Constitutional Morality in India

Genesis, Jurisprudence, and Contemporary Significance:

I. Introduction

Constitutional morality stands as a pivotal, yet frequently contested, concept within the landscape of contemporary Indian jurisprudence.¹ It transcends the confines of a mere legal term, representing a profound and deeply ingrained commitment to the foundational values that underpin India’s democratic and secular framework.³ This concept serves as an essential guiding principle, shaping governance, informing judicial interpretation, and influencing societal conduct. It demands an adherence that goes beyond the literal text of the Constitution, urging engagement with its underlying ‘spirit’ or ‘conscience’.³ In recent decades, constitutional morality has gained increasing prominence, frequently invoked in landmark judicial decisions and becoming a focal point in public discourse, particularly in contexts involving the adjudication of fundamental rights, the pursuit of social justice, and the preservation of institutional integrity.¹

This report undertakes a comprehensive examination of constitutional morality within the specific context of India. It commences by tracing its philosophical origins and defining its conceptual contours, particularly through the lens of Dr. B.R. Ambedkar’s seminal contributions during the Constituent Assembly Debates. A critical distinction is drawn between constitutional morality and the often-conflicting notion of popular or societal morality. The report then charts the evolution of this concept within Indian jurisprudence post-independence, analyzing how the judiciary has interpreted and applied it over time. A significant portion is dedicated to dissecting landmark Supreme Court cases where constitutional morality played a central role, detailing the factual matrix, legal issues, the specific reasoning related to constitutional morality, and divergent judicial perspectives. Subsequently, the report assesses the present understanding and application of the concept, examining its role in contemporary legal and political debates surrounding issues such as citizenship and religious freedom. Finally, it explores scholarly perspectives on the future prospects and inherent challenges associated with constitutional morality in India. Throughout this analysis, reliance is placed exclusively on authoritative sources, including academic journals, scholarly books by recognized constitutional experts, official court judgments, Constituent Assembly records, and reports from reputable legal and policy organizations, with rigorous citation provided.

II. The Genesis and Conception of Constitutional Morality

Philosophical Origins: George Grote and the Idea of Constitutional Reverence

The intellectual lineage of the term “constitutional morality” can be traced back to the 19th-century British classicist and historian, George Grote.³ In his extensive work, “A History of Greece,” Grote introduced the concept, defining it as a “paramount reverence for the forms of the Constitution”.³ Grote’s formulation was nuanced; it encompassed not merely passive obedience but an active commitment to a specific mode of political conduct. It required adherence to the established constitutional framework, enforcing obedience to authorities acting within those prescribed forms. Crucially, this reverence was to be combined with robust practices of democratic engagement: the “habit of open speech,” the freedom to act subject only to defined legal controls, and the right to exercise “unrestrained censure” of public authorities regarding their actions.¹³ Furthermore, Grote emphasized the importance of mutual trust among political adversaries, a shared confidence that the constitutional forms would remain sacred regardless of partisan conflict.¹³ He posited that the widespread diffusion of such morality, across the entire political community and not just the majority, was the “indispensable condition” for achieving a government that was simultaneously “free and peaceable”.¹ Grote, however, viewed this phenomenon as historically rare, identifying ancient Athenian democracy, the post-1688 English settlement, and American constitutionalism as perhaps the only instances where elements of genuine constitutional morality had been realized, even if imperfectly or transiently.¹³

Dr. B.R. Ambedkar’s Vision: Insights from the Constituent Assembly Debates (CAD)

It was Dr. B.R. Ambedkar, the Chairman of the Drafting Committee and a principal architect of the Indian Constitution, who introduced Grote’s concept into the Indian constitutional discourse.² In a significant speech delivered to the Constituent Assembly on November 4, 1948, while introducing the Draft Constitution, Ambedkar explicitly invoked Grote and articulated his own perspective on the necessity of constitutional morality for India.¹³ His oft-quoted words from this speech encapsulate his core concern: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic”.¹

This assessment of India’s social landscape, characterized by deep-seated hierarchies and undemocratic practices like the caste system, formed the bedrock of Ambedkar’s emphasis on constitutional morality.¹⁴ He recognized the inherent tension in grafting democratic institutions onto a society steeped in inequality. He feared that without a conscious, deliberate cultivation of adherence to constitutional processes and values—extending beyond mere textual compliance—the nascent democratic structure could easily be subverted by ingrained social prejudices or the impulses of a potentially tyrannical majority.¹⁴ Thus, for Ambedkar, constitutional morality was not an abstract ideal but a pragmatic, indispensable safeguard, actively nurtured, to ensure the survival and flourishing of Indian democracy. This perceived deficit in inherent constitutional morality also led him to justify the inclusion of detailed administrative procedures within the Constitution itself, deeming it imprudent to leave such matters solely to the discretion of future legislatures under the prevailing social conditions.¹⁴

