Constitutional morality and the future of minority rights in India
By Arvind Narrain
The nine judge bench hearing the reference from the Sabrimala review decision is likely to have a significant impact on rights of all those at the receiving end of a majoritarian morality. This is because one of the questions which the Bench is tasked to answer is the ‘scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution’ and ‘whether it is meant to include constitutional morality?
The argument of the Union of India seems to be that the term constitutional morality is inherently subjective and should not be the basis of understanding the notion of public morality. To the Union of India, public morality as a term of law is preferable to constitutional morality a term which it characterises as too vague. Taking up from this supposed vagueness of constitutional morality the Solicitor General argues that ‘All judgments which use the expression “morality” to mean “constitutional morality” are per incuriam and are required to be declared to be per incuriam.’ This includes the decision on the decriminalization of same sex relations (Navtej Singh Johar ), the decision on the decriminalization of adultery ( Joseph Shine) as well as the Sabrimala decision.
The argument of the Solicitor General is that the edifice on constitutional morality is based on an erroneous understanding of Dr. Ambedkar’s speech in the Constituent Assembly. As per the Solicitor General, Ambedkar references constitutional morality only as a response to the question as why the Draft Constitution borrows from the Government of India Act. The reason according to Ambedkar is because the Government of India Act has many details of administration which are essential to put down in a country in which according to him, there is no ‘diffusion of Constitutional morality’. In Ambedkar’s very important words, ‘Constitution 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 an Indian soil, which is essentially undemocratic.’
However Ambedkar should be read as putting forth not only an answer as to why large parts of the Government of India Act were reproduced but as seeking to put forth his constitutional philosophy. Ambedkar in the closing speech which he delivered on 25th November, 1949 expresses a gratitude to the rebels in the Constituent Assembly for raising points which were ‘mostly ideological’. To Ambedkar the value of the dissenting opinion of the rebels was that it gave him the opportunity for ‘expounding the principles underlying the Constitution which was more important than the mere mechanical work of passing the Constitution.’We should read Ambedkar as expounding a constitutional philosophy which was integral to his life and work when he references constitutional morality. What was that philosophy?
In a speech in the Parliament on the Constitution (Fourth Amendment) Bill, 1954, he notes, ‘But as soon as Swaraj presented itself, everybody thought- that there was the prospect of political authority passing into the hands of a majority, which did not possess what might constitutionally be called ‘Constitutional Morality’. Their official doctrine was inequality of classes. Though there is inequality in every community or whatever be the word, that inequality is a matter of practice. It is not an official dogma. But with a majority in this country, inequality as embodied in their ‘Chaturvarna’ is an official doctrine. Secondly their caste system is a sword of political and administrative discrimination.’
There are at least four other references to constitutional morality in Ambedkar’s works.
In the 1954 text, Ambedkar is invoking a far broader notion of constitutional morality. The majority is seen to suffer from a lack of constitutional morality, because it functions within Chaturvarna. In this deployment of constitutional morality, Ambedkar lets go of the narrower understanding of constitutional morality as ‘reverence for the constitution’ and embraces a broader understanding of constitutional morality as a morality in opposition to the Chaturvarna system. Constitutional morality, thus seen draws from the constitutional trio of liberty, equality and fraternity.
In a 1952 speech titled ‘Conditions Precedent for the Successful Working of Democracy’ he identifies the observance of ‘constitutional morality’ as one of the ‘conditions precedent’ for the successful working of a democracy. In his judgement, the Constitution only ‘contains legal provisions, only a skeleton. The flesh of the skeleton is to be found in what we call constitutional morality. However, in England it is called the conventions of the constitution and people must be ready to observe the rules of the game.’
He goes on to add that, ‘there must be no tyranny of the majority over the minority. The minority must always feel safe that although the majority is carrying on the Government, the minority is not being hurt, or the minority is not being hit below the belt’. If the voice of the minority is suppressed what ‘happens is that these minorities develop a contempt for parliamentary people and develop a revolutionary spirit something unconstitutional. It is therefore necessary that when democracy is working, the majority on which it is based, must not act in a tyrannical manner.’ The speech also goes on to make the point about the importance of a moral order in society. Without a moral order, ‘democracy will go to pieces’ as in ‘vast aspects of social life people are left free to carry on without interference of law’.
In this speech we find that Ambedkar is referencing two notions of constitutional morality. Constitutional morality as conventions which determine the working of the constitution as well as an understanding that constitutional morality is about challenging the morality on which the social order is based. Keeping these two ideas of constitutional morality in mind, the jurisprudence of the Supreme Court on constitutional morality needs to be evaluated.
The conventionally understood role that constitutional morality has played in the jurisprudence of the Supreme Court, is to lay down the institutional roles which have to be performed by constitutional actors. In Government of NCT of Delhi v. Union of India, constitutional morality becomes a critical concept when it came to constitutionally assessing the actions of the LG. As the Court put it ‘constitutional morality places responsibilities and duties on individuals who occupy constitutional institutions and offices.’ The Court in this case lays down the constitutionally sanctioned modes of action of the LG.
Ambedkar’s thinking on constitutional morality was however not restricted to seeing it as a norm which governed the functioning of constitutional authorities. For Ambedkar it was also about setting in place a norm which challenged the hierarchical framework mandated by caste law. This notion of a counter majoritarian constitutional morality was also explicitly taken forward by the Supreme Court.
In the span of a single month in September of 2018, the Supreme Court delivered three important judgments, all of which explicitly privileged an understanding of constitutional morality over the dictates of popular morality. The three issues adjudicated upon were all sensitive matters concerning the criminalisation of homosexuality, the criminalisation of adultery and the prohibition of women of a menstruating age from worshipping at Sabrimala. In all three cases the Supreme Court stood up for ‘discrete and insular minorities’ who were often at the receiving end of a majoritarian morality.
In Navtej Singh Johar v Union of India , Justice Nariman sees Section 377 as ‘the product of the Victorian era with its attendant puritanical moral values’, which ‘must give way to constitutional morality.’ In his opinion, ‘Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual.’ In Justice Nariman’s opinion, ‘Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.’
In Joseph Shine v. Union of India, J. Chandrachud’s observed that, ‘Section 497 of the IPC’ embodied ‘outdated parochial social mores’ as the notion of a ‘woman’s ‘purity’ and a ‘man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law.’
In Indian Young Lawyers Association v. Union of India, Justice Chandrachud sought to lay out the content of constitutional morality. He observed that, ‘Constitutional morality must have a value of permanence which is not subject to the fleeting fancies of every time and age. If the vision which the founders of the Constitution adopted has to survive, constitutional morality must have a content which is firmly rooted in the fundamental postulates of human liberty, equality, fraternity and dignity. These are the means to secure justice in all its dimensions to the individual citizen.’
It is this notion of constitutional morality, which has been the very foundation for the articulation of the rights of those at the receiving end of majoritarian prejudice which hangs in the balance in the Supreme Court.