Constitutional Morality in India: The New Kid on the Block

Bar & Bench February 5 2019

Balakrishnan K

Constitutional Morality has featured in a variety of conversations across the country ranging from courts, to classes, to academics, to social scientists, to activists, to laywomen. Each one seems to be absolutely clear about the scope, meaning and relevance of the phrase befitting its utility to the cause she intends to espouse. This leaves an observer bewildered.

Historically, the standard was insisted upon in seeking behaviour consistent with the longstanding acceptable norms limiting the exercise of sovereign power by its agents in a society ruled by law. This was true in the English environment where the contours were left largely unwritten but determined by institutional arrangements like ‘Constitutional conventions’, from which derogations were frowned upon. This was invoked to address the conscience of these agents of the sovereign in the absence of legally binding obligations requiring them to act in any particular way. Since they were sensitive to such peer pressure, compliance to the non-binding conventions and norms could be ensured.

Having a written Constitution should ideally minimise our reliance on such abstract Constitutional conventions and the need to invoke Constitutional Morality to address the conscience of the agents of the sovereign.

But, having a written Constitution does not take away the need for interpretation, as its clauses are deliberately kept in the realm of abstractness to enable accommodation of new challenges thrown up in society over a period of generations. We, in India, need not be sensitized of the need to interpret or even amend the Constitution, what with our extensive resort to these courses.

On amendments, we are aware of the perceived tussle between the Parliament and the Supreme Court on who the final arbiter of the Constitution is. The concept of Basic Structure, introduced about five decades back, still begs the question as to its defining characteristics. Interpretations have not helped much. Many of the features of Constitution included in the kitty as being part of the Basic Structure were already supported by a great degree of consensus.

Conversely, in some situations where the legislature had reasserted its position of supremacy, the courts have deemed it fit to exercise restraint. But since the debate is largely confined to the elitist corridors with little practical influence on the day to day life of most laywomen, its inconclusiveness is another addition to the abstractness of various facets of the Constitution. In situations where it directly affects the common person, its use is to limit the extent to which the State can infringe upon the rights guaranteed to an individual under the Constitution. It does not, normally, relate to inter se transactions or private lives of individuals.

The moot question now is whether the courts should employ Constitutional Morality as a tool for interpretations of the rights conferred on the individual by the Constitution. It should also be considered whether such tools should only be put to use, if at all, in limiting the interference by the State in the lives of individuals amounting to infringement of the rights guaranteed by the Constitution.

In a modern liberal progressive society, each individual can exercise her choice of the standards of morality in her transactions with the other members of the same society.  It remains in the realm of private morality. It is when we try to standardise them for the law to take note of and act upon, that a definition is required. For the purpose, we redefine it as an aspect of ‘public morality’.

In one-to-one civil transactions between individuals leading to disputes (an alleged breach of contract or a tort in law), the application of public morality only results in the law refusing to bestow a legally binding character to the transaction offending public morality, leaving the parties as and where they are. This is because what may be considered as morally wrong by society does not automatically get recognised as legally wrong. Further, the remedies to wrongs in these transactions are, generally, measured in economic terms and moral bankruptcy is impossible to measure whatever ‘loss’ it may cause.

Similarly, moral blameworthiness, by itself, does not qualify an act or omission to be declared as a crime by a legislature. Public morality, as a standard for declaring a wrong as a crime, is confined to very small area.  Again, what is sought even in these cases is a classification as ‘public morality’ and not ‘social morality’.  Moral standards, when taken seriously by the legislature as a ground for defining a wrong, are referred to as ‘being offensive to public morality’. This may, of course, be tested on the touchstone of the Constitution when the legislation, or part thereof, is brought to courts. Lately, the line of distinction between public morality and social morality seems to be confused.

It needs little debate to accept the inherent inconclusiveness, relativeness, and at times, contradictions in the use of the term 'morality'. It is no different whether we consider public or social morality. That is why public morality, as a standard to test against, is employed only in limited circumstances. One wonders whether the use of the prefix ‘Constitutional’ makes it any less problematic.

The recent employment of the phrase in the decisions of the courts has thrown up a lively debate. While courts elsewhere in the world have been very thrifty in its use in interpreting written Constitutions, the courts in India recently seem to have taken it up very seriously, almost like an obsession, and commanded it to a variety of scenarios. Some scenarios may be briefly visited upon to help us understand how it has been put to use, and the consequences of the same, many of them unintended.

The written Constitution does not make any reference to any standard of Constitutional Morality. It had a passing mention during the Constituent Assembly Debates with the meaning and scope attributed in line with its understanding in the English context. It is doubtful if it has been the subject matter of any legislation.

On a cursory assessment, the phrase had been used in less than ten reported cases by the Supreme Court till 2010 from the time the Constitution was adopted. It was used by the Delhi High Court in testing the Constitutional validity of Section 377 of the Indian Penal Code in 2009. However, in the year 2018 alone, it has been used in more than 10 reported cases by the Supreme Court. Are we to understand that the scenarios to put it to use did not arise earlier in India or that the phrase and its content are a new find?

For the purpose of understanding the reliance by the Supreme Court on the phrase in the recent past, five cases may be considered. First on Triple Talaq, second on sexual orientation, third on privacy, fourth on adultery and the last on the entry of women into a temple in Kerala. The first and last one relate to what is claimed to be intertwined with faith.