Ambedkar further elaborated that constitutional morality involved the “effective coordination between conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation”.³ He intrinsically linked it to the foundational principles of the Constitution – liberty, equality, and fraternity – viewing them not merely as political aspirations but as the very basis of social democracy.¹⁴ He issued a stark warning that neglecting social and economic inequality would render political democracy a “farce” and potentially lead those suffering from inequality to “blow up the structure” the Assembly had laboriously built.¹⁴ A crucial element of his vision was the insistence on adhering strictly to constitutional methods for achieving social and economic goals. He explicitly advocated for the abandonment of methods prevalent during the independence struggle, such as civil disobedience, non-cooperation, and satyagraha, arguing they had no place in the politics of a self-governing India operating under its own Constitution.¹³ This commitment to constitutional processes underscored his belief in managing differences and conflicts through agreed-upon procedures, recognizing plurality as a core element.¹³

Constitutional Morality vs. Popular Morality: A Foundational Distinction

A central theme in the discourse surrounding constitutional morality is its deliberate differentiation from popular or social morality. Constitutional Morality signifies a deep-seated adherence to the core principles, values, and philosophical underpinnings enshrined within the Constitution.³ These values encompass a wide spectrum, including liberty, equality, fraternity, dignity, social justice, the rule of law, secularism, individual autonomy, the right to privacy, and the imperative of inclusiveness.² It mandates looking beyond the literal text to grasp the Constitution’s ‘spirit’ or ‘soul’, ensuring that governance and societal interactions align with these fundamental ideals.³

In contrast, Popular or Social Morality reflects the prevailing norms, customs, traditions, and the often-majoritarian views within society regarding right and wrong.¹ It is frequently characterized by the judiciary and scholars as being “shifting and subjective,” susceptible to the changing tides of public opinion and potentially embodying societal prejudices.¹

The inherent tension arises because these two forms of morality often clash, particularly when entrenched social norms or majority sentiments condone practices that perpetuate discrimination or infringe upon the fundamental rights guaranteed by the Constitution.¹ In navigating this conflict, the Indian judiciary, especially the Supreme Court, has increasingly articulated a clear hierarchy: constitutional morality must override popular morality when the two diverge, particularly in the realm of fundamental rights adjudication.¹ The landmark Naz Foundation judgment by the Delhi High Court explicitly drew this distinction, asserting that popular morality or public disapproval cannot serve as a valid justification for restricting fundamental rights under Article 21.¹

This consistent judicial prioritization reveals constitutional morality’s function as a vital counter-majoritarian instrument. The Constitution explicitly guarantees fundamental rights, safeguarding individuals and minority groups from potential state overreach and societal prejudice.¹⁰ However, popular morality, reflecting majority viewpoints, can often be inimical to these rights.¹ Contentious cases involving LGBTQ+ rights (Naz Foundation, Navtej Singh Johar), women’s equality (Sabarimala Temple Entry, Joseph Shine, Shayara Bano), and religious freedom frequently place constitutionally guaranteed values in direct opposition to deeply ingrained social norms and traditions.¹ In these sensitive domains, the judiciary has deliberately invoked constitutional morality as the governing standard, using it to invalidate laws, practices, or customs rooted merely in popular sentiment or tradition.¹ Consequently, constitutional morality operates as a judicially wielded shield, protecting fundamental rights and constitutional values from the potential “tyranny of the majority” ¹⁸ that may be embedded within popular morality.

Core Tenets

The essence of constitutional morality is derived from the foundational text of the Constitution itself, particularly the Preamble, Part III (Fundamental Rights), and Part IV (Directive Principles of State Policy).² Its core tenets revolve around:

• Supremacy of the Constitution and Rule of Law: A paramount reverence for the Constitution as the supreme law, ensuring governance operates within legal bounds and not arbitrarily.²
• Liberty and Freedom: Protecting individual freedoms, including freedom of expression, choice, and autonomy.²
• Equality and Non-Discrimination: Ensuring equality before the law and prohibiting discrimination based on religion, race, caste, sex, place of birth, or sexual orientation.⁵
• Fraternity and Social Justice: Promoting harmony, brotherhood, and working towards the eradication of social and economic inequalities.⁴
• Dignity: Upholding the inherent worth and dignity of every individual.⁶
• Secularism: Maintaining the secular character of the state, ensuring equal respect for all religions and separation of religion from state functions where appropriate.³
• Pluralism and Inclusivity: Recognizing and respecting the diversity inherent in Indian society.⁵
• Self-Restraint: A crucial element emphasized by both Grote and Ambedkar, requiring individuals and authorities to operate within constitutional bounds.⁶

III. Judicial Evolution and Interpretive Trends

Early Interpretations and Development Post-Independence

While Dr. Ambedkar eloquently articulated the need for constitutional morality, the concept itself was not extensively debated within the Constituent Assembly, nor was it explicitly codified within the Constitution’s text.² Consequently, in the initial decades following India’s independence, explicit judicial references to “constitutional morality” were relatively infrequent. The early Supreme Court tended towards a more textualist approach to constitutional interpretation, often reflecting the British legal traditions inherited from the pre-independence era.⁶² Foundational cases concerning fundamental rights, such as A.K. Gopalan v. State of Madras (AIR 1950 SC 27), often adopted a narrower, more compartmentalized view of these rights, prioritizing procedural compliance over substantive fairness.³⁸

