Tuesday, April 20, 2021
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Do we need vague idea of ‘constitutional morality’ when we have written exhaustive constitution?

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Rohit Chauhan
Just an ordinary person in his early twenties , living a life of an ordinary student . Love philosophy and religious philosophies in particular , and Indian traditions and  its glorious  past . Love solitude .

The recent use of ‘constitutional morality’ by the Supreme Court on some occasions in its judgments begs the question that can such vague loosely defined idea that has no mention in constitution can be used a basis for judicial decision in any case apart from and on the top of what is already written in the constitution.. Are the texts of the constitution not sufficient in deducing or deciding constitutionality of something that one has to drag in some external idea like this ‘constitutional morality’ which is foreign to the written texts of the constitution which is likely to create inherent bias in favour of some particular ideas while disfavouring others? After all, the constitution does not come from ‘constitutional morality, it is the ‘constitutional morality’ that can come from the constitution if one is indeed wanting to decipher it .

Constitutional morality is vague arbitrary, loosely defined and is of only philosophical value. It does not have any specific context, or texts to contain any specific issue within its scope. It has descriptive language that only contain views of generic nature and values as a matter of general principle that has no application to any specific area of public life in practical terms. It is not contextual or has no specific purpose or aim to address or deliberate on any specific area of public governance but rather a general theoretical commentary of generic values that institutions of public life are supposed to imbibe. It is theoretical and can be said to aspire for achieving general objectives or lay down or develop general moral and ethical framework for the operation of constitution and the institution created within the texts of the constitution.

But because of its precisely generic theoretical nature detached from precision and details that it can not tell or reveal the forms and structures those institutions are supposed to take, the ways in which they can be established because all of these can only come from reading and going in detail the texts of the constitutional and not through general theoretical ideas and hence can not be basis of governance, law making or judicial order. Hence any use of such vague loosely defined idea lacking precision, context and details as a basis of adjudication of any matter by court deserve serious scrutiny and is bound to raise alarm. Using such vague idea that has no place or mention within the text of constitution while ignoring the text of constitution itself for judgement is seriously questionable. For any excessive unnecessary emphasis on ‘constitutional morality’ can be viewed by many as deviation or act of giving up on relying upon the text of the constitution or refusal to belief in sufficiency and exhaustiveness of the texts of the constitutional itself.

Hence textual reading should be given importance only for it discuss details, contexts and forms of different matters in the constitution not general idea of philosophical nature. For example, constitutional morality may contain the general principle for separation of power among the three organs of state which one can expect to find this general principle common in almost all constitutional based democracies: executive, judiciary and legislature. But it will facetious to assume that the general principle of separation of power among the three organs of state will have same form and content followed across all constitutional democracies. For example, Article 123 of the Indian constitution that vests power in the executive to promulgate an ordinance, which is an aberration in usual scheme of separation of power does have same provision in every country.

If one insists on finding what is ‘constitutional morality’ despite it has not been mentioned specifically within the text of the constitutional one can get a vague sense of it by doing superficial reading of the Indian constitution just to make sense of what  people who use the term mean. But the precise problem with the superficial reading is that it can at best allow you to make a general sense of the text of the constitution and its objectives but can not tell you the content and context of the text. This general sense or view based on superficial reading of constitutional and not textual and literal, can not be basis for functioning of any organ of the state including judiciary. If constitution is to maintain its importance and governance is supposed to be based on this document and following its letters and texts, then the content of constitution must be given the sole basis of reference and not its superficial reading. Because it is its content that reveals about the nature of governance, institutions, their forms, functions, structures and their respective powers vested in them, types of right given and their scope of application and limitations that come with them and not generic theoretical views.

No law or judicial cases should be made or decided on the basis of general reading of the constitution. Laws are always based on the textual reading of the constitution that  states in clear language, the rights contained within them and the prohibitions they have where those rights can not be claimed as entitlements stressing the fact that entitlements always need to be balanced with responsibilities and restrictions and and areas of limitations where they should cease to exists, the forms of institutions created by the constitution and what the nature of inter-relations and interactions in terms of power and functions and purpose they are going to have with each other etc .

Constitutional morality also as it is defined today by people who talk about it, is said to contain in itself cosmopolitan or universal principles like liberty, equality and fraternity. Ardent fans of constitutional morality whether they are in judiciary or outside of it, like in some in liberal left media, as they understand it today which seems to be different from what Dr BR Amebedkar meant, are its fans and seem to be obsessive about it because of precisely these reasons. Hence recently, liberal judges in Supreme Court seem to talk a lot about it in their judgments. But the problem is that while liberty, equality and fraternity are indeed universal principles common to almost all constitutional democracies, but their applications and presence and ways of use in rules and laws, are not universally same in their forms and essence and can never be same as nations and societies across the world are not uniform or same in terms of culture, traditions, political social and economic landscape, degree of diversity they contain and the history that they have or challenges they have endured in pasts which greatly shape or continue to shape the present or future of these countries and the form of governance, institutions and laws they have.

