Judiciary: Is Constitutional Morality American Morality?

It was an important day in judicial history when the judgement in the Arup Bhuyan case (in which it was declared that “mere membership of banned outfits is UAPA offence”) applied a brake to the judicial trend of blindly adopting American Constitutional principles in India. The month of September 2018 saw three most important judgments on Sabarimala women’s entry, decriminalising adultery and homosexuality, which imported American and Western principles in the name of “Constitutional Morality”. The Supreme Court in the Arup Bhuyan case strongly criticised a previous case as being wholly based on American Supreme Court decisions and not the provisions of Indian statute or the principles of the Indian Constitution. The Court observed, “This Court (in earlier cases) has erred in straightway and directly following the US Supreme Court decisions.” But in the 1960s and 1970s, on numerous occasions, including in the Kesavananda Bharati case of 1973, Supreme Court declined to import the American doctrine to India. It warned against such “transplantation of Western ideology in our country” in the Jagmohan Singh case of 1973.

In the recent case, the Supreme Court observed that Indian Courts should understand that American laws are different from that of India. The historic first amendment of the American Constitution gave unlimited freedom of speech, but later it landed American Courts in trouble. Courts became a forum for providing rights to many unwanted litigants. Interestingly, the US courts resorted to an extra-constitutional solution. The first amendment was subjected to “police power”, as the Supreme Court of India pointed out in the Kameshwar Prasad case of 1962. But the US “First Amendment” dilemma did not happen in India thanks to Nehru’s controversial “First Amendment” to the Indian Constitution to tackle strong criticism of the Organiser weekly. The Constitutional framers adopted the US unbridled right to freedom of speech and expression in Art 19, but Pt. Nehru amended it and made the said fundamental right subject to “reasonable restrictions”. Nehru’s amendment was forgotten by the Supreme Court in many cases admiring American principles but was brought back by the Supreme Court in the new UAPA case. We are not against embracing great ideas coming from outside. But one has to distinguish between blind adoption and intelligent adaptation.

Uddalaka Niti

Mahabharata gives an interesting instance of how sexual promiscuity was eradicated in ancient India. In the beginning, there were unrestricted sexual relations like animals. Once, the wife of Rishi Uddalaka was taken away by another person. Coward Uddalaka pacified his son by saying that new values will arise according to changes in time, which have to be accepted by generations. But son Svetaketu was not satisfied by the answer, and for the first time, he made rules for ekapatnivrata and patrivratya for both men and women of India. This has become a strong foundation for Indian values. Attempts of new Uddalakas to topple the rule of Svetaketu and bring back animalistic morality have to be viewed seriously.

Adultery a Fundamental Right

The Supreme Court has committed grave mischief by declaring the “right to sexual autonomy” and “right to the choice of a sexual partner” as part of the right to life guaranteed under Article 21. It evolved a theory that adultery or promiscuous sex (sexual autonomy) is a “constitutional value” and “an important pillar and an insegregable facet of individual liberty”. The Supreme Court also added adultery as a part of the constitutional right to privacy. Thus, there is a steady increase in the list of fundamental rights. Here comes the question, how can animal lust be considered a fundamental right? Indians believe Dharma is what distinguishes man from animal. The graver aspect is the detailed justification in the judgment giving adultery the status of a fundamental right under the Constitution. The sermons glorifying adultery are blatant aggressions on the social psyche. Unrestrained and lascivious carnal pleasure is not conducive to the growth of a civilised society. The offence of adultery cannot be prosecuted by the wife, which is an anomaly. The remedy is to strike down the gender discrimination part, not the entire provision.

The Puttaswamy case has raised the right to privacy to the pedestal of a Fundamental Right rejecting the “test of popular acceptance” relied on earlier by the Supreme Court in the Kaushal case. But the Court has to bear in mind the significant Indian notion of privacy that private life also needs to be value-based, unlike the western notion where you can have anything in private. In the adultery case, Justice Indu Malhotra has rightly pointed out that “the right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved.”When the Lucknow administration and police put up photographs of anti-social elements involved in vandalism, the High Court injuncted it, saying it encroached on the privacy of those anti-socials.

All judges profusely quote European history, especially English history, to substantiate their objection to adultery law. In England, the law on adultery evolved in Victorian morality, which considered a married woman the property of her husband. The judgment glorifies the contribution of feminists to“the future generations”. The court seeks justification from western feminism, saying the law on adultery is a codified rule of patriarchy. Justice (Retd) Katju commented about the said judgment: “such outlandish, far out and avant-garde (last word) ideas are simply unacceptable in India.”

