This article is a critique of the decision of the Supreme Court of India, in the case of R.K.Garg v. Union of India  . In this case, the constitutional validity of Special Bearer Bonds (Immunities and Exception) Act, 1981 was under challenge. The legislation was enacted by the Indian Parliament, with the object of putting to productive use, the unaccounted money held by citizens. In furtherance of this, the Government, proposed to issue instruments called Special Bearer Bonds and provided incentives for people to invest in them. The controversial provisions of this legislation were section.3 and section.4, which provided that, any person who subscribes to these bonds will not be required to disclose the source of money for his investment in such bonds and he will not be interrogated or subjected to any investigation, or admissible as evidence in any inquiry or proceedings or levied any penalty on the basis of his investment. The Act was challenged inter alia on the ground that it made an unreasonable classification between persons who illegally evaded payment of tax as against those who abided by the law. It was argued that such a provision in the law was against morality as it afforded tax evaders, immunities and exemptions, and placed them at an advantageous position in comparison to those who abided by the law. Unfortunately, by a majority of four against one, the Bench brushed aside this contention, and held that morality was not an element to be considered while judging the constitutional validity of a statute. This is an attempt to analyse the strength of ‘morality of the legislation’ as a ground for determining its constitutional validity as gathered from the letter and spirit of the Constitution of India.
Moral Self Contradictions
I begin to gather support for my stand from the very same decision, where Gupta, J. in his dissent took notice of the blatant immorality in the legislation. Quoting W. Friedman on Legal Theory to the effect that there cannot be and there never has been complete separation of law and morality, he asserted the following using the ‘test of reasonable man’ which is often used in cases involving rights. To quote him,
“I do not see how it can be disputed that in the circumstances of the given case, considerations of morality and ethics may have a bearing on the reasonableness of the law in question.”
The proposition that a mere classification, however scientific or intelligible, does not by itself afford validity to the legislation is also supported by Bose, J. in the case of State of West Bengal v. Anwar Ali Sarkar, in which he stated that in a case where the classification was not fair and proper, the judges had no alternative but to declare the legislation void. He opines that the right question to be posed in such cases is whether fair-minded, unbiased reasonable and resolute men regard the classification as reasonable, as just and fair, as the equal treatment expected of a sovereign democratic republic in the conditions which exist in India at the time when it is being tested  . It is clear that, Bose, J. by ‘expectations of the relevant time’ was referring to the notion of changing benchmarks of the dynamic society, which the majority in the case of R.K.Garg seem to have bypassed. Strangely, inspite of having failed to accept morality as ground for challenging constitutionality of a law, the majority maintained that morality cannot be absolutely rejected.  Alternatively, they stated that the legislation could be challenged to be arbitrary or irrational if it is reeking with immorality. This gives an indication that the majority was on the question of degree and not of whether the law was per se immoral or not. Perhaps, they might have decided otherwise if the Act had conferred further benefits to tax evaders or put tax payers at greater disadvantage. The Court has taken a stand, inconsistent with its own jurisprudence, which is not in consonance with the provisions of the Constitution.
Res Extra Commercium-Immorality of liquor trade
The plethora of case law pertaining to fundamental rights in India reveal that apart from Article 14 the other two most highly debated rights are those granted under Articles 19 and 21. It is submitted that considerations of morality have been a deciding factor in many cases under these rights. The decisions of the Supreme Court with regard to fundamental right of a citizen to trade in liquor are relevant here. In RMD Chamarbaugwala v. Union of India  , the Apex Court held that gambling was an activity res extra commercium, which could not fall under the term ‘trade’ and therefore, there could be no fundamental right under Article 19(1)(g) in this regard. The doctrine of res extra commercium, had its origins in Roman Law and was understood to include things of the nature which cannot be traded between individuals. The scope of this doctrine was stretched by the Court to indentify those activities which subvert public morality and therefore must not be allowed to be traded. This was condemned by Subba Rao, J. subsequently, in K.K.Narula v. State of Jammu and Kashmir  , in the following words
“If the meaning of the trade or business depends and varies upon the general acceptance of standards of morality obtaining at a particular point of time in the country it would lead to incoherence. Standards of morality can provide guidance for imposing restrictions but cannot restrict scope of the right.  ” (Not clear that this is what was held in the case. Looks more like obiter)
Thus the Court departed from its earlier decision in the case of RMD Chamarbaugwala v. Union of India by holding that a fundamental right to trade in liquor existed and could be regulated by reasonable restrictions. In this maze of inconsistent decisions there was another turn when in the case of Khoday Distilleries v. State of Karnataka  , the Supreme Court reverted back to the earlier conclusion, extending the concept of res extra commercium to liquor by holding that citizens are not entitled to carry on trade or business in immoral activities. It is quite evident that the standards of morality have clearly been given an upper hand in constraining the scope of freedoms under Article 19. Therefore there arises a discrepancy when the Court refuses to take into account the concept of morality as a ground for exercising judicial review.
Natural Law shades of Right to Life
The natural law tendencies of the Supreme Court have also permeated the interpretation of Right to life and Personal Liberty guaranteed under Art 21 of the Indian Constitution. Trajectory of the Court on this issue clearly reveals that the Court began its journey with a positivist approach in A.K.Goplan v. State of Madras  , requiring merely a law made by an established procedure but subsequently in Maneka Gandhi v. Union of India  the Court read into this provision substantive requirements of natural law by holding that the procedure must be just, fair and reasonable to stand the test of constitutional validity.
The Naaz Foundation case-Morality of times
One of the greatest indications, of the influence of moral standards in determining constitutionality is the latest judgment of Naaz Foundation v. Government of NCT Delhi & others  . The Delhi High Court decision, struck down section.377 of the Indian Penal Code, which punished sexual act between two adults of same gender. It was extensively argued that across the world and in India, the moral outlook of the society has undergone a change with respect to homosexuals and therefore, to keep up with the changing times, such acts should not be criminalised. It is important to note that the Court may not have come to the same conclusion, assuming the issue was adjudicated two decades earlier since homosexuals gained moral acceptance in the Indian society only in the recent decade. Yet again the judiciary has applied moral principles to test the validity of the law.
Finally, I receive further support from the very letters of the Constitution itself. Surprising as it may sound, on the one hand, the Court has ignored morality, the very same term appears in text of the Constitution. Morality in express terms is a ground on which restrictions can be imposed by the state on the freedom to practice, propagate any religion. It can also be a ground to constrain a religious denomination from exercising rights conferred by Article 26. To illustrate, the Supreme Court in Acharya Jagdishwaranand Avadhutta v. Commissioner of Police, Calcutta  , upheld restrictions placed in pursuance of public order and morality, wherein devotees of a religious denomination were prohibited from taking out public processions carrying knives, skulls and other such objects. In these cases, the reasonableness of the restriction imposed is clearly tested on the basis of whether the activity offends morality or not. The majority in the case of R.K.Garg, most clearly did not follow the law which the Court had laid down earlier. .
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