Why ‘constitutional morality’ is vital, and matters to us all

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Patralekha Chatterjee

Two of the buzziest words today are “constitutional morality”. The words jumped onto the national discourse in recent days with a series of landmark judgments by the Supreme Court. One would think that the Constitution is like Caesar’s wife, beyond questioning. But in the hyper-polarised times that we live in, unsurprisingly it did not take long for the two words to become hotly contested. Those who self-identify as “liberals” or “progressive” have lauded the recent judgments by the Supreme Court; many among those who rail against liberals day and night, out of conviction or political compulsion, are upset about what they see as judicial overreach and are pitting “constitutional morality” against societal/popular morality.
It is easy to see why so many social progressives are delighted. The Supreme Court has decriminalised adultery; it declared that “any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution”, and that it’s time to say that the “husband is not the master of (his) wife”. The Supreme Court has also brought relief to the gay community by striking down the provisions of the obnoxious colonial-era Section 377 of the Indian Penal Code which criminalised consensual homosexual acts between adults. The court said that “Section 377 IPC is irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights.” It has read down critical provisions of the legislation on Aadhaar and its most recent and hugely controversial verdict has led to lifting of the ban on the entry of women between the ages of 10 and 50 — the years during which most women menstruate — into the hallowed Sabarimala temple in Kerala.
This week, new Chief Justice of India Ranjan Gogoi revived the national conversation on “constitutional morality” by bluntly stating that people are divided “more than ever” along the lines of caste, religion and ideology, and “what one should wear, eat or say are no longer insignificant questions about personal life”. Justice Gogoi’s key message was that beliefs must be continuously evaluated on the touchstone of constitutional morality, and this must prevail whenever there is any doubt or conflict. He defined “true patriotism to the Constitution” as adherence to “constitutional morality”.
Lawyers and judges have in the past weighed into the discussion on constitutional morality with great vigour. In a gentler era, perhaps noting that the Constitution reigns supreme would have been stating the obvious. But the reason why Justice Gogoi’s words are so important today and why it resonates with so many ordinary citizens like this writer is precisely because he has reiterated the obvious at a time when the obvious is being redefined.
In simple lay person’s language, it means the Constitution must prevail over all other factors because in a country like India, with its huge diversity, there is really no other choice. If we undermine constitutional morality in favour of societal or popular morality, we will be giving into majoritarianism. And majoritarianism as an organising principle will not work in a country of India’s humongous diversity, not only because it risks empowering the mob and denting the rule of law, but also because minorities in this country are in millions, and constant squabbles between the majority and minorities would derail India from living up to its aspirations and development goals.
There are multiple lines along which India can be divided. In the face of all the differences that exist in contemporary India, with all its varied cultures, religions, worldviews, there’s one thing that holds the nation together and it is constitutional morality. For a society as pluralistic as India to function and thrive, there has to be an acceptance of individual identities. Otherwise, there will be no peace and no stability.
Take the most recent and controversial judgment of the Supreme Court about allowing women of menstruating age into the Sabarimala temple. This has thrown up a tornado of reactions. In several WhatsApp groups that I am a part of, I found women verbally jousting with other women about how “true devotees” would still not go to the temple if there were in their menstruating years and how women had so many other temples to go to. The same arguments surfaced in television panel discussions and have now been taken to the streets in Kerala. Looking on as an ordinary citizen, a few questions arise in my mind. The Constitution guarantees us the right to freedom of religion. All Indians are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. But does the Constitution tell us how to practice religion or whether to practice religion? Who is to define true devotion? So while one person’s idea of true devotion may spur him/her to follow the Ayyappan temple’s rules of entry for women and respect “tradition”, another person’s idea of true devotion may lead him/her to think these are peripheral issues and real spirituality is something much more. No one is forcing anyone to do something that goes against his/her faith. Equally, no one should impose their idea of true devotion or spirituality on others.
Or take the case of the infamous Section 377 of the IPC. Till recently, India was among a group of some 70 countries which treated consensual gay sex as a crime. Plenty of people still think homosexuality is an aberration, and see it as something abnormal. But by striking down this pernicious legislation, the Supreme Court has made India a member of another group of some 124 countries where same sex love is seen as perfectly normal.
The Supreme Court reminded us that “social morality” or morality of the majority do not trump over the country’s Constitution, which gives equal rights to everyone. Anyone can hold any viewpoint, as long as he/she does not force it on others.
As an ordinary Indian citizen, I pin my hopes on constitutional morality because it is the only universally acceptable method of adjudication and management of differences in this country. The buck has to stop somewhere, amid all the raucous squabbles about who is right and who is wrong. And as long as India remains a democracy, it stops at the Constitution.