A nine-judge bench of the Supreme Court of India is currently hearing the Sabarimala reference case, which concerns the interpretation of Articles 25 and 26. One of the key issues that has emerged in the course of these proceedings is the criticism of the term “constitutional morality,” which figured prominently in earlier decisions of the Court, including the Sabarimala judgment, as well as in cases decriminalising homosexuality and adultery. This criticism is largely directed at the perceived indeterminacy of the term and the concern that it permits excessive judicial discretion.
In my view, constitutional morality may not serve as a determinative test for the validity of a statute, but it can nonetheless function as a guiding tool in adjudication. Its relevance lies in aiding the Court to interpret the scope of the term “morality” in the Constitution. All four references to “morality” in the Constitution appear within Fundamental Rights under Part III, and each functions as a ground for restricting the exercise of rights.
Article 19(2) permits reasonable restrictions on the freedom of speech and expression in the interests of decency or morality, while Article 19(4) allows similar restrictions on the freedom of association in the interests of morality. Articles 25(1) and 26, which guarantee the freedom of religion and the right of religious denominations to manage their own affairs, make these rights expressly subject to public order, morality, and health. The Constitution thus makes “morality” unavoidable as a category of adjudication. The question is not whether morality should matter, but how it should be understood. This question assumes particular significance in the present Sabarimala reference, which concerns the interpretation of Articles 25 and 26.
What is “Morality”?
In constitutional terms, “morality” is not a free-floating or purely philosophical idea. It is a normative standard that the Constitution uses to regulate the exercise of rights. The difficulty is that the text does not define it, so its content must be worked out through constitutional interpretation.
Philosophically, there have been many attempts to define or understand morality. In social terms, morality is often understood as a set of accepted norms and rules recognized by a community. However, this understanding becomes unstable once we move beyond homogeneous societies. In a homogeneous society, morality may appear uniform and widely shared. In a heterogeneous society, such uniformity is difficult to sustain.
What counts as moral for the majority may not be so for minorities within a democratic political order. It is precisely in this context that the relationship between morality and rights becomes crucial. Even if a group constitutes a “minuscule minority”, the Constitution is designed to protect its fundamental rights. That is the very purpose of fundamental rights. They are guarantees that apply to everyone, irrespective of numbers.
The central question, then, is whether the State can legitimately curtail fundamental rights on the basis of societal morality, especially when such morality is neither uniform nor universally shared. History offers a sobering answer. Many practices that we today recognize as unjust were once treated as moral, legitimate, and even necessary by the societies in which they operated. Systems such as caste-based exclusion, untouchability, the subordination of women, and the criminalization of same-sex relationships were sustained for long periods by prevailing social norms and were defended in the language of morality.
What this reveals is that societal morality is neither fixed nor inherently just. It is shaped by hierarchy, by dominance, and by historical circumstance. If constitutional rights were to be constrained by such shifting and contingent notions of morality, many of the Constitution's most transformative guarantees would never have taken root. It is precisely because social morality has, at different points, sanctioned injustice that the Constitution places certain values beyond its reach.
It is in this context that Dr. B. R. Ambedkar's reflections are crucial. Dr. Ambedkar was sceptical of treating “morality” as a stable or reliable guide when it is derived from social practice alone. He observed that, in many societies, “morality is always in a flux,” and warned that what is regarded as moral today may not remain so tomorrow (Volume 15 of his Writings). This underscores the instability of social morality and its inability to serve as a consistent standard for regulating rights.
Dr. Ambedkar went further to demonstrate how unjust systems can cloak themselves in the language of morality. Reflecting on caste, he remarked that, “If morality consists of observing restraints without regard to the sense or sensibility of restraints then the caste system may be admitted to be a moral system” (Vol. 9 of his Writings). It shows that morality, when divorced from principles of equality and justice, can legitimize hierarchy rather than challenge it.
His critique of what he called “customary morality” is even more direct. He described it as both insincere and regressive. Customary morality, he argued, lacks a guarantee of purity of motive, because it does not necessarily arise from an internal commitment to justice. More importantly, it operates as “an anchor and a drag.” It holds back not only the average individual but also those who seek to challenge existing structures. In his words, “customary morality is only another name for moral stagnation” (Vol. 3). It freezes society in inherited norms and resists transformation.
For Dr. Ambedkar, therefore, the question was not whether morality should guide social and legal life, but what kind of morality should do so. He urged a conscious and reasoned inquiry “to find out what kind of morality, beliefs, habits and outlook have worked best and have enabled those who possessed them to flourish” (Vol. 1).
These insights provide a powerful foundation for understanding why constitutional adjudication cannot rely on societal morality in any uncritical sense. If “morality” is to function as a ground for restricting or interpreting rights, as it does under Articles 19, 25, and 26, it must be a morality that is consistent with the constitutional vision. It must be anchored not in custom, but in principle. This shift from custom to principle marks the entry point for “constitutional morality”.
In other words, constitutional morality may be understood as a way of articulating a conception of morality that is guided by the principles of the Constitution. It offers a way to interpret “morality” in the Constitution that is faithful to its commitment to equality, dignity, inclusive social order, and the protection of minorities, rather than to the contingencies of social opinion.
