Raja Dandamudi

| @ | October 1,2018

A majority of the Western political thought perceives India as a communitarian society, and many renowned theorists from India believe that it is a valid assessment.  It is equally true that India is vastly diverse with regards to the various kinds of communities that live together in the country. While these numerous communities, which differentiate each other on the basis of religion, caste, language etc., co-exist in the same nation, at times, they tend to compete for dominance within the Indian society, and a large part of Indian history stands testament to it.

Hindu cultural nationalists seek to impose Hindu values on Hindus and non-Hindus alike, while increasingly diminishing the influence of values of other communities

This competition becomes particularly fierce, and at times brutal, when it comes to imposing one’s morality on others, while suppressing or even annihilating others’ morality, which they perceive as immoral. One group in this competition which stands out as its quintessential representative, is the flowing group of Hindu cultural nationalists, who seek to impose Hindu values on Hindus and non-Hindus alike, while increasingly diminishing the influence of values of other communities.

Considering this as an imminent danger, the drafters of the Constitution strived their best to draft a constitution which ensures that one community’s morality does not subdue that of the other communities. However, one cannot say with absolute certainty that the drafters of the Constitution succeeded in crafting a constitution which does not give credence to any particular morality vis-à-vis other moralities, and Article 48 of the Constitution is archetypal of such a lapse.

Scholars of constitutional law may call it necessary accommodation of the basic tenets of competing ideologies and as such, inevitable, but it does not take away from the fact that a situation was created wherein a morality was elevated to a constitutional position, and others were not

Scholars of constitutional law may call it necessary accommodation of the basic tenets of competing ideologies and as such, inevitable, but it does not take away from the fact that a situation was created wherein a morality was elevated to a constitutional position, and others were not. This glaring anomaly figures as a lacuna or as an exception in the face of the general rule that the Constitution does not give priority to any particular morality, and seeks to ensure that one morality does not suppress the other.

In fact, the Constitution attempts to develop a morality of its own, which Dr. B.R. Ambedkar called constitutional morality, which he hoped would occupy the foremost position in the hierarchy of moralities

In fact, the Constitution attempts to develop a morality of its own, which Dr. B.R. Ambedkar called constitutional morality, which he hoped would occupy the foremost position in the hierarchy of moralities. According to Dr. Ambedkar, the first postulate of constitutional morality is that everyone living under the constitutional setup should have regard for the constitutional values espoused in the Constitution. It is important to note that constitutional morality is in itself not instructive, it provides for a set of principles which ensure that one does not forcefully apply one’s own views and morality on others.

Liberty is one of the constitutional values explicitly recognised by the Constitution, and is one such principle which ensures that an individual has a right to choose which set of morals should govern her life, and guards jealously the individual’s right to choose from interference by either the state, or by any particular sect or community.  The right to life, another constitutional value, also recognises a right to make a choice for oneself, which certainly includes the right to choose from among various moralities.

The right to privacy squarely includes an individual’s right to make a moral choice, whether it is with regards to marriage, food, attire, ideology or religion, inter alia

In K.S. Puttaswamy v. Union of India, Justice D.Y. Chandrachud held that the right to privacy includes the right to have decisional autonomy, and that decisional autonomy includes the right to make “intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress.” Therefore, the right to privacy squarely includes an individual’s right to make a moral choice, whether it is with regards to marriage, food, attire, ideology or religion, inter alia. Therefore, there is no reason why one does not have a right to make their own moral choices, and to guard their right to make such moral choices from moral paternalism.

While there is not much judicial discourse on this essential right against moral paternalism, the Kerala High Court recently passed a remarkable judgment recognising an individual’s right against moral paternalism. The right against moral paternalism, the High Court held, however is not absolute because the legislature can still pass a legislation to control or regulate behaviours (which the Court called ‘legal paternalism’) in the larger interests of the society

While there is not much judicial discourse on this essential right against moral paternalism, the Kerala High Court recently passed a remarkable judgment recognising an individual’s right against moral paternalism. In this case, authorities of a college expelled two students for involving in a relationship, eloping and eventually marrying. While striking down this order of the college authorities, the High Court used the values and tools of the Constitution to craft a constitutional right against moral paternalism. The Court noted that power cannot be used to impose personal moral values on others, and maintaining discipline cannot be used as a garb by the college to impose moral paternalism on the students of the college. The Court noted that what is sin for some may not be a sin for others, and therefore, individuals should be left to make moral choices for themselves. The right against moral paternalism, the High Court held, however is not absolute because the legislature can still pass a legislation to control or regulate behaviours (which the Court called ‘legal paternalism’) in the larger interests of the society.

Though the Kerala High Court’s judgment is a step in the right direction of recognising a full-fledged right against moral paternalism, much needs to be done to concretise this right at a larger level, in the form of judicial recognition and legislation. In these tumultuous times, when certain kinds of preponderant majorities, both religious and sexual, are making vigorous efforts to coercively impose their moralities and behaviours upon those who do not belong to their fold, a fundamental right to safeguard one’s own moral choices is a true necessity.

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