A Judge Must only Preach Constitutional Morality

Many of us have come to view the courts as India’s last refuge. In a state gone mad where the government is making stupid statements like “women smoking is not Indian culture”, and goons beat up innocent people under the guise of “moral policing” with the government doing nothing to preserve law and order, the court has often held up the ideals and standards that we’ve come to expect from a free and democratic India. Especially the Supreme Court.

Imagine my shock the other day when I heard that a High Court judge in Karnataka told a woman to “adjust” if her husband was beating her! I won’t go into the disgusting logic he used (each sentence is an insult to all decent people). Suffice to say that there’s a petition to have this judge removed from his post . There may be others who think like him and we need to send out a strong message to them. I’ve since learned that the petition has resulted in the judge being removed from hearing all family law cases.

Actually I don’t have a problem with judges advocating morality in court. The question is whose morality should they preach? I may sound like a hypocrite otherwise. Praising judges when they make statements I agree with and lambasting them when they say something I don’t like – like this Justice Bhaktavatsala for example. So what morality should judges subscribe to? There are so many after all.

I feel the only morality that should be recommended in court is Constitutional morality. Only those views that are prescribed by the Constitution can be state policy. Not Christian morality, Hindu Morality or Islamic morality. Constitutional morality is what we all agree to when we choose to live in this country. It is our contract. It’s the promise the government makes to us.

So when the Supreme Court makes observations on Freedom of Expression, it’s because the Constitution guarantees it. But when a Judge like the one in the High Court above makes observations on domestic violence and how the woman must put with it, that is not acceptable. None of those views are in line with the Constitution and in fact go against it. The judge is abdicating his duty and is downright abusing his position of power to push his own views on to other people. This is illegal and needs to be stopped. He needs to be sacked for such a blatant and gross misuse of power and for disservice to the Constitution which he swore to protect.

A judge’s highest duty is to protect the Constitution. There may be many laws that go against it and in such cases, the court must speak out against these laws and refer them to the Supreme Court who will determine their validity. In France, there is a body known as the “Constitutional Council of France” which vets every law against the Constitution before it’s signed even if the legislature has passed it. This ensures that no law can be passed going against the basic principles of the Constitution.

I don’t mind judges moralizing as long as their source text is the Indian Constitution. We the public need to learn to appreciate this wonderful document and our lawmakers need to imbibe the principles of Free speech and tolerance and equality that make it so unique in Asia.