What did Dr. Ambedkar mean by “Constitutional Morality”?
Now, when the term “constitutional morality” is discussed, it is often pointed out that the expression was used in the Constituent Assembly in a relatively narrow sense, only to describe the expected conduct of officeholders and the importance of adhering to constitutional conventions. In this context, reference is frequently made to the speech delivered by Dr. Ambedkar on 4 November 1948 in the Constituent Assembly, where he drew upon the writings of George Grote, the English historian of Greece.
Grote defined constitutional morality as “a paramount reverence for the forms of the Constitution”, requiring obedience to authority acting within those forms. At the same time, it includes open speech, legally bounded action, and the freedom to criticize authority, along with a shared confidence that all sides will respect constitutional forms even in political conflict.
This formulation, it is argued, foregrounds institutional commitment. However, this does not exhaust the meaning of “constitutional morality” in Dr. Ambedkar's analysis. There are two other occasions, though less discussed, where Dr. Ambedkar referred to the term “constitutional morality”.
First, in a speech titled “Conditions Necessary for Success of Democracy” in 1952, that is, after the Constitution of India was adopted, Dr. Ambedkar listed constitutional morality as one such mandatory condition. He stated, “we have a Constitution which contains legal provisions, only a skeleton. The flesh of that skeleton is to be found in what we call constitutional morality. However, in England it is called the conventions of the constitution and people must be ready to observe the rules of the game” (Vol. 17.3). At one level, Dr Ambedkar, in the context of England, explains constitutional morality as adherence to conventions and the “rules of the game.” But what about contexts outside England? What is the “flesh” that gives life to the constitutional “skeleton”?
The answer is in the second occasion, when Dr. Ambedkar took the argument further. In 1946, that is, before the Constitution came into force, he acknowledged that “habits of constitutional morality are essential for the maintenance of a constitutional form of government”, but he cautioned that they are not sufficient. He argued, “what matters, most in the consideration of any scheme of democracy and self-government is the social outlook and social philosophy of the governing class, for so long as the governing class retains its means to capture the power to govern, the freedom and the well-being of the servile classes must depend upon the social outlook, the social conscience of the governing class and its philosophy of life” (Vol. 9). In Dr. Ambedkar's own usage, the “governing class” referred to socially dominant, oppressive castes. This analysis shifts the focus from institutions alone to the underlying structure of social power.
Read together, these interventions complicate the claim that “constitutional morality” is confined to conventions or institutional discipline. They suggest that constitutional morality has at least two dimensions: fidelity to constitutional forms, and a commitment to transforming unjust social structures. In other words, constitutional forms do not operate in a vacuum. They are embedded within a society structured by hierarchy and inequality.
If those who wield power are guided by regressive social norms, then even a well-designed constitutional system may fail to secure justice. In such a context, adherence to constitutional forms may coexist with the persistence of exclusion and domination. Constitutional morality, therefore, cannot be reduced to a culture of obedience to rules or conventions. It must also engage with the deeper question of how power is distributed and exercised in society.
How “Constitutional Morality” Can Aid Adjudication
By now, we have understood two things. First, social morality is neither uniform nor always adequate to guide constitutional adjudication. Second, constitutional morality also involves questioning the structures of social power, as Dr. Ambedkar indicated in 1946.
The next step is to clarify the role of “constitutional morality” in constitutional adjudication. As I indicated in the beginning, it need not be treated as an independent or freestanding normative test that determines the validity of laws. Rather, it can be used as an interpretive aid to demonstrate that the term “morality” in the Constitution is not fixed according to the wishes or sentiments of the social majority at any given time.
In this sense, constitutional courts can discuss “constitutional morality” to illuminate the values that animate the constitutional text. When courts do so, they are not imposing a subjective or external moral framework. They are engaging in a principled exercise of interpretation, seeking to give content to the term “morality” that the Constitution itself leaves undefined. If “morality” were understood purely in terms of dominant social opinion, it would collapse into majoritarian morality, thereby undermining the protective function of fundamental rights. Discussions on constitutional morality allow courts to resist that collapse.
At the same time, recognizing the indeterminacy of morality also requires an inclusive approach to interpretation. If morality is, in part, socially produced, then it cannot be constructed solely from the perspective of dominant groups. Courts must remain attentive to multiple social experiences, particularly those of marginalized communities whose voices are often excluded from mainstream moral discourse. Interpreting “morality” in this manner ensures that constitutional remain grounded in a broader, more inclusive understanding of justice.
Seen this way, “constitutional morality” can perform an essential function. It does not expand judicial power. It does not replace established doctrinal tests. It helps define the scope of a constitutional term that would otherwise remain vague and vulnerable to majoritarian capture. It ensures that when courts speak of “morality,” they do so in a manner that is reflected in constitutional language.
Author is an academic associated with JGLS and NALSAR, author of 'The Foresighted Ambedkar: Ideas That Shaped Indian Constitutional Discourse (Penguin, 2024)
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