The question of constitutional morality ultimately comes down to justice without fear or favour, senior advocate Kapil Sibal said on Saturday (February 28, 2026). “The problem with our court today is that there is a breakdown of our constitutional machinery, complete breakdown,” Mr. Sibal said in a free-wheeling conversation with N. Ram, Director of The Hindu Group, at The Hindu Justice Unplugged 2026, as they discussed the erosion of constitutional morality and if public faith in the court is eroding. Edited excerpts:
Constitutional morality is a powerful but apparently elusive and shape-shifting concept. It has absorbed a variety of meanings over different historical and socio-political settings and circumstances across time. In the 19th Century, George Grote used the term to convey the simple but potent idea that a Constitution survives by habits, not merely by text. Speaking in the Constituent Assembly on November 4, 1948, Dr. B.R. Ambedkar, Chairman of the Drafting Committee, invoked Grote’s idea and term, which might have carried a strange ring to several members of our Constituent Assembly. Over the next 78 years, there have been various constitutional and legal developments in India and elsewhere that have injected new meanings, implicit and explicit, into the idea of constitutional morality. Over historical time, it has evolved from the idea of civic virtue to institutional restraint to right-based transformation to a defence against majoritarian power and technological overlordship. Where do we stand with respect to constitutional morality?
KS: Morality by itself is not a static concept. It changes with the times. The concept of morality itself has changed. The beauty of our Constitution is that the court has been given the power to interpret the times in the context of the need of the times. Let us look at India in 1950. You did not have the kind of targeting of the minorities in that time. So the concept of constitutional morality in the context of how you deal with minorities was not an issue that was to be dealt with by the court. The concept of constitutional breakdown as we see today was not something that the court was confronted with. So when we talk about constitutional morality, ultimately it comes down to justice without fear or favour. That is the oath that judges take and most public servants take. Justice is the ability to rise above fractious debates and to interpret the Constitution in the context of what is good for the larger community. The problem with our court today is that there is a breakdown of our constitutional machinery, complete breakdown. The executive rules through the legislature because of its vast majority. The voice of the Opposition is not heard, is not allowed to be heard. In that context when the matter comes up in court, what is the court supposed to do? You have speeches by Ministers which are obviously communal in nature. The court doesn’t take it up. When it comes to the Supreme Court through an Article 32 petition that some Chief Minister somewhere has made this statement with the gun in his hand, the court says go to the High Court. Now the question that we ask as lawyers from the court is why are you doing this? Because if you have to dispense with justice without fear or favour, what are you afraid of?
NR: The judiciary has neither sword nor purse. It draws strength and sustenance from public faith. Is public faith in the court eroding?
KS: Well, absolutely without any doubt. It is eroding for the simple reason that they have brought it upon themselves. Now, you saw that chapter in a Class Eight book. Yes. Now, there is no gainsaying that there is corruption in the judiciary. There are some bad pennies everywhere in every institution which spoil the name of the institution. So, we cannot brush it aside under the carpet and say, “Look, there is no corruption.” You cannot say that. There is corruption. Now, how is it that it has suddenly found its place in a textbook? I asked myself this question. Would it have found its place there had the judges performed their duties consistent with Constitutional morality.
When you reach a certain level where the public start believing that by and large the institution is corrupt, then you will have this narrative in a class eight textbook, right? According to me the judges have brought it upon themselves. That is one side of the story. The other side is you do not mention the politician, the Minister, the system. Look at the kind of corruption there is in the system throughout the country. But you do not mention that in a Class Eight book. So, your intent is to intimidate the judiciary. Your intent is to further damage the institution. Then you can capture it fully. So, the intent is dishonest. It is selective. It should never have been in the Class Eight book.
NR: On the defence of minority rights. It is very much part of our Constitution. Where do we stand?
KS: Some of this happened before 2014, if you look at the debates in the Constituent Assembly, you will find majoritarianism creeping into the debates as well. It has been a subterranean theme within our majoritarian culture, but it has not shown itself in such a blatant manner as it has done after 2014. I think the experiment in Gujarat and the success of that experiment was sought to be replicated throughout the country and there’s a lot of success to that.
NR: From Umar Khalid to Professor Saibaba, has it become tougher to fight cases for the protection of individual rights
KS: There are several statutes which say that at the time of bail you have to show that you are innocent of the offence. How can a person plead innocence if he doesn’t know what the case against him is? Pragmatism is for politicians. Pragmatism is not for judges. Judges have to stand by the Constitution and stand by their conscience.
NR: Has the Supreme Court consciously shed its role as a Constitutional Court and reduced itself to being an Appellate Court?
KS: You should have four regional courts in the four regions in India. And the Constitutional court should be not more than 13 judges, and if they decide as a court together, you won’t have several Supreme Courts. And then the court will speak in one voice. But having said that if they don’t act in accordance with their conscience, then it will be far more dangerous. Yes. So, you have to weigh both things and decide where you want to be.
NR: On the Collegium system of judicial appointments, we have seen the Centre unreasonably delay or selectively segregate names recommended by the Supreme Court Collegium…
KS: In the defence services, it used to be decided beforehand who is going to be the chief. That has been done away with. Now you have a Joint Chief of Staff, a person who retired as Lieutenant-General, who was picked up as Joint Chief of Staff suddenly two years after retirement. In the judiciary, the appointments depend on the four or five people who sit as part of the Collegium? Now, they have their own frailties. So, therefore the system does not work on any basis which is consistent with the need to have the best person. There is a problem within the system and then is a problem outside the system. Because if you choose a highly independent judicial mind, the government just will not allow it to happen. Whichever government.
