On ‘Constitutional Morality’

The recent hearing of the case of triple talaq in the Supreme Court has raised some seminal questions of constitutional morality. The Attorney General of India, Mukul Rohatgi, representing the government, reportedly contended that triple talaq was not a fundamental part of Islam and was not protected by Article 25 of the Constitution, which protects the right to religion of all citizens. He is reported to have clarified that the right to religion was not absolute and it was subject to reasonable restrictions spelt out in Article 19(2). While commenting on the issue, eminent scholar Pratap Bhanu Mehta stated: “Even if the practice is deemed by its adherents to be essential to a religion, it has to be subject to the test of constitutional morality … Religious practices cannot trump modern constitutional morality.”

The above arguments cannot be negated on ethical grounds. However, the activist lawyer, Flavia Agnes, has raised a valid question of “practical ethics” in this context. She urged the Court not to shut the doors of community-based interventions in family issues, in the light of the fact that women were denied their basic rights. She further pointed out that the civil courts were overloaded with cases and the court processes were costly.