ISSN : 2581-8465
Author : Vineeth Vijayan
Government Law College, Trivandrum.
In the case Indian young lawyers association vs. Union of India and others, popularity known as Sabarimala case the Supreme Court applied Article 14 in religious matters. The Supreme court there by interpreted constitutional morality by subjugating Article 25 to Article 14. Constitutional morality is exactly what all judges relied upon — may it very the four judges struck down the time immemorial practise and by sole dissenting lady judge. No one would be able to give a conclusive definition on what this constitutional morality all about .Applying constitutional morality in matters relating with faith is fundamentally flawed, because religion is a fiction. Diversity of Indian society and its link with endurance of our written constitution is also constitutes as part of this article. The sense of democratic accountability and the possibility of judicial tyranny by the application of this loose and ambiguous term constitutional morality is also detailed. Mass acceptability of a religious practise cannot be taken away. Denial of religious denomination tag enumerated in Article 26 on the pretext of Article 14 fundamentally flawed. Constitutional impermissibility of the application of constitutional morality with Article 25 and Article 13 (2) is also discussed .Consequences of testing religious beliefs with the touchstone of reason and its implications are also discussed.
Constitutional morality is an elastic term, and whatsoever the court interprets, it will become part of that elastic term. When the court interprets that a particular matter should be decided with adhering to the loose term constitutional morality, it would lead to certain unacceptability. It is because, whatsoever may the definition of the court regarding the constitutional morality, there would be an alternate definition of that term .The Supreme Court in the Sabarimala matter applied Article 14 of the constitution in religious matters, and held the custom is unconstitutional. In the Sabarimala matter, the Supreme Court subjugated Article 25 of the constitution to the Article14 of the constitution .When Article 14 is applied in Article 25 of the constitution of India on the pretext of constitutional morality; this very definition of constitutional morality will loose the essence of constitutionalism. That is, Article 14 deals with reasonableness can’t be applied in Article 25, because religion is a fiction, which it is beyond the purview of reason. Using reason as an essence to check the constitutional validity of a religious practice will eventually lead to a substantial question: whether the constitutional makers ever intended to create an Article 25, which it could be tested upon the touchstone of reason? Applying common sense or reason on religious matters, and there by interpreting constitutional morality by the subjugation of Article 25 to reason itself is a flawed way of defining constitutional morality -it is because – this very of definition of constitutional morality will shatter the essence of Article 25, which it is unacceptable in a plural multi religious country like ours.
Legitimacy of the Supreme Court and the endurance of our written constitution
When the court uses this loose term constitutional morality in order to strike down a custom, and when the people fight against the judgement, it will erode the legitimacy of the court to look into such grave matters. When the people would be thinking about a mass movement against the judgement of the Supreme Court, and if the judgement could be overturned, it would lead to a scenario in which, people could feel – that- whatsoever may be the judgement of the Supreme Court, it could be flouted.
Alexander Hamilton in the most famous federalist papers writes: “Executive has the sword, legislature has the purse, and judiciary only has its judgement.” It is because of the attitude of the people towards judicial power makes judiciary sustainable. So frequent mass movements against judgements of the court will destroy the legitimacy of the Supreme Court, because, it is the most dependant organ of the state, and it neither has the sword nor it has the purse.
After the drafting of the constitution of India, Sir Ivor Jennings was invited to deliver a speech on the Indian constitution, and he commented that, Indian constitution is “too rigid, too complex and too prolix”. Paradoxically, the constitution of Cylone, which was drafted by Sir Ivor Jennings endured jus for few years. What made Indian constitution to last for so long?
Indian constitution lasted for so long. Why it lasted for so long? There are certain reasons for that. An average life of written constitutions are in decline, and an average life of a written constitution is just 17 years. It has been stated in the article titled “The Lifespan of Written Constitutions by Ginsburg, and Tomet and it reads:
“Written constitutions, though designed to endure, are remarkably fragile, with a mean lifespan of only 17 years across all countries since 1789”.
