Majoritarian Notions Will Prevail If 'Morality' In Articles 25/26 Is Read As 'Public Morality : Raju Ramachandran In Sabarimala Reference
Hey CLAT aspirants, this Sabarimala case is super important for your fundamental rights section. Basically, a senior lawyer argued that when the Constitution talks about "morality" in Articles 25 and 26, it can't just mean what the majority of people think is moral. If it did, religious freedoms could be easily restricted by popular opinion. He stressed that "morality" here should mean internal constitutional principles, not just public opinion, to protect individual rights. So, remember this for your exam: the interpretation of "morality" under Articles 25 and 26 is key, and it's about constitutional values, not just majority views.
In the Sabarimala reference,Senior Advocate Raju Ramachandranhas argued that the term 'morality' under Articles 25 and 26 can't be read as societal or public morality. He stated that giving the term such meaning would open doors for religious freedoms to be curtailed based on majoritarian views.
He said: "If morality as used under Articles 25 and 26 were to be read as social/societal/public morality, this would open the door for religious freedoms to be curtailed on the basis of majoritarian notions which are untethered to constitutional text, and that this would result in an even more amorphous judicial inquiry."
In his arguments presented before the 9-judge bench last week, he submitted that morality means internal principles which are based on different views and circumstances, and can shift over time.
"The Constitution cannot restrict any fundamental freedom based on an irrational majoritarian sentiment. Neither can any “religious” understanding of morality be imported to restrict religious freedoms, since that would render the word “morality” irrelevant. Understanding morality in the context of the Constitutional principles is the only consistent, rational, and lawful way to restrict fundamental freedoms."
Ramachandran, who appeared for a reformist Dawoodi Bohra group(Central Board of Dawoodi Bohra community) against the practice of excommunication, remarked that the Court doesn't have to focus so much on terminology as to whether it should be called constitutional morality, constitutional ethos, or constitutional arrangement; at the end of the day, it is nothing but the internal morality of the Constitution.
"The notion of constitutional morality may be called by multiple names, including “the ethos of the Constitution” or “the conscience of the Constitution”. The phrase used to signify this reference to constitutional values is less important than the function performed by this phrase - which is to adjudicate fundamental rights claims through a value-based approach."
Chief Justice of India Surya Kantasked whether constitutional morality could be placed on a higher pedestal than other constitutional values and used as a test to strike down legislation. Ramachandran responded that it can't be used as a test but as a tool to aid in guiding the interpretation of fundamental rights.
Ramachandran argued that the practice of excommunication runs contrary to morality, a limitation under Article 26, because it's an essentially regressive practice which causes 'civil death' of the excommunicated person by mandating a social and economic boycott.
"It is clearly in violation of any standard of morality based on the principles of equality, liberty, and dignity of the individual, and therefore cannot be protected under Article 26(b) or Article 25(1)."
Excommunication may be prima facie religious, but it causes civil death
Ramachandran remarked that he is not against religious denominations devising various methods to discipline those non-adherent to the faith. But it can't go to the extent of impacting a person's secular rights to liberty, equality and dignity.
He explained that if the practice of excommunication touches upon the secular, non-religious aspects of a person's life, then it's clearly not protected because it is only the religious aspect which is protected under Article 26.
At the same time, he stated that often the triggering point of such practice can prima facie appear to be religious; however, its impact is often secular in the sense that it has consequences on the civil, economic and social aspects of a person's life.
Ramachandran gave various examples of excommunication, which result in the breaking up of marriages, separation of close family members, closure of institutions, and prohibition from entering burial sites.In such cases, he argued the Court will have to see the overall impact of such practice by using the doctrine of proportionality.
"A practice which is conducted in response to secular and social actions of an individual, or which has significant secular and social consequences for that individual, cannot be the subject of Constitutional protection under A.25 and consequently cannot be a 'matter of religion' under A.26."
He stated that in cases where the denomination seeks to deny the right to an individual, it will be necessary for the Court to examine whether the denomination's claim is protected under Article 26 or whether it's not in fact a matter of religion.
"Only if it is established that it is a matter of religion, must there be an examination of the specifics of how and to what extent the individual is seeking to practice their religion; how and to what extent the denomination seeks to prohibit or control the individual's right; and the consequent impact on other fundamental rights".
Constitution favours individual-centric rights
On the interplay between Articles 25 and 26, Ramachandran argued that Article 25(1) can't be interpreted to be subordinate to the denominational rights under Article 26 because the former is the source through which denominations get their right. In essence, he argued that Article 26 can't be a standalone provision.
He stated that any interpretation by the Court favouring religious denominational rights over individual religious freedoms would be contrary to the ideals of the Constitution, which are "individual-centric".
"This Court has never declared that a denominational right should be consistently favoured over an individual right to religion, and it is submitted that such an extreme proposition should not be laid down in the present reference. This would seriously prejudice the A.25(1) fundamental right to freedom of religion of an individual regardless of the facts of their case and the degree to which the denomination seeks to infringe their right," he averred.
Ramachandran adopted thesame line of interpretation as the Senior Advocate Darius J Khambatahad argued that since the source of Article 26 is Article 25, despite the former not using the words 'subject to other provisions', it still wouldn't be interpreted in a manner which would render nugatory rights under Part III.
"The fundamental rights contained in Part III of the Constitution are not watertight compartments. All these rights have to be read harmoniously to give meaning and effect to each one of them. Any interpretation of the Constitution that undermines this core commitment to the dignity of the individual cannot stand. Therefore, even if the words of Article 26 do not expressly subject the rights therein to the “other provisions of Part III”, in the event of an irreconcilable conflict, a religious denomination's right must give way to other fundamental rights, particularly those enshrined in Articles 14, 19 and 21 and those which safeguard a facet of individual dignity."
Ramachandran referred to Chief Justice BP Sinha's minority judgment inSardar Syedna Taher Saifuddin Saheb v. State of Bombayand argued that his interpretation, based on the framework of individual dignity and liberty as the fundamental norms, must prevail.
Justice Nagarathna repeatedly questioned on what basis Ramachandran is questioning the majority judgment in Syedna, which by 4:1 struck down the Bombay Prevention of Excommunication Act, 1949, for violating Article 26(b). She also asked if excommunication is a secular practice or a religious practice.
The Court also questioned the issue of maintainability of the writ petition filed by the petitioner in 1986 challenging theSardar Syednajudgment. But Ramachandran said it's not an issue in this reference before the Court, and therefore, it should not go into it.
"This is a note of protest[referring to an additional note on maintainability]. The question of maintainability is not a matter referred to these nine judges. This issue is not the matter which requires the attention of this Court. If a doubt has arisen, let it be decided there [by the bench finally deciding the issue on merit]. This is not a matter which should engage the attention when the time limits have already been crossed."
But Justice Kumar had asked why no review was filed against theSardar Syednajudgment till 1986. To this, Ramachandran responded that the fear of excommunication overshadows a person's entire life, and this includes the fear of approaching the Court. "There is no sudden with utmost respect. Generations of persons have suffered excommunication, and it takes courage to approach the Court."