From Morality to Constitutional Morality
A common genealogy does not require a common identity. A large family may contain distinct branches, each retaining its ancestral lineage while acquiring its own character, boundaries and significance. Likewise, constitutional morality may be genealogically descended from morality without being reducible to morality in its undifferentiated form. Its constitutional setting gives it a distinct normative identity.
However, the legal partition between morality and constitutional morality does not replace moral disagreement with certainty. It relocates that disagreement within a constitutional domain, where competing interpretations of constitutional morality can themselves exist.
Morality can be understood, in jurisprudential terms, more broadly than a single subjective standard. H.L.A. Hart adopted a broad conception of morality that included personal morality, social morality, and critical morality, thereby recognizing that moral standards may be both individually held and socially shared, and capable of critical assessment.
Morality, if conceptualized, is largely the product of one's social conditioning, inner conflict and moral compass. This makes it a largely subjective concept, what can be moral to one might be immoral to another.
Thus, a thief might justify his crime by appeals to survival and necessity, while the privileged might abuse their power and defend it within their own moral code. This illustrates the difficulty inherent in relying upon morality alone in a plural society.
Morality, Popular Morality and Public Morality
Popular morality reflects the prevailing beliefs, traditions, and ethical values of the majority of the population, which may or may not align with constitutional ideals. Public morality refers to the moral standards expected in public life and professional settings, often codified in laws and regulations.
Public morality has also appeared in constitutional adjudication, where the law expressly permits moral considerations. In Ranjit D. Udeshi v. State of Maharashtra, the Supreme Court held that public decency and morality are relevant to the constitutional limitation on freedom of speech under Article 19(2). In Navtej Singh Johar v. Union of India (2018), however, the Court distinguished constitutional morality from public morality. It refused to allow prevailing social attitudes to determine the validity of criminal law.
There has always been a debate between constitutional morality and popular morality. However, the judiciary has increasingly invoked constitutional morality to protect individuals' fundamental rights and ensure that the rule of law prevails over aggressive popular norms.
The Genealogy of Constitutional Morality
The term 'Constitutional Morality' was first used by the English historian George Grote. He described it as popular sovereignty based on freedom and self-restraint. It also meant that citizens had the right to criticize public officials. This highlighted the limited power of public officials and their duty to abide by and respect the Constitution.
According to him, the term Constitutional Morality is the "paramount reverence for the forms of the Constitution" of the land. (In India, Dr B.R. Ambedkar used this term in the Constituent Assembly debate of 4 November 1948 to justify the importance and need for including the administrative powers and functions of the legislature.
On the whole, while drawing on the work of George Grote, Ambedkar defined Constitutional morality as the "Effective coordination between the conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation amongst the various groups working for the realization of their ends at any cost."
From Constitutional Text to Constitutional Conscience
The principles asserted by the Court in A.K. Gopalan were finally laid to rest in Maneka Gandhi v. Union of India (AIR 1978 SC 597).
In this case, the Government of India impounded the passport of Maneka Gandhi under Section 10(3)(c) of the Passport Act, 1967, "in public interest". The petitioner thereupon filed a writ petition challenging the government's action in impounding her passport and declining to provide reasons for doing so.
It was observed by a seven-judge Bench of the Supreme Court that the procedure envisioned by Article 21 must be just and fair and not arbitrary, fanciful or oppressive. A procedure cannot go against the principles of natural justice. If any law passed by the legislature infringes the fundamental rights of citizens, that law can be declared void by the judiciary. The Court supported the approach adopted in R.C. Cooper (1970) and held that Articles 14, 19 and 21 are connected and cannot be treated as 'watertight compartments'. This judgment was in stark contrast to the A.K. Gopalan judgment and gave the widest possible interpretation to Article 21. The Court thereby read substantive requirements of fairness and non-arbitrariness into the expression "procedure established by law".
The case belongs to this genealogy because reading fairness and non-arbitrariness into "procedure established by law" was itself an act of moral reasoning written into constitutional text. It illustrates how constitutional values are used to give substantive meaning to formal constitutional guarantees.
This development is significant for the idea of constitutional morality because it demonstrates that the Constitution is understood not merely as a collection of isolated provisions but as a coherent normative framework. The protection of liberty consequently depends not only upon formal legal procedure but also upon the constitutional values that give that procedure its legitimacy.
Basic Structure and Constitutional Morality
The Basic Structure Doctrine serves as the constitutional conscience, safeguarding foundational principles and constitutional morality. It prevents both legislative authoritarianism and majoritarian excesses.
In the words of legal scholar Upendra Baxi, "Without the basic structure, we end up with constitutions without constitutionalism." Through this doctrine, the Constitution of India is not just a statute rather it is a living charter of liberty, sustained by its moral core and judicial vigilance.
The relationship between Basic Structure and Constitutional Morality may therefore be understood in terms of their shared goal. Constitutional morality provides the ethical and normative standard. On the other hand, the basic structure provides a legal shield that allows courts to prevent constitutional amendments from destroying foundational features of the constitutional order. Together, they ensure that democratic governance respects human rights and does not cave in to temporary popular or social prejudices.
Constitutional Morality Against Popular Morality
Archaic Section 377 could not survive scrutiny under these principles. While observing the Navtej Singh Johar case, the then Chief Justice of India, Justice Dipak Misra, observed that the concept of Constitutional morality doesn't restrict itself to the literal texts and provisions of the Constitution. The idea is not the 'mere observance of the core principles of constitutionalism'. Instead, it paves the way for a more pluralistic and inclusive society.
