Morality Of Dominant Classes Influences Law Making : CJI DY Chandrachud

The Chief Justice of India D. Y. Chandrachud on Saturday said that Dr. Ambedkar was making a revolutionary statement by dressing in a three-piece suit to reclaim his community's identity. "When Dr. B. R. Ambedkar dressed in a three-piece suit, he was making a revolutionary statement. He crushed the code of conduct that was prescribed by the oppressor caste through his clothing choices to reclaim his community its identity in society", the CJI said. The CJI was delivering a lecture on "Law and Morality: Bounds and Reaches in memory of former Attorney General of India late Advocate Ashok Desai. The CJI cited a widespread norm in the past requiring members of Dalit community to wear marks of inferiority. The Dalits were denied their right to wear clean clothes and ornaments, he said. CJI disagreed with jurist Thomas Hobbs that etiquette is irrelevant in creating a model code of conduct. "Etiquettes, that is, how a person dresses or her food preferences, are usually group specific and are the building blocks of a counterculture……These seemingly small morals on food habits and clothing choices enable the creation and the sustenance of group identity. Dominant groups by attacking the etiquettes of the vulnerable groups prevent them from creating an identity that is unique for themselves". The CJI said that every individual, society, community, etc. has its morality. He recalled an honor killing incident in a village in Uttar Pradesh in which the villagers thought the killing was acceptable and justified. The CJI said this was because the villagers complied with the code of conduct of the society they lived in. The code of conduct put forth by society is not the same as that which would have been put forth by rational people, the CJI said. Then who establishes the current code of conduct for society?, he asked. He referred to David Wong's concept of adequate morality. It is the standard of morality that the members of society across different groups agree upon. The members negotiate to reach this common ground and reconcile conflicting ideas. The CJI said that it should be inquired how the consent of the members was generated in the first place rather than the number of members that accept the moral code. The groups that traditionally have socioeconomic and political power have an advantage over the weaker sections in this bargaining process. Often, adequate morality coincides with the morality of the powerful, dominant groups, trumping the interests of the weaker sections of society, the CJI said. "Adequate morality is the morality of men, the upper castes, and able-bodied persons", the CJI stated."Even after the framing of the Constitution, the law has been imposing 'adequate morality', that is, the morality of the dominant community. In our parliamentary system of democracy, laws are passed by the vote of majority. Therefore, the discourse around public morality often finds its way into the law enacted by the majority," he said. The CJI clarified that he doesn't mean only the dominant groups were consulted in the process of reaching adequate morality. "The argument that I'm trying to build is that vulnerable groups are placed at the bottom of the social structure; that their consent, even if obtained, is a myth", he said. He said that advocates of caste system often repeat arguments such as Max Weber's that members of the Dalit community have accepted their placement in the society. Rejecting this argument, the CJI said, "marginalized communities have little choice but to submit to the dominant culture for their own survival." The CJI said that the Constitution determines the rules of behavior of the citizens and the state. The Constituent Assembly recognized the existing gap between the vision of the Constitution and social realities and sought to redress the social evils through provisions such as Articles 14 and 15, the CJI said. The principles of non-discrimination and substantive equality will only be effective if the social stratification is ironed out to create a truly equal society, the CJI said. The CJI distinguished between popular morality and constitutional morality. He said that the discourse around public morality often finds its way into the law because in a parliamentary democracy, laws are passed by the vote of the majority. To support this, he gave the example of the English novel Lady Chatterley's lover by D. H. Lawrence which was banned in India on the grounds of obscenity. "I find myself asking the question, was the book regarded to be obscene because of the depictions of sexual relationship or because of the depiction of a sexual relationship between an upper-class woman and a lower-class man?" the CJI said. He gave another example of the ban on the performance of dance in any eating house, beer bar etc. imposed by Maharashtra Legislative Assembly in 2005. There was no ban on ...

Morality Of Dominant Classes Influences Law Making : CJI DY Chandrachud

Amisha Shrivastava

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