The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation judgement
Volume 2 Issue 3 (2009)
The paper discusses the role public morality has played in developing the fundamental rights jurisprudence in India. Restriction of fundamental rights has been justified on the basis of the doctrine of compelling state interest. The author argues that reading public morality into the ground of compelling state interest may make fundamental rights susceptible to the personal interpretations of judges or considerations of a politically motivated legislature. However, the present case makes an interesting point by indicating that public morality and constitutional morality diverge at some points, and that regulation of public morality, unless it overlaps with constitutional morality, would not constitute compelling state interest to curb fundamental rights. The author opines that the new test of constitutional morality used in the case may be subject to more determinable standards than the prior one. Further, to support his stance on non-interference by the state in relation to issues comprising purely of public morality, the author states that regulating homosexuality would amount to the regulation of external preferences by the State, and an enforcement of the majority’s moral convictions by the State without an assessment of the actual threat to public order if the morality of the majority was not imposed on the remaining population, which is not warranted either under Dworkin’s or Rawls’ theories respectively.