If this is not recognised, constitutional jurisprudence could suffer. A hierarchy of rights cannot be countenanced because rights are indivisible and inter-related. Majoritarian views and popular morality cannot dictate constitutional rights. The Constitution embodied with the will of the people to govern them is not an end but a means to an end i.e. The general approach in the thesis is to emphasise the distinction between constitutional morality and societal morality. Our Constitution proclaims a society that is equal and consonant with civil and political fundamental rights, environmental rights and socio-economic rights. It may not be possible for a court, in the light of the evidence available to it, to conduct as thorough an analysis as may be considered necessary. 52 • Volume XXXIII, Nos. Provided that we are speaking about substantive equality and not formal equality (I have no doubt that Ms Kannabiran is), equality and non-discrimination are, in my view, the opposite sides of the same coin. We promise to deliver quality journalism that stays away from vested interest and political propaganda. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. If I understand the writer correctly, developing and putting into place a process that would systematically increase non-discrimination and liberty in a transformative sense would ultimately contribute best to the achievement of the constitutional order. BR Ambedkar had, in fact, said: “Constitutional morality is not a natural sentiment. Law vs Morality . Enter your email address to subscribe to this blog and receive notifications of new posts by email. In an unanimous judgement, five judge Constitutional bench of Indian Supreme Court declared section 377 of India Penal Code, a colonial legacy which criminalise homosexuality unconstitutional. The extraordinary level of material prosperity achieved by the capitalist system over the course of the last two-hundred years is a matter of historical record. In a very mundane sense, with a handful of exceptions, there is no serious or deep historiography associated with our Constitution, one that can put it in proper historical and philosophical perspective. Section 377 is arbitrary. It defines the change in the attitude and approach by all societal role players including, in particular, activists for social change, governmental organs as well as the judiciary. Constitutional morality means adherence to the core principles of the constitutional democracy. Introduction The phrase ‘constitutional morality’ has been employed most recently in the context of Section 377 case law. Synopsis of Social Morality Look at where we have come, where we are going, and what it is doing to our society! They tell us that capitalism is base, callous, exploitative, dehumanizing, alienating, and ultimately enslaving. Arun N M is active both online and offline in promoting scientific temper and fighting religious nonsense and pseudoscience. The Constitution's First Amendment protections on "free speech" are a major talking point as social ...[+] media posts trigger morals clauses. This essay argues that the information revolution is creating new social imaginary, a term defined by the philosopher, Charles Taylor, to refer to the commonplace way that social relations and expectations are imagined. Only Constitutional morality and not social morality can be allowed to permeate rule of law Section 377 is arbitrary. We have to vanquish prejudice, embrace inclusion and ensure equal rights. I have also not studied the numerous documents relied upon. The judgement underlines the progressive nature of Indian Constitution of 1950 created by Ambedkar and Nehru in the background of the freedom movement. Why is WhatsApp scared of disclosing what data it collects? This site uses Akismet to reduce spam. 'The big one' goes down in glorious flames, A Secular Childhood: Letters to My Daughter - no.14 "You're a Mystery", We Have No Idea What The FUCK You're On About, Texas, But Alito & Thomas Have THOUGHTS Anyway, Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden, Old, but gold: Hbomberguy on climate denial. Constitutional morality is not by any means social or ideological morality," Khurshid said. It is in this sense that the methodology adopted by Ms Kannabiran is both useful and significantly powerful. The strength or weakness of constitutional morality in contemporary India has to be understood in the light of a cycle of escalating demands from the people and the callous response of successive governments to those demands. Our Constitution provides for both and it is an important reason why I swear allegiance to it. The writer advances an approach which may be said to be different from that adopted by the courts in India and emphasises the need to take into account the values and purpose of the Constitution. 1 & 2, 2020 1729). Both morality and ethics loosely have to do with distinguishing the difference between “good and bad” or “right and wrong.” Many people think of morality as something that’s personal and normative, whereas ethics is the standards of “good and bad” distinguished by a certain community or social setting. Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression. India ‘totally’ responsible for LAC situation: China, ‘Thalapathy 65’: Vijay teams up with Sun Pictures and director Nelson, Dilli Chalo | Government asks farmer unions to reconsider its proposal, The road taken: On Chennai-Salem greenfield highway, The reality of an India at the crossroads, Cattle, buffalo meat residue found in Indus Valley vessels, Coronavirus | SII, Bharat Biotech emergency vaccine authorisation on hold. Ambedkar had said that the ideals that inspired the French Revolution—liberty, equality and fraternity—were the ones that formed the core of the Indian Constitution too. The latter is postulated as a society based on horrendous and systematic discrimination and violence against, and the exclusion of, vulnerable people and communities from the “dominant” mainstream. Law is a system of checks and controls that serve a very important role in a society, and that is to maintain order. Safeguarding constitutional morality M.K. Wade, as well as examining the and social, moral and political debates that the case has impacted upon. She examines (in respect of disability rights; the rights of castes, tribes, religious minorities; and