Etching the contours of public morality

The Daily Guardian

In the last few pieces, this author had undertaken a discussion on constitutional morality, its nexus with public morality, and the nature and scope of intervention permitted by the Indian Constitution to the State and the Judiciary respectively in relation to public morality. This also led to a discussion on whether the Judiciary forms part of the State within the meaning of Article 12 of the Constitution, and whether the remedy and right under Article 32 is available in respect of the Judiciary. The sum and substance of these discussions is that under the framework of the Indian Constitution, it is the State, meaning thereby the Executive and the Legislature but not the Judiciary, which has the power to invoke public morality within reasonable bounds for the purposes of placing reasonable restrictions on fundamental rights guaranteed by Part III of the Constitution. The Judiciary’s role is limited to examining the constitutional validity of the claim made by the State that the latter’s action is in the interest of or furthers public morality. That said, what are the parameters that must be applied to such an examination? In other words, how does the State demonstrate that its action represents public morality? What kind of exercise must the State undertake, if at all required by the Constitution, to assess public morality in relation to a given right? Or does the Constitution grant elected representatives the unfettered right as parens patriae i.e. parent of the nation, to speak on behalf of their constituents on every issue merely because they have been elected? Can members of the State form an opinion on public morality in relation to a given issue or topic without consulting members of the society to marshal some form of concrete evidence to base their positions on? Critically, in the context of a diverse society such as Bharat, how can the State hope to do justice to varying and often conflicting positions on public morality?

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