The jurisprudential landscape began to shift significantly in the 1970s. The landmark judgment in Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225) marked a turning point by establishing the doctrine of the basic structure of the Constitution.⁶ This doctrine, asserting that Parliament’s power to amend the Constitution is not absolute and cannot abrogate its fundamental features (like democracy, secularism, federalism, judicial review), implicitly laid the groundwork for recognizing enduring constitutional values that transcend the literal text – a precursor to the explicit articulation of constitutional morality.⁶ Shortly thereafter, Maneka Gandhi v. Union of India (AIR 1978 SC 597) revolutionized the interpretation of Article 21 (Right to Life and Personal Liberty).¹⁰ The Court held that the “procedure established by law” under Article 21 must be “right, just and fair” and not arbitrary, fanciful, or oppressive, effectively reading principles of natural justice and substantive due process into the provision. This expansive reading of fundamental rights created fertile ground for concepts like constitutional morality, focused on substantive fairness and constitutional values, to gain judicial traction.

The Ascendancy of Constitutional Morality in Rights Adjudication

From the late 2000s onwards, there has been a marked increase in the explicit invocation and elaboration of constitutional morality by the Indian judiciary, particularly the Supreme Court.¹ It has transitioned from being an underlying, often implicit, value system to a distinct legal principle and a key interpretive tool. This ascendancy is particularly evident in cases concerning the scope and application of fundamental rights, especially Article 14 (Equality), Article 15 (Non-discrimination), Article 19 (Freedoms), and Article 21 (Life and Personal Liberty).⁶

Constitutional morality has become central to the idea of “transformative constitutionalism” in India.⁸ This approach views the Constitution not merely as a document establishing governmental structures and limiting state power, but as a proactive instrument for achieving social revolution, dismantling historical hierarchies, and fostering an egalitarian society based on justice, liberty, equality, and fraternity.⁴ Constitutional morality is seen as the driving force behind this transformative project, compelling the state and judiciary to interpret and apply constitutional provisions in a manner that actively promotes these values and corrects historical injustices, even if it means challenging deeply entrenched social norms or practices.⁶

Identifying Key Judicial Trends and Shifts in Application

The judicial engagement with constitutional morality reveals several distinct trends:

1. From Implicit Values to Explicit Doctrine: There has been a clear evolution from relying implicitly on the underlying spirit and values of the Constitution to explicitly identifying, naming, and elaborating “constitutional morality” as a specific, justiciable legal doctrine.² Recent landmark judgments frequently dedicate significant portions to defining and applying this concept.
2. Expanding Scope of Application: Initially invoked primarily in the context of fundamental rights adjudication (individual vs. state), the application of constitutional morality has broadened. It is now increasingly applied to scrutinize the conduct of constitutional functionaries, interpret provisions related to federalism and the separation of powers (as seen in the Govt. of NCT of Delhi case ²⁹), and assess the integrity of democratic institutions and processes.³⁰
3. Strong Linkage with Dignity, Autonomy, and Privacy: A prominent trend is the strong emphasis on constitutional morality as the bedrock for upholding individual dignity, personal autonomy, and the right to privacy.⁶ This is particularly evident in cases concerning sexuality, gender identity, personal choices in relationships, and bodily integrity.
4. Emergence as a Contested Concept: Concurrent with its rise in prominence, constitutional morality has become a subject of significant debate and critique.¹ Concerns are frequently raised about its perceived ambiguity, lack of precise definition, and the potential for subjective judicial interpretation leading to “judicial overreach” into legislative or social domains.¹ The sharp 4:1 split in the Sabarimala judgment, with Justice Indu Malhotra’s strong dissent cautioning against judicial interference in faith based on constitutional morality, vividly exemplifies this contestation.¹

The evolution and dynamic application of constitutional morality underscore its character as a ‘living’ element of Indian constitutionalism. The Constitution itself is often described as a “living document” ⁸, capable of adapting to changing societal needs and values. Constitutional morality, though rooted in the framers’ vision, particularly Ambedkar’s, was not fully delineated at the outset.² Its meaning, scope, and application have been substantially shaped and expanded through judicial interpretation over decades, accelerating in recent years.³ Its application to contemporary issues such as LGBTQ+ rights or the implications of data privacy ⁶⁸, issues largely unforeseen by the framers, demonstrates the judiciary’s effort to employ this doctrine to ensure the Constitution’s core values remain relevant and effective in addressing the complexities of modern Indian society.

IV. Landmark Judicial Pronouncements on Constitutional Morality

The Supreme Court of India has invoked constitutional morality in numerous significant cases, shaping its meaning and application. Analyzing these landmark judgments provides crucial insights into the doctrine’s operationalization.

