A Constitutional Question of Morality

The Trigger

Few days ago one of my nieces referenced a newspaper item about implementation of a law / rule that is being used to restrict women’s freedom.  She then went on to mention that discrimination against women is enshrined in the Indian Constitution while referring to Article 15 (3), which is a provision, meant to PROTECT women.  She complained that Article 15 (3) is being used to PUT LIMITS and RESTRICTIONS on a woman’s freedom to movement which goes against a woman’s freedom to EQUALITY. 

Fundamental Right to Equality

This incident made me refresh my 40+ year old Civics lessons and here is what I found in the Article on Fundamental Right to Equality:

15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

Well, an initial reading of Article 15 (3) looked pretty innocuous.  The provision of section 3 in Article 15 of Fundamental Right to Equality seeks to permit the State to make special provisions for women and children. Right, but then let us read it again.  Does this section inform us what would be a clear and cogent reason that could trigger such a provision? 

Does it seek to prevent harm to women and children?  If yes, then how, where and from whom?  Let’s consider drinking alcohol or smoking/ chewing tobacco.  Agreed, there is no doubt citizens are required to be of a certain age (to indicate maturity – and agreed it is arbitrary but is uniformly applied) before they are permitted to cause potential harm to themselves by such consumption.  Accordingly the State has ensured that citizens of both sexes are covered by a uniform ban, limited by age, to consume alcohol and tobacco!  No discrimination against women.

Now let us consider other aspects of a citizen’s life – like eating certain foods, reading certain books, watching certain kind of films, staying out late at night, wearing certain kinds of clothes, etc?  Could such activities also be classified as causing potential harm to women? If yes, then how, where and from whom? Oh, you mean from unruly/ uncultured men? Then why not cover gentlemen in this provision, since gentlemen also need protection from unruly/ uncouth/ gangster kind of citizens.  Sorry, you did not mean “unruly/ gangster elements” but the need to protect the dignity of women from sexually depraved men who are unable to manage their libido? 

So this last suggestion would mean that we are actively considering the ‘decency/ moral’ angle of a woman’s behaviour to decide what could trigger the “special provision for women and children” under Article 15 (3)?  But does section 3 of Article 15 really permit this:

A careful re-reading would make us realize that Article 15 (3) neither requires the State to consider the pre-requisite of “morality or decency” to decide course of action nor ensure that those actions have to be restrictive when instead they could be liberating in content and deployment.  Simply put, it means that Article 15 (3) is an enabling provision making it incumbent on the State to provide for protection of women and children from untoward harm in situations where the State feels that the guaranteed freedom of equality is likely to be hampered.

Is Absolute Equality Possible

As आम भारतीय नागरिक (common Indian citizens) we are programmed to think in relative terms and not absolutes (which probably explains Hindus belief in the many paths to the truth, but I digress).   We thus take it for granted that our fundamental rights are not absolute and it is okay for the Indian constitution to incorporate provisos, exceptions, etc. thereby giving the State over-riding powers, as and when required.

So where does the Indian Constitution provide for the ‘decency or morality’ angle which makes it possible for the Indian State to use it to control citizen behaviour?  To understand this, we need to read another article of the Indian Constitution. 

Let us now read Article 19 on Fundamental Right to Freedom

19. (1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India;

(g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

(italicized by author)

Decency or Morality

Yes you got it!  Article 19 (2), for the first time, introduces “decency or morality” into the constitutional paradigm, with the sole purpose and intent of controlling ‘citizen behaviour’ with respect to speech and expression.  Under Article 19 (2) the State has arrogated the right to decide how, when and where to curb your freedom for expression if you have, in their opinion, violated “decency or morality”.

Is it then a wonder that the Indian State does precious little to curb self proclaimed groups that take to moral policing be it -  

·         in markets (breaking up stores selling valentines day material);

·         in public parks (breaking up couples on account of their youth and physical proximity);

·         in film content (through Film Censor board); or

·         where you stay or earn your lively hood (no action/ penalty levied political parties bashing up residents of UP & Bihar, etc. from working in other states). 

Sometimes the State itself chooses to becomes an accomplice when it uses the law enforcement machinery to curb speech and expression that it considers as a blemish on भारतीय संस्कृति (i.e. Indian Culture) by joining hands with fringe right wing moral groups in putting in jail innocent citizens for acts like publishing cartoons and making comments in cyber space (refer to the cartoon case of Ashim Trivedi and the Facebook comments on the death of a political leader); conducting raids at private residences in the hopes of catching celebrities and influential people at parties; etc.

