.
    2. Colonial rationale: It was born of a colonial urge to police Indian subjects deemed too volatile to handle the friction of free and provocative speech.
    3. Procedural character: The offence is cognisable and non-bailable, so the police may register a case and arrest without a magistrate’s prior direction and bail is not a matter of right.
    4. Constitutional validity: Ramji Lal Modi vs State of Uttar Pradesh (1957) upheld Section 295A, reading the words “deliberate and malicious” as the narrowing element that keeps it within Article 19(2).

    How does the provision create a heckler’s veto?

    1. Offence converted into an offence in law: Translating the subjective and volatile idea of “emotional hurt” into a criminal charge hands a permanent “heckler’s veto” to the most intolerant segments of society.
    2. Inverted hierarchy of rights: It creates a perverse incentive for outrage by elevating “the right to be offended” above the right to free speech.
    3. Low threshold to trigger the state: One aggrieved individual filing a First Information Report (FIR) in a remote corner of the country instantly triggers the machinery of the state.
    4. Who it is triggered against: Writers, filmmakers, stand-up comedians and publishers face it for speech that a court often finds, years later, was never malicious at all.
    5. Incentive for entrepreneurs of grievance: Political entrepreneurs, religious zealots and competitive vigilante groups find that claiming wounded sentiment is the easiest path to public relevance.

    What does the resulting self-censorship look like?

    1. Withdrawal of a published work: Penguin Books India withdrew distribution of Joe Sacco’s graphic novel on the Muzaffarnagar riots.
    2. Pulping of an academic work: The same publisher had earlier pulped copies of Wendy Doniger’s *The Hindus*.
    3. Pre-emptive editing: Cuts were sought to Sonia Gandhi’s memoirs that the publisher’s global arm had not considered necessary for the international edition.
    4. None of it was legally required: None of these texts was legally proscribed, so each was a pre-emptive surrender in which commercial risk aversion replaced constitutional principle.
    5. Spread beyond publishing: Galleries pull provocative paintings, studios quietly cancel scripts and academics choose safer research topics, leaving a public square reduced to bland conformity.

    Why is the process itself the punishment?

    1. Arrest precedes any finding: The law allows arrest before a trial can establish whether malice existed, so the element that makes the act criminal is tested last.
    2. Cost of defending the case: Multi-city court appearances, jail time and financial ruin break the spirit of an artist or author irrespective of the eventual verdict.
    3. Behavioural consequence: When the cost of creative expression is the potential loss of personal liberty, most creators choose to pull their punches.

    What did the 2008 Delhi High Court ruling on M F Husain establish?

    1. What the judgment did: It quashed criminal proceedings against the self-exiled painter M F Husain and set out a defence of artistic liberty against intolerance.
    2. How the charges were answered: The ruling dismantled the obscenity and blasphemy charges by placing Husain’s abstract nude depiction of Bharat Mata within India’s four-millennia-old heritage of sacred, pluralistic and erotic iconography, from Khajuraho to Konark.
    3. The warning it recorded: It critiqued the “new puritanism” pursued by self-appointed guardians of cultural purity and warned that such a society would push India backward.
    4. The principle it fixed: One disapproving viewer cannot hold the right to restrict free expression, which is the constitutional shield the ruling established for creative dissent.

    What reforms would reverse the incentive structure?

    1. Prior sanction before the FIR: Government sanction should be required before an FIR under BNS 299 is registered, rather than after the accused has already endured an investigation and a chargesheet.
    2. Consolidation of parallel FIRs: Multiple FIRs on the same subject lodged in different States should be consolidated immediately into a single proceeding.
    3. Fast-tracking of quashing petitions: BNS 299 cases should be fast-tracked so that frivolous proceedings are quashed early rather than after years.
    4. Costs on vexatious complainants: Vexatious complainants should face costs or other punitive consequences, so the incentive structure of the provision is reversed rather than reinforced.