Table 1: Landmark Cases on Constitutional Morality

Case Name & Citation	Brief Facts	Constitutional Morality Issue(s)	Court’s Reasoning on Constitutional Morality	Notable Judicial Opinions/Dissent
Naz Foundation v. Govt. of NCT of Delhi (2009 SCC OnLine Del 1762) & Navtej Singh Johar v. Union of India ((2018) 10 SCC 1)	Challenge to Section 377 IPC criminalizing consensual same-sex acts between adults.	Violation of Arts 14, 15, 19, 21 based on CM principles (equality, non-discrimination, dignity, privacy, autonomy, freedom of expression). Conflict between CM and popular morality.	Naz (Delhi HC): Explicitly distinguished CM from popular morality; CM must prevail.8 Popular disapproval invalid ground to restrict Art 21.1 Diversity is part of CM.41 <br> Navtej (SC): Affirmed Naz distinction.8 Overruled Suresh Koushal.15 Sec 377 violates Arts 14, 15, 19, 21.6 CM protects rights of “miniscule minorities”.28 Dignity, identity, autonomy central to CM.8 CM prevails over social morality.28	Navtej: Unanimous verdict with four concurring opinions elaborating on CM. Misra CJ and Chandrachud J extensively discussed CM’s supremacy over social morality.28
Indian Young Lawyers Association v. State of Kerala ((2019) 11 SCC 1) (Sabarimala Temple Entry)	Challenge to practice barring women aged 10-50 from Sabarimala temple.	Violation of Arts 14, 15, 25 vs. claim of essential religious practice (Art 26). Role of CM in balancing religious freedom and gender equality/dignity.	Majority (4:1): Practice unconstitutional.45 CM invoked to assert supremacy of fundamental rights (equality, dignity) over discriminatory religious customs.6 ‘Morality’ in Art 25(1) interpreted as CM, not popular morality.26 Rejected religious patriarchy.45 CM requires deeming unlawful actions infringing equality/dignity.6 CM rooted in liberty, equality, fraternity, dignity.27	Dissent (Malhotra J.): Argued courts shouldn’t interfere in essential religious practices based on CM or rationality.55 Emphasized judicial restraint in faith matters. Cautioned against subjective application of CM.11
Joseph Shine v. Union of India ((2018) 2 SCC 189)	Challenge to Section 497 IPC (criminalizing adultery, punishing only the man) & Sec 198(2) CrPC.	Violation of Arts 14, 15, 21 based on CM principles (gender equality, dignity, privacy, autonomy).	Unanimously struck down Sec 497 & 198(2) CrPC.6 Law based on gender stereotypes, treated women as property, violating equality & dignity.6 CM invoked to reject patriarchal norms, emphasize substantive equality, autonomy, dignity in marriage.6 Stated CM, not common/societal morality, must guide law.27	Unanimous verdict with multiple concurring opinions reinforcing the reasoning based on CM, equality, and autonomy.
Shayara Bano v. Union of India ((2017) 9 SCC 1)	Challenge to practice of instant triple talaq (talaq-e-biddat).	Whether triple talaq protected under Art 25 or violated Arts 14, 15, 21. Implicit relevance of CM principles.	Majority (3:2): Practice unconstitutional.6 Found manifestly arbitrary, violating Art 14.27 Reasoning aligns with CM principles of equality and dignity for Muslim women, prioritizing constitutional values over a claimed religious practice deemed arbitrary and harmful.6	Majority opinions focused primarily on manifest arbitrariness and lack of essential religious practice status, though the outcome aligns with CM values. Dissenting opinions emphasized judicial restraint in matters of personal law.
Govt. of NCT of Delhi v. Union of India ((2018) 8 SCC 501)	Dispute over distribution of powers between Delhi Govt. and Lieutenant Governor.	Interpretation of Art 239AA; role of CM in governing inter-institutional relations in federal/quasi-federal structure.	Emphasized CM as crucial for governance, requiring functionaries to abide by constitutional values, federalism, democracy, cooperative governance.29 Linked CM to “constitutional trust” and “constitutional objectivity,” demanding actions within constitutional contours, not political expediency.15 CM acts as check on power, ensures harmony.29	Concurring opinions elaborated on the need for constitutional statesmanship and adherence to CM principles in complex governance arrangements.
K.S. Puttaswamy v. Union of India ((2017) 10 SCC 1)	Challenge related to Aadhaar scheme; determination of Right to Privacy as fundamental right.	Whether privacy is a fundamental right under Art 21; its connection to dignity and autonomy (core CM elements).	Unanimously held Right to Privacy is fundamental under Art 21.29 Intrinsically linked privacy to dignity and autonomy, which are central tenets of constitutional morality.9	Multiple concurring opinions reinforced the foundational importance of privacy for a life lived with dignity, a key concern of CM.

Analysis of Case Studies:

• Naz Foundation / Navtej Singh Johar: These cases are seminal in establishing the explicit precedence of constitutional morality over popular morality in the context of fundamental rights, particularly Article 21. The Delhi High Court in Naz laid the groundwork, and the Supreme Court in Navtej emphatically affirmed this principle, decriminalizing consensual same-sex relations by grounding the decision in constitutional values of equality, dignity, privacy, autonomy, and freedom of expression, rejecting majoritarian disapproval as a valid legal basis.¹
• Indian Young Lawyers Association (Sabarimala): This case demonstrates the application of constitutional morality in the complex intersection of gender equality (Articles 14, 15) and freedom of religion (Articles 25, 26). The majority used constitutional morality to strike down a long-standing religious practice deemed discriminatory against women, interpreting “morality” in Article 25(1) as constitutional morality.⁶ Justice Malhotra’s dissent, however, highlighted the potential pitfalls of applying constitutional morality to deeply held religious beliefs, advocating for judicial restraint and questioning the objective application of the doctrine.¹¹ This case starkly illustrates the contested nature of the concept.
• Joseph Shine: Here, constitutional morality was employed to dismantle a law (Section 497 IPC) rooted in Victorian-era patriarchal notions that treated women as property.⁶ The Court unanimously held that the law violated constitutional morality by infringing upon women’s autonomy, dignity, and equality.⁶ It reaffirmed that laws must align with evolving constitutional values, not outdated societal norms.
• Shayara Bano: While the majority opinions primarily rested on the doctrine of manifest arbitrariness under Article 14, the outcome—striking down instant triple talaq—resonates strongly with the principles of constitutional morality, particularly concerning the dignity and equality of Muslim women.⁶ It demonstrated the Court’s willingness to invalidate personal law practices inconsistent with fundamental rights, implicitly prioritizing constitutional values.
• Govt. of NCT of Delhi: This case extended the application of constitutional morality beyond individual rights to the sphere of governance and institutional conduct. It underscored the need for constitutional functionaries in a complex federal structure to operate based on constitutional trust, objectivity, and adherence to democratic principles, rather than political friction or claims of absolute power.¹⁵

These cases collectively illustrate the judiciary’s increasing reliance on constitutional morality as a dynamic principle to interpret the Constitution, protect fundamental rights against societal prejudices, promote gender justice, and ensure adherence to constitutional values in governance.

V. Constitutional Morality in Contemporary Discourse and Practice

Current Judicial Application and Understanding

Constitutional morality remains a frequently invoked doctrine in contemporary Indian judicial discourse.² Its application continues to shape interpretations of fundamental rights and constitutional principles. However, its precise definition, scope, and limits remain subjects of ongoing debate both within and outside the judiciary. Some observers note its potential elevation to a status akin to a “second basic structure doctrine,” used to test the validity of legislative and executive actions against fundamental constitutional values.²⁵

This prominence has also invited criticism. A significant concern revolves around the doctrine’s perceived ambiguity and lack of concrete definition within the constitutional text, leading to fears of subjective application by individual judges.² Critics argue that this ambiguity grants excessive interpretive power to the judiciary, potentially leading to “judicial overreach” where courts substitute their own moral judgments for those of elected legislatures or established social practices.¹ This critique was notably voiced by former Attorney General K.K. Venugopal, who characterized constitutional morality as a potentially “dangerous weapon” due to its interpretive flexibility.¹² The dissenting opinion in the Sabarimala case also reflected this apprehension about judicial intervention in sensitive matters based on a contested understanding of constitutional morality.¹¹

Role in Addressing Contemporary Challenges

Constitutional morality is increasingly invoked in debates surrounding major contemporary legal and political challenges in India:

• Citizenship Amendment Act (CAA), 2019: A primary line of challenge against the CAA contends that it violates constitutional morality by introducing religion as a criterion for granting citizenship benefits to migrants from specific neighboring countries (Pakistan, Bangladesh, Afghanistan), while explicitly excluding Muslims.⁴⁶ Critics argue this differentiation based on religion fundamentally undermines India’s secular fabric, a core tenet of constitutional morality, and violates the guarantee of equality under Article 14.⁴⁶ Article 14 guarantees equality before the law and equal protection of laws to “any person” within India’s territory, not just citizens, and requires any classification to be based on intelligible differentia having a rational nexus with the object sought to be achieved.⁵¹ The argument posits that excluding Muslims and migrants from other neighboring countries (like Sri Lanka or Myanmar, where minorities also face persecution) lacks a rational basis consistent with constitutional morality’s principles of non-arbitrariness and equal concern.⁵¹ The potential combined effect of the CAA with a nationwide National Register of Citizens (NRC) has further fueled concerns about violating constitutional morality by potentially disenfranchising vulnerable populations based on religious identity.⁵²
• Hijab Controversy (Karnataka): The controversy surrounding the ban on wearing hijabs in certain educational institutions in Karnataka brought constitutional morality into sharp focus, pitting claims of religious freedom (Article 25), freedom of expression (Article 19), privacy and dignity (Article 21), and non-discrimination (Articles 14, 15) against state arguments emphasizing uniformity, discipline, and public order.⁴⁸ Petitioners challenging the ban invoked constitutional morality, arguing it protects individual autonomy, dignity, pluralism, and the right to express one’s identity, including religious identity, without coercive assimilation.⁴⁸ Conversely, arguments supporting the ban sometimes framed the issue through the lens of the Essential Religious Practices (ERP) test or invoked concepts like ‘constitutional morality’ and ‘individual dignity’ to argue against perceived ‘compulsions of dress’, highlighting the contested interpretations of the doctrine itself.⁴⁸ The split verdict delivered by the Supreme Court bench hearing the appeals underscores the deep divisions and the unresolved nature of how constitutional morality applies in such complex socio-legal conflicts involving intersecting rights.⁴⁸
• Institutional Integrity: Beyond specific rights issues, constitutional morality is relevant to the functioning and integrity of constitutional institutions. Concerns have been raised regarding the adherence to constitutional norms by various functionaries, including Governors potentially acting based on political considerations rather than constitutional propriety ⁶⁶, and questions surrounding judicial independence and impartiality.³⁸ The Govt. of NCT of Delhi judgment explicitly stressed the role of constitutional morality and trust in ensuring harmonious and effective governance within the constitutional framework.²⁵ Erosion of this trust can undermine the legitimacy and efficacy of democratic institutions.³⁰

