In prehistoric era, humans had limited intellectual ability to understand natural events. Thus, they evolved the concept of animism- worshipping the nature. It was believed that rituals/ customs would appease supernatural entities. The ‘pray & reward system’ was put in place. With time as population grew & human consciousness evolved, religion was believed to provide the society with social solidarity, harmony & value consensus. The various principles & customs of these religions became the moral foundation for its believers worldwide.
Then, came the cultural movement called Renaissance. It is a period in European history, covering the span between 14th and 17th centuries & marking a transition from the Middle Ages to modernity. The break from the past was a result of the Enlightenment of the human intellect which transformed the economic, political & social landscape altogether. The French Revolution was a significant event in modern history. It introduced the liberal & radical values like liberty, equality, fraternity. These were founded on the Kantian principle of dignity, which says that human life is above all.
The age of Enlightenment profoundly altered the outlook of people belonging to other parts of the world as well. In India, Raja Ram Mohan Roy along with Ishwar Chandra Vidya Sagar became the flag bearers of the socio- religious movements. They worked relentlessly to end customary practices like Sati, child marriages, human sacrifice and encouraged widow remarriages. This can be termed as the first phase of modern life in India.
Later, when the Constitution was adopted in 1950, began the second phase of modernity. Secularism was borrowed from Europe & applied in our traditional Indian society. It means the separation of government & religion. Democracy was established whose prime principle is equality. Fundamental Rights (Part III of the Constitution) banned social evils like the practice of untouchability (Article 17) and allowed the so-called lower castes to access public places (Article 15). It became clear that modern values are not compatible with our customary morality.
In the recent years we see that as Indians, we face crucial issues where customary morality seems to be locking horns with our Constitution-backed modern values. The path we tread on with respect to these issues will have far-reaching impacts not only for the citizens but also, our country’s future. We all are witnessing the third phase of modernity.
The renowed Ayyappa temple of Sabarimala, Kerala follows the practice of barring entry of women aged 10-50. Lord Ayyappa is said to be a Brahmachari. Women felt that they were systemically being subjugated, excluded & humiliated. Thus, this custom was challenged in the honourable Supreme Court of India on the basis that it violates Article 14 & 15 (right to equality), 17 (abolish untouchability) & Article 25 ( right to freedom of conscience).
The no-women entry stance was backed by the Ayyappa followers. But, the judgement came in favour of allowing temple entry to women with 4:1 majority. Justice DY Chandrachud stated that women’s right to pray is a constitutional right. What applied to man applies to women. Menstruation is not impure. This practice cannot be considered essential thus, is within the scope of judicial review. Human dignity shattered the castle of customary morality in India.
Triple Talaq is a customary practice among Muslims where only the husband can dissolve the marriage by saying ‘talaq’ thrice. On the other hand, the wife has to take the long-drawn legal recourse to get a divorce. The customary has drawn criticism for being unilateral & biased against women. This practice has been banned in most of the Muslim majority countries. In India, it is against Article 14 & 15 (right to equality) and Article 21 (right to life).
The All India Muslim Personal Law Board (AIMPLB) stated that it is a personal law. Any government or judicial intervention will be against the principle of secularism. The judiciary however, said in the Sharaya Bano case that such customary morality is against the dignity of a person because it has reduced women to chattel. In such instances, legal machinery will kick in to ensure the modern values of gender equality.
Cow, since Vedic times, has been considered sacred. The majority of scholars explain the veneration for cows among Hindus as it produces the ‘Panchagavya’. Cattle traders today are facing hardships in their businesses and beef eaters, a threat to their lives. The increasing right-wing extremism has led to mob-lynching incidents particularly, targeting Muslims & Dalits. Muzaffarnagar & Dadri incidents have created a fearful environment in India.
The cow veneration as a customary morality comes in conflict with the modern values of right to choose what to eat & which profession to participate in (Article 19(1)(a) & (f)) and right to life with dignity (Article 21). The cattle trading rules were modified in 2017 against the interest of the traders, putting a question mark on secularism. Recently, they have moved the Supreme Court to look into the matter since, it impacts their livelihoods and to safeguard their Constitutional rights.
Homosexuality can be defined as the characteristic/ attribute of being sexually attracted solely to people of one’s own sex. Religion has termed it immoral & science says that it is unnatural. In India, the colonial relic – Section 377 criminalised carnal intercourse against the order of the nature. Also, marriage between two people of the same sex is against our customary morality. In Naz Foundation case, the apex court of the land legalised homosexual intercourse between consenting adults. Human rights activists from across the world lauded this progressive step.
Globally, people from the LGBTQ community are fighting the caged mindset prevalent even today. In US, a baker refused to provide cake at a gay wedding. He cited his customary & religious morality. The US Supreme court sided with the baker saying that he reserves the right to provide or deny service to any customer. This portrays that even in the oldest democracy of the world, religion continues to play a dominant role in people’s life.
Santhara is the Jain ritual of voluntarily fasting unto death (also called as Ichcha Mrityu) with goal of cleansing body & mind. This custom was also called upon in court as being against modern values. But, the judiciary opined that this practice is in accordance with Article 25 (freedom of conscience), Article 21 (right to dignified life includes dignified death) & Article 29 (right to culture). Thus, the judgement was in line with customary morality backed by modern values.
From all that has been said and discussed, customary morality cannot be a guide in modern life. Currently, a top-down approach has been seen i.e. the legislature or the judiciary is showing us the way through legal recourse. As we see in India, a sizeable population has still not accepted the Sabarimala case & Shayara Bano case. World over, the LGBTQ community is demanding for legalising homosexuality. Such societal acceptance to change needs to come from within i.e. the bottom-up approach. Else in law books, homosexuals can get married but they might not be able to buy a home as people still do not respect their individuality.
With time as needs change, our conscience will evolve further. Society is always in motion, always evolving to be better, more inclusive, more responsive version of itself. The educated youth must take the lead in this movement, be courageous to challenge our customary morality and stick to our true modern Constitutional values. Rise to the occasion and debate on such issues. We must welcome modern life by being intellectually open. Only then, the social change will be long-lasting and sustainable.