    Conclusion

    Scrutiny of intent currently arrives at the end of the process, by which point the prosecution has already imposed the cost the provision was never meant to impose. Moving that scrutiny to the point before registration is what separates a public order safeguard from a licence for organised offence-taking. The unresolved conflict is between a constitutional test that turns on deliberate malice and a procedure that reaches arrest before malice is examined at all. Until the procedure is changed, the outcome of a case will continue to matter less than the fact of one.

    What is freedom of speech and expression under the Constitution?

    1. About: Article 19(1)(a) guarantees every citizen the right to freedom of speech and expression, read to include the right to receive and circulate information.
    2. Rationale: The guarantee protects the process by which citizens form and contest opinions, so it exists to shield unpopular expression rather than agreeable expression.
    3. The restriction clause: Article 19(2) permits reasonable restrictions on eight grounds, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence.
    4. The reasonableness test: A restriction must fall within one of those eight grounds and must be reasonable, which is why Shreya Singhal vs Union of India (2015) struck down Section 66A of the Information Technology Act, 2000 as vague and overbroad.

    Back2Basics: Bharatiya Nyaya Sanhita, 2023

    1. What it is: The statute that replaced the Indian Penal Code, 1860 as India’s principal criminal law.
    2. When it took effect: It came into force on 1 July 2024, alongside the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023.
    3. Structure: It carries 358 sections against the 511 of the Code it replaced, with several offences merged or renumbered.
    4. Relevance here: Section 295A of the Indian Penal Code is carried forward as Section 299, so the offence survives the recodification substantially unchanged.

    Matching Previous Year Question

    “What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.”

  • Public trust & public approval not same; trust demands fairness: CJI

    Why in the News

    The Chief Justice of India has said that public trust in the judiciary is not the same thing as public approval, because trust is not earned by giving people the outcomes they want but by ensuring fairness of process. The remarks answered concerns raised at the same event by senior counsel about the administrative reforms the judiciary needs in order to deal with challenges such as the appointment of judges. The stated position was that reform must be the rule, and that no institution can survive or take pride in remaining static. The tension is that the same address defended two internal mechanisms, judicial appointments through the Collegium and the handling of complaints against judges, while grounding institutional confidence in a court’s willingness to be examined, questioned and, where necessary, criticised.

    What is the Collegium system?

    1. What it is: The Collegium is the mechanism by which judges of the Supreme Court and the High Courts are selected by judges themselves rather than by the executive.
    2. Where it comes from: It has no textual basis in the Constitution, and was created by judicial interpretation of Articles 124 and 217 across the three judges cases of 1981, 1993 and 1998.
    3. Composition: For a Supreme Court appointment it comprises the Chief Justice of India and the four senior most judges of the Court, whose recommendation then goes to the Union government for the warrant of appointment.
    4. The failed alternative: The National Judicial Appointments Commission, created by the Ninety ninth Constitutional Amendment Act, 2014, was struck down by a five judge Constitution Bench in 2015, which restored the Collegium.

    What does transparency mean for a court?

    1. Not only open doors: Transparency is not simply a matter of open doors and public hearings, though it certainly includes those things.
    2. The reasoning, not the result: It means the reasoning behind a decision, and not merely its result, can be examined by anyone who cares to look, including the very people the decision goes against.
    3. A verdict without reasoning is not transparency: A court that announces its verdicts but keeps its reasoning to itself has not really been transparent, whatever else it may have done.
    4. What the phrase demands: “Seen to be done” means a fair hearing conducted honestly in the open, and a system that remains willing to be examined on whether it has kept its own word.

    How is public trust different from public approval?

    1. The difference matters a great deal: A court does not earn trust by being liked, or by handing out the outcomes people wanted.
    2. The test is the losing party: Trust is earned when the people who lost, who wanted an entirely different result, still walk away believing that the process which decided against them was fair.
    3. Harder and more valuable: That is a far harder thing to earn than approval, and far more valuable than it.
    4. What trust is for: Public trust is not decoration for the judiciary, and is the only currency in which authority is ever paid.

