The Supreme Court has moved to emphasize individual liberty through constitutional morality rather than “group morality” of religious origin
Post Date – 11:50 PM, Tuesday – July 23rd 18th
by GHP Raju
Is the Constitution of India becoming an independent source of morality for a free India like religion, belief, tradition and custom – known sources of morality? Indeed, our Constitution has now become a fountain of morality. Here is the evidence. On September 28, 2018, the Supreme Court held that Sabari Mala Temple’s ban on women aged 10 to 50 from entering the temple was unconstitutional. Similarly, three other cases – concerning the right of Muslim women to enter mosques, the right of Parsi women to enter the Fire Temple after marrying a non-Parsi and the practice of female genital mutilation in the Daoudi Bohra community Supreme Court pending.
On September 6, 2018, constitutional morality was invoked to partially repeal Section 377 of the Indian Penal Code, which legalized consensual same-sex relations between adults. This part was proposed by Macaulay, the designer of the IPC, in 1860 according to the Christian moral creed. The law now allows LGBT individuals to engage in consensual sex. On September 27, 2018, in another landmark judgment, the Supreme Court struck down Article 497 of the ICC, thereby decriminalizing adultery. The Constitution is undoubtedly becoming the moral wellspring of a free India.
Tracing the source
On November 4, 1948, at the conclusion of the final debate on the “Draft Constitution” at the Constitutional Convention, Dr. BR Ambedkar said: “Constitutional morality is not a natural emotion. It must be cultivated. We must recognize the , our people have not learned this. Democracy in India is only a sham in the land of India and is inherently undemocratic.” This statement demonstrates Dr Ambedkar’s vision for our Constitution as a governing ethic and institution The only source of operational fairness. For his exposition, he rightly expected a silent response from the majority of members of the Constitutional Convention who deeply held to the existing religious tenets of their beliefs and belief systems. Does the Constitution have an inherent moral quality worthy of exploration by our Supreme Court’s best legal luminaries, making it one of the influential sources of morality?
Indian society has advocated “community life” as its core morality since ancient times. Later Abrahamic beliefs, such as Christianity and Islam, reinforced “community living” as a divine morality that mortals would never question. Social institutions such as joint families, caste systems, and religious groups were established and regulated, and religious morality was imposed on individuals and groups to achieve unquestioned conformity.
In free and secular India, religious morality degenerates into “group morality” and refuses to transform into the secular morality advocated by the constitution. Beliefs entrenched in outdated thinking refuse to keep up with the times and become rigid, which inevitably breeds conflict and violence over time. Kap panchayats, religious decrees and social practices such as excommunication are manifestations of “group morality” with serious social and political consequences for individual liberty and conscience guaranteed by our Constitution. Is this why many members of the Constituent Assembly have remained silent on Dr Ambedkar’s claims of support for constitutional morality? Is that why the Supreme Court recently advanced and reinforced the idea of constitutional morality in a landmark decision?
moral reasons
Constitutional morality refers to obeying the laws of the country not only for “legal” reasons but also for “moral” reasons. “Individual liberty” is a necessary condition for constitutional moral reasoning. Although the Constitution does not define constitutional morality, it can be seen from the preamble that individual-centered constitutional morality is everywhere, advocating justice, freedom, equality, and fraternity, and endowing the universal values and basic rights enshrined in the Constitution. The whole range of universal values adopted by our Constitution gave birth to the concept of constitutional morality.
The concept of constitutional morality was first introduced 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 to the survival of a democratic society. Judge Nariman said: “Those who observe constitutional morality necessarily desire equality and dignity for all citizens.”
The Constitution regards “individuals” as the fulcrum for applying and interpreting the provisions of the Constitution from the moral prism of the Constitution. The “group morality” based on religion recognizes and treats not “individuals” but “groups” as the fulcrum of its moral application. The “individual-centered” constitutional morality advocated and relied upon by the Supreme Court conflicts with the “group morality” based on religion, as seen in the Sabarimara judgment, Joseph Shain’s judgment on adultery or Naftaji Sin It can be seen in G. Johar’s verdict on homosexuality.
moral dilemma
In a pluralistic, multi-religious, multi-racial society, multiple religious beliefs, traditions, social systems and customs have long prevailed, making “individuals” subject to “group morality” and abhorring “individual freedom” beyond religious creeds , could the constitution be the moral source of the secular state as Dr Ambedkar envisages it? The doctrine of constitutional morality he espoused, and upon which judges relied when defending individual liberties against the “group morality” of religious groups, created ethical dilemmas in many intellectual circles. The Constitution as provider of morality has been at odds with Puritan theologians. Is our diverse and multicultural society ready to accept the “moral fabric” woven by judicial decisions?
India’s former attorney general, KK Venugopal, expressed serious reservations and warned that constitutional morality was “dangerous” for the country. He believes the SC is slowly transforming into a “third house”. Does this mean that Dr Ambedkar’s vision of India becoming a moral secular nation through constitutional ethics remains a distant dream? Does this also mean that the silence of the majority members of the Constituent Assembly in Dr Ambedkar’s concluding speech on 4 November 1948 was validated? Even after 75 years of independence, the Supreme Court has issued numerous judicial statements upholding constitutional morality against “herd morality”, society may not be ready to recognize and accept the Constitution as the source of secular morality in India. The universal moral values and codes of ethics that our Constitution advocates are not intended to replace existing religious morality, but rather to gently urge Puritan theologians of all faiths to strive to shed outworn patterns of thought.
Any morality based on faith is determined by the geographical location, the period and the social conditions (Desa-Kaala-Paristhiti) that existed at the time. If all or any of them change, the resulting belief system must change in order to survive. This universal truth is no exception. Any belief that refuses to change with time and social context is bound to breed conflict and violence. The Constitution is a living document, constantly evolving with time and social context. Constitutional morality is the reality of changing times and social backgrounds. The Supreme Court has recognized this problem and has begun to emphasize individual liberty through constitutional morality, rather than rejecting the “group morality” of religious origins that has kept pace with the times.