Role of Diversity and Its Link with the Endurance of the Constitution
The diversity of the nation has an important role to play in the endurance of the constitution. From the scroatching heat at Thar Desert to freezing cold at Siachen; we don’t have no common food, no common culture, no state religion and we don’t have anything in common. Why such a diverse country with varied cultures, was able to hold together? It is because, we have a constitutional structure which it assimilated all these diversities, and the constitution never confronted with those ideals which it could create mass movements of people against the state. Whether it be religions, castes, cultures etc.; all such traits which it could possible to mobile people against the state are protected by the constitution. Though India is unique with its diversity, if the constitutional structure is not conductive enough to protect that diversity of religious practises, people will claim it through claim it through extra constitutional structure; and it will lead to the disintegration of the nation. The religious beliefs and practices must be seen from the perspectives of diversity, which it is the hard reality of India. And if those religious beliefs and practices, which are integral in the sustenance of our diversity could be taken away by this loose term constitutional morality, it will set a dangerous precedent — that — the constitutional structure will conflict with varied diversity of this nation.
Long Term Concerns – Judiciary Can Claim Infallibility?
All institutions of the state should accommodate the sense of democratic accountability. Though all institutions of the state can’t claim infallibility, the usage of the loose term constitutional morality must also be sensed from the perspectives of fallibility of any institutions of the state. The question is that, how the people — who are the custodians of this constitution can save themselves from a possible fallibility of a particular organ of the state .Extra passionate people at the helm of organs of the state are very dangerous. It would be extremely dangerous to have extra passionate people are at the helm of judiciary. Extra passionate judges could use constitutional morality as a tool to impose vested interests upon the citizens. Extra passionate judges are more dangerous than extra passionate executive -it is because- extra passionate executive could be restrained by public opinion, judicial review and through the parliament: at the end of the five years, government will have to go to the people in order to get the political judgement. But when it comes to extra passionate judiciary, there will be no options available; it is because, though judges are not elected, whatsoever judges do on the pretext of constitutional morality, it will lead to complete tyranny.
On the pretext of Constitutional morality judiciary can take away Fundamental rights ensured in Part III?
Though any precise definition can’t be given to the term constitutional morality, there exists a chance that, those decisions which are taken on the pretext of constitutional morality would endanger the grand and noble assurances ensured in Part IIIin definite terms.
Constitutional morality and Preamble – a religious practice with massive acceptance can be taken away?
On the pretext of constitutional morality, it is not logical to grant certain ideals upon a mass of people, which they simply don’t want, and it will negate the very essence of Fraternity in the constitution of India. The constitutional makers itself has presumed –that– the denial of “FRATERNITY” to large number of people will negate “JUSTICE Political social and economic” and there by denying” unity and integrity of the nation”. It can be understood from the PREAMBLE itself, as stated as under:
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
“JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and unity and integrity of the Nation
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”
From above it can be understood that “FRATERNITY” is the essence of “unity and integrity of the nation”. It is because; FRATERNITY is written in capital letters and “unity and integrity of the nation” is written in small letters. Superimposition of something on a mass of population on behalf of “constitutional morality” will eventually create threats to the unity and integrity of the nation.
Article 25 and Constitutional Morality
Article 25 (1) reads as under:
“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”
“Public order, morality and health” is used with greater key; and “other provisions of this Part” is written with low key. So one can’t blindly test Article 25 with Article 14 because, it is made with low key than that of “public order, morality and health”. It can be assumed that, the constitutional makers gave priority to “public order, morality, and health” than “other provisions of this Part “. “Public order, morality and health” in Article 25 of the constitution is made with low key can be sensed from reading Article 26 of the constitution together with Article 25. Article 26 don’t not uses “other provisions of this Part” at all; and instead of that, it uses “public order morality and health” alone.
Application of Constitutional Morality In Article 25 Is Constitutionally Impermissible.
Article 25 (1) says that this Article is subject to “public order morality and health and to “other provisions of this Part “. It means that Article 25 can only be subjected to “other provisions of this Part ” and that of “public order morality and health ” ; which it implies that even if Article 25 is taken away ,it must be based on definite fundamental rights in Part III. Though the term constitutional morality can’t be specifically defined, it will be preposterous to say that — the constitutional morality lies just only on Part III, when there exist PREAMBLE, Directive Principles of state policy etc. So unless constitutional morality falls under the domain of Part III exclusively, Article 25 can’t be tested upon the touchstone of constitutional morality, because, Article 25 can only be subjected to “other provisions of this Part”.