Beholder’s Eye Decides Beauty

We all are likely to acknowledge (if we really think through) that concepts like “decency or morality” cannot be static either in societal time or space. What were considered ‘moral and/ or decent’ few years ago are no longer considered the in the same way today and vice-versa.  Similarly what is considered “decent or moral” in a city may not be considered so in a rural areas.  Then there are strong differences in understanding about what is “decent or moral” from a youth’s view point and those who are past retirement age.

Get few people randomly and attempt to score the following activities on a 0 – 10 scale of “decency or morality” (where 0 = NA or no and 10 = highest, remember no discussion within the group to obtain consensus):

1.       picking your nose in the bathroom at home or at a public library

2.       watching nude sculptures and painting on temple walls moral or appreciating nude paintings in art galleries

3.       watching ‘choli ke peeche’ or ‘shiela ki jawani’ on TV with your children or watching a live dance floor show

4.       reading “Kamasutra” on the internet or watching reading a racy sex novel like “50 shades of Gray”

5.       giving a quick hug to a member of the opposite sex in private vis-à-vis doing it in public

6.       would your response change to question 5 if the member of opposite sex happens to be a minor relative

Compare your scores with that of your group – could be your friends, uncles/ aunties, sons/ daughters, colleagues.  Do they have similar scores to yours?  No?  Are you surprised?  Surely this simple exercise shows how decency and/or morality lie in the eye (i.e. intentions) of the beholder.  Even for the same person, progress of time and better knowledge impacts the way decency / morality is perceived.

The Touchy Indian

The Indian Constitution in its wisdom does not clarify the meaning of “decency or morality”.  This vagueness has been used by the extreme fringe right wing moral minority to impose their personal version of what is ‘decent or moral’ on the majority. 

We are constantly inflicted by moral policing by the State and right wing moral fanatics about the dress we wear, the artwork we see, the book we read, the food we eat, the comments we make, etc. These groups have one sole intention: to so hyper-sensitize the average Indian that he/ she becomes a walking-talking bomb ready to explode at the slightest suggestion of a hurt.  It is no surprise that we regularly see trigger happy rights groups who need nothing more than just a hint of hurt and use it as a license to become violent and create public order problems – be it a broken statue of leader or a torn holy book or the painting of a goddess or even an opinion in a book about a historical figure.

Some talk of the great Hindu Culture vis-à-vis Western Culture to justify the need to keep strict watch over the ‘decency or morality’ of the younger generation just so they do not go astray.  Would we still consider the following Hindu Cultural practices as decent or moral?

·         Perpetuation of caste system for centuries, if not millennia

·         Continuation of bonded labour (slave system) as a form of cheap labour

·         Committing widowed women folk to the funeral pyre as per tradition of Sati-pratha

·         Child marriage

The answer is an obvious and emphatic NO, if not one of diffident embarrassment.  We therefore had laws to ban it not just because they were exploitative but against all sense of decency and morality of a modern country.  Thankfully those laws were agreed to and reasonably well implemented too.  It is not, as if we have, as a nation not agreed to change our customs and traditions when revealed as offensive in the light of modern philosophy of humanity and ethics.

Yet culture status-quoists (typically extreme fringe right wing moral groups) vehemently protest against any change that goes against their understanding of decency and morality.  They invariably raise the false ruse of “Hindu Cultural in danger” to prevent India from joining and forging ahead in a globalized world.  To use Hindu Cultural Traditions as a benchmark to define what is ‘decent or moral’ is going to put us in a fix since we know that everything within it is not perfect. Hindu Cultural Traditions is work-in-progress; we still need the intelligence, courage and willingness to fix those parts of our culture and tradition which are neither decent nor moral. 

Else we just need a neutral benchmark or yardstick to decide ‘decent or moral’.

PIL to the Rescue

The sad thing is judges do no see themselves as the THIRD PILLAR OF INDIAN DEMOCRACY.  Probably they are so used to playing second fiddle to the Parliament and Executive, that they set aside their logical mental faculties and use their personal biases to entertain a flood of frivolous cases of imagined “hurt feelings” to decide whether to ban some event or book or play or artwork or censure an artist or publisher/ producer.

Probably someone has to give the JUDICIARY a wake up call; file a PIL - public interest litigation – and seek clarification on the purpose of ambiguous terms like “decency or morality” in our Constitution and if the terms cannot be defined or there is possibility of mischief in the purposes then to strike it down as contrary to the intent of the Article on Right to Freedom.

Till then the State and right wing moral fanatic minority would be EQUAL partners in preventing FREEDOM of expression for the majority of Indian Citizens.