Sabarimala And The Very Real Problems With ‘Constitutional Morality’

Sabarimala And The Very Real Problems With ‘Constitutional Morality’

by Nihal Sahu and Nikhil Mahadeva - Sunday, October 21, 2018 01:10 PM IST
Sabarimala And The Very Real Problems With ‘Constitutional Morality’The Sabarimala shrine. (Shankar/The India Today Group/Getty Images)
  • Restricting the entry of women of a certain age group into Sabarimala is a violation of no one’s constitutional rights.

    The Supreme Court verdict in breach of this tenet is based on flawed reasoning and a non-existent ‘constitutional morality’.

The uproar caused by the Supreme Court’s decision in the Sabarimala case (Indian Young Lawyers’ Association vs The State of Kerala) cannot be overstated. By deeming unconstitutional and ultra vires the rule that prohibited women of age 10-50 from entering the Sabarimala temple, the court infuriated thousands of Ayyappa devotees. They marched in the streets, threatening suicide by hunger strike and self-immolation.

This case was always a fundamental battleground for religious freedom and constitutional clarity. Yet, no one expected the judgement to be so radical in its interpretation, or so sweeping in its scope. In his judgement, which was part of the majority verdict, Justice D Y Chandrachud said: "To treat women as children of a lesser god is to blink at constitutional morality."

We shall address here the two most radical innovations of the verdict: constitutional morality, and the reinterpretation of Article 17. Both of them are fundamental planks of the reasoning in the Court’s decision. Both of them are fundamentally flawed and seismic in effect. They will resonate through the court’s jurisprudence in the days to come, leaving obscurity in their wake.

The Supreme Court, in its infinite wisdom, has widely expanded the adoption of the cosmic doctrine of ‘constitutional morality’. This doctrine has been employed to supersede constitutional text. It acts as a one-size-fits-all term to justify any interpretation of the Constitution that falls within the morality of those employing it.

This is an issue as morality is unarguably undefined. Not only does it vary from society to society, it varies from individual to individual. The social and moral prohibitions that a republic accepts can be codified through one process alone: legislation. Parliament alone is competent to decide what ‘morality’ involves. The Constitution contains no defined principles of morality except its text and its provisions. To exercise ‘constitutional morality’ is to maintain that the Part III enshrined in Article 13, and Part III itself, is nothing more or less than a test against the momentary notions of our judges. If you were to insist that there existed such a thing as ‘constitutional morality,’ it ought to be nothing more than adherence to the Constitution. To say that democracy is ill-suited to the task of establishing what is truly moral and to replace it with an unelected committee of judges is to submit to a doctrinal rule more radical and more undemocratic than a politburo.

One part of the judgement that needs scrutiny is its reliance on Article 17 that deals with prohibition on untouchability. At the end of Justice Chandrachud’s judgement, for example, he makes the following argument:
“119. I hold and declare that:

4) The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order;”

This claim, fundamental in scope and tectonic in magnitude, is a distortion of the constitutional text. Previously, one would have considered Article 17 irrelevant at the very least because Sabarimala never placed an absolute ban on the entry of women – only those women between certain ages were barred from entry.

Further, this claim doesn’t respect the history and gravity of ‘untouchability’ as a social phenomenon, and might also insult those who suffered the consequences of true untouchability.

What did Article 17 mean to the framers of the Constitution? It meant nothing less and nothing more than the abolition of the historical practice of untouchability on the basis of caste.

There exists a plethora of historical evidence for an originalist analysis of the provision. Each record, quote, document, and speech make it quite clear that it was meant for the abolition of untouchability as it applied to the Dalits. The intention of the framers of the Constitution with regard to Article 17, thus, is no mystery. The question then arises, to what extent can liberties be taken to extend an Article which very clearly, and certainly to the knowledge of the court, has naught to do with the ability of women of a certain age to enter a certain temple? The answer is simple; the liberty ought not to be taken at all.

Being unable to enter one temple during a particular age range is a violation of no one’s constitutional rights. To deem it as such is to add to the already slippery slope where governance is left not with the persons elected by the people, but by the court elected by itself.

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