Constitutional Morality in India

The year of 2018 was the most eventful year for the Supreme Court as it pronounced various decisions affecting various aspects the life of masses for example Victorian-era law criminalising homosexuality and adultery have been decriminalised, the right to privacy is hailed as negative as well as positive a fundamental right, Aadhaar judgment with a bold dissent from Justice Chandrachud declaring whole Aadhaar Act unconstitutional. Last year was indeed a year of change and reform in the jurisprudence of Constitutional law in India and it may also be called as transformative Constitutionalism. It started however from the year of 2017 with the decision of Shayara Bano vs Union of India is commonly known as Triple Talaq judgment in which the constitutional bench of five judges by the majority of 3:2 held instant triple talaq or talaq-e-biddat unconstitutional. In October 3rd 2018 the Supreme Court held a ban on entry of women between the age of 10 to 50 is also unconstitutional and held it negates the concept of gender equality enshrined in our constitution and Justice D.Y. Chandrachud even held that this practice also violates Article 17 by discriminating women on the basis of purity.

In this Article, we will go through all the relevant cases in which the doctrine of essential religious practice test evolved, applied and reiterated to the Justice D.Y. Chandrachud opinion which held this test as wrong and upheld constitutional morality over religion.

The question of the supremacy of constitution morality over religion came to the Supreme Court in 1954 in the case of Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swaminiar of Sri Shirur Mutt[1] popularly known as Shirur Mutt. In this case the question of mismanagement of finances of mutt arisen by the agent appointed by the Hindu Endowment board. The petitioners, in this case, asked that actions of the board and its agent is violative of Article 19(1)(f) and Article 26 of the constitution. In this case, two questions were raised with regard to Article 25 of the constitution that whether this article which is intended to protect religious freedom of individual can applied for religious denominations too? And another question was related to Article 26 that whether the mutt comes under the description of religious denomination and if it does what includes its right to manage its own affairs. Basically, the task at hand was to differentiate between purely religious activities and secular activities of the mutt. To identify the religious activities the Supreme Court first have to define what is ‘religion’?

The apex court had quoted various foreign cases to define the word religion and given it very broad sense by saying that:
A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, the Constitution not only guarantees and protect our freedom of religion but also acts done in pursuance of religion and this is made clear by the use of expression ‘practice of religion’ in Article 25 of the Constitution[2].

Now coming back to our first questions that whether Article 25 is available for religious denominations or not. The Supreme Court held that this question is irrelevant because the mutt is certainly not a corporate body it is run by a spiritual head and he is bound by the duty to preach, practice and propagate the tenets of the religion. The court further said:

If any law prohibits him in propagating and practicing his religion will be violative of Article 25. Institutions as such, do not perform religious activities individuals do[3].

Distinguishing between Religious Activities and Secular Activities
The Supreme Court answered the second questions quite elaborately while citing various American and Australian cases. It said by continuing the definition of religion:

After reading Article 26 the clause (b) is placed on a different footing than the other next two clauses which are made subject to the law made. It is now clear that merely administrative functions are not related to religious affairs so they can be made subject to the law made by a competent authority.

In the case of Commissioner of Police vs. Acharya Jagdishwarananda Avadhuta and Another[4]:

Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the core of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential part or practices.

However in this same case Justice Lakshman in his dissenting opinion held that only religious denominations have the right to determine what practices are essential to their religion and outside authority have no jurisdiction in it. It is because of the simple reason that people practicing that religion will have a better understanding the nuances of their religion than the judges who are not expert in theology.

He further in this dissenting opinion said that:

What would constitute an essential part of religion or religious practice is to be determined with reference to the doctrine of a particular religion which includes practices which are regarded by the community as part and parcel of that religion. Test has to be applied by courts whether a particular religious practice is regarded by the community practising that particular practice as an integral part of the religion or not. It is also necessary to decide whether the particular practice is religious in character or not and whether the same can be regarded as an integral or essential part of religion, which has to be decided based on evidence[5].

