‘Constitutional morality finally comes down to justice without fear or favour’, Kapil Sibal at Justice Unplugged 2026

Constitutional morality is a powerful but seemingly elusive and shape-shifting concept. It has acquired various meanings over time, under different historical and socio-political environments and conditions. In the 19th century, George Grote used the term to convey the simple but powerful idea that a Constitution survives by habit, not text alone. Speaking at the Constituent Assembly on November 4, 1948, the Chairman of the Drafting Committee, Dr. BR Ambedkar touched upon Grote’s idea and term, which may have had a strange connotation to many members of our Constituent Assembly. Over the next 78 years, various constitutional and legal developments took place in India and elsewhere that gave implicit and explicit new meaning to the idea of ​​constitutional morality. Over historical time, it has evolved from the idea of ​​civic virtue to institutional restraint, rights-based transformation, majoritarian power, and defense against technological domination. Where are we in terms of constitutional morality?

: Morality in itself is not a static concept. It varies with time. The very concept of morality has changed. The beauty of our Constitution is that the court is given the power to interpret time in the context of the needs of the time. Let’s look at India in the 1950s. At that time, you did not have an attitude targeting minorities. So the concept of constitutional morality in the context of how you deal with minorities was not an issue for the court to address. The concept of constitutional collapse we see today was not a situation the court encountered. So when we talk about constitutional morality, eventually it comes down to justice without fear or favor. This is the oath taken by judges and most public officials. Justice is the ability to overcome fierce debate and interpret the Constitution in the context of what is good for the larger society. The problem with our court today is the complete breakdown of our constitutional mechanism. The executive governs through the legislature due to the majority. The voice of the opposition is not heard and is not allowed to be heard. In this case, what should the court do when the matter is brought to court? You have conversations by ministers that are clearly social in nature. The court does not accept this. When the Supreme Court comes to the Supreme Court with an article 32 petition claiming that a Prime Minister somewhere made this statement with a gun in his hand, the court says go to the Supreme Court. Now the question we ask as lawyers in court is: Why are you doing this? Because if you have to give up justice without fear or favor, what are you afraid of?

NR: The judiciary has neither sword nor purse. It gets its strength and nourishment from the people’s belief. Is public confidence in the court decreasing?

: There is absolutely no doubt. It’s eroding for the simple reason that they brought this on themselves. You saw this chapter in an Eighth Grade book. Yes. There is no longer any allegation of corruption in the judiciary. In every institution, there is bad money everywhere that tarnishes the name of the institution. Therefore, we cannot sweep this under the carpet and say, “Look, there is no corruption.” You can’t say that. There is corruption. So how did it suddenly find its place in textbooks? I asked myself this question. If judges performed their duties in accordance with the morality of the Constitution, would they find a place there?

Once you reach a certain level where the public begins to believe that the institution is generally corrupt, then you’ll see that narrative in eighth grade textbooks, right? In my opinion, the judges did this on their own. That’s one side of the story. On the other hand, you are not talking about the politician, the Minister or the system. Look at how much corruption there is in the system across the country. But you don’t mention that in your Eighth Grade book. So your aim is to intimidate the judiciary. Your goal is to cause more damage to the institution. You can then capture it completely. So the intention is fake. It is selective. It should never have been in the Eighth Grade book.

NR: On defense of minority rights. It’s a big part of our Constitution. Where do we stand?

: Some of this happened before 2014. If you look at the discussions in the Constituent Assembly, you will see that majoritarianism also crept into the discussions. This has been a latent theme in our majoritarian culture, but it has never manifested itself as blatantly as after 2014. I think the experiment in Gujarat and its success should be replicated across the country and there has been great success in that.

NR: From Umar Khalid to Professor Saibaba, fighting cases to protect individual rights has become difficult

: There are various laws that say you must show that you are innocent of the crime at the time of being granted bail. How can a person claim to be innocent if he does not know what the case against him is? Pragmatism is for politicians. Pragmatism is not for judges. Judges must protect the Constitution and their conscience.

NR: Did the Supreme Court consciously abandon its role as the Constitutional Court and reduce itself to being the Court of Appeal?

: You should have four regional courts in four districts of India. And the Constitutional Court should not consist of more than 13 judges, and if they decide together as a court, you will not have more than one Supreme Court. And then the court will speak with one voice. However, we said that if they did not act according to their conscience, the situation would be much more dangerous. Yes. So you have to weigh both and decide where you want to be.

NR: Regarding the Collegium’s system of judicial appointments, we find that the Center has unreasonably delayed or selectively reserved names recommended by the Collegium of the Supreme Court…

: In the defense services, it was decided in advance who would be the chief. This has now been eliminated. Now you have a Chief of the Joint Staff who retired as a Lieutenant General and was suddenly named Chief of Staff two years after retiring. Are appointments in the judiciary dependent on four or five people sitting as part of the Collegium? Now they too have their own weaknesses. So the system does not work on a basis consistent with the need to have the best person. There’s a problem inside the system and then there’s a problem outside the system. Because if you choose a highly independent judicial mind, the government will not allow it. No matter what government.