On Triple Talaq, the debate has been going on in the social sphere for some time and there were concessions even from the leaders of the faithful that change was the need of the hour. The Court was also informed of the impending consideration of the issue by the legislature, a reason for restraint exercised by the minority judges. But, in what some may see as an attempt to outsmart others, the majority deemed it appropriate to make it a subject matter of interpretation by the courts using the tool of Constitutional Morality. Since divorce relates to the institution of marriage, a relationship that is largely private, and the abuse of this form of divorce was limited to a handful, the impact of such a decision on the society at large, or even among the members of the relevant community, is very limited.

The reading down of Section 377 of the Indian Penal Code so as not to cover the LGBTQ community members was an instance of decriminalisation. Here, the Court declared it Constitutionally improper to refer to standards of social morality in deciding how far the State should interfere by use of criminal law into the choices made by individuals in their private life. In doing so, the Court does not even remotely seem to expect that the decision is going to make the common women consider, henceforth, that such relationships are socially moral.

Again, as long as this is something that limits the State’s power of interference and does not require the individual members of society to change their perception, it has very little relevance to the common women in their day to day life.

The privacy decision is all about the fundamental rights of an individual to choose to keep details about her out of the reach of the State, and limiting the State’s power of interference in deciding the way a person chooses to live.

The case on adultery was again on the matter of decriminalisation. It does not make adultery an act acceptable at law, not yet. Apart from it continuing to be socially immoral, it is also considered to be against public morality, for infidelity continues to be a ground in law for persons to walk out of their marriage to the spouse found to have been indulging in the same. Interestingly, some of the arguments raised seemed to seek enhancement of the status of women from being treated as mere property in a largely patriarchal society.

For satisfying the principle for gender equality, the Court did not declare women as persons capable of committing the offence, which of course only the legislature could do by redefining the crime. And as long as women are not held equally guilty of the crime, there was the only option before the Court, to decriminalise it. Thereby, it has only had an (un)intended beneficiary, the man.

The restriction on entry of women of a certain age into the temple at Sabarimala was not as much in public discourse as Triple Talaq, probably since there was no absolute prohibition of women entering the temple. The decision is a declaration of the right of this category of women who are restricted. For this purpose again, Constitutional Morality was one of the benchmarks.

But unlike other cases discussed above, the exercise of the right by the intended beneficiaries does not limit its enjoyment to the private realm, or merely qualify to be a claim against State interference, or restricted to affect only persons who have wronged against them. It, in fact, requires every person of similar faith to recalibrate their perception of their God according to the interpretation of Constitutional Morality of the courts.

Would it not involve the invasion of privacy of every other individual in the matter of faith? Was not the fundamental right to privacy protected using the same tool by the same Court? The fact that the very same ‘Constitutional Morality’ becomes the ground for the minority opinion enables us to appreciate in greater depth the inherent inconclusiveness of such a concept without having to venture outside the judgment. It bodes nothing more than my Constitutional Morality being more right than your Constitutional Morality. It is interesting to note that not even all majority opinions harp on the tool to the same extent.

It is on record that the common practices related to the temple in question are, at the least, pre-dated to the Constitution. As a mandate of faith, it had shown in practice what the Constitution preaches in terms of equality and what no amount of legislation, executive action or sensitisation of the society has been able to achieve.

The recent exchange of views on civil rights is a case in point. The temple is open to all members of so-called religion, race, caste and creed, sex, and place of birth and the customs followed ensure it in practice. Once a person takes the initiation, she is treated as the personification of the Almighty, shedding all worldly qualifications and disqualifications, and everything practiced thereafter is to get the person feel nearer to the maker by following the norms of faith.

The Swamis, rich and poor, are required by faith to embrace frugal thought, speech and action, even attire and social behaviour of accommodating every living being is encouraged. The Swamis, that the majority in the judgment refused to recognise as a separate denomination, have been reduced to Hindus. Some may argue that the essential practices that exist and the special status and customs that are followed in here as a matter of faith could have been equally well recognised as fostering the principles of equality that the Constitution seeks to attain using the same tool of Constitutional Morality. That would have served the purpose of a much wider array of Constitutional objects as well as faith.

And the reactions to the decision have been largely unexpected in degree and from the most unexpected quarters, cutting across all social strata in the State. It pushed at least a section of the relatively calm society to turmoil. Those not directly affected or participating in the debate wondered where the next stop of the juggernaut of Constitutional Morality would be, especially in matters of faith.

This is perceived to be dangerous, especially where the shots are called by proclaimed faithless without taking all the stakeholders into confidence purportedly armed with a decision based on abstract positions of law open to be interpreted even in absolute contradiction. In a State that had shown exemplary camaraderie while reeling under a natural disaster a few months back and was still counting its losses while limping back, daggers are drawn. Every activist to a laywoman had an opportunity to prove her point. Not that there were no fault lines before this, but the cloak of political correctness required members of every strata of this society to maintain a certain image of a progressive and liberal State without offending others, till now. That cloak has fallen, the State is naked, and what God proposed for God’s own country in terms of camaraderie and redemption were disposed of by God’s (wo)men.

Even if every person may not wish for the death of Constitutional Morality because it is a very, very dangerous weapon, it would be foolhardy to disagree that its application requires utmost caution and restraint. For, as the adage goes, even divine nectar when in excess becomes poison, in this case for the society.

The author continues to learn law along with the students of the National University of Advanced Legal Studies, Kochi. Views are personal.

The views expressed in this article are those of the author’s and do not necessarily reflect the views of Bar & Bench.

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