Now an important questions arises that whether clause (b) of Article 26 is subjected to legislative reforms for social welfare or the throwing open of Hindu religious institutions of a public character to all classes and Section of Hindus[6]? This question was answered in the case of State of Mysore vs. State of Venkataraman Devaru and Others[7]. One very persuasive argument opined by the party saying that Article 26 is not only protected Hindus but other religious communities as well and Article 25 (2) (b) only applies to Hindu temples so it cannot be the intentions of makers of constitution to put limitations of Article 25 (2) (b) on one community only. Thus Article 26 should fall outside the jurisdiction of Article 25 (2) (b).

The court negating this contention said that:

The answer to this contention is that it is impossible to read any such limitation into the language of Article 25(2)(b). It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein[8].

However it appears that on the facts and circumstances of this case that Article 26(b) and Article 25(2)(b) are in direct conflict. So the court has applied the doctrine of harmonious construction to resolve this apparent conflict.

This doctrine is basically a mid-way path between two conflicting provisions and the court applying this doctrine said that:
If the contention of the appellants is to be accepted, then Article 25(2)(b) will become wholly nugatory in its application to denominational temples, though, as stated above, the language of that Article includes them. On the other hand, if the contention of the respondents is accepted, then full effect can be given to Article 26(b) in all matters of religion, subject only to this that as regards one aspect of them, entry into a temple for worship, the rights declared under Article 25(2)(b) will prevail. While, in the former case, Article 25(2)(b) will be put wholly out of operation, in the latter, effect can be given to both that provision and Article 26(b). We must accordingly hold that Article 26(b) must be read subject to Article 25(2)(b)[9].

It is clear from the above ratio decidendi of the court that it indirectly upheld that constitutional morality enshrined in Article 25(2)(b) read with Article 17 supersedes the religious practice of excluding people from a public institutions solely on the basis of caste or birth.

However in another case of Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay[10] the Supreme Court by the majority of 2:1 held that the right of excommunication is an integral part of the Dawodi Bohra Community by accepting the petitioners the argument that to maintain the bond of religious unity and discipline and which will ensure the adherence to its tenets. However the dissenting opinion authored by Chief Justice Bhuveneshwar Prasad Sinha was one step toward transformative constitutionalism. He accepted the Attorney General’s argument that right to excommunicate is not a matter of religion and the act invalidating it is not actually interfering in the religious affairs. The act is only intended to protect the civil rights of the person excommunicated. The right to worship at a particular place is a civil right of every individual and the legislature can legislate or make a law protecting it.

The Chief Justice further said that the present act invalidating the excommunication is:

It will be noticed that the Act is culmination of the history of social reform which began more than a century ago with the enactment of Section 9 of Regulation VII of 1832 of the Bengal Code, which provided, inter alia, that the laws of Hindus and Muslims shall not be permitted to operate to deprive the parties of any property to which, but for the operation of such laws, they would have been entitled. Those provisions were subsequently incorporated in the India Act (21 of 1850) — known as the Caste Disabilities Removal Act — which provided that a person shall not be deprived of his rights or property by reason of his or her renouncing or exclusion from the communion of any religion or being deprived of caste, and that any such forfeiture shall not be enforced as the law in the courts. The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others[11].

He slightly hinting to Article 17 of our constitution although not stating it directly said that:

On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practices to be void has only carried out the strict injunction of Article 17 of the Constitution, by which untouchability has been abolished and its practice in any form forbidden. The article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. The Act, in this sense, is its logical corollary and must, therefore, be upheld[12].

