The challenge of Constitutional Morality before the Supreme Court

[dropcap]T[/dropcap]HE historic Sabarimala judgment (2018), in which it was held that the exclusionary practice of debarring women of the menstruating-age group from entering the temple of Lord Ayyapa for darshan was unconstitutional, attracted both, euphoria and discontent. Of euphoria and jubilation, there were obvious reasons: women were liberated from an age-old discriminatory custom. 

Following the judgment, scores of review petitions were filed against it. The block, which had discontent, argued that, as the Supreme Court is not an ecclesiastical body, therefore, it should not have adjudicated on matter pertaining to their belief and faith. 

Given this, the Supreme Court, in its order on the review petitions in the Kantaru Rajeevaru v Indian Young Lawyers Association framed seven issues which were to be decided by a larger bench before the review of Sabarimala judgment (2018) could be decided on merits. 

In the above backdrop, presently, a nine-judge Constitution bench of the Supreme Court headed by Chief Justice S A Bobde is seized of the matter which involves the determination of the seven issues framed by it which pertains to religious freedom in India vis-à-vis individual rights and group rights. Moreover, the Supreme Court is tasked to come up with a uniform and standard judicial policy and precedent with which matter specifically related to religious freedom vis-a-vis individual freedom could be adjudicated in the coming years.

The issue of Constitutional Morality

One of the issues among those seven, which would be taken up is: What the expression "morality" or "constitutional morality" means in the context of Articles 25 and 26 of the Constitution of India. 

Of late, use of the doctrine of 'constitutional morality' has become much more significant and relevant while interpreting the Indian Constitution by the judges than ever before. The Supreme Court has applied different facets of this progressive and transformative doctrine, as it has come to be known, in a catena of cases, some of which may possibly be counted as the finest and seminal judgments. 

This phrase of "constitutional morality", existed in the Indian Constitutional scheme since times of Dr Ambedkar, but post-1950 until recently it was in a somewhat dormant state. Though, twice, in passing the phrase constitutional morality has been used in by the Supreme Court in the Keshavananda Bharti and S P Gupta judgements. 

Other cases in which different strands of this doctrine have been applied stand class apart and testify its progressive and transformative nature. 

For instance, in the historic Government of NCT of Delhi vs Union of India where the court was called upon to decide as to what power the Lt. Governor of Delhi does wield in the Indian Constitutional scheme. Therein, inter alia, it was observed by the Supreme Court that constitutional morality is "not just the forms and procedures of the Constitution, but provides an enabling framework that allows a society the possibilities of self-renewal". Subsequently, in another scintillating judgment in the Navtej Singh Johar case, which pertained to Section 377 of IPC, 1860, the Supreme Court said, "Constitutional morality cannot be martyred at the altar of social morality". While in the Sabarimala judgement, where the age-old custom of debarring menstruating women of the certain age group from the temple was in question, the court observed, "…existing structures of social discrimination must be evaluated through the prism of constitutional morality. The effect and endeavour are to produce a society marked by compassion for every individual."

Analysing the above series of judgments, one thing becomes amply clear that, "the silences of the Constitution are also to be ascertained to understand the Constitution". Constitutional morality is this silence of the constitutional text regarding which Justice Chalemeshwar talks eruditely in the Justice K S Puttaswamy (Retd.) & Anr v. Union of India & Ors. where 'Right to Privacy' was elevated to the status of a fundamental right.

Liberals and progressives have lauded the Supreme Court for espousing this progressive approach. However, at the same time, on the opposite end of the ideological spectrum, many among those who rail against liberals', claims that the application of this doctrine amounts to judicial overreach and are thereby pitting "constitutional morality" against "societal/popular morality". 

Even the Attorney General of India, taking a pot shot at the application of this doctrine, has observed that constitutional morality is a "dangerous weapon" as the courts have applied it subjectively. Senior Advocate Abhishek Manu Singhvi, in his latest book, From The Trenches (2020), commenting on constitutional morality, specifically in regard to the Sabarimala case (2018) argues that this phrase is full of subjectivity. Further, Singhvi maintains that the judicial approach to Constitutional Morality could vary from Judge to Judge like the proverbial 'Chancellor's foot'. Legally, their argument does not stand the test of the constitution. As 'rule of law' is not explicitly mentioned in the constitutional text still it is not just part of the Constitution but also basic structure. In the want of an express definition should we say that 'rule of law' is also subjective? 

However, on the other hand, apologists of social morality basically premise their argument on two grounds. First, premised upon the wrong presumption that "constitutional morality" is for mature society. This is possibly a superficial understanding of the issue. Second, the courts are not the appropriate fora to adjudicate upon these issues. It is quite strange that these arguments just sweep under the carpet the well-established dictum that the Supreme Court, the sentinel on qui vive, is mandated by the Constitution to protect the fundamental rights of every citizen. 

Also, giving leeway to social morality, at the altar of constitutional morality, in a highly religious and diverse nation, as India is, can embolden majoritarianism. However, it is the rule of law which should be the order of the day and not the social morality, an enabler of majoritarianism. It should, therefore, be sparingly used while interpreting the Constitution. However, if the present bench just takes a diametrically opposite stand and in an unprecedented move, gives primacy to Social Morality over Constitutional Morality, wouldn't it amount to losing the forest for the woods? 

