In the recent Sabarimala judgment, one of the ‘principles’ used by the honourable judges was that of ‘Constitutional morality’ to decide that the ancient practice of restricting women of a certain age from entering the Sri Ayyappa temple at Sabarimala was unconstitutional. The conclusion drawn was that the rights under the Constitution that were related to religion and religious practices were subject to passing the test of ‘Constitutional morality’.
Although majority of us remain incapable (yet) of understanding what the term ‘Constitutional morality’ is, the natural assumption is that the honourable Supreme Court has a firm grip on the concept and is unambiguous and consistent about it.
In this regard, let us look at the opinion of a few of the judgements with respect to the interplay between Constitutional morality and religious practices.
In the Sabarimala judgment itself – Indian Young Lawyers Association vs The State Of Kerala – delivered in September 2018 –
(I) At least 3 of the honourable judges have held that Constitutional morality reigned supreme over religious rights.
However, honourable Justice Indu Malhotra, in her dissenting judgment has touched upon this topic and held a different opinion.
11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. 11.7. The followers of this denomination, or sect, as the case may be, submit that the worshippers of this deity in Sabarimala Temple even individually have the right to practise and profess their religion under Article 25(1) in accordance with the tenets of their faith, which is protected as a Fundamental Right.
11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined.
The honourable Judge then concludes as follows.
Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
(II) The conclusion is therefore that the meaning of Constitutional morality is in fact harmonisation of fundamental rights, with none being greater or lesser.
In the Triple Talaq judgment – Shayara Bano vs Union Of India – delivered in August 2017 (just a little over a year ago) – the honourable CJI Justice J S Khehar and honourable Justice Abdul Nazeer addressed the following question posed as part of the petition (quote directly from judgment)
One of the issues canvassed on behalf of the petitioners, which was spearheaded by the learned Attorney General for India, was on the ground, that the constitutional validity of the practice of ‘talaq-e-biddat’ – triple talaq, was in breach of constitutional morality.
After a long discussion that involved citing several previous judgements and Constitutional Assembly debates, the honourable judges arrived at the following conclusion.
172. There can be no doubt, that the ‘personal law’ has been elevated to the stature of a fundamental right in the Constitution. And as such, ‘personal law’ is enforceable as it is. All constitutional Courts, are the constitutional guardians of all the Fundamental Rights (– included in Part III of the Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be denying the rights expressly protected under Article 25.
Readers can refer to the judgement cited and confirm that although the context was “personal law” the discussion was very much about the interplay between Article 25 (freedom of practise of religion) and Constitutional morality.
They concluded as below.
174. The prayer made to this Court by those representing the petitioners’ cause, on the ground that the practice of ‘talaq-e-biddat’ is violative of the concept of constitutional morality cannot be acceded to, and is accordingly declined.
The conclusion therefore was that the rights under Article 25 are fundamental rights and anything covered under the same cannot be tested against Constitutional morality.
In the same judgment, Justice Kurian Joseph observes as follows.
Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice.
The other two honourable judges have not commented on the question regarding Constitutional morality and religious practices, although the petitioners had raised this question. One conclusion to draw would be that they held no opinion on this matter, or that it was not needed given that they were able to arrive at their decision without having to address this question. The other conclusion would be that these two honourable judges also concurred (on this question) with the opinion of the CJI and other two brother judges.
(III) In any case, a majority of judges in the triple talaq judgment held that religious rights supersede Constitutional morality.
From (I), (II) and (III) above, we notice that within a matter of 13 months, three different interpretations of the question of Constitutional morality vs religious practices have been held.
a) Constitutional morality weighs greater than religious fundamental rights
b) Constitutional morality is all about harmonising all fundamental rights, including religious.
c) Constitutional morality cannot be acceded to matters concerning religious fundamental rights.
In the nation like ours, where religious issues continue to dominate public life, many more issues are likely to come up where religious rights face a test against other fundamental rights. Perhaps it would be a good idea for a larger bench of the Supreme Court to sit and arrive at a unanimous principle on the question of ‘Constitutional morality vs religious rights’. Because it is natural that there will be differences when it comes to application of any principle (whether it applies in a particular case or not, for e.g.). However, there must not be any ambiguity at all, about what the principle itself is.