Majoritarian Notions Will Prevail If 'Morality' In Articles 25/26 Is Read As 'Public Morality : Raju Ramachandran In Sabarimala Reference

In the Sabarimala reference, Senior Advocate Raju Ramachandran has 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 Kant asked 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 deathRamachandran 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 ...

Majoritarian Notions Will Prevail If 'Morality' In Articles 25/26 Is Read As 'Public Morality : Raju Ramachandran In Sabarimala Reference

Gursimran Kaur Bakshi

The senior lawyer also argued that excommunication cannot be regarded as protected by denominational rights when it impacts the social life of a person.

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Majoritarian Notions Will Prevail If 'Morality' In Articles 25/26 Is Read As 'Public Morality : Raju Ramachandran In Sabarimala Reference

Gursimran Kaur Bakshi

The senior lawyer also argued that excommunication cannot be regarded as protected by denominational rights when it impacts the social life of a person.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

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