The opinions of Chief Justice Sinha and Justice Lakshamanan in the Avadhut case[13] apart from being dissenting are also similar in more two ways. Firstly both of these opinions upheld the constitutionality of law amending the relationship between religious denomination and its members by bringing individual rights at power to group rights. Secondly, they both used Article 17 in order to do so. Justice Lakshmanan read Article 25(2)(b) along with Article 17 and Chief Justice Sinha used the word untouchable in a broader sense by holding that excommunication from a religious community will result in making someone as hapless as untouchable or outcasts. However, it can be objected because traditionally the word outcast or untouchable in only used in one sense that is caste based discrimination in Hindu Caste system so Article 17 does not have any jurisdiction especially in Saifuddin case.

Gautam Bhatia says in his blog:

The word untouchability, understood as a term of art, does not include every practice of exclusion engaged in by a group against members. Rather, it is limited to a practice prevalent within the Hindu caste system, at the heart of which is the prohibition of physical contract with those deemed untouchables, and its consequent spillover into the realms of economic, political and social subordination[14].

So in order to find out whether these judges were wrong in applying Article 17 in such a broader sense or not we have to read the concurring opinion of Justice D.Y. Chandrachud in the case of Indian Young Lawyer Association & Ors vs. The State of Kerala & Ors[15] we will deal with the case in detail later. At this moment we are only concerned what Justice Chandrachud said about the extent of Article 17. In his the opinion he said that:

Article 17 in textbooks on constitutional law, it is a provision which has a paramount social significance both in terms of acknowledging the past and in defining the vision of the Constitution for the present and for the future.

Article 17 provides:
Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.

Article 17 abolished the age-old practice of untouchability, by forbidding its practice in any form. By abolishing untouchability, the Constitution attempts to transform and replace the traditional and hierarchical social order. Article 17, among other provisions of the Constitution, envisaged bringing into the mainstream of society, individuals and groups that would otherwise have rema9ined at society’s bottom[16].

As the term ‘untouchability’ is not defined in the constitution so Justice Chandrachud peruses constitutional assembly debates. He brings those debates about the meaning, extent and defining untouchability into our attention. He quoted K.M. Munshi and other assembly members who were part of the sub-committee constituted for drafting a report on fundamental rights. On the suggestion of B.N. Rau the phrase ‘in any form’ was added to Article 17 which widens the scope of Article 17 from its traditional narrow and specific definition of the word untouchability.

In the judgment he quoted what KM Pannikar has opined about the comprehensiveness of Article 17:

If somebody says that he is not going to touch me, that is not a civil right which I can enforce in a court of law. There are certain complex of disabilities that arise from the practice of untouchability in India. Those disabilities are in the nature of civil obligations or civil disabilities and what we have attempted to provide for is that these disabilities that exist in regard to the individual, whether he be a Christian, Muslim or anybody else, if he suffers from these disabilities, they should be eradicated through the process of law.[17]

There were some more amendments proposed by the likes of Professor K.T Shah, Naziruddin Ahmed and many others seeking a definition of the word untouchability but all these amendments were either retracted or rejected. This refusal of constitutional assembly from defining the word untouchability shows that constitution makers did not intend to put any caveat or restriction on the scope of Article 17. Thus the opinions of Justice Lakshaman and Chief Justice Sihna were not wrong in fact they were in the line of the spirit of Article 17 and fulfills the ethos of secularism and its components equality and freedom as argued by the bestselling author Yuval Noah Harari in his book titled 21 lessons for 21st century.

Problems in the essential religious practice test
As stated in many cases cited above that only religious communities get to decide what practices are essential for their religion and no outside authority has any jurisdiction in this matter. But here one problem arises particularly in the Hindu religion which is a mixture of many forms of beliefs as it practices polytheism. It means that what if one particular segment is considering one thing as an essential practice and another segment hailing other practice as essential. This problem was first found by the Supreme Court in the case of Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan[18].

The court said:
If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice in an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion[19].

The main problem in this test is that the judges have to decide complex questions relating to theology in which they have no expertise. They have to rely on verses written in holy books which can mean several things and can be twisted to give more than one meanings. It is apparent in the real world, for example, Holy Quran is used by Islamic scholars to teach the lesson of peace and love while terrorist used the same Quran to justify their atrocities and killings.

