Constitutional Morality vs Majoritarian Politics: Re-imagining Secularism and Equality in Contemporary India

Abstract

The concept of constitutional morality has taken place as one of the most powerful but debatable ideas in modern Indian constitutional debate. Ultimately expressed by the framers of the Constitution as a normative check on the exercise of authority, constitutional morality has experienced rebirth in the past few years, especially in the cases of secularism, equality, and minority rights. Constitutional morality has been employed by the courts in a political environment highly majoritarian in its commanding majorities, and highly culturally nationalistic in its incivility to the majority in all its forms. This emerging phenomenon is part of a larger conflict within constitutional democracies, namely that democratic legitimacy is founded on popular sovereignty whereas constitutional legitimacy is founded on more long-term values that safeguard pluralism, ignity, and equality[i]. This tension has particularly escalated in India, with the increasing importance of debates about religious identity, citizenship, and cultural belonging in the development of the public policy and political discourse (Arvind, T. T, 2021).

The central point of tension is the commitment to secularism and equality as one of the cornerstones of the constitution. This is in contrast to classical Western conceptions of secularism, which stress the need to have a clear boundary between state and religion, Indian secularism has traditionally been construed as political neutrality based on principles of equality of all religions. Secularism has long been interpreted by the judiciary as part of the basic structure of the Constitution, and thus resistant to the transformation by the majority. However, it is also possible to note an emerging, and sometimes contradictory, attitude to secularism and equality, especially surrounding the practice of a religion, the involvement of state in matters relating to religion, and the cultural majority claims. According to scholars, courts have alternated between rights-based arguments based on individual equality and deferential doctrines that reinforce mainstream social or political discourses (Bhatia, 2021; Chandra, 2018)[ii]. This ambivalence has led to questions of whether secularism is being diluted constitutionally or its reinterpretations are being made in order to fit in the current ideologies in the political sphere.

The increased discussion of the rights of minorities in the modern era makes even more difficult the connection between constitutional morality and the politics of majoritarianism. Legislation priorities and executive intervention have been shaped by political discourses that construct national identity more in homogenising terms, which put religious and cultural minorities in a constitutionally vulnerable position. The charting of legal scholarship records the way these narratives influence the content of law and also cause a redirection of the weight onto minorities to explain their constitutional rights claims (Menon, 2020; Sathe, 2019). It is in this context that the presence of a pluralism guardian court is often sought, especially to guard constitutional promises of equality and non-discrimination in the event of popular will that can reverse the same. The practical problem of judicial reasoning through the invocation of constitutional morality therefore poses some basic questions regarding the counter-majoritarian nature of the courts, the boundaries of the democratic decision-making and also the future of secularism as a living constitutional principle. The question of whether constitutional morality can serve as a successful normative protection of minority rights, or whether it will end up being a political instrument, bound by real world politics, is a major issue of concern of constitutional governance in modern India.