Literature suggests that the concept of ‘morality’ is drawn from the French concept of ‘bonnes mœurs’, which is understood as ‘the degree of conformity to moral principles (especially good)’, whereas ‘ordre public’ is an evolutionary concept that expresses concerns about ‘matters threatening the social structures of civil society as such’. In India Article 25 and 26 provides for freedom of worship and the right of religious denominations to manage their own affairs in the matter of religion. All of this is subject to Public Morality. However, the term is not explicitly defined in any law and there have been several questions and clashes between the concept of Constitution Morality vis-a-vis Public Morality at large. The question extends to the fact that which should be given primacy over the other and does our constitution favours public morality at large or to bow to the facets that have been enshrined in the constitution itself and support Constitutional Morality.
The black law dictionary defines something moral as “Pertaining or relating to the conscience or moral sense or to the general principles of right conduct.” While framing articles 25 and 26, the framers added “subject to” clause making it crystal clear that it is to protect the practices of the religion and allow them to Expedite their rights under the Articles.
In this Article I have tried to put forward the different Articles which talk about Morality and the interpretations as have been laid out by the Courts and try to put forth the scope of Morality as under Article 25 and 26 of the Constitution of India.
Freedom of conscience and free profession, practice and propagation of religion
(1) 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
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 25 talks about the freedom of religion. It gives the right to conscience and free profession, practise and propagation of any religion the individual has faith in. It allows an individual to practice the religion they have faith in. It guarantees to all its citizens freedom of conscience and free profession, practice and propagation of religion thereby allowing all the people a right to worship irrespective of their caste, class, religion and sect. Article 26 confers the right on religious denominations to manage their own affairs in the matter of religion. All of this is subject to public order, morality, and health.
The term Constitutional Morality has not specifically been defined under any law, however, time and again through debates and interpretations done by the Hon’ble Supreme Court as well as several other High Courts the blurred understanding had tried to be cleared. Constitutional Morality means to bow down to the norms of the constitution and respect the facets of equality, liberty, justice as enshrined in the preamble of the constitution.
With the adoption of the Constitution of India, we the people swore to abide by the facets of justice, liberty, equality and fraternity as mentioned in our preamble. Anything that is not in congruence with this and acts as a discriminatory practice must be done away with and the constitution be given supremacy over any ill practice that discriminates the citizens without any reasonable justification.
Greek historian George Grote was cited by Dr. B.R. Ambedkar in one of the Constitutional Assembly Debates while he was describing the idea of constitutional morality as he knew the conflict that would evolve with time.
“By Constitutional Morality, Grote meant- A paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.”
The above-mentioned comment by Dr. B.R. Ambedkar on the idea of constitutional morality was made during a debate in the Constituent Assembly over the insertion of administrative provisions—taken from the 1935 Government of India Act—into the Indian Constitution. Understanding the notion of constitutional morality reveals that it is related to the parliamentary system of government, which is itself restrained by limiting the state’s ability to restrict citizens’ freedoms. It seems that constitutional morality demonstrates the citizen’s dedication to freedom.
Without any reasonable law it is difficult to understand or interpret the term, however the Court has discussed Constitutional Morality in several cases. A few have been discussed below:
Govt. of NCT of Delhi v. Union of India and Ors.
It was observed by the Supreme Court that constitutional morality is “not just the forms and procedures of the Constitution, but provides an enabling framework that allows a society the possibilities of self-renewal”.
Navtej Singh Johar v. Union of India
Applying the doctrine of constitutional morality, the judges have found that court must not be remotely guided by majoritarian views or popular perception but they must be guided by constitutional morality. The court differentiated between public and constitutional morality and said that the ideal of justice always have an overriding effect .i.e. constitutional morality have an overriding effect on public morality.
In a secular country like India which is a diverse nation and where everyone has been conferred the right to practice their own religion, what sets moral standards for one might be immoral for the people of other religion. In order to strike a harmonious balance it seems plausible to abide by the facets of the constitution. Constitutional Morality thus imbibes a sense of freedom as well as allows the citizens to adopt and follow the principles enshrined in the constitution.
The term “public morality”/“morals” are used to refer to prevalent standards of societal morality i.e. what a society at a given point in time deems morally permissible or impermissible based on its cultural and civilizational moorings. In a nutshell, the concept of morality has been typically founded on the totality of accepted norms which are deeply rooted in a particular culture. However, Public morality as a term is subjective in interpretation and may mean different to different individuals. Public morality refers to prevailing notions of rights and wrongs in our society. 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. The hon’ble courts have historically used public morality to curtail various fundamental rights in order to strike a balance between the rights of individuals. This was observed in the case of The State Of Bombay vs R. M. D. Chamarbaugwala.
The hon’ble court has also observed that popular morality is ‘based on shifting and subjective notions of right and wrongs of the society’. The term public morality was debated in the case of Young Indian Lawyers Association v. State of Kerala popularly known as the Sabarimala Judgment in which the court removed the ban on women aged between 10-50 years to enter the Holy Shrine of the Sabarimala Temple. Justice Indu Malhotra dissenting the judgment quoted that “Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practice their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts.” She supported public morality and added that the religious denomination have the right to manage their own affairs and that ensuring the principles of the religion and value of their practice is protected under Article 25 and 26, it is a matter of deep faith and belief of the worshippers that should not be intruded with.
Public Morality is seen as an evolving concept and in the greater good of the people. If one has faith in a certain religion, their practices are protected under Article 25 and 26. This was contested by Hon’ble Justice Indu Malhotra in the case.
Deciding which is more important, public morality or constitutional morality, is exceedingly difficult. The courts have made an effort to define the phrases, but there is a wide range of interpretations, making it difficult to pinpoint exactly what is meant by the term “morality” as it applies to Articles 25 and 26.
To apply the concept of public morality in accordance with constitutional morality in any circumstance, one must first understand it. Although the rights of religious denominations must be upheld, society’s sins must also be eradicated. Making a decision about whether a phrase is more tenable and superior to the other is difficult. In a country like India, we would be able to see how public morality in and of itself is inclusive to constitutional morality through time and the interpretations provided by the Hon’ble Court, therefore defining additional standards in the future to follow.
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ARTICLE WRITTEN BY ADITI PRIYADARSHI