Analysis of Legal and Political Debates

The application of constitutional morality, particularly in sensitive areas like citizenship and religious expression, reveals that it is not merely a neutral legal principle operating in a vacuum. It has become a significant site of political and ideological contestation in contemporary India. Constitutional morality embodies core values like secularism, equality, and individual liberty, which are central to the vision of India enshrined in the Constitution.² Recent legislative actions like the CAA and socio-political controversies such as the Hijab ban are perceived by critics as directly challenging these foundational values.⁴⁶

Interestingly, both proponents and opponents of these measures often frame their arguments by invoking constitutional principles, albeit leading to vastly different interpretations and conclusions.⁵⁸ The judiciary’s deployment of constitutional morality in these highly charged contexts is intensely scrutinized and often meets with political resistance or accusations of bias.¹² This dynamic indicates that constitutional morality has transcended the purely legal domain to become a key battleground in the broader political struggle over defining India’s constitutional identity, the balance between individual rights and collective norms, and the future direction of the republic, especially amidst prevailing majoritarian political trends.¹ The role of civil society and public discourse in shaping interpretations and responding to judicial applications of constitutional morality also remains crucial.¹⁹

VI. Future Directions: Prospects and Challenges

Scholarly Perspectives on the Future Role

Academic and expert perspectives on the future trajectory of constitutional morality in India are varied, reflecting both its potential and its perceived perils. Many scholars see it as a vital force for continuing the project of transformative constitutionalism, enabling the judiciary to address deep-seated social inequalities and effect meaningful social change in line with the Constitution’s egalitarian vision.² It is viewed as an essential tool for safeguarding the rights of minorities and vulnerable individuals against potential state overreach or the imposition of majoritarian norms, thereby upholding the Constitution’s commitment to pluralism and individual freedom.⁴ Furthermore, its role in maintaining the rule of law, ensuring the accountability of constitutional functionaries, and preserving the integrity of democratic institutions is considered crucial for the health of Indian democracy.¹

Potential for Shaping Governance and Judicial Interpretation

Looking ahead, constitutional morality holds the potential to significantly influence future judicial interpretations across various domains, including the scope of fundamental rights, the dynamics of federalism, and the application of the separation of powers doctrine.³⁰ As society grapples with new challenges posed by technological advancements, such as data privacy concerns related to large-scale data collection projects like Aadhaar ⁶⁸ or the implications of artificial intelligence ³⁸, constitutional morality could provide a normative framework for developing jurisprudence grounded in fundamental values like dignity, autonomy, and fairness. However, realizing its positive potential hinges not only on judicial application but also on the broader societal embrace of constitutional values. Echoing Dr. Ambedkar’s original insight, the cultivation of constitutional morality among the citizenry through education and public awareness remains a critical, ongoing task.¹

Critiques and Challenges

Despite its potential, the doctrine of constitutional morality faces significant critiques and challenges that temper optimistic projections:

• Ambiguity and Lack of Definition: A persistent criticism is the doctrine’s lack of a precise, universally accepted definition, either in the Constitution or through consistent judicial articulation. This inherent vagueness opens the door to subjective interpretations and inconsistency.²
• Judicial Overreach Concerns: The broad interpretive scope afforded by constitutional morality fuels concerns about judicial overreach. Critics argue that judges may use it to impose their personal or ideological preferences, thereby encroaching upon the domain of the elected legislature and undermining democratic accountability.¹
• Potential for Political Instrumentalization: There is a risk that the concept, due to its malleability, could be selectively invoked or appropriated by various actors—including the judiciary, the executive, and political groups—to legitimize particular agendas, rather than serving as a neutral principle of constitutional interpretation.⁶⁶
• Tension with Majoritarianism: As a fundamentally counter-majoritarian principle designed to protect constitutional values against popular sentiment, constitutional morality inherently exists in tension with populist or majoritarian political forces. This friction is likely to persist and potentially intensify.¹
• Need for Stronger Jurisprudential Foundations: Some scholars argue for the development of a more robust and clearly defined jurisprudential basis for constitutional morality to strengthen its legitimacy and defend it against charges of arbitrariness or subjectivity.³⁸

This highlights a central paradox: constitutional morality is championed as essential for upholding the democratic and rights-based foundation of the Indian Constitution, yet its primary mode of development and application—through judicial interpretation of an undefined concept—simultaneously raises fundamental questions about democratic legitimacy, the separation of powers, and the potential for judicial supremacy.¹ Navigating this paradox—ensuring the doctrine serves its intended purpose of upholding constitutional values without undermining the democratic framework it seeks to protect—remains a critical challenge for the future of Indian constitutionalism.