sex-based discrimination) the historical matrix, a conceptual delineation, the role of government, the role of activists as well as the position on the ground with ordinary people and thereafter makes proposals for change. We would in South Africa too take into account the values and purpose of our Constitution. To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. He is an MD, specialised in Internal Medicine and works in Kerala , India. Even though Supreme Court did not consider the issue of same sex marriage, there are enough signs in the judgement to indicate that in not so far away future it will be legalised. Let us hope that in all other issues also the Court will ensure that Constitutional morality eventually triumph over majoritarian morality. Without constitutional morality, the operation of the constitution tends … The Supreme Court reminded us that “social morality” or morality of the majority do not trump over the country’s Constitution, which gives equal rights to everyone. I may say that I favour this approach without qualification. At this difficult time, it becomes even more important that we have access to information that has a bearing on our health and well-being, our lives, and livelihoods. Study of Social Exclusion and Inclusive Policies ; Kalam Books; PDS; LGBTQIA; Social Innovation; health management; hospital management; View All; Your lists; Log in to create your own lists; Log in to your account; Home; TISS Home; Library Home ; E-Resources. The term has been used as a dichotomy against the idea of ‘social morality’ or popular opinion, seeking to… “By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and … Constitution of the United States of America. The Constitution defines the roles and responsibilities of the government and regulates the relationship between the government and the people governed. A common theme running through the opinions was that the values enshrined in the Constitution are independent of prevailing social values. The latter pays little attention to the intention of Constitution-makers but, in conformity with the idea that a Constitution is a living, vibrant, flexible and dynamic instrument seeks to attain the meaning of the Constitution by extensive reference to context. He was a man of integrity and a God-fearing leader. An evaluation which attempts to redesign the vehicle, build the road, chart the course and point to pitfalls is essential in a fundamental sense. Move smoothly between articles as our pages load instantly. However, we have a request for those who can afford to subscribe: please do. Are IT project managers facing an existential crisis? Answer: ‘Constitutional morality’ can be defined as a moral responsibility of an individual to be faithful towards constitutional values and uphold them with utmost integrity, without any compromise. Let heaven falls, but justice shall triumph! A select list of articles that match your interests and tastes. As we fight disinformation and misinformation, and keep apace with the happenings, we need to commit greater resources to news gathering operations. Nevertheless, a careful study of this fascinating work would enhance an understanding of the position on the ground, the dire need for change and the way in which this is to be done. ‘Constitutional morality: Is it a dilemma for state, courts and citizens?’ The huge Dr.Y.V.S. There is no doubt that non-discrimination and liberty are important components of the process. I can only comment on one more issue. It may well be that Ms Kannabiran has given expression to the breadth of the contextual circumstances that need to be taken into account by a court. A one-stop-shop for seeing the latest updates, and managing your preferences. Learn how your comment data is processed. The provision of IPC had resulted in collateral effect in that consensual sex between LGBT persons is criminalised, and is violative of Article 14, Supreme Court, This case is much more than just decriminalising a provision It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens. Your support for our journalism is invaluable. Majoritarian views and popular morality cannot dictate constitutional rights. I decided not to go over the same ground again in this lecture, but to speak on a different and, for me, a relatively new subject. Social morality is a sort of “contract” that we (human beings) all have with each other. He also pointed out that it is not the job of the judges to go by popular opinion. Other Judgments by the Supreme Court defining Constitutional Morality: In Kesavananda Bharati Case, the Supreme Court restricted the power of the Parliament to violate the Basic Structure of the Constitution. *Our Digital Subscription plans do not currently include the e-paper, crossword and print. It sets forth the framework and the limitations of government, but it does not seek to define morality. Kalpana Kannabiran's book, Tools of Justice: Non Discrimination and the Indian Constitution (Routledge, Taylor & Francis Group), a thesis of 500 pages, aims to make a contribution towards the achievement of a constitutionally acceptable order in India. When social morality succumbed to constitutional morality. It has helped us keep apace with events and happenings. Societal morality to constitutional morality, Subscribe to Morning Filter & Evening Wrap newsletter, Watch | Features of the new Parliament building, Territory disputes between India and its neighbours are targets for malware campaigns, Google improves search in Drive app for Android, iOS, New on Netflix this week: ‘Paava Kadhaigal’, ‘Ma Rainey’s Black Bottom’ and more, The complete list of all Marvel, ‘Star Wars’, other projects Disney announced on Investor Day, Mystery metal monolith pops up, this time in Poland, ‘Triples’ review: A lively series with the flavour of the Crazy Mohan-Kamal Haasan universe, Eros Now announces slate of film premieres, likes of Dulquer Salmaan, Nawazuddin Siddiqui to star in them, Indian-American Raja Chari among 18 selected for NASA’s manned Moon mission, Ellen DeGeneres tests positive for coronavirus. In a parliamentary democracy, the obligations of constitutional morality are expected to be equally binding on the government and the opposition. What constitutes constitutional morality? There may be a different approach. Shah and Justice S. Muralidhar of the Delhi High Court in 2009, it