Nothing Unnatural about Homosexuality

RSS Sarkaryavah, Dattatreya Hosabale has made it clear that marriage can only be between a male and a female.“Sexual intercourse” has been defined in Black‘s Law Dictionary as contact between a male and a female‘s organ. Sex “against the order of nature” or unnatural sex is immoral, involving penetration into non-sexual parts of the body.

Unnatural sex is widely accepted as an immoral act but not a criminal act. About 124 countries no longer penalise homosexuality. Hence many people agree with striking down the provision which criminalised consensual homosexual acts between adults. But sermons in the judgments justifying such immoral acts are objectionable. They have adopted the Wolfenden Committee Report, 1954 of the UK, which proposed that homosexuality is a matter of privacy and law has no business to step in. Section 377 was examined in the background of western history elaborately. The law in the UK, US etc., was also discussed. Transformative constitutionalism was explained in terms of“jurisprudence across national frontiers” or “transcending borders”.

Unlike the West, India was never intolerant to transgenders. ‘Mahabharat’ has given high respect to transgender (Tritiya Prakriti) as emanated from the story of Shikhandi

Supreme Court warns not to “silence the same sex desire.” It did not understand that culture naturally reacts to unnatural acts. Sexual perversions are thrust upon social consciousness in the name of constitutional morality. It will try to impose homosexuality, an order of the society and a big business as in the west. The next step will be to reduce the age of consent for homosexuality, as was done in countries like the UK (lowered to 16 years in 2001), to facilitate young children being dragged into the homosexual business without any legal hurdle. Already there are reports it is spreading amongst the young as a contagion.

Unlike the West, India was never intolerant to transgenders. Mahabharat has given high respect to transgender (Tritiya Prakriti) as emanated from the story of Shikhandi and Bhishma, which continues even today in Indian society. In many places, transgenders are invited to bless the newborn child. Even Shiva and Parvati together have appeared as Ardha Nari. Our culture has recognised their peculiar physical and mental condition in several such instances.

But homosexuality was mentioned in Ramayan as a practice among Rakshasa women, which Hanuman has observed in Lanka. Dharmasatras and Arthasastra (4. 13.40) penalise homosexuality (“ayoni” sex), but Kamasutra mentions homosexuality, unnatural offence, adultery etc., has existed in the society, but without favouring it.

Homosexuality is, perse, a personality disorder. In contested voting, the American Psychiatric Association’s Board of Trustees removed homosexuality from its list of Mental Disorders. It is not a mental disorder but a personality disorder or abnormality in volving poor social and gender adjustment. Their conclusion is a reflection of American culture. They opined that homosexuality and heterosexuality are both natural. But they noted the unnatural thing about it: “the only difference being that the same sex attraction arises in far lesser numbers.”

Just two months before the delivery of the Navtej Singh Johar case judgment on homosexuality in 2018, the Indian Psychiatric Society came out with a brief 12- sentence statement. It said, “homosexuality is not a psychiatric disorder”, merely acknowledging the American Psychiatric Association’s and WHO’s views without any reference to the Indian context or other justifications. The court was happy with such a vague statement to support its views.

England and Wales decriminalised homosexuality as early as 1967. About the result, Prof Dinesh Bhugra, a globally renowned psychiatrist and president of the World Psychiatric Association, says, “A number of studies this year have highlighted the disproportionate levels of mental illness among LGBT people even in a country like the UK.” The illnesses included suicide tendencies, self-harming, depression and other mental illnesses. Still, he appeals to other countries also to legalise homosexuality.

“Misplaced Hyper Activism” in Sabarimala Case

The Sabarimala case judgement in 2018 allowing women entry has prompted an unprecedented popular protest which was never seen in the history of the Indian judiciary. Tens of thousands of people, including women, stepped into streets, even in small towns in Kerala, within days of the judgment. Consequently, in 2019 the Supreme Court referred the Sabarimala case to a 9 Judges Bench.

A new category of “cosmocrats” display extreme hate for politicians and bureaucrats and have no respect for elders Are we going to import such failures to India by transplanting Western morality?

The Sabarimala woman entry case is a glaring example of the consequence of the Western model being imported into India without taking judicial notice of Indian ground realities. The Supreme Court interpreted religion based on the atheist values developed in the West in its long history of struggle against the Church. It is to be fundamentally understood that faith cannot be tested on the anvil of reason and reason on the anvil of faith. An Australian judgement was quoted on the State’s right to restrict religious freedom, whereas the dissenting judge Justice Indu Malhotra quoted an American judgement saying, “courts are not arbiters of scriptural interpretation”.