Justice Chandrachud in his judgment in Sabarimala case[20] while upholding constitutional morality against religion said that:
For decades, this Court has witnessed claims resting on the essentiality of a practice that militate against the constitutional protection of dignity and individual freedom under the Constitution. It is the duty of the courts to ensure that what is protected is in conformity with fundamental constitutional values and guarantees and accords with constitutional morality. While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together, these three values combine t define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy.[21]

In the historic the judgment of Navtej Singh vs. Union of India (2018) 10 SCC 1 which decriminalises homosexuality, the court held that:
A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex.

In the judgment of Sabarimala the Supreme Court by the majority of 4:1 held that ban on women entry between the ages of 10 to 50 as they are menstruating is unconstitutional as it violates their right to privacy and their right to equality. The respondents, however, argued that this ban on entry of menstruating women is an age-old custom and an essential part of their religion though it may lead to discrimination. Although they never agreed that it is a discrimination because not all the women are banned and there are other temples of Lord Ayappa where women are allowed to enter. This argument finds its resonance in the minority opinion of Chief Justice Khehar in the case of Shayara Bano vs. Union of India where he said that instant triple talaq though bad in theology but good in law because it is practicing since 1400 AD and it is an essential part of the religion. Nevertheless, the majority did not agree with this vies and held instant triple talaq bad in theology as well as bad in law. Justice Chandrachud even applied Article 17 as it the ban treat women as impure and untouchable thus, upholding the principle that discrimination is an antithesis to equality.

In all the cases cited above (except for Justice Chandrachud’s opinion in Sabarimala) the court followed the narrow approach that is the court should limit itself to the technical aspect of law and solve the issue in question pragmatically rather than ideal-oriented and comprehensive one or in other words transformative approach which aims at the deep-rooted biases and prejudices in society and test them on the principles of the constitution.

Another important aspect arises after observing the Supreme Court’s own jurisprudence relating to Article 25 and 26 is full of contradictions which makes it very complex. That’s why Justice Chandrachud said that essential religious practice the test should be done away with because instead of solving the problem it increases it.

Decriminalising Homosexuality: End of Victorian Era Section 377 of Indian Penal Code

Another example of constitutional morality is the case of Navtej Johar Singh Vs. Union of India. In this case Supreme Court had overruled its own previous judgment of Suresh Kaushal vs. Union of India and decimalises the archaic Section 377 of Indian Penal Code which criminalises consensual sex except for heterosexual penile-vaginal. This section endorses the view of Judeo-Christian which defines sex is only for procreation and any sexual activity which is non-procreating is unnatural. However, everyone saw this coming especially after the historic the unanimous judgment of Justice Puttuswamy vs. Union of India which makes the right to privacy a fundamental right, in other words, the judgment of Navtej Johar was just fait accompli. Delhi High Court delivered this bold decision when there was no fundamental right to privacy and the then government (however Ministry of Family and Health Affairs was alleging that due to Section 377 prevention of HIV/AIDS has been hampered) was against the decriminalization of Section 377 by interpreting the word ‘sex’ in Article 15 also as sexual orientation thus making any discrimination on the basis of solely on sexual orientation will violative of fundamental rights.

This decision was delivered in extreme pressure from right-wing protestors claiming it is immoral and unnatural and ultimately Supreme Court in 2014 did not rise to the occasion as the Delhi High Court did and again criminalizes Section 377 thus subjugating the LGBT community rights to the majority wish just like Savigny argues in his Volksgeist theory which says law is nothing but people spirit and in practical terms it means the law is what majority of people say. Justice Indu Malhotra in her opinion in Navtej Johar had therefore said that History owes an apology to the LGBT community and kin.