Significantly, in the Navtej Singh Johar verdict, the Supreme Court observed in regard to social morality, that "Any attempt to push and shove a homogeneous, uniform, and consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality. Further, it was added, "Devotion and fidelity to constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time".  

Experimenting and engagement with the Constitution

Of experimentation, it is said that it can do wonders. Ramachandra Guha in his book India After Gandhi (2007), argued that granting of the voting rights in the form of the universal adult franchise was a great experiment in Indian History. It was an article of trust.

Similarly, in law, the landmark Keshavananda Bharti case captures that monumental moment as it is a testimony to a unique experiment. It was the evolution and application of the doctrine of the Basic Structure Doctrine. 

Thought, at that time too, like now, many inquisitive minds questioned the Supreme Court about the conceptualization, efficacy and sustainability of the basic structure doctrine. However, proving all such unfounded apprehensions wrong, the historic experiment led by the Supreme Court turned out to be a benchmark. 

Interestingly, it was not the loud text of the Constitution rather the silences of the Constitution which was instrumental in interpreting the above case. This being said, constitutional morality is just the latest in the series of various silences of the Constitution, of which Basic Structure was the first in 1973.  Would the Supreme Court in this case too taking spirit from the 1970s in its activist role, give a new interpretation to the 'silences of the Constitution'?

Constitutional Morality: A doctrine of radical transform0ative character 

The challenge before the nine judges Constitution Bench is twofold. Firstly, to examine and ascertain what the phrase 'constitutional morality' means in want of expressly defined in the Constitution. Secondly, there being no definition, inconsistency creeps in, quite often, while applying the said doctrine by the judges. Moreover, it is upon the Supreme Court, inter alia, to ascertain the scope and nature of the word, morality, in the context of the Articles 25 and 26. 

A standardized yardstick has to be evolved so that there is no scope for legal inconsistencies. However, the confusion and contention that comes out from the legal scholarship, in regard to 'Morality', is only because of the fact that the word 'morality' is quite often used with the qualifiers or prefixes, such as, "constitutional" or "societal", while it is put to work. Now, this conceptualization and understanding of the term, morality, (whether it is constitutional or societal) completely depends upon the understanding of the judges concerned. 

In the above background, to borrow a term from Ronald Dworkin, would the Hercules judges of the Supreme Court be able to upgrade the 'silences of the constitution' to the status of 'voices of the constitution' as an interpretative tool in resolving 'hard cases'?

Ambedkarite perspective Constitutional Morality 

Interestingly, Ambedkar, the architect of the Constitution of India, is perhaps the first, who has explicitly and vocally engaged in length with the phrase 'constitutional morality'. Without mentioning and shedding light on Ambedkar's understanding of constitutional morality, discussions on the subject would be incomplete. Ambedkar, while addressing the Constituent Assembly in 1948, invoked, George Grotius, the English historian, to explain as to what constitutional morality is, and what is its significance in a nation where democracy was a top-dressing on the soil which is essentially undemocratic.

Ambedkar, drawing on the work of Grotius, formulate his understanding of constitutional morality as "a paramount reverence for the forms of the Constitution". 

It was for the true realization of the objective of the Constitution, amidst staggering inequality and inequity which India faced and the tensed political climate, that Ambedkar used 'constitutional morality'. Ambedkar, while addressing this sorry state, after a thorough diagnosis, articulated that the panacea for this does not lie only in the constitution or the government ruling the nation. For Ambedkar, constitutional morality was the answer to this disparity in the society and if there exists congruency between the "form of the administration" and "form of the "constitution" then, he hoped, we can get rid of it gradually. 

Also, the most striking facet of Constitutional Morality has been its innate transformative nature. Through this, it has been ensured by the SC that no individual who is being governed by the Constitution remains bereft in the realization of its fruit. Instructively, in this light, Justice Chandrachud offered in the Sabarimala judgement (2018) that the Indian Constitution "has a transformative character so that hitherto deprived and marginalized citizens can enjoy their citizenship rights". 

To sum it up, as this judgment would touch upon, across, other religious issues like Mosque Entry, Parsi women's fire temple entry case, Female Genital Mutilation in the Bohra community, and other incidental matters pertaining to religion, the importance of this judgment would be far-reaching and pervasive. Coupled with this is the progressive and monumental trend/precedent that has been set-up by this very court in the past few years, where this doctrine has been applied especially in relation to the cases of gender-justice, institutional propriety, social uplift, checking majoritarianism and other such evils. 

In the light of the above, the question that begs greater attention is: would the Supreme Court and the Hercule judges, in its all wisdom and the constitutional mandate under which it works, widen the scope of Constitutional Morality, thereby making the vision of Dr Ambedkar and the constitutional text turn into a living reality, or, would it succumb to the ubiquitous political populism, which, of late, has become the order of the day?

[Md Zeeshan Ahmad is a final year law student at Aligarh Muslim University, Aligarh]