Some countries are much more diverse than the others ,have unique culture identities shaped by religions, history, geography and traditions of those societies. Due to these they have unique social realities and identities they bear and along with it they have unique challenges too. Hence any attempt to take universal principles like liberty and equality under the cover of ‘constitutional morality’ and apply it blindly to any country without understanding or realizing the context and culture and social life of people living within a country is futile exercise that may bring disastrous consequence or tension or disruption in social, political and economic life of that country much to the inconvenience of people living within it while blatantly disregarding their wishes and aspirations and ways in which they would like to be governed or forms of laws they would like to subject themselves too. The wishes of people and things they prioritize in their life are shaped by their social life and culture they live in. Therefore, application of theoretical universal concepts like liberty and equality in universal forms on any society without understanding or taking into consideration the nature of that society and its culture is not only unwise, it s highly impractical and dangerous. Because general principles of liberty and equality do not make any sense without giving any context to them.

Contexts like what kind of people are supposed to be governed by it, on whom are these going to be applied, issues that are supposed to be addressed and the extent of application,what kind of equality and liberty it is  and in which area, to what extent it will be given and how necessary it is for people to have it, whether it would harm others interests or not, the culture and traditions and way of life of those people, their wishes and their aspirations, etc are important to take into consideration. Theoretical principles like liberty and equality for their application must have practical purpose and real life contexts and circumstances. Because if people who are supposed to be brought under the net of governance are real people living in the real world, then theoretical ideas like liberty and equality must have elements of realism and practicality and must reflect the realities of social life of people that are to be governed. These ideas must be contextual, precise, elaborate and issue specific and must take due consideration of social life of people, their culture and traditions.

To put it simple, the concept of liberty as understood in the West, say for example, liberty and thoughts and actions which form the basis of their laws and regulations can not be copied in Indian context as these two parts of the world have entirely different culture, society and their traditions and social realities. Western societies are largely homogeneous in terms of social realities like race and religions that shape their culture hence right to free speech as a part of liberty of thoughts and actions is almost absolute in countries like America which is mostly homogeneous in terms of religion which is Christianity. But the principle of right to free speech can not be applied in India in the same form as it is in the USA. India is a highly diverse societies with almost people of almost all religions and therefore, prohibition of speeches that offend religious feelings or may seem to incite one religious group against the other can not be permitted as freedom of speech. Therefore any universal concept like liberty and equality must be accommodating and tuned according to the social life of local people, their culture and traditions and social values. It can not be applied blindingly by importing it from somewhere else where people’s culture and social life are different.

In the same way,  Hinduism as a religion is diverse with multitude of gods, goddesses and deities which brings a high degree of diversity to it unlike Abrahamic faiths like Islam and Christianity that are monotheistic and based on single major books like Bible and Quran, respectively acting as a source of their religious doctrines and practices that can easily be located within those texts for  reference for their basis. Hence, essential practices of Abrahamic religions can easily be found as one would only need a specific scripture or a limited number of sources to locate them. But in Hinduism, such attempts are not only unwise and foolhardy but also pose a threat to the core feature of Hinduism which is diversity and will slowly have effect in imposing forced uniformity on it which will erode it unique diverse nature and bring it close to Abrahamic faiths.

Ignoring this fact about Hinduism and applying universal principle like equality under the cover of constitutional morality without the contexts such as the diversity of the religion, will be a fallacy.

Therefore, universal concepts like liberty and equality are only or should be universal at best in sense that they are universally followed in some form or another to varied degree truncated and tuned to local life needs and culture and traditions of people. They can not be universal in the sense that they can or should take the exact same form everywhere universally. The degree of equality and liberty say for example in French society can not take the exact same form as in Indian society due to differences in culture, traditions, history, social compositions and geography that shape and continue to shape daily life people in respective countries. So any universal idea that may have found its place within constitution and may deemed to be part of ‘constitutional morality‘ by those who often use such terms, must be understood in terms of specific context, must be understood that they have limitations and restrictions and limited areas of application and also those who are meant to adhere to those ideas within the limited context defined by the literal text of the constitution are also specific entities or people.