    What was said on judicial appointments?

    1. Reform as the standing rule: No institution can survive or take pride in remaining static, so reform is treated as a welcome step rather than a concession.
    2. Limits of a public answer: Some questions may not be prudent to respond to from a public platform, and the answers to them are legal answers set in the historical background of how the Collegium developed and how successfully it has worked.
    3. The record of appointments: There is hardly any impediment between the appointments by the Union of India and the recommendations of the Collegium, which itself indicates the kind of deliberation that goes into a final recommendation.

    How are complaints against judges handled?

    1. The internal mechanism: The mechanism the Supreme Court and the High Courts have developed for complaints against judges is described as robust, responsive and very timely.
    2. The misuse risk: Given a choice, a judicial officer will invite a complaint at every stage, whether passing an interlocutory order, adjourning a case or passing a final decree.
    3. The open question: Whether every such complaint should be brought onto a public platform or a website, or whether a strong internal mechanism should deal with it with complete objectivity and a dispassionate approach, is treated as a seriously debatable issue.
    4. Not treated as settled: The mechanism is described as well established, and as always subject to reforms and qualitative improvements.

    Why is criticism treated as compatible with institutional confidence?

    1. Exposure keeps institutions clean: Recalling Justice Krishna Iyer, institutions do not stay clean by being shielded from scrutiny, and stay clean by being repeatedly exposed to it and repeatedly surviving that exposure.
    2. The textbook proceedings: Suo motu proceedings concerning a National Council of Educational Research and Training (NCERT) textbook, which carried a chapter on corruption in the judiciary, became an occasion to consider the relationship between legitimate criticism and public confidence in the institution.
    3. What the order said: The order reiterated that the judiciary, as an institution, is not and cannot be averse to criticism.
    4. Why that follows: A court cannot seek the confidence of the public by placing itself beyond scrutiny, and must remain willing to be examined, questioned and, where necessary, criticised.

    Challenges to public trust in the judiciary

    1. Opacity of the appointment process: The Collegium publishes its resolutions but not the material or the comparative assessment behind a name, so the standard of examinable reasoning is weaker for appointments than for judgments. Eg. Reiterated recommendations have been left unacted by the government, with no published reason recorded on either side.
      The Fix: Publish an anonymised assessment memorandum with every recommendation, recording seniority, disposal record and the ground for any supersession.
    2. The internal complaints procedure has no statutory footing: Complaints against judges are handled under a procedure the judiciary framed for itself, so its outcome rests on institutional discipline rather than on law. Eg. Removal remains the only statutory route, under the Judges (Inquiry) Act, 1968, and no Supreme Court judge has ever been removed through it.
      The Fix: Give the internal procedure statutory backing with defined timelines and a published outcome summary that names no complainant.
    3. Pendency erodes trust faster than any single verdict: A litigant who waits years for a hearing experiences the process as unfair regardless of how the case is eventually reasoned. Eg. Cases pending before the district judiciary are counted in crores on the National Judicial Data Grid.
      The Fix: Publish court wise disposal and case ageing data against listed targets, so delay is attributable to a court rather than to the system in general.
    4. Vacancies outrun appointments: A sanctioned strength that is never filled turns an appointment mechanism into a bottleneck whatever its design. Eg. High Court vacancies have run into hundreds of posts for years together.
      The Fix: Fix a time limit for each stage from High Court proposal to warrant of appointment, with any delay recorded against the stage that caused it.

    Conclusion

    The address settles nothing about how judges are appointed or how complaints against them are decided, and it was not meant to. What it does is state the standard the institution asks to be judged by, which is the fairness of the process rather than the popularity of the result. That standard is testable only against the things the judiciary itself controls and publishes. The concrete thing to watch is whether the two mechanisms defended here acquire published reasons and fixed timelines, since a standard of examinable reasoning applied everywhere except to the institution’s own administration is precisely the gap the criticism turns on.

