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Prof NR Madhava Menon’s article gave currency to the idea that constitutional morality as a ground of invalidation is almost new. But that is not so as it is embedded in the Preamble and is different from public morality and even judicial morality

By Upendra Baxi

I am puzzled by the lack of reader response to Professor Madhav Menon’s eight questions (India Legal, January 21, 2019) concerning “constitutional morality” (CM). His questions were triggered by my analysis (India Legal, December 24, 2018) but it would be presumptuous to think that these were only addressed to me. Faute de mieux, let me say that both the manner in which these were raised and underlying views deserve serious consideration.

Broadly, Prof Menon believes in the following self-evident truths. First, the power of judicial review must run subservient to the will of the people as expressed in the constitutional text and on maxims of public morality. Second, CM should never function as a ground for invalidation of statutes or constitutional amendments. Third, fundamental rights as guaranteed in the text of the Constitution should not be regulated by public morality. Fourth, in a democracy, any abuse of judicial power, especially CM, should yield to reification by legislative wisdom. Fifth, at best CM is a constitutional sentiment of slow growth, and the remedy for preventing majoritarian excesses cannot be attained by showing “less deference to the legislature” as “some judges seem to think”. CM should not “be yet another tool beyond ‘Basic Structure’ for exercising judicial power”. Sixth, the “ugly consequence which resulted in forcible enforcement of the Supreme Court judgment in Sabarimala by a government controlled by a party of ‘nonbelievers’ cannot be dismissed as a conflict between public morality and Constitutional Morality”.

CONFLICT OF RIGHTS AND CM

A review of the Supreme Court decision in Sabarimala, which is now under constitutional review, is not presented here. Nor one may speak about the impassioned public contention, partisan political debate, changing legal postures, and lots more besides. Within the discipline of sub judice rule, all one may say is that the Court was confronted with a conflict between two sets of fundamental rights: rights of essential religious practice (Article 25) and rights of non-discrimination and gender equality (Article 14).

Article 25 of the Constitution, of course, protects the right to the essential practices of religion, but it also confers the right to conscience. We so keenly engage with the right to religion as to almost obliterate the right to conscience; but it is this moral entity that impels us to be atheists or choose religion. The party of “non-believers” is as much constitutional as the parties of piety. The choice is not among faiths merely but also between faith and agnosticism: whose/what “morality” shall trump my right to conscience? How far in matters of the right to conscience may it be constitutional to keep courts out altogether?

Further, Article 25 itself is subject to restriction/regulation arising from four grounds; morality, public order, health, and other provisions of Part 111. The conflict between “morality” and “essential religious practice” is deep and diverse, and not easy to settle, but to reiterate, one is not dealing here with a conflict between rights and morality but between two sets of basic rights (religion and non-discrimination) which are in conflict. Prof Menon’s analytic, therefore, misleads.

When the “Text is Clear, It Compels” is the maxim of legal positivism as well as its trumpet cry. Three basic questions may still be raised: first, what and whose morality may trump rights to conscience and to religion? Second, how can a religious practice ever be declared not “moral”? Third, who shall have the final power to decide this? The lawyer’s answer is clear enough. In interpreting Part 111 of the Constitution, the Court should follow, as far as possible, a disciplined interpretation dictated by it. As such, are our justices not duty bound to ask what the term “morality” may mean in Article 25 (bearing in mind the related provision regulating or restricting Article 25’s rights by “other provisions of this Part’’)? Is it not a fair answer that morality here refers to CM? May it be ever otherwise? Should justices be now asked to forswear an interpretation of Article 32 (the right to constitutional remedies) and Part 111 as a whole, whose general message is that whenever a rights-reinforcing moral reading of the Constitution is available, a rights negating one should be avoided?

MEANING AND USE

Even in Dharmendrasinhji College, Rajkot, we were taught in the sixties, to distinguish the meaning of a concept from its use. The fact that the concept is misused does not invalidate it. The concepts of basic structure, constitutional republic, equality, non-discrimination may be held to be misunderstood and misapplied in specific fact situations but such interpretation does not invalidate the concept. Or further, the concept may be accepted but is held applicable in ways differently from others (as careful readers of Justice Indu Malhotra’s dissenting Sabarimala well know).

One may freely invent a philosophy of language to suggest otherwise. Perhaps the greatest philosopher of the 20th century, Ludwig Wittgenstein, did precisely this by the aphorism that “in most cases, the meaning of a word is its use”. That is, it does not really matter what you say; what matters is the way you say it and the context in which you say it. The use of a word, then, is what the words mean in a given context.

I do not know what theory of language Prof Menon adopts. On my part, much depends on the meaning of the phrase “in most cases” with which this aphorism begins and the meaning we want to give to the word “context”. Surely, one way of crafting and reading judgments is that this endeavours to resituate the contexts of which they are a part. CM, like all metalinguistic concepts is an important aspect of judicial pedagogy of the nation as setting a schema for interpretation of the related constitutional terms.

CONSTITUTIONAL MORALITY NOT A NEW NOTION

Prof Menon gives currency to the idea that CM as a ground of invalidation is almost altogether new. Scarcely so; it stands variously embedded in the Preamble, Parts 111, and now IVA (as more fully stated in my article of April 3, 2019). It is clear from many a past decision that CM is different from public morality, and even judicial morality. In the immortal dissenting words of Justice O Chnnapaa Reddy, who despite being a self-confessed Marxian (who believed that chanting “of prayer … mere jingoism and observance of ritual, plain superstition”) said that his “views about religion, my prejudices and my predilections…are entirely irrelevant. So are the views of the credulous, the bigot and the zealot. So also the views of the faithful, the devout, the Acharya, the Moulvi, the Padre and the Bhikshu each of whom may claim his as the only true or revealed religion”. It is “the people of the Socialist, Secular, Democratic Republic of India, who have given each of its citizens Freedom of conscience and the right to freely profess, practice and propagate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expressions ‘religion’ and ‘religious denomination’” (MS.P. Mittal v .Union of India (UOI), (1983) at Para 2). The majority did not disagree with this proposition. The standards of CM have to be observed in each case, regardless of a judge’s views about morals.  

SHOULD JUSTICES ALWAYS LEAVE CM TO LEGISLATURES?

Sociologically, such a popular advice at least overlooks two factors. The first is the situation of conflicting fundamental rights (presented most recently in Sabarimala); and the second is where the problem of rights arises because the legislature, knowing full well that it has the power to decide, does not do so. This is notoriously the situation with regard to sexuality. The Supreme Court had to step in on the eve of the golden jubilee of the Constitution to judicially legislate certain guidelines regarding sexual harassment and the court law prevailed till 2103 when the Union draped itself into lineaments of law against sexual harassment. In Koushal, the Court again left the matter of legalisation of same sex relations (December 11, 2013), but it reiterated that “the… legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”. Nothing happened since, excepting that the Court proceeded to decriminalise gay sex finally on September 6, 2018 (in Navtej Johar). The prevention and punishment of torture provides another sad story; and the Court has issued a number of directions to expedite the fulfilment of the Directive Principles of State Policy (including the securing of gender justice through reform of personal law).

When the legislature continues to overlook situations of continuing gross violations of core fundamental human rights, and all nudging functions are exhausted, what should be the nature and scope of judicial duty? May the Supreme Court acting under compelling notions of constitutional morality not assume what I have called the adjudicatory demosprudential role? Or is it a moral mistake to take constitutional law and adjudicative pedagogy seriously as guiding the course of evolution of natural sentiments into constitutional ones? Should we continue to let the doctrinal past rule the future?

The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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