Mass Acceptability of a Religious Practice and the Problem of Testing It on the Touchstone of Article 14
The constitutional makers itself has presumed that one cannot use “equality” clause in the constitution to deny FRATERNITY assuring the dignity of the individual and unity and integrity of the Nation. It is because, in the PREAMBLE of the constitution, both are written on same footing; that is “EQUALITY of status and of opportunity” and “FRATERNITY assuring the dignity of the individual and unity and integrity of the Nation” begin with capital letters. If the constitutional makers presumed that these two are equal on footing, one cannot use another to subjugate other.
Testing Article 25 based on Article 14 can’t override the mass acceptability of a religious practise; that is, if the religious practise has a great acceptability, it cannot be overridden by using Article 14 of the constitution of India. It is because, in the PREAMBLE it is stated that–
“LIBERTY of thought belief faith and worship “is given by the PEOPLE UNTO THEMSELVES. Though it is given by the people UNTO THEMSELVES, it cannot be tested on the basis of Article 21 and Article 14. More than that, Article 14 can’t be used to test Article 25 which it has a great acceptability can be sensed from Article 25 (2) which it is meant for the legislature. Though it is meant for the legislature, it also denotes the mass acceptability of a practise must be given protection. It is because, the constitutional makers has presumed–that–the legislature can’t ignore the mass acceptability of a religious practice.
Article 25 (2) is meant for the legislature to make law can be sensed from the following cases
The State of Bombay vs. Narasu Appa Mali on 24 July, 1951, Bombay High Court held that:
“The right under Article 25(i) is further an abject to the right of the State to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, and it is further subject to the right of the State to provide by legislation for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.
In the case Bombay vs Shastri Yagna Purushadasji on 3 October, 1958  the Bombay High court held that:
“The true nature of the right conferred by Article 25(2) (b) as that the State Legislature would be able to confer by legislation on all classes and sections of Hindus the right to enter into a public temple and such a right would be available whether it is sought to be exercised against an individual under Article 25(1) or against a denomination under Article 26(b)”.
Interpretation of Article 25 and Article 26 with the loose term Constitutional Morality.
Article 25 says that it can be subjected to “public order morality and health”; it is important to note that – this Article only uses the term ‘morality ‘ and it don’t uses the term constitutional morality. It must be noted that, at the critical juncture of constitutional making, the framers of the constitution never used the term constitutional morality. Constitutional morality is a vague term, and the constitutional makers would have presumed that– Article 25 should not be subjected to any vague terms at all .It must be noted that – it is an assurance from the state to ‘‘freely to profess practise and propagate religion”; which it is very much broader than the term “morality”; which it implies that “morality” should not be construed as constitutional morality.
In Article 25 (1), emphasis must be laid on the words “freedom of conscience and right freely to profess, practise and propagate religion “. This aforesaid words from Article 25 (1) is very elaborate about the guarantee of the state in providing and assuring religious freedoms to the people .And this elaborate nature of Article 25 , which it assures : “freedom of conscience and right freely to profess, practise and propagate religion” is furthered in Article 26 — which it deal with religious denominations. Very elaborate assurances of constitutional makers is evident from the reason that Article 25 (1) is elaborately written; and religious denominations deal with Article 26 is specifically recognised. This expansive assurance of the constitutional makers is basically intends to provide a SECULAR fabric. All these show — the importance of Article 25 and its link with Article 26 along with “SECULAR” polity in the PREAMBLE. All these elaborate ideals of the constitution presume that, it cannot be taken away on the pretext of vague or ambiguous terms.
Article 26 reads as under:
“Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law”
Article 26 is subjected to “Public order morality and health” and not to “other provisions of this Part” as stated in Article 25. So, denial of ‘religious denomination’ tag to Sabarimala devotees on the pretext of Article 14 is fundamentally flawed. And more than that, it use the phrase “every religious denomination or any section thereof”. Though it use the term “every” and “any section thereof”; it can be sensed that — it is meant for catering the diversity. Though it use the terms ‘every’ and ‘ any section thereof ‘ — it means that — religious denomination tags must be granted more to those who claim it, than denying that tag. This idea — that it must be granted more than denying it can be sensed from the fact that — Article 26 is not subjected to any fundamental rights at all in Part III.