For example  when one talks about equality under Article 14 or Article 15 (1), one has to understand that the said provisions only apply on the state as a specific political entity, that is the state shall not deny or discriminate any person based on limited context or area of application like race, gender, caste, religion or place of birth. Such discrimination in the above articles are not prohibited or can not be prohibited on private individuals or any person or entity not forming the part of the state. Because private individuals should be free to extend favor to anyone they like and can not be forced to extend the same privilege to everyone or to treat everyone equally, if it suits their personal interests or they feel they are better treating some with favour and prohibiting some. While the state has no personal interests so it is supposed to treat every citizen equally. So private individuals and the state can not be subjected to the same standard of equality in the same form under the cover of ‘constitutional morality’ because the constitution itself does not allow that to force private entities or individuals or those which are not part of the state to treat everyone equally. So talking about constitutional morality in the context of non-state entities and forcing them to such standards is itself assault on the  rights to those non-state entities given the very same constitution whose morality its passionate fans seem to profess .

In the context of recent debacle by the Supreme Court in the Sabarimala case which it seemed to put test of the ban of women in the age group of 10 to 50 from entering within the philosophical loose frame of ‘constitutional morality’ by conflating it with Article 14 and Article 15 and thus committing a gross error of total misfit and by ignoring or giving least consideration to the literal texts of the constitution and its correct contextual interpretation suitable the diverse faith Hinduism is, by requiring it to see it as issue to be understood closely with Article 25 (Right to freedom of religion that should protect the interests and will of deities and rules of the temple where he resides) and Article 26 (Religious denominations or any of its sections right to manage their affairs in matter of religion), the Supreme Court has again proved how loose idea of the theoretical nature like constitutional morality while ignoring the literal reading of the texts of the Constitution which has elaborately led down various fundamental rights that only after that, requires contextual holistic harmonious interpretations of various articles together to understand checks and balances and proper areas of their respective applications that suit the given context (here the diverse religion like Hinduism), if forms the basis of any court judgement, can result in serious error and thus will dilute the very rights given in the constitution by suppressing them and giving privilege and preference  to certain other rights over them.

As it has happened in this case, by giving preference to right to equality (which only apply on the state and its entities not private one or any religious denomination) over right to freedom of religion and right to manage religious affairs by a religious denomination, the latter rights gets suppressed or held subservient to the former and thus creating an impression that in the court’s view of ‘constitutional morality’, there perhaps exists a hierarchy of order in which constitutional rights are supposed to be seen or given preference which is a total manufactured idea that is not sanctioned by the constitution itself.

Moreover, the use of terms like ‘constitutional morality’ by the court, seem to create an impression that the Supreme Court is going into unnecessary and extra-constitutional  philosophical commentary rather than limiting itself to just plain reading and interpretation of the texts of the constitution and laws, which is all it is supposed to do. By doing philosophical commentary of moral nature like these as side activity along with textual interpretation, the judiciary seems to assume on itself as a moral guardian of the society. The result of falling into such temptation, is or will be that the Court has been or will be enticed to enter into territory it is not supposed to enter and assume on itself, the legislative and policy making power on the pretext that the other organs of the government are not acting or have failed to do their jobs, thus committing grave error in not practicing judicial self-restraint, which is something that should itself be seen as an essential part of ‘constitutional morality’ by its speakers if they indeed care about ‘constitutional morality’. The court by not resisting such temptation, has and will transform itself in the job of judicial activism and ‘public opinion influencer’. Through controversial Sabarimala Judgement based on its complete misreading and lack of appreciation for diversity within Hinduism and narrow and erroneous reading of Article 25 and Article 26 that seems to misread and judge Hinduism at par with some monotheistic faith, it has given to itself a role of some kind of ‘social reformer’ and ‘gender equality activist’, a job, never supposed to play in the first place. Judiciary can not sponsor any cause like activists. It is supposed to be impartial and detach itself from any ideology or emotion. Unnecessary emphasis by judiciary in trying to decipher the secret moral codes hidden in the texts of the constitution in order to create concept like ‘constitutional morality’ will create ideological biases in judiciary based on such pre-conceived vague notion which may impact its impartiality and fairness and capacity to approach a case with openness rather than motivations like ‘reform and change’. 

Who needs ‘constitutional morality’ when we have such an exhaustive elaborate written constitution suitable to the diversity and culture of India and the needs and aspirations of its people which just needs its textual interpretation depending upon the context?

The Indian Supreme Court is not a part of any Western country. It is a institution set up under the Indian constitution to operate under Indian territory and therefore it must be aware of realities of Indian society, its culture, traditions and values and hence should not import some western ideas blindly. Some Ideas may be universal but their applications can not be same as the world is not uniform in terms of its people, their culture and traditions, social composition, history and geography. Hence their applications must take different forms and degree based on local context and needs. It is this thing that the judiciary or any organ of the government should always keep in mind .

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Rohit Chauhan
Just an ordinary person in his early twenties , living a life of an ordinary student . Love philosophy and religious philosophies in particular , and Indian traditions and  its glorious  past . Love solitude .

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