The word “decency” in Article 19(2) is often run together with “morality”, forming the compendious term, “decency or morality“. Since judicial discussion tends to focus on the meaning of “morality” (see, for instance, our previous analysis of the Ranjit Udeshi case), the word “decency” tends to get subsumed within the meaning of “morality”. Bal Thackeray v. Prabhakar Kashinath Kunte (1996) is, however, a notable exception, and deserves close scrutiny.
S. 123(3) of the Representation of Peoples Act prohibited a person from appealing for votes on the basis of “his religion, race, caste, community or language.” In the Bal Thackeray Case, it was argued that S. 123(3) violated Article 19(1)(a), and was constitutional only if the said appeal was directly prejudicial to public order, as envisaged by Article 19(2). The Court rejected this contention. Naturally, then, S. 123(3) was either unconstitutional, or saved by another head under Article 19(2). The Court settled upon the latter course, and chose decency. Rejecting the appellant’s argument that the phrase “decency or morality” was limited to “sexual morality”, the Court held:
“The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” (Paragraph 29)
The Court went on to add:
The fact that the scheme of separate electorates was rejected in framing the Constitution and secularism is the creed adopted in the Constitutional scheme are relevant considerations to treat this as a reasonable restriction on the freedom of speech and expression, for maintaining the standard of behavior required in conformity with the decency and propriety of the societal norms. (Paragraph 31)
These observations are crucial. Recall that in our discussions of Ranjit Udeshi (here, here and here), we had found that much turns upon what, precisely, “morality” means in Article 19(2). For reasons both textual and philosophical, I had argued that the Court was mistaken in equating “morality” with either “public morality” or “individual morality”; and that, in the alternative, the best interpretation was reading it to mean “constitutional morality“, that is, the moral principles espoused by the Constitution as a whole, and not those of a shifting, transient majority. In Bal Thackeray, the Court clearly accepted such a reading of the word “decency”. Because obviously, if decency means “public decency”, or the standards of decency maintained by a present majority, then it makes no sense to curtail election speeches on the grounds of decency, because – and this much, at least, is uncontroversial – the ballot box is, at present, one of the – if not the – most effective way of gauging public opinion. If I appeal to my religion to gain votes, and I do succeed in persuading the majority to vote for me, then it cannot really be argued that the public considers such an appeal contrary to decency.
The argument is buttressed by the specific observations of the Court. In Paragraph 29, it defines acceptable behaviour in the context of a secular polity. A secular polity, however, is not a matter of public opinion – it is a constitutional commitment, and has been repeatedly held to be part of the basic structure of the Constitution. In paragraph 31, the Court makes it explicit, holding that secularism is part of the constitutional scheme. Thus, the Court derives its meaning of decency not from a vague reference to public standards, but by directly invoking the philosophy of our Constitution.
This has important ramifications. Consider again, the phrase 19(2) phrase, “public order, decency or morality“. In our discussions on Udeshi, we asked whether the word “public” qualifies only “order”, or all three words, “order”, “decency” and “morality”. Clearly, both interpretations are grammatically unexceptionable. But if, per Bal Thackeray, “decency” means “constitutional decency”, then “public” doesn’t qualify “decency” after all. And if that is the case, then it would be grammatically absurd for it to quality “order” and “morality”, but not “decency”. Therefore, it is a necessary implication of the Bal Thackeray decision that the morality referred to in Article 19(2) is not public morality.
Regretfully, however, the Court’s overall jurisprudence in this area remains a tangled knot. In Odyssey Communications v. Lokvidayan Sanghatana (1988), the Court blithely employed the phrase “public morality”, without any argument. In Bobby Art International v. Om Pal Singh Hoon (1996), the case about the screening of The Bandit Queen, the Court allowed the screening of the film, including scenes of rape and frontal nudity, because it found on fact that the impugned scenes advanced the message of the film, and were not designed to “titillate the cinema-goer’s lust“. (Paragraph 30). Since the Court declined to expound upon the particular harm caused to self or others by this “titillating of lust”, we must assume that this is a case of legal moralism (see the analysis of Udeshi), predicated upon reading “morality” in Article 19(2) as referring to “individual morality”, with the Court taking upon itself the role of protecting individual morals from depravity. On the other hand, in Ajay Goswami v. Union of India (2007) the Court, dealing with an obscenity case, after citing a bewildering array of tests, from “Hicklin” to “clear and present danger”, from “ordinary man” to “contemporary standards”, finally affirmed both a harm standard and a violation of morality standard within the same paragraph! (paragraph 44) And most recently, in S. Khushboo v. Kanniammal (2010) the question arose whether criminal proceedings against an actress who called for social acceptance for pre-marital sex in live-in relationships, could be sustained. It was argued that public morality was strongly supportive of limiting sexual intercourse to the marital relationship, and that such statements would lead to “deviant behaviour which would adversely affect public notions of morality.” (Paragraph 10) While the Court accepted the present state of the law on obscenity (which, it would seem, astonishingly enough, is still the Victorian-era Hicklin Test), it also observed:
“Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.” (Paragraph 29)
The Court noted that those who viewed her remarks as an attack upon the centrality of the institution of marriage had every freedom to contest their merit through the existing channels of free speech, such as the media. This was precisely how dialogue and discussion took place in a democracy, “wherein people can choose to either defend or question the existing social mores.” (Paragraph 18)
“An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.” (Paragraph 30)
Assuming – reasonably – that “conventional morality” and “public morality” refer to the same idea, it is clear, on a combined reading of the three observations of the Court, that preservation of “public morality” is not, after all, in itself, a ground for restricting free speech! Of course, the issue is more complicated, since the Court was undoubtedly influenced by the fact that the case was not about a pornographic film that depicted sex, but about a statement in a newspaper. Yet is there a principled difference between an influential actress persuading people about the desirability of pre-marital sex by making a statement, and a pornographic film doing the same by depicting it? If there is, the Court did not attempt to explicate it.
In conclusion, therefore, it is rather difficult to extract a coherent philosophy out of the Court’s “decency and morality” jurisprudence over the last fifty years. We saw that there are at least three possible ways of interpreting this phrase, each of which correspond to a different political philosophy, and a different vision of society: speaking very broadly, and ignoring all the nuances employed within this terms, these are legal paternalism, legal moralism and a strong, autonomy-respecting harm principle. The Court, in its decisions, has at various times endorsed all of them, some of them, or none of them. We await clarity on this important issue.