The SC has embarked on giving prominence to individual freedom through constitutional morality over ‘herd morality’ of the religious origin
By GHP Raju
Is the Constitution of India, like religion, faith, tradition and customs — the known sources of morality, emerging as an independent source of morality in free India? It’s true that our Constitution has now emerged as a source of morality. Here is the proof. On September 28, 2018, the Supreme Court held that the Sabarimala Temple’s prohibition of women between the ages of 10 and 50 years old from entering the temple is unconstitutional. Similarly, three other cases — about Muslim women’s right to enter mosques, Parsi women’s right to enter a Fire Temple after having married a non-Parsi, and the practice of female genital mutilation among the Dawoodi Bohra community are pending before the Supreme Court.
Constitutional morality was invoked on September 6, 2018, and partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. This section was introduced by Macaulay, the architect of the IPC in 1860, from the Christianity moral tenets. LGBT individuals are now legally allowed to engage in consensual intercourse. In another landmark judgment on 27 September 2018, the SC struck down Section 497 of the IPC, thereby decriminalising adultery. The Constitution is surely emerging as a source of morality in free India.
Going to the Roots
While concluding the final debate on the ‘Draft Constitution’ in the Constituent Assembly on November 4, 1948, Dr BR Ambedkar said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on Indian soil, essentially undemocratic.” This statement indicates the vision Dr Ambedkar had of our Constitution to emerge as the singular source of morality in governance and fairness in institutional functioning. For his expositions, he rightly expected a muted response from most Constituent Assembly members who were deeply entrenched in the existing religious tenets of their own faiths and belief systems. Does the Constitution possess the inherent moral fibre to get explored by the best legal luminaries of our Supreme Court to make it one of the influential sources of morality?
Indian society, from time immemorial, advocated ‘group living’ as its core morality. The later day Abrahamic faiths such as Christianity and Islam reinforced ‘group living’ as the divine morality that is never to be questioned by mortal beings. Social institutions, such as joint families, caste systems, and religious communions, have been created, regulated, and religious morality is enforced on individuals and groups for unquestionable conformity.
In a free and secular India, religious morality metamorphosed into ‘herd morality’ and refused to transform itself into secular morality which is being advocated by the Constitution. A faith ossified in the archaic mindset refuses to change with the times, gets fossilised and is bound to breed conflict and violence with time. Khap panchayats, religious fatwas and social practices, such as excommunication, are the manifestations of ‘herd morality’ with serious social and political consequences on the individual’s freedom and conscience which is safeguarded by our Constitution. Could this be the reason why many of the Constituent Assembly members muted their responses to Dr Ambedkar’s advocacy in support of constitutional morality? Is this the reason for the Supreme Court to bring forth and reinforce the concept of constitutional morality in its landmark judgements in the recent past?
Moral Reasons
Constitutional morality refers to obeying the laws of the land not only for ‘legal’ but also for ‘moral’ reasons. ‘Individual freedom’ is the sine qua non under constitutional moral reasoning. Though the Constitution did not define constitutional morality, the all-pervading presence of individual-centric constitutional morality is seen in the Preamble where justice, liberty, equality and fraternity are advocated, and gave ourselves these universal values and Fundamental Rights enshrined in the Constitution. This whole gamut of universal values adopted in our Constitution has given birth to the concept of constitutional morality.
The concept of constitutional morality was first articulated by the Supreme Court in the historic Kesavananda Bharati case in 1973. The court held that the Constitution represents the will of the people and that constitutional morality is essential for the sustenance of a democratic society. Justice Nariman said, “One who subscribes to constitutional morality would necessarily wish for equality and dignity for all citizens.”
The Constitution treats the ‘individual’ as the fulcrum for applying and interpreting the constitutional provisions from the constitutional morality prism. The religion-based ‘herd morality’ recognises and treats not the ‘individual’ but the ‘group’ as its fulcrum to apply its morality. The ‘individual-centric’ constitutional morality advocated and relied upon by the SC is at loggerheads with the religion-based ‘herd morality’ which is noticed in the Sabarimala judgement, Joseph Shine’s judgement on adultery or Navtej Singh Johar’s judgement on homosexuality.
Ethical Dilemma
In a pluralistic, multi-religious, multi-ethnic society, where a multitude of religious beliefs, traditions, social institutions and practices prevailed for ages and subjugated the ‘individual’ to ‘herd morality’ and abhorred ‘individual freedom’ outside the religious tenets, could the Constitution emerge as the source of morality in a secular country as envisioned by Dr Ambedkar? The doctrine of constitutional morality espoused by him and relied upon by the judges in upholding individual freedom against the ‘herd morality’ of the religious groups has created an ethical dilemma in many intellectual circles. The Constitution as the morality provider has been at loggerheads with the Puritan theologians. Is our pluralistic and multicultural society ready to accept the ‘moral fabric’ being weaved out by judicial pronouncements?
Expressing serious reservations, KK Venugopal, former Attorney General of India, cautioned that constitutional morality is “dangerous” to the country. He opined that the SC is slowly transforming into a “third Parliament Chamber”. Does that mean the vision of Dr Ambedkar to see India emerging as a morally secular country through constitutional morality remains a distant dream? Does that also mean the silence of the majority members of the Constitutional Assembly on November 4, 1948, during the concluding speech of Dr Ambedkar stands validated? Even after 75 years of independence, with the plethora of judicial pronouncements from the SC upholding the constitutional morality against the ‘herd morality’, society, perhaps, is not yet ready to acknowledge and accept the Constitution as a source of morality in secular India. The universal moral values and the moral fibre advocated by our Constitution are not to supplant the existing religious morality but to gently prod the Puritan theologists of different faiths to try to come out of their archaic mindsets.
Any faith-based morality is determined by the geographic location, period and the then-existing social situations (Desa-Kaala-Paristhiti). If all or any of them change, the resultant faith system that emerges is bound to change for survival. There is no exception to this universal truth. Any faith that refuses to change with the times and social contexts is bound to breed conflict and violence. The Constitution is a living document that has been evolving with time and social context. Constitutional morality is the reality of the changed times and social context. The Supreme Court has recognised this issue and embarked on giving prominence to individual freedom through constitutional morality over the ‘herd morality’ of the religious origin that refused to change with the times.