VII. Conclusion

The journey of constitutional morality in India, from its conceptualization by Dr. B.R. Ambedkar drawing on the work of George Grote, to its contemporary status as a prominent, albeit contested, doctrine in judicial interpretation, reflects the dynamic evolution of Indian constitutionalism itself. Rooted in a “paramount reverence for the forms of the Constitution” and an adherence to its foundational values—liberty, equality, fraternity, dignity, secularism, and the rule of law—it fundamentally demands prioritizing these constitutional tenets over prevailing societal norms or popular morality, especially when they conflict. Ambedkar’s prescient warning that constitutional morality is “not a natural sentiment” but must be actively “cultivated” remains profoundly relevant.¹

The Indian judiciary, particularly the Supreme Court, has increasingly embraced constitutional morality as a vital interpretive tool, employing it to strike down discriminatory laws and practices, expand the horizons of fundamental rights, uphold principles of gender justice and individual autonomy, and call for adherence to constitutional propriety in governance. Landmark cases concerning LGBTQ+ rights, women’s entry into religious spaces, the decriminalization of adultery, and the distribution of governmental powers bear testament to its growing influence.

However, this ascendancy has not been without challenge. Concerns regarding its ambiguity, potential for subjective judicial application, and the consequent risk of judicial overreach persist. Its counter-majoritarian nature inevitably creates friction in a political environment marked by majoritarian tendencies. The application of constitutional morality to deeply divisive contemporary issues like the Citizenship Amendment Act and the Hijab controversy underscores its role as a site of intense legal and political contestation over the very meaning and direction of the Indian constitutional project.

Ultimately, constitutional morality serves as a crucial normative compass for navigating the complexities of India’s diverse and evolving democracy. Its enduring significance lies in its potential to act as a bulwark for fundamental rights, a catalyst for social transformation towards a more just and equitable society, and a standard for ensuring the accountability and integrity of constitutional institutions. Yet, its effective and legitimate application requires careful judicial balancing, principled reasoning, and, crucially, a continuous societal effort to internalize and practice the values it represents. The task of cultivating this sentiment, as envisioned by Ambedkar, remains an ongoing imperative for the sustained health and vibrancy of India’s constitutional democracy.

VIII. Bibliography

Cases (Supreme Court of India)

• A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
• Govt. of NCT of Delhi v. Union of India, (2018) 8 SCC 501.
• Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.
• Joseph Shine v. Union of India, (2018) 2 SCC 189.
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
• Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.
• Maneka Gandhi v. Union of India, AIR 1978 SC 597.
• Manoj Narula v. Union of India, W.P. (C) No. 289 of 2005. ¹⁵
• Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
• S. Mahendran v. The Secretary, Travancore Devaswom Board, AIR 1993 Ker 42. ⁷¹
• S.R. Bommai v. Union of India, AIR 1994 SC 1918. ⁴⁶
• Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853. ²⁷
• Shayara Bano v. Union of India, (2017) 9 SCC 1.
• Shrimat Balasaheb Patil v Speaker, Karnataka Legislative Assembly, (2020) 2 SCC 595. ²⁶
• Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. ¹⁵

Cases (High Courts)

• Naz Foundation v. Govt. of NCT of Delhi, (2009) SCC OnLine Del 1762.

Constituent Assembly Debates (CAD)

• Constituent Assembly Debates, Official Report, Vol. VII, 4th November 1948, pp. 31-44. ¹⁴
• Constituent Assembly Debates, Official Report, Vol. VII, 1948. ¹⁷
• Constituent Assembly Debates, Official Report, Vol. VII, 4 January 1949, pp. 1261-1263. ¹⁷
• Constituent Assembly Debates, Official Report, Vol. VIII, 25 May 1949, p. 303. ¹⁷
• Constituent Assembly Debates, Official Report, Vol. VIII, 26 May 1949, p. 318. ¹⁷
• Constituent Assembly Debates, Official Report, November 25, 1949. ¹⁹

Books

• Austin, Granville. The Indian Constitution: Cornerstone of a Nation. Oxford University Press, 1966. ⁴⁰
• Austin, Granville. Working a Democratic Constitution: The Indian Experience. Oxford University Press, 1999/2000. ⁴
• Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta, eds. The Oxford Handbook of the Indian Constitution. Oxford University Press, 2016. ⁸²