Decriminalizing Adultery: Unchattelisation of women

Supreme Court in the case of Joseph Sine vs. Union of India had struck down Section 497 which prescribes the punishment for a man who knowingly had sex with a married woman. The question of decriminalizing adultery had come to Supreme Court on three occasions and all the time it was answered in negative. This section was problematic because it treats the wife as a property of husband and it does not penalize woman even as an abettor and also when the husband had given consent or connivance then this section does not arise thus making the husband the owner of a wife. However it was justifies by citing Article 15(3) which allows the state to take any affirmative action for the welfare of women and children. The court also took the refuse of phrases like the sanctity of marriage, the immorality of seducing other man’s wife and family values, etc. to justify this section.

But the Supreme Court in this judgment opined that:

Prima facie, on a perusal of Section 497 of the Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic.[22]

Justice Chandrachud while delivering a lecture himself had said that Constitution is in itself feminist. He said at the event that when you apply feminist principles in deciding, you are only giving effect to this substantive equality of the constitution[23]. He linked transformative constitutionalism with feminism by saying that both feminism and transformative constitutionalism are about the disruption of societal disruption and poses a challenge to the status quo.

Conclusion

Gautam Bhatia in his blog had compared untouchability with slavery in America. He said that slavery was an outcome of racial hierarchy where slaves were not allowed to visit any public space whereas in case of menstruating women they are also not allowed to visit the temple on the grounds of impurity. This statement in itself is very disturbing because slavery in itself was one of the biggest human tragedies in recent past and if it is practiced in any form then it is reprehensible. Justice Chandrachud said the word untouchability is not preceded by any caveat and he further said that:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society[24].

On the other hand Justice Indu Malhotra said:

All forms of exclusion would not tantamount to untouchability. Article 17 pertains to untouchability based on caste prejudice. Literally or historically, untouchability was never understood to apply to women as a class. The right asserted by the Petitioners is different from the right asserted by Dalits in the temple entry movement. The restriction on women within a certain age-band, is based upon the historical origin and the beliefs and practises of the Sabarimala Temple.[25]

On plain reading both of these views seems right and justiciable keeping in mind especially Article 14 and Articles 25&26. Justice Indu Malhotra argued that notions of rationality and equality embedded in Article 14 cannot be applied in religious customs and ceremonies because of Article 25.

Whereas Justice Chandrachud argues in the very start of his opinion:

The freedom to believe, to be a person of faith and to be a human being in prayer has to be fulfilled in the context of a society which does not discriminate between its citizens Their equality in all matters of status and opportunity gives true meaning to the liberty of belief, faith and worship. Equality between citizens is after all, a powerful safeguard to preserve a common universe of liberties between citizens, including in matters of religion. Combined together, individual liberty, equality and fraternity among citizens are indispensable to a social and political ordering in which the dignity of the individual is realised.[26]

But if we see the constitution and the intention of constitutional makers deliberately leaving many aspects of the constitution in vague terms shows that constitutional makers repose great trust in future parliamentarians that they would transform this constitution for the greater good of society. Supreme Court shattering the old conventional divide of public and private and upholding group views over individual gave a very progressive judgment in Sabarimala. Prohibiting someone only because of their biological features in 21st century is a reflection of the static past and it is high time for our country to shed all these dogmas and embrace humanity. Our preamble is decorated with four principles which are reflective of every democratic progressive society: justice, liberty, equality and fraternity and they are not disjunctive. So in order to realize these principles we have to stop rationalizing religious customs or practice which is contrary to these principles. It does not mean that constitution makers were not aware of the inexplicable relationship between the general public and religion, the principle liberty includes freedom of speech, expression, belief, and faith, etc., however, subjected to the certain limitations.

However, the review petition is being filed in Supreme Court to review its decision in Sabarimala case owing large scale protests. Now it will again be a test of Supreme Court to upheld its earlier bold and brave decision or to succumb to political and majoritarian pressure. (Inputs from Legal Service India).

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