Justice (Retd) Katju termed the Sabarimala judgement “misplaced hyper activism”. He accused the judges: “you werecarried away by your abstract, theoretical notions of gender equality that you did not realise how deep religion is in India. Maybe your judgement may have been all right if applied to American or European society, but it is certainly unacceptable in India.” “Justice Indu Malhotra has displayed the balance and restraint which characterise great judges,” he added.

Let constitutional morality die at birth!

The justifications for doing all these are based on a Western morality inappropriately attributed to the Indian Constitution. Even the Constituent Assembly discussed the concept of constitutional morality of the Greek historian George Grote. Stalwarts have said Western values are not universal values and modernisation is not Westernisation.

In a deeper analysis, the extremities of constitutional morality and Victorian morality are two sides of the same coin, both products of European history. In the west, present-day extreme liberalism is a reaction to the orthodoxy of the Church and Victorian morality. There always, the pendulum moves from one end of extremism to another. Hence what we hear is not constitutional morality; it is constitutional liberalism. Tomorrow “Constitutional blasphemy” also may arise.

In 2018, Shri KK Venugopal, the veteran jurist and senior lawyer of the Supreme Court, hoped, “Constitutional morality dies with birth.” He also said the Supreme Court “garnered to itself vast powers, which no other apex court in the world has ever exercised!” He even said: “instead of the supremacy of the Constitution, the supremacy of the Supreme Court of India was established.”

Failed Western Values

One justification by the Court is that adultery results from an unhappy marriage. Don’t the Courts have a duty to protect and preserve the sanctity of the family system and marriage as a strong institution in a country like India? The so-called values enumerated in constitutional morality are integral to Western culture, which has resulted in increased divorces, single-parent families, an increase of criminality among youngsters, a high rate of psychic disorders in society etc. These result from the breakdown of the family value system in the west due to the so-called “liberal values”. A new category of “cosmocrats” display extreme hate for politicians and bureaucrats and have no respect for elders. Are we going to import such failures to India by transplanting western morality? Canada has legalised marijuana recently. Indian constitutional morality may rush in to do the same in India. During the Covid -19, Western rights movements were on the streets against the pandemic protocols. Consequently, they had to bear the brunt of major casualties higher than India.

In 2018, Shri KK Venugopal, the veteran jurist and senior lawyer of the Supreme Court, hoped, “Constitutional morality dies with birth

India has become a playground of distorted “progressive” values that propagate openly against nationalism, support divisive tendencies, armed struggle and terrorism, false propaganda on minuscule issues etc. Lawyers with such leanings are vocal in establishing their views through Courts in the name of “progressive proclivity” and human rights. They take asylum in Courts to propagate Western pathogenic values. Recent years saw an upsurge in new morality being imposed on India through courtrooms. Indian liberalists stand for scrapping the death penalty, human rights of terrorists and anti-nationals, leniency to delinquents, withdrawal of law of sedition and defamation, protection of even highly defamatory and offensive social media posts, extreme views on the environment, ignoring the development of people around, anti-male feminism, same-sex marriage etc. Such people care less about victims, the poor, the sufferings of innocents, crimes in society etc. This gross mismatch between people’s aspirations and western values turns people to adorn encounter specialists as real-life heroes. It was during the mass exodus of the Kashmiri Pandits for the first time that challenged the idea of human rights being confined only to the culprits and not victims. Adam Smith famously said: “Mercy to the guilty is cruelty to the innocent.”

Understanding Bharatiya values

In its judgment on adultery, Supreme Court dangerously quotes Professor Nivedita Menon that she has recognised the patriarchal family as the “basis for the secondary status of women in society.” We may remember that Nivedita Menon rose to notoriety for raising anti-national slogans during the protests in JNU in 2016 on the Kashmir conflict, an incident that turned the university’s destiny into a centre of nationalism. Court also quotes Catherine Mackinnon’s distorted view of the family as a “crucible of women’s unequal status and subordinate treatment sexually, physically, economically, and civilly.” The Court attacks “Indo-Brahmanic traditions” as responsible for women’s woes.

Poor understanding and scanty respect for Bharatiya cultural values are creating a destructive impact on society. India has the strongest family system in the world. Morality is deep in the psyche of Indians because of the family culture. In the adultery case, Justice Indu Malhotra has rightly observed, “adultery undoubtedly is a moral wrong qua the spouse and the family.” No court can ever break the powerful value system carried on by generations for the last more than 5000 years of Indian history. The package of this value system is known worldwide by the term Dharma, which has no equivalent term in the West.