denied human beings their individuality. Constitutional morality here went against social morality that discriminates against women based on biological reasons like menstruation. And it must be emphasised that, unlike an ordinary commercial or delictual case, the court contest on constitutional rights often involves vulnerable communities and societies that comprise millions of people. That means the morality that is envisaged by the Indian Constitution of 1950, a democratic liberal morality that ensures freedom of expression and equality before law should triumph over societal morality which considers some Indian citizens, those belonging to LGBTQ community, unequal. The work postulates a distinction between non-discrimination and equality and a kind of synthesis between non-discrimination and liberty. The LGBT community possesses rights like others. The genesis of ‘constitutional morality’ can be seen in the constituent assembly debates themselves. But very few people are willing to defend capitalism as morally uplifting. Constitutional Morality and the Rise of Quasi-Law: A Symposium. The Hindu has always stood for journalism that is in the public interest. I did wonder whether Ms Kannabiran's reference to Dr. Ambedkar was an attempt to go back to the approach of interpretation which relies on the intention of the lawmaker or whether the views of Dr. Ambedkar are referred to in the context of an expert. The scope of constitutional morality is not limited only to following the constitutional provisions literally but it is so broad that it includes commitment to inclusive and democratic political process in which both individual and collective interests are satisfied. He believed in the Bible and the God of the Bible. It must be said in all fairness, that Ms Kannabiran does indeed make extensive reference to many of the other rights of vulnerable people and communities. He was convinced, and so stated, that without the application of Biblical principles in the establishment and building of this nation that it could not and would not be done. Post was not sent - check your email addresses! But it cannot be doubted that the wider a court goes in taking into account contextual material to interpret a Constitution the greater the possibility that the final judgment of a court would reflect and represent a dynamic and living Constitution able to provide creative and transformative solutions to the problems that need to be addressed. Printable version | Dec 11, 2020 6:16:11 PM | https://www.thehindu.com/opinion/lead/societal-morality-to-constitutional-morality/article2758601.ece. It goes without saying that a poor Dalit deaf lesbian woman on a wheelchair is far more vulnerable and in greater need of constitutional protection than a female university teacher who has all her faculties and who is part of the “dominant” classes. Subscribe to The Hindu now and get unlimited access. My evaluation is therefore limited to examining some conceptual aspects from my perspective as a constitutional jurist in South Africa. He is most of the time aware of his privileges as a straight male, cis, upper caste medical doctor. Time and resource constraints may also be a factor. The statement quoted at the head of this article was one made by one of the “founding fathers” of this great nation. If John Adams were the only founding fat… It’s a support for truth and fairness in journalism. That, as I understand it, is a distinction between the nature of society, its value system, morality, well-being, inclusiveness and peacefulness, contemplated by the Constitution, on the one hand, and societal morality, on the other. classes, on social exclusion and on policies of affirmative action [Béteille 1987, 2003]. Shukla sought to trace the origin of this word and explained how it was first used by Ambedkar during the Parliamentary debates. History owes an apology to those who have been persecuted and socially ostracised because of Section 377. The entrepreneur is therefore above all else a man o… Hindutva propaganda through Indian medical journal ? Getty. Murthy auditorium on the Andhra University’s Engineering campus was packed to the full with quite a few standing to hear the renowned advocate who enthralled the audience with his oratory and profundity. Andre Béteille is professor emeritus at the Department of Sociology, Delhi School of Economics. I would suggest, and the writer might agree, that all the values of the Constitution and all the rights contained in it are of fundamental and equal significance. It is fashionable among college professors, journalists, and politicians these days to sneer at the free-enterprise system. You have reached your limit for free articles this month. Enjoy reading as many articles as you wish without any limitations. The Constitution’s mandate was to remove those chains so that people of this country enjoy justice—social, economic and moral. We also reiterate here the promise that our team of reporters, copy editors, fact-checkers, designers, and photographers will deliver quality journalism that stays away from vested interest and political propaganda. Despite the centrality of the Constitution to our social and political life, it has been ill-served by our historical imagination. The approach it adopts includes the historical, sociological, social as well as juridical. For two hours everyone heard him with rapt attention and admiration. Today, September 6, 2018 was a historical day for India. The building blocks employed in the determination and construction of the route are principally those of non-discrimination and liberty. But whether they are the most important or the only components is a different question. The debate about the correct interpretive approach has its basis on the distinction between arriving at the intention of the Constitution-makers, on the one hand, and the meaning of the document in its context, on the other. We have the same problem in South Africa. And that is Ms Kannabiran's plea, support and argument for intersecting grounds of discrimination as well as analogous grounds. This is because almost all dominant sectors rely on their right of freedom to continue with their oppressive, non-transformative, objectionable conduct. "Constitutional morality cannot be martyred at the altar of social morality." 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