    Matching Previous Year Question

    “[2025, GS2, 15 marks] “Constitutional morality is the fulcrum which acts as an essential check upon the high functionaries and citizens alike…” In view of the above observation of the Supreme Court, explain the concept of constitutional morality and its application to ensure balance between judicial independence and judicial accountability in India.”

  • Court protects space for protest, it needs to

    Why in the News

    The Chief Justice of India has rebuked a Greater Noida executive magistrate for issuing a notice to a student over his alleged participation in the Cockroach Janta Party led protests over examination paper leaks. The notice went out after the Supreme Court had already quashed cases against student protesters, other than those carrying a criminal history. It was revoked afterwards, and the Court has demanded accountability for its having been issued at all. Days earlier the Allahabad High Court quashed charges under the National Security Act, 1980 against another student arising from workers’ protests in Noida. Both orders grant relief to students and both uphold the right to protest. The space for protest is being preserved case by case through judicial relief, rather than by the state defining the limits on protest narrowly in the first place.

    What did the two court interventions actually decide?

    1. The earlier Supreme Court order: An order of 1 September quashed cases against student protesters, with an exception carved out for those carrying a criminal history.
    2. Accountability for a notice already withdrawn: Withdrawal of the magistrate’s notice was not treated as closing the matter, and an explanation for its issue was sought.
    3. The High Court’s characterisation: Invocation of the National Security Act, 1980 was described as “arbitrary and vague”, and the decision to invoke it as “worthy of derision”.
    4. Officials named in a chain: Responsibility was fixed on officials from the District Magistrate down to the Station House Officer.
    5. Compensation as the remedy: The student was ordered to be paid compensation for the “casual and cavalier exercise of authority by the state”.
    6. Why the wording matters: The order locates the failure in the application of an extraordinary law to ordinary protest, not in any dispute about the facts.

    Why does the right to protest need active protection?

    1. Protest is the channel for those outside institutions: In a democracy with a young population, the ability to speak and to talk back to power has to be protected and widened rather than merely tolerated.
    2. The protests produced a response: Student agitations at Jantar Mantar and beyond forced those in authority to listen, which is the function protest performs.
    3. Amplification changes the stakes on both sides: A young population with a voice and a phone to carry it makes suppression both more visible and more tempting.
    4. The record the courts are drawing on: Judicial review has been used to widen the constitutional promise of civil liberties, including the scope of the freedom of speech and expression.

    Where should the limits on protest be drawn?

    1. Limits exist and are not in dispute: Protest cannot extend to violence, vandalism or incitement to violence.
    2. The burden of definition sits with the state: Those restrictions must be framed reasonably, precisely and narrowly rather than at large.
    3. Overbreadth is the mechanism of abuse: Loose and wide definitions allow ordinary protest to be recast as an offence, which the use of a preventive detention law against a student illustrates.
    4. The stated risk: Abuse of power on that scale risks reducing a state to an “Orwellian dystopia”, a landscape denuded of freedom and marked by severe government control.

    Why is relief in individual cases not a sufficient answer?

    1. Relief arrives after the cost has been imposed: A notice or a detention order does its work in the interval before a court reaches it, through legal expense, interrupted study and the deterrent it sets for others.
    2. The incentive facing the official is unchanged: Where an overbroad order is set aside without consequence for the officer who signed it, the calculation that produced it survives intact.
    3. The guarantee has to travel downward: A constitutional promise is worth what it is worth at the police station and in the office of the local politician, not only in a constitutional court.
    4. Judicial capacity is finite: Intervention one case at a time cannot match the volume of orders a wide statute permits, so the remedy has to sit in the definition of the offence.

