In the last piece, in examining the relationship between constitutional morality and public morality, this author had raised the following questions:
‘Given that public morality gives recognition to societal norms and is therefore meant to foster moral diversity, would it not be fair to contend that constitutional morality lies in recognizing the moral diversity enabled by public morality? Would it not follow that synonymizing public morality with a judicially-fashioned version of constitutional morality would lead to undermining the constitutional mandate of moral diversity? Importantly, in the context of a diverse society such as Bharat, what would constitute the basket of accepted societal norms in order for it to rise to the level of public morality?”
Before addressing the above enumerated questions and those which flow from them or are subsumed in them, it is important to ask a much more fundamental question of power- under the Constitution, who has the power to invoke “public morality” to limit the scope of fundamental rights under Articles 19(1)(a), 19(1)(c), 25(1) and 26? Articles 19(2), 19(4), 25(1) and 26 make it either expressly or otherwise clear that the power to limit such fundamental rights citing public morality is vested in “the State”.
Yukti 