The reading of Article 26 which it assure the freedom to the religious denominations for a wide purpose which they are enumerated in Article 26 ( a) (b) (c) (d) ; though is meant for catering that wide purpose– it is ideal that– it must be granted more than denying it .
Judiciary Is STATE within the definition of Article 12 & It Cannot Abridge Fundamental Rights – because – It Is Violative of Article 13 (2)
Constitutional morality as term is nowhere used in the constitution of India. Though it is nowhere used in the constitution, importing it and applying it in Part III in real sense amounts to making a law, which it abridges Article 25 of the constitution. According to Article 13, state should not make any law which take away or abridge the fundamental rights. Judiciary falls within the definition of “STATE” in Article 12 of the Part III. It has been stated in the following cases.
In the case Naresh Sridhar Mijakar and Ors vs State of Maharashtra And Anr held that:
“To begin with, we have the definition of ‘State ‘ in Article 12. That definition does not say fully what may be included in the word ‘State ‘ but , although it says that the word includes certain authorities , it does not consider it necessary to say that courts and judges are excluded .The reason is made obvious at once . If we consider 13 (2), there the word ‘State ‘ must obviously include ‘Courts ‘ will be enabled to make rules which it take away or abridge fundamental rights.”
In the case A R Anthulay vs R S Naik and Anr , Supreme Court held that:
In our opinion, we are not debarred from reopening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February 1984, were violative of limits of jurisdictions and the directions have resulted in depredations of fundamental rights of the appellant, guaranteed by Article 14 and 21 of the constitution”
In State of Kerala Anr vs N.M.Thomas and others , Supreme Court held that:
“Not only is the directive principles embodied twin Article binding on law maker as ordinary understood but it should equally inform and illuminate the approach of the court when it makes a decision as the court also is a ‘state ‘ within the meaning of Article 12 and makes the law even though interstitially from the molar to the molecular .”
Using of a term which the constitutional makers nowhere used, that too in the Fundamental rights, is in real sense amounts to the making of a law , which it abridge the fundamental rights. That is, application of this loose term constitutional morality in Article 25 is itself constitutionally impermissible, because, according to Article 13 (2) , state is barred from making any law , which it abridge fundamental rights.
Consequences of testing religious beliefs from the perspectives of reason enumerated in Article 14 of the constitution of India, and there by interpreting constitutional morality.
1 .Testing religious practises in accordance with Article 14 will lead unwarranted interferences into religion by the state. It will finally result into a situation in which, people will feel– that–the constitutional structure is not conductive enough to protect religion and their belief.
2. When Article 14 is applied in Article 25, it will lead to grand and noble assurances in the PREAMBLE like LIBERTY, FRATERNITY etc. in peril .It is these grand noble ideals which are the guiding light in the interpretation of the fundamental rights.
3 .Using Article 14 with regarding Article 25 will lead to a circumstance in which , other fundamental rights in Part IIIwill also be tested with the touchstone of Article 14 .It is important to note that ,the entire great process of constitutional making , and in the end , state assured fundamental rights in Part III to the citizens. It will make all fundamental rights except Article 14 meaningless. It will defeat the essence of Article 32, and Article 226, which it assure constitutional remedies. It will defeat the very essence of Article 13 which it defines what law is, it is because, if any custom could be struck down on the pretext of Article 14, the very purpose of adding custom as a law in Article 13 will eventually be lost.
4. Testing Article 25 with Article 14 will make the constitutional assurances of SECULARISM in vain; it will not only affect SECULARISM in the constitution, but it will also affect other great assurances in the PREAMBLE like SOVEREIGN, DEMOCRATIC REPUBLIC will also become meaningless. It is because, SECULARISM is construed as a soul of the constitution, which it can be sensed from Preamble along with Article 25, Article 26, Article 27 and Article28. If SECULARISM will become meaningless, which it is expressly granted, testing Article 14 with Article 25 will endanger SOVEREIGN DEMOCRATIC REPUBLIC. It is because SECULARISM, SOVEREIGN, DEMOCRATIC, and REPUBLIC all are written in capital letters constituting it as a club in the Preamble. If SECULARISM will be gone, it will endanger all these cardinal concepts.