    Challenges to protecting the freedom to protest

    1. Preventive detention is constitutionally permitted: Detention without trial for a limited period is contemplated by the Constitution itself, so its use is a question of proportionality rather than of legality. Eg. Article 22 expressly provides for preventive detention laws and regulates only the procedure around them.
      The Fix: Require a written and reasoned satisfaction naming the specific apprehended act before a detention order takes effect, and make that record reviewable.
    2. Prohibitory orders substitute for a ban on protest: Standing orders against assembly convert a gathering into an offence without any judgment on what it is about. Eg. Orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced Section 144 of the Code of Criminal Procedure, 1973, are renewed for long stretches in parts of the capital.
      The Fix: Cap the duration and the geographic extent of such orders and require publication of the reasons for every renewal.
    3. The process itself is the punishment: Bail applications, hearings and travel impose a cost that does not depend on any conviction. Eg. Undertrials make up the large majority of India’s prison population.
      The Fix: Provide for compensatory costs against the state as the default where a case against a protester is quashed for overbreadth.
    4. Space to assemble is shrinking: Where a city permits assembly at a single notified site, the state controls the audience a protest can reach. Eg. Ramlila Maidan and the Boat Club lawns in Delhi have progressively been closed to routine demonstrations.
      The Fix: Notify several protest sites in every city with a transparent and time bound permission process.
    5. Communication restrictions accompany protest policing: Suspension of mobile data around a protest site limits coordination and documentation together. Eg. India has recorded among the highest numbers of internet shutdowns of any country over the past decade.
      The Fix: Require every suspension order to be published with its duration and reasons, and to lapse automatically unless a review committee renews it.

    Conclusion

    The pattern in both orders is the same. An extraordinary power was turned on an ordinary protest, and a court had to say so. That is a working check and a poor system, because it places the burden of defending a constitutional guarantee on the person who was first denied it. The durable answer is a narrower statutory definition of what the state may prohibit, so that the question stops arriving in court at all.

    Back2Basics: National Security Act, 1980

    1. What it allows: It permits preventive detention of a person in order to stop an anticipated act, without charge or trial.
    2. Who may order it: The Central Government, a State Government, and a District Magistrate or Commissioner of Police so empowered may issue a detention order.
    3. Grounds: Detention may be ordered on grounds including the security of the State, the maintenance of public order, and the maintenance of supplies and services essential to the community.
    4. Duration and review: Detention may extend up to twelve months, and an advisory board must examine the order within a fixed period for it to continue.

    Matching Previous Year Question

    “[2025, GS2, 15 marks] “Constitutional morality is the fulcrum which acts as an essential check upon the high functionaries and citizens alike…” In view of the above observation of the Supreme Court, explain the concept of constitutional morality and its application to ensure balance between judicial independence and judicial accountability in India.”

  • ‘Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (150 words)

    Constitutional morality implies adherence to the core principles and spirit of the Constitution in a democracy.

    As per George Grote, it involves

    Paramount reverence for forms and procedures of the Constitution.

    Adherence to law while enabling open criticism of authority.

    Need for public reason, self-restraint, and trust in institutions.

    Essential Facets and Roots within the Constitution

    Preamble – It acts as the moral compass, explicitly mandating the preservation of justice, liberty, equality, and fraternity.

    Fundamental Rights – Protect dignity, autonomy, equality. Eg – Navtej Johar (2018) decriminalised homosexuality.

    DPSPs – Provide moral compass for social and economic justice.

    Institutional Checks & Balances – Separation of powers, judicial review, federalism. Eg – Kesavananda Bharati (1973) upheld Basic Structure.

    Democratic Processes – Free elections, executive accountability, judicial independence.

    Judicial Decisions

    Kesavananda Bharati (1973)- Upheld Basic Structure as a reflection of constitutional morality above political majority.

    Naz Foundation (2009, Delhi HC)- Asserted constitutional morality over public morality in striking down Sec. 377 IPC (later affirmed in Navtej Johar).