Academic Journal Articles, Law Reviews, and Book Chapters

• Béteille, Andre. “Constitutional Morality”. Economic and Political Weekly, Vol. 43, No. 40, Oct. 4-10, 2008, pp. 35-42. ¹²
• Benny, Helan and Lavina Laju. “Doctrine of Constitutional Morality in the Context of Indian Legal System: A Transformative Tool.” International Journal of Legal Science and Innovation, Vol. III, Issue II, 2021. ⁸
• Chakravarti, Ananya. “Constitutional Morality in the Context of Indian Legal System.” International Journal of Law Management & Humanities, Vol. 3, Issue 2, 2020, pp. 1064-1071. ²⁴
• Chaudhary, Arushi. “‘What Use is Poetry?’ Excavating Tongues of Justice Around Navtej Singh Johar v. Union of India.” NLSIR, Vol. 31, Issue 2, 2019. ⁷⁰
• Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta. “Locating Indian Constitutionalism.” In The Oxford Handbook of the Indian Constitution, edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta. Oxford University Press, 2016. ²²
• Gauri, Varun & Poorvi Chitalkar. “The Distributional Impact of Public Interest Litigation in the Indian Supreme Court—an Update.” Conference paper, Sept. 25–26, 2015. ⁹⁰
• Hazard, Geoffrey C. Jr. “Law, Morals, and Ethics.” Faculty Scholarship Series Paper 2372, 1995. ¹⁶
• Jaiswal, Ayushi, Santosh Kumar Singh, and Janmejay Singh. “Constitutional Morality in India: A Pillar of Justice and Democratic Values.” Library Progress International, Vol. 44, No. 3, Jul-Dec 2024, pp. 28758-28768. ⁶
• Jayal, Niraja Gopal. “The Communalisation of Citizenship: The Citizenship Amendment Act, 2019 and India’s Constitutional Secularism.” University of Oxford Human Rights Hub Journal, Vol. 3, No. 1, 2020, pp. 95-118. ⁵⁸
• Jayal, Niraja Gopal. “Reconfiguring Citizenship in Contemporary India.” Carnegie Endowment for International Peace, 2022. ⁷⁷
• Kannabiran, Kalpana. “Challenging the Hijab Ban in India: Plural Embodiment and Secular Constitutionalism.” International Journal of Law in Context, Vol. 19, Issue 4, Dec 2023, pp. 470-487. ⁵³
• Kumar, Ajay. “Constitutional Morality: An Analysis of Judicial Trends in India.” Journal of the Indian Law Institute, Vol. 63, No. 1, Jan-Mar 2021, pp. 111-124. ²
• Mehta, Pratap Bhanu. “What Is Constitutional Morality?” Seminar, No. 615, November 2010. ¹³
• Nagarwal, Narender. “The Citizenship Amendment Act 2019: An Insight through Constitutional and Secularism Perspective.” Space and Culture, India, Vol. 9, No. 3, 2021, pp. 8-20. ⁵⁹
• Nussbaum, Martha C. “Ambedkar’s Constitution: Promoting Inclusion, Opposing Majority Tyranny.” In Assessing Constitutional Performance, edited by Tom Ginsburg and Aziz Z. Huq. Cambridge University Press, 2016, pp. 295-336. ¹⁸
• Satalkar, Sudershan. “Living Originalism and Moral Interpretation: Is it the Answer to Long-Standing Questions in the Indian Constitutional Sphere?” SCC Online Blog, OpEd 11, 2022. ³⁴
• Sen, Arup Kumar. “On ‘Constitutional Morality’.” Economic and Political Weekly, Vol. 52, Issue No. 21, 27 May 2017. ⁹³
• Sharma, Rohit. “The Public and Constitutional Morality Conundrum: A Case-Note on the Naz Foundation Judgment.” NUJS Law Review, Vol. 2, No. 3, 2009, pp. 445-454. ³⁷
• Sharma, Rohit. “Constitutional Morality and the Relationship Between the Legislature and the Judiciary.” Manupatra Articles, 2010. ⁴⁰
• Singh, Vikramjit. “Re-thinking Criminalisable Harm in India: Constitutional Morality as a Restraint on Criminalisation.” NUJS Law Review, Vol. 6, No. 1&2, 2013, pp. 73-90. ⁴¹
• Venugopal, K. K. “Constitutional Morality.” In The Constitution of India: Celebrating and Calibrating 70 Years. Eastern Book Company, 2020. ³⁴
• Zia, Farhan. “Comparative Study of Constitutional Morality and Its Impact on Religious Freedom in India.” LLM Thesis, Central European University, 2023. ⁶⁷

Reports and Web Sources

• Ambedkar, B.R. Writings and Speeches, Vol. 13. Dr. Babasaheb Ambedkar Source Material Publication Committee, Government of Maharashtra, 1994. (Accessed via MEA website) ¹⁴
• Bhat, Gautum. “The constitutional case against the Citizenship Amendment Bill.” Economic and Political Weekly 54(3):12-14, January 2019. ⁷⁵
• Countercurrents.org. “To Protect The Constitutional Morality, We Must Resist Attempts At Drafting Of A New Constitution.” August 2023. ⁶⁴
• Global Freedom of Expression, Columbia University. “Navtej Singh Johar v. Union of India.” Case Analysis. ⁴³
• India Seminar. (Various articles citing Mehta, etc.) ²
• Indian Constitutional Law and Philosophy Blog (IndConLawPhil). (Various posts including guest posts on Navtej Johar, Hijab case analysis) ²⁸
• Law Commission of India..⁷
• Manupatra Articles. (Various articles, e.g., on Social vs Constitutional Morality, CAA) ¹⁵
• National Judicial Academy (NJA), India. Concluded Programmes Materials (e.g., P-1363, P-1405). ²⁶
• Parliament Library (eparlib.nic.in). Constituent Assembly Debates; Eminent Parliamentarians Series (Ambedkar). ⁵⁶
• SCC Online Blog ³⁴
• SCObserver.in. Case Briefs and Summaries (e.g., Naz Foundation, Section 6A Citizenship Act). ⁹⁷
• The Hindu. ⁶⁵
• The Wire. ⁸¹

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