The Chilling Effect on Fundamental Rights: Constitutional Morality vs Social Morality

Incidents Of Restrain

The judgement of the Sabrimala Case, upon which the spiritual values of many were hung, was pronounced in September 2018. Even after a couple of years down the line, some of the primary questions of law that were intrinsic to the case mandate a re-visit. Amongst other issues, the case attempted to scrutinise the constitutional viability of limiting women’s fundamental right to religion, by not allowing them access to the Sabrimala temple, on the grounds of ‘morality’. Following similar lines, in Navtej Singh Johar vs Union of India case, the primary question of law was whether restricting expression of sexual orientation of members of the LGBTQ+ community, based on an alleged violation of ‘morality’, falls short of being labelled legitimate. These cases have one thing in common, which is a constriction of fundamental rights of individuals by claiming the application of one of the reasonable restrictions, specifically ‘morality’. Adding to the list, not many months back, Dabur, a brand not uncommon to a considerable lot of people, was forced by extremist ideologues to take down an advertisement displaying a same sex married couple celebrating the Hindu festival of Karwa Chauth. The extremists asserted that the depiction tended to affect Hindu religious morals, which authorise only opposite sex individuals to form a marriage alliance. Moreover, very recently, FabIndia, a widely known apparel company, found itself stuck in a controversy after branding its Diwali festive season collection as ‘Jashn-e-Riwaaz’ (celebration of tradition). The dogmatic voices from the Right wing contended that this commercial was an attempt to attack Hindu spiritual and religious morals, hence flooded FabIndia with backlashes, which eventually made the enterprise take down the commercial. 

Constitutional Morality and Social Morality: A Description 

The seriousness of the above-mentioned and similar incidents demands one to examine the nuances of the term ‘morality’. Fundamental rights accorded to citizens of and persons residing in India carry indisputable importance and are supposed to be enforced in any circumstances, saved a few exceptional scenarios when reasonable restrictions play a role. One such restriction is morality. Oftentimes, there exists a contestation between ‘social morality’ and ‘constitutional morality’. The interpretation of the former phenomenon relies upon the principles that are socially or culturally acceptable to different communities of individuals in the society. Since it depends mostly on popular sentiments, in a heterogenous society, the interpretation of social morality remains highly subjective, differing as per varying ideologies and beliefs of several communities and schools of thoughts, at times by such extent that its implementation seeks to establish ascendancy of the majority community. While the latter term, constitutional morality, had scattered usages in the constitutional assembly debates, especially by Dr Ambedkar, who emphasized the role of constitutional principles in preventing discords in coordination between institutions for administrative purposes. While elucidating upon constitutional morality, Dr Ambedkar made a remarkable reference to the renowned theorist George Grote. Constitutional morality refers to an act of abiding by the precepts of the constitution in laying down patterns of functioning of people and institutions in the society. It translates into resorting to constitutional methods so as to meet social and economic aspirations of the populace. Thus, the virtue of constitutional morality embraces inclusivity and protection of minority concerns, hence preservation of plurality, and heterogenous societal and cultural values. 

Constitutional Morality- A Panacea 

In the Dabur commercial incident stated above, certain groups objected the advertisement because its message did not fall on lines of the cultural practices acceptable to them. However, the same may not be true for yet other groups in the society, in this case say the LGBTQ+ community. This scenario reveals the inconsistencies of social morality. Determining the limitations of fundamental rights based on the standards of social morality tends to fail in creating a room where divergent interests of different groups are accounted for. A way forward to resolve this incompatibility is an application of ‘constitutional morality’ in deciphering the modicum of curtailment of fundamental rights. Although the first instance of appearance of the idea of constitutional morality occurred in Independent India as early as in 1948 i.e., during the constitutional assembly debates, there still remains a lot to be done to ensure its execution by the judiciary and other authorities when it comes to preserving fundamental rights from getting trampled upon by contesting interests of members in the society. It was not until the beginning of the last decade that policy makers gauged the importance of constitutional morality. Since then, the concept has been referred to by as many as 38 Supreme Court judgements, be it explicitly or just in passing. For instance, while pronouncing the verdict of the Navtej Singh Johar case, the Supreme Court observed that “Constitutional morality cannot be murdered on the altar of societal morality”. And in the famous Sabrimala judgement, the apex court upheld that “…existing institutions of social discrimination must be assessed through the lens of constitutional morality”. It has been understood by judges and decision makers that prioritising constitutional morality over social morality seeks to ensure greater inclusivity and better preparedness in uprooting social evils like the Sabrimala temple entry restriction, the female genital mutilation in the Bohra community and many others. 

On several memorable occasions, constitutional morality has been revered as ‘genuine orderliness’ and ‘a pillar stone of good governance’ by the highest court of the land. This is owing to the consciousness that amidst social and cultural inequalities prevailing in the Indian society, an achievement of constitutional objectives and spirits seems to become a far cry with the role of social morality in play. The panacea for this lies in opting for constitutional morality. 

Conclusionary Remarks 

Considering the stakes at hand, a wider application of constitutional morality in judicial and administrative functioning is warranted. A major hurdle to this has been identified to be an absence of a clear definition of the concept of constitutional morality either in the constitution or in any of the judgements. The judicial and administrative authorities must task themselves with laying down a perspicuous definition of the phenomenon, by strictly segregating it from any cultural or social aspects, rather allowing it to be based on purely constitutional parameters. 

A recognition of constitutional morality, setting down its meaning and decipherment of issues based on its precepts go a long way in protecting fundamental rights and mitigating social evils that find their origin in discordant social and cultural interests of the communities.

Disclaimer

The views expressed in this article are the author's own.

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