    Navtej Singh Johar (2018)- SC decriminalized homosexuality, stating constitutional morality must prevail over majority opinion.

    Sabarimala case (2018)- Affirmed women’s entry in temples on grounds of constitutional morality and gender equality.

    Government of NCT of Delhi v. Union of India (2018) – SC held that constitutional morality ensures cooperative federalism and prevents concentration of power in the hands of one authority.

    Joseph Shine v. Union of India (2018) – struck down Section 497 IPC (Adultery) as discriminatory, invoking constitutional morality to protect individual dignity and autonomy.

    Constitutional morality is the soul of Indian democracy. As Rajeev Bhargava notes, it embodies a form of constitutional patriotism that enables unity in diversity while upholding pluralism

  • “Constitutional morality is the fulcrum which acts as an essential check upon the high functionaries and citizens alike…” In view of the above observation of the Supreme Court, explain the concept of constitutional morality and its application to ensure balance between judicial independence and judicial accountability in India.

    Constitutional morality implies adherence to the core principles and spirit of the Constitution in a democracy. In the words of Ambedkar, “Constitutional morality is not a natural sentiment. It has to be cultivated”.

    Constitutional morality as the fulcrum

    Checks on High Functionaries

    Supremacy of Constitution – Limits arbitrary use of executive or legislative power.

    Rule of Law – Ensures decisions are legal, not personal or political.

    Judicial Review – Eg- NJAC Judgment

    Equality & Non-discrimination – Prevents rulers from favouring particular groups.

    Democratic Accountability – Demands transparency and answerability in governance. Eg- D. C. Wadhwa Case – frequent promulgation of ordinance as “fraud on the Constitution.”

    Separation of Powers – Eg – Indira Gandhi v. Raj Narain (1975) struck down 39th Amendment to protect judicial review.

    Spirit of Justice – Requires policies and judgments to align with fairness.

    Checks on Citizens

    Ensures public morality does not override rights and dignity of individuals. Eg – Navtej Johar (2018) decriminalised homosexuality, Sabrimala Judgment.

    Equality & Non-discrimination – Binds citizens against practising caste, gender, or religious exclusion.

    Tolerance & Fraternity – Discourages hate speech, intolerance, or majoritarian excesses.

    Constitutional Patriotism – Promotes loyalty to constitutional ideals over narrow identity politics. Eg- Fundamental Duties

    Concept of constitutional morality

    George Grote, in his History of Greece, described constitutional morality as a “rare and difficult sentiment”–

    Paramount reverence for forms and procedures of the Constitution.

    Adherence to law while enabling open criticism of authority.

    Need for public reason, self-restraint, and trust in institutions.

    Application of Constitutional Morality in Balancing Judicial Independence and Accountability

    Judicial Appointments – Constitutional morality preserves judicial primacy in appointments (NJAC Case 2015), while demanding transparency and collegium reforms for accountability.

    Judicial Review – Protects independence of judiciary to strike down unconstitutional laws (Kesavananda Bharati 1973), yet requires judicial restraint to avoid overreach.

    Judicial Conduct – Ensures judges remain free from executive pressure, but also subject to scrutiny for corruption or misconduct (K. Veeraswami v. Union of India 1991).

    Public Trust – Judicial independence protects rule of law, while accountability ensures public confidence in the judiciary.

    Ensures Transparency and accountability – Subhash Agarwal Case- Brought CJI’s office under RTI.

    Public Interest Litigation (PIL) – Expands access to justice for the poor and marginalised, but constitutional morality demands avoidance of frivolous PILs to preserve judicial credibility.

    Contempt Powers – Secure judicial independence, but require tolerance of criticism unless it obstructs justice delivery. Eg- Prashant Bhushan Case

    As Justice D.Y. Chandrachud observed, “Judicial independence is not a privilege but a responsibility owed to the Constitution.”