Jul 30, 2020 11:35 UTC
Jul 30, 2020 at 11:35 UTC
What is Constitutional Morality?
India embraces its own unique character in all the fields of society. This manuscript is limited only to the fields of religious and cultural aspects of society. India is the only country in the world community where innumerable religious faith and beliefs flourish. It is considered as one united nation, but as every coin has two sides, among this insurmountable diversity religious conflicts are happening. This leaves grave scars on the people of its nation. These disputes are supposed to be solved by the administration of law but the inherent conflicting ideas in the religions exacerbate such situations.
India is a secular country where many religions and cultural faith’s flourish all together, however cultural and religious conflicts are obvious. Karl Marx rightly said that the philosophers of world have studied the world but the point is to change it. It can lucidly be inferred that the world needs some serious changes. First of all, rising above the cultural and religious rift is required. Such rifts should be resolved by the pacific means within the purview of the law.
The beauty of a nation like India lies in its “Secularism” that was inserted in the preamble of Indian Constitution through 42nd Constitutional Amendment Act 1976. Incorporation of above mentioned terms in the Preamble of Indian Constitutional clearly reflects the impartiality of States towards every flourishing cultural or from religious institutions. In other words, secularism can also be inferred as an understanding where the state does not support religious instructions given to the students in the state sponsored educational institutions.
THE GREY AREA: LAW MANDATES AND FAITHS.
There are many spaces in Indian political and social life where the limit between personal understanding and legal mandates are not crystal clear. The religious and cultural concerns come in contradiction with the constitutional mandates. Recently, the Supreme Court held that the prohibition of entry of women of a certain age in the temple is discriminatory and is a violation of the constitution. However, such judgement received enormous opposition and has been referred to the larger bench. These kinds of contradictions are prevalent in India.
Article 25 of the Indian Constitution, where the freedom of conscience and free practise, profession and prorogation of religion has been embraced. The aforesaid article is read as follows: –
“Freedom of conscience and free profession, practice and propagation of religion”-
- Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion.
- Nothing in this article shall affect the operation of any existing law or prevent the State from making any law.
- regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;
- providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
The plainest interpretation of the article gives the clear idea that every person within the territory of India has the freedom of conscience and freedom to profess, practice and propagate the religion, as he/she wishes. Article 25 of the Indian Constitution, which must be read parallel with Article 14 of the Indian Constitution. The essence of both the Articles taken into account the “Equality”, that is to say the equality in all the matters, inclusive of worship, which has been separately mentioned in Article 25 of the Constitution. In the case of Vasudev V/s Vaman court held that the nation embraces SECULARISM, within it’s realm that means the state has no religion of its own rather, it is neutral in matters of religion. Its long-time back doctrine of India has been to protect all the religion but interferes with none. Thus, when the state like India, where the beauty lies in its “equality among diversity”, there is no mysticism in the secular character of the state. Secularism is neither against God nor pro-god.
Explaining the very spirit of the Article 25 of Indian Constitution, the Supreme Court of India has played a pivotal role in the uniform observance and implementation of the connotation adopted in the provision of the Article 25 with solemn heart, in pursuance of that the court held that every man should be allowed to go heaven in his own way. Worshiping God should be according to the dictates of one’s own conscience. The exact contradiction between the mandates of law and the religious and cultural faiths start, when a religious and cultural faiths comes in way of the solemn implementation of the provision of the law, thereby creating an obstacle.
Discussion of this has been made in the light of the general realities of the society. For instance, in the case of “HAJI ALI DARGAH“, where the contention was that under the Islam faith, women and girls are not allowed to go to the dargah for the purpose of worship, the reason for this contention was taken that, dargah is a reflection of grave of an ideal of Muslims and thus, on the ground of religious reason, women and girls are not allowed to go dargah. But on the contrary, the ARTICLE 25 says that every person shall have the right to practice, profess and propagate the religion as wished. The expression any person can lucidly refer to all the people within the territory of India irrespective of its gender.
The literal interpretation of connotation of Art 25 clearly shows that it takes about the departure from discrimination any sort of, in matter of practice, profess and propagation of religion. The emphasis must be laid to the conflicts may arise in the implementation of laws which provisions or mandates of law envisage and the religious and cultural faith. In the aforesaid instance, the Bombay high court allowed the entry of the women in the dargah thereby maintaining the spirit of mandate of Article 25 alive. This was later affirmed by the supreme court. Therefore, the aforesaid dimension of the instance shows the conflict of religion and constitutional morality can be resolved.
Another instance of conflicts between the law and religious faith, can be seen case of polygamy being practice on Islam faith. The dimension of the same is hereinafter, the section 494 of Indian Penal Code, 1860 envisage the prohibition on the Bigamy, that is to say, marriage while another spouse is living. The same is real as follows-:
Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description of a term which may extend to seven years and shall also be liable to fine. Apart from religious conflicts there were also cultural conflicts, which is also a source of difficulty in proper implementation of law, in the matter of Animal’s protection.
Further, besides these religious conflicts, cultural conflicts can also be seen in India. These are situations where a particular understanding of a culture comes in contradiction with the law. In jalikattu case the supreme court of India prohibited the usage where bullock-cart race was conducted in a torturous way. Court considered it to be violation of Article 51(g) and (h), given in the Indian constitution and also, the violation of Sec. 3 and sec. 11 of PCA Act. However, such pronouncement was nullified by the legislation of Tamilnadu after witnessing protest by the people. This was an instance where the usage and customs prevalent in a particular area bellied the constitutional mandate.
Therefore, the contradiction between the constitutional understanding of public morality and the religious or cultural understanding of public morality more often than not comes into conflict. Some of these maladies have been irradiated by the serious implementation of law, but still some await the march of constitutional morality in the societal and personal sphere.