“When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” ― Frédéric Bastiat, The Law
The concept of morality in law has long been in debate in legal jurisprudence entertaining a variety of opinions, from the extreme doctrine held by Austin that for the purpose of the jurist, law is absolutely independent of morality to the other extreme of the Orient where morality and law have been considered as one. This debate has again been sparked in light of a slew of “so-called” controversial advertisements.
The Dabur advertisement for the beauty brand Fem Crème bleach which showed a lesbian couple observing Karwa Chauth fast for each other and following rituals as per Hindu traditions, raised plenty of eyebrows and received backlash to such an extent that it had to be taken down. The Madhya Pradesh Home Minister, Narottam Mishra, threatened legal action if the ad was not withdrawn as it was deemed to be targeting Hindu religion with objectionable content. However, a large number of people also did come out in support of the ad and praised it for being inclusive.
This is not the first ad to face such strong reactions. Big-wigs like the Tata’s have also gone through a similar experience when their jewellery brand Tanishq released an ad (Ekatvam) showing a pregnant Hindu daughter-in-law being escorted and taken care of by her Muslim mother-in-law in a baby shower ceremony, a part of Hindu rituals. It was to highlight how a caring Muslim mother-in-law shows respect to her daughter-in-law’s faith but was accused for promoting ‘love-jihad’. Others in the bandwagon who have faced similar objections include the Fab India online ad for merely using an Urdu phrase “Jashn-e-Riwaz” (meaning celebration of tradition), the CEAT tyres ad featuring Aamir Khan, a muslim actor advising a group of people to not burst crackers on the road and the promotion of Sabyasachi mangal sutra collection with pictures of same sex and heterosexual couples dressed in intimate attire for being obscene and hurting Hindu religious sentiments.
This recent rise in cases of public intolerance, calls for analysing the balance between the legal freedoms granted by the Constitution and moral standards set by society and religion.
Hon’ble Supreme Court judge, Justice DY Chandrachud, on October 31, 2021 while speaking at an online event organised by the National Legal Services Authority and National Commission for Women, addressed this controversy and highlighted that public intolerance led to pulling down of the Dabur ad and there is a “divergence between the ideals of the law and the real state of the society.”
Justice Chandrachud was also a part of the five-judge Constitution Bench in Navtej Singh Johar v. Union of India which decriminalised homosexuality in 2018. He has said “The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle; the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.” The Supreme Court unanimously held that Article 377 was unconstitutional so far as it criminalized consensual sexual conduct between adults of the same sex.
In his interview back in 2019 at the Kala Ghoda Arts Festival, Justice Chandrachud had spoken about Constitutional morality urging social partnership, “constitutional morality is rooted in the constitution. Individual is the focal point of the Indian constitution and it essentially allows each individual to fulfil the yearning of personality and it is not a particular judge in his or her wisdom would design. It is founded on essential facets of the constitution; the preamble, liberty, equality and the autonomy of the individual coupled with our sense of fraternity and sense of compassion which we have for each other. Using these founding pillars you test if a particular law or particular action of the government is consistent with constitutional morality.”
This debate dates back to c. 570 BCE – c. 508, when people would pursue their own ruthless ambitions “without any regard to the limits imposed by law”. Cleisthenes, the founder of Athenian democracy, had to kindle, in the citizens of Athens, a “passionate attachment” to the Constitution to preserve Athenian democracy. George Grote called this attachment, “constitutional morality”.
Ambedkar invoked the phrase ‘constitutional morality’ during the Constituent Assembly Debates where he said: “that it is only where people are saturated with Constitutional morality such as the one described by Grote, the historian that one can take the risk of omitting details of administration from the Constitution and leaving it for the Legislature to prescribe them.”
He was concerned about too much power with the legislature and believed that the people of newly independent India were not in a position to understand true democracy at that time.
Even in the Naz Foundation case (2009), while arriving at its decision, the Delhi High Court asked an interesting question: could the section be upheld because homosexuality was against “public morality”? Chief Justice A P Shah rejected this argument and found that “popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights”. The Court here also differentiated between public morality and constitutional morality. Unlike constitutional morality, the Court added that popular morality was ‘based on shifting and subjective notions of right and wrong’. This principle has been applied repeatedly in cases like the Manoj Narula Case, Navtej Singh Johar Judgement, NCT of Delhi v. Union of India, Joseph Shinie Case, Independent Thought v. Union of India. The most famous judgement was, Sabarimala Judgement. In this judgement, different judges used the same principle to arrive at entirely different conclusions. Justice Mishra and Justice Chandrachud clearly said that public morality should give way to constitutional morality.
Both Ambedkar and Grote equated ‘constitutional morality’ with a self-imposed restraint by the people to uphold the constitutional ideals. In view of the recent mishaps, people raising objections should show a little more tolerance so that the freedom granted by the constitution could be protected and its ideals could be upheld.
Disclaimer: All information has been taken from publicly available government sources. This article is solely for providing the information to the public and legal advice must be sought before using this information.
Also published in National Political Mirror
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