Morality Of Dominant Classes Influences Law Making : CJI DY Chandrachud

"When Dr. B. R. Ambedkar dressed in a three-piece suit, he was making a revolutionary statement. He crushed the code of conduct that was prescribed by the oppressor caste through his clothing choices to reclaim his community its identity in society", the CJI said.

The CJI was delivering a lecture on "Law and Morality: Bounds and Reaches in memory of former Attorney General of India late Advocate Ashok Desai.

The CJI cited a widespread norm in the past requiring members of Dalit community to wear marks of inferiority. The Dalits were denied their right to wear clean clothes and ornaments, he said.

CJI disagreed with jurist Thomas Hobbs that etiquette is irrelevant in creating a model code of conduct.

"Etiquettes, that is, how a person dresses or her food preferences, are usually group specific and are the building blocks of a counterculture……These seemingly small morals on food habits and clothing choices enable the creation and the sustenance of group identity. Dominant groups by attacking the etiquettes of the vulnerable groups prevent them from creating an identity that is unique for themselves".

The CJI said that every individual, society, community, etc. has its morality. He recalled an honor killing incident in a village in Uttar Pradesh in which the villagers thought the killing was acceptable and justified.

The CJI said this was because the villagers complied with the code of conduct of the society they lived in. The code of conduct put forth by society is not the same as that which would have been put forth by rational people, the CJI said.

Then who establishes the current code of conduct for society?, he asked. He referred to David Wong's concept of adequate morality. It is the standard of morality that the members of society across different groups agree upon. The members negotiate to reach this common ground and reconcile conflicting ideas. The CJI said that it should be inquired how the consent of the members was generated in the first place rather than the number of members that accept the moral code.

The groups that traditionally have socioeconomic and political power have an advantage over the weaker sections in this bargaining process. Often, adequate morality coincides with the morality of the powerful, dominant groups, trumping the interests of the weaker sections of society, the CJI said. "Adequate morality is the morality of men, the upper castes, and able-bodied persons", the CJI stated.

"Even after the framing of the Constitution, the law has been imposing 'adequate morality', that is, the morality of the dominant community. In our parliamentary system of democracy, laws are passed by the vote of majority. Therefore, the discourse around public morality often finds its way into the law enacted by the majority," he said.

The CJI clarified that he doesn't mean only the dominant groups were consulted in the process of reaching adequate morality. "The argument that I'm trying to build is that vulnerable groups are placed at the bottom of the social structure; that their consent, even if obtained, is a myth", he said.

He said that advocates of caste system often repeat arguments such as Max Weber's that members of the Dalit community have accepted their placement in the society. Rejecting this argument, the CJI said, "marginalized communities have little choice but to submit to the dominant culture for their own survival."

The CJI said that the Constitution determines the rules of behavior of the citizens and the state. The Constituent Assembly recognized the existing gap between the vision of the Constitution and social realities and sought to redress the social evils through provisions such as Articles 14 and 15, the CJI said.

The principles of non-discrimination and substantive equality will only be effective if the social stratification is ironed out to create a truly equal society, the CJI said. The CJI distinguished between popular morality and constitutional morality. He said that the discourse around public morality often finds its way into the law because in a parliamentary democracy, laws are passed by the vote of the majority.

To support this, he gave the example of the English novel Lady Chatterley's lover by D. H. Lawrence which was banned in India on the grounds of obscenity. "I find myself asking the question, was the book regarded to be obscene because of the depictions of sexual relationship or because of the depiction of a sexual relationship between an upper-class woman and a lower-class man?" the CJI said.

He gave another example of the ban on the performance of dance in any eating house, beer bar etc. imposed by Maharashtra Legislative Assembly in 2005. There was no ban on dance performance in three-star hotels or above. The government counsel submitted before the court that this classification is because the crowd that visits banned establishments is different from the crowd that visits the exempted establishments.

"The state, by exempting hotels that are three star and above from the purview of the Ban, reinforced the morality of the dominant community that the members belonging to the lower strata are sexually irresponsible. The morality of the dominant groups played the Indian system yet again", the CJI remarked.

He gave the example of James Joyce's novel Ulysses in which the protagonist, during his journey across Dublin, sees a young girl displaying her legs on a beach. The novel was banned in the US for its allegedly obscene content. Later, the District Court ruled that the book was not obscene.

"The real danger in Sakharam the binder, Lady Chatterley's lover, or Ulysses was not the depiction of obscenity but the moral outcry against the depiction of characters exploring sexual pleasures outside their marriage. These artistic works question the very nature of human conduct in public as well as private spaces….The state tried to use the power of the law to restrain freedom of expression, which is a constitutionally guaranteed right". Thus, even if society is governed by the rule of law, morality has always influenced how the law is interpreted and enforced, the CJI said.

The CJI said that an individual is not always a part of, and will not reflect the culture or morality of, solely one group. He added that concerns of intersectionality cannot be ignored while discussing group specific culture.

It is the duty of both the state as well as individuals to advance and promote the constitutional order of values, the CJI said. "The values and principles enshrined in our Constitution permeate every aspect of our personal and professional lives. They empower us, motivate us, guide us, restrain us and most importantly, allow us to live our lives in a manner that we choose for us ourselves without unreasonable external interference".

CJI cited cases including Puttaswamy v. Union of India, Navtej Singh Johar v. Union of India, and Joseph Shine v. Union of India, in which the judiciary countered the public morality and enforced constitutional morality.

The CJI concluded by stating that the values of a progressive constitution convey that individual morality should be subsumed within constitutional morality, and individual biases should be subjected to introspection and correction.