5. If anything could be stuck down with adhering the loose term constitutional morality, the constitutional assurances to the citizens will be in peril and people will loose faith in the constitutional structure. The diversity of the nation will emerge as a catalyst factor in the failure of the constitutional structure. India as a nation can survive as it stands today only if the constitutional structure could respond to the diversity of the nation; and the people must be able to express responsible citizenship. When the constitutional assurances would be gone on the pretext of loose term constitutional morality, and the diversity of the nation would not be reflected, it will erode responsible citizenship. And it is integral in the unity of the nation.
6. Applying Article 14 in religious matters will eventually destroy diversity of faith, which it is guaranteed in Article 25 of the constitution. Article 25 gives an assurance to “Freedom of conscience and free profession, practice and propagation of religion”. This assurance from the state to “practise and propagation of religion” is all about respecting religious diversity. It is because; one can’t practise and at the same time propagate religion, when it is tested on the basis of Article 14. Because when you test Article 25 with reason in Article 14, the very essence of practising a religion with its identity will be lost. The entire question of propagation of it would be gone in such circumstances.
7. Testing religious practises on the anvil of Article 14 will lead to a situation in which, there would be a mass movement of people against the state. It is important to note that — the time immemorial history of religions around us show – that these religions withstood many confrontation of various dynasties and empires in the past. So it will not be good and wise for the constitutional structure to confront with religions.
8. Checking the constitutional validity of religious practises in accordance with Article 14 is unwanted. It is because, when you test Article 25 with Article 14 of the constitution, and if the court uses Article 14 in order to strike down a practise, it will destroy the hope of the people aftermath of the partition –that– India will be a tolerant secular state would be in peril. The consequence would be the emergence of inherent communal identity of the people. No change in the religion would be possible because people would feel it as a threat to their religion. It would happen because of the re-emergence of dormant religious identity- which it could happen – when Article 25 would be tested on Article 14 frequently and irresponsibly.
9. Testing Article 25 with Article 14 is an irresponsible and inappropriate way of testing and construing two fundamental rights. It is because, it would be fine, if one is subjugated to other. But in this case, the very essence of Article 25 is gone when it is tested on the basis of Article 14 — that is – reason. One cannot use another Article to take away the entire meaning of it. It must be noted that — fundamental rights in Part III don’t have any priority over other; and all fundamental rights are construed in a same plane. It is because; violation of any fundamental rights can be challenged and declared void by the Supreme Court or by the High Courts; and constitutional morality include both equality and religious freedom, it has been enunciated in the article titled “Order Order” in the “The Hindu Business-line” quoting Senior Advocate Rajeev Dhavan, while referring to the dissenting judgement of Indu Malhotra J, it reads:
“She was right in holding that the temple was denominational, that the exclusion of women was an essential practice, untouchability does not extend to all kinds of ostracism and constitutional morality includes both equality and religious freedom”.
10. As has been stated above, certain ways of construing certain Articles together in Part III would make one Article totally meaningless. The other irresponsible and inappropriate way of construing two Articles would be the construction of Article 21 and Article 25 together. Applying Article 21 irresponsibly in Article 25 will make Article 25 totally meaningless .For example Article 21 enables a woman to wear whatsoever dress she wishes, but, whether she could wear any dress she wishes in a mosque or in a temple!!
If a religious practice can’t be sustained with great
acceptability, what would be the assurances of other fundamental rights? This
application of Article14 in Article 25 show, how much vulnerable certain
fundamental rights are all about, and it can act as a precedent for the
destruction of other fundamental rights which are vulnerable in its nature.
Certain fundamental rights are vulnerable by its construction. It include Article 25 to Article 30, Article
20 deals with arrest. It show- that -how
this innate vulnerability of the construction of certain Articles would come
forefront in the long working of the constitution.
 State of Bombay vs. Narasu Appa Mali, AIR 1952 Bom 84
 Bombay vs Shastri Yagna Purushadasji, (1959) 61 BOMLR 700
 Naresh Sridhar Mijakar and Ors vs State of Maharashtra And Anr, 1 1966 SCC (3) 744
 A R Anthulay vs R S Naik and Anr, 1988 AIR 1531
 State of Kerala Anr vs N.M.Thomas and others, 1976 AIR 490