By Ashit Kumar Srivastava (AKS)

 There is as much ‘lie’ in this world as there is ‘truth’ – AKS

The blanket term of ‘Constitutional Morality’ has more connotation to it than that meets the eyes. The recent judgment of Manoj Narul (Manoj Narula v. UoI (2014) 9 SCC 1) gives a contour definition of the term “The principle of constitutional morality basically means to bow down to the norms of the constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner”. The ideal of ‘Constitutional Morality’ has all the making of a modern day enigma of ‘public order’ who can forget the era of 1950s and 60s, when the government use to restraint fundamental rights in the name of ‘public order’ with no clear definition as to what amounted to be a breach of ‘public order’.

Narrowing down the implication of the ideal in the recent judgment of India Young Lawyers Association v. UoI or popularly known as the ‘Sabarimala Judgment’ the question pertaining to a case was more of facts than law, the essence of the judgment revolves around four major questions;

1. Whether Sabarimala Temple followers constitute a religious denomination?
2. Whether funding of Travacore Devaswom Board by the State Government under article 290-A makes the Board a state body?
3. If the temple if a religious denomination, is it still bound to open institution for everyone under article 25(2)(b)?
4. Is prohibiting of entry women (age group of 10-15 years) an essential part of their religion?

First and foremost, the idea of religious denomination needs to be understood, the constitutional parameter of what a religious denomination can do is given under article 26 of the Indian Constitution and what amounts to be a religious denomination is defined in the case of S.P Mittal v. UoI (2003) 9 SCC 1). The case set out the criteria as -:
i) Common Faith
ii) Common organization
iii) Having a distinct name

The petitioner did not regard the followers of Lord Ayyapa as a distinct group to be recognized as a religious denomination, however, the determinative factor on the basis on which the petitioner emphasized was that the followers of Lord Ayyapans are merely Hindus who are undertaking the hard journey for the ‘darshan’ of the deity; they do not constitute a separate class of people following a separate religion. However, the idea itself does not seem a viable argument for the very reason that followers of a particular faith do not need to create a new religion to be recognized as a religious denomination.

The idea of faith under article 25 is directly proportional to the characteristic of the deity, one wants to follow. Because it is characteristics of the deity at the first place which arose the faith of the devotee. Thus, changing the characteristic of the deity as to one’s own liking is nothing short of a forum shopping.

Further, it needs to be seen that the idea of article 25 though subject to article 14 of the Indian Constitution but the principles of equality needs to be applied in between the persons of same faith. This gives enough plausibility to the dissent of Justice Indu Malhotra that the idea of article 14 is applicable only between people of same class, the devotees of Lord Ayyappa constitute a same class of people, so a writ for quashing the discriminatory practice coming from within that class of people would have been much more viable than from an association of social activist (Indian Young Lawyers Association) who have no practical insight as to the devotees feeling. And quite rightly, Justice Malhotra also held that if the writ is allowed under this particular case, it will open a floodgate of cases for people from different religion questioning each other faith on grounds of constitutional morality.

The other question as to the state funding of the Travancore Devaswom Board (hereinafter TDB) which inevitably classifies TDB as a state body. On page 389, Justice Indu Malhotra on sub-paragraph (iv) holds that Article 290-A will not take away the denominational characteristics of the board.

THE UMBRELLA OF CONSTITUTIONAL MORALITY

My truth is as much truth as much your lie is a truth. That’s the subjectivity of truth. For the year was 1599, when Gioradano Bruno, one of the celebrated social thinker, astrologer and philosopher was condemned to death by burning alive, his only flaw was that he openly declared a fact that it is the earth which revolves around the sun and not the opposite. He was banished from the community and was sentenced to death. Fast-forward to 30 years later Copernicus says the same thing and he is remembered in history for his astrological insight. That’s how truth works.

The analogical references which we need to draw from here are as to the subjectivity of truth. How can, one governmental institution (The Supreme Court) can say that his or her sense of justice is much more accurate as compared to the religious institution of Sabarimala. It is nothing short of imposing value on a bunch of people who do not seek that value.

The Article is written by Ashit Kumar Srivastava (AKS) who is an Assistant Professor of Law at National Law University of Law-Odhisa.

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