Our Constitution of India aims to secure our fundamental rights and foster the spirit of growth and development among citizens. When our Indian Constitution was adopted, the concept of Constitutional morality was envisaged so that all three organs of government, i.e., the Judiciary, Legislature, and Executive, would practice it to keep it alive and maintain the heterogeneous fabric of society.
Any attempts to make society uniform, homogeneous, with a standardized philosophy would undoubtedly violate the principle of Constitutional morality. Hence, it becomes the duty of the organs of the State to ensure that majoritarian principles do not affect policy decisions in a manner that excludes one group and violates its rights.
In Government of NCT of Delhi v. Union of India and Ors. the Court observed that "Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse."
The Courts must uphold the principles emerging from the Constitution and decide according to the law, not according to society. It is the duty of courts not to be influenced by the majoritarian views prevailing in society. Section 377 of the Indian Penal Code challenged notions of social morality and popular opinion that lacked legal validity. Anything that is not legally valid should not be allowed to crush the spirit of Constitutional morality.
Constitutional Morality in Judicial Practice: The Internal Diversity of Constitutional Morality
In Navtej Singh Johar v. Union of India (2018), the Supreme Court distinguished between constitutional morality and public morality. It held that constitutional morality reflects the ideal of justice as an overriding factor in the struggle for existence, rather than any notion of social acceptance. The Court thus struck down Section 377 of the Indian Penal Code, which made consensual homosexual conduct a criminal offence.
In Joseph Shine v. Union of India (2019), upholding the right to gender equality and the right to equality, the Supreme Court struck down Section 497 of the Indian Penal Code, which made adultery a crime. The Supreme Court noted that constitutional morality must guide the law, not the State's common morality, at any time in history.
While it is largely true that the Indian judiciary has actively resisted aligning its decisions with popular morality, it remains profoundly anchored in constitutional morality. While the Constituent Assembly balanced societal values with legal principles, the Supreme Court of India has explicitly ruled that majoritarian views, traditions and public sentiment cannot dictate fundamental rights. Instead, the judiciary restricts itself from being swayed by popular morality by using constitutional morality as its primary legal shield.
Yet this raises another question. If constitutional morality itself is capable of interpretation, does the legal partition really replace moral disagreement with certainty? The Sabarimala case suggests that it does not.
The Sabarimala Case did not feature a debate merely between constitutional morality and popular morality. Instead, it revealed an internal conflict between two different interpretations of constitutional morality itself. The Supreme Court ruled that the exclusion of women between the ages of 10–50 years from the Sabarimala temple violated principles of constitutional equality and dignity. The Court considered the morality contemplated by Articles 25 and 26 in the context of constitutional values rather than simply deferring to popular morality.
The Majority View, which may be understood, in the framing adopted here, as reflecting a progressive or transformative conception of constitutional morality, interpreted constitutional morality through the lens of individual dignity, non-discrimination and gender equality, particularly under Articles 14 and 15.
The majority reasoned that the exclusion of women of a certain age group from the temple on the basis of biology could not be reconciled with the constitutional promise of equality and dignity.
The Dissenting View of Justice Indu Malhotra, on the other hand, may be understood as reflecting a more pluralistic and institutionally restrained conception of constitutional morality. Her approach placed greater emphasis on religious freedom, pluralism and the autonomy of religious denominations under Articles 25 and 26. She cautioned against the Court determining the validity of religious practices merely from the perspective of those who do not subscribe to them and emphasized the need for judicial restraint in matters of faith.
This distinction is important to the larger argument of this article. In practice, constitutional morality itself can leave a wide scope for interpretation. If constitutional morality were in itself narrow or rigid, not merely in its distinction from ordinary morality, but in all possible senses, the larger Benches of constitutional courts would often be expected to arrive at complete agreement, leaving little room for legitimate dissenting opinions.
The Sabarimala case illustrates precisely this difficulty. Justice Indu Malhotra, the sole dissenting judge, reached a conclusion different from that of the majority regarding the exclusion of women from the temple. Her understanding of constitutional morality placed greater emphasis on religious autonomy, pluralism and judicial restraint, whereas the majority interpreted constitutional morality predominantly through the principles of equality, dignity and non-discrimination. Both approaches, however, claimed their legitimacy from the Constitution itself.
Thus, the legal partition between morality and constitutional morality does not produce a single, immutable conception of what constitutional morality must mean. Rather, it establishes a constitutional domain within which competing interpretations must themselves be justified. Constitutional morality is therefore distinct from personal, popular, or social morality, but it is not necessarily immune from disagreement.
Perhaps this is precisely what makes constitutional morality constitutional. Its strength does not lie in being a rigid moral code that produces only one answer in every circumstance. Its strength lies in providing a common constitutional framework within which competing understandings of justice, liberty, equality, dignity, fraternity, religious freedom and institutional autonomy can be contested.
The Constitution, therefore, does not require a society to possess one uniform morality. In a plural and heterogeneous society, that would itself be antithetical to the constitutional project. It requires that competing moralities remain subject to a common constitutional order.
The legal partition, therefore, is not a severance from morality. It is a discipline imposed upon it.
Why this matters is that constitutional morality does not eliminate disagreement, rather, it gives that disagreement a common constitutional language. In a plural society, the legitimacy of constitutional adjudication lies not in producing one uncontested morality, but in requiring competing moral claims to answer to the Constitution.
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