The Indian Constitution is more than a legal document; it is an aspirational text that seeks to transform a deeply hierarchical and fragmented society into a democratic polity based on equality, liberty, fraternity, and justice. Among the interpretive tools used by the Supreme Court of India, the concept of constitutional morality has emerged as a pivotal doctrine in advancing individual rights. Yet its increasing reliance has generated a sustained debate: should courts privilege constitutional morality even at the expense of social morality, which reflects prevailing customs, traditions, and public opinion?
This debate is not merely theoretical. It manifests in high-stakes controversies: women’s entry into temples, recognition of same-sex relationships, criminalization of adultery, and the right to privacy. Each of these cases reflects the clash between a progressive constitutional vision and deeply embedded social values. This article explores the foundations, judicial interpretations, criticisms, and future of constitutional morality in India, while situating it within comparative constitutional experiences.
Theoretical Foundations
Ambedkar and the Constituent Assembly
Dr. B.R. Ambedkar, often described as the chief architect of the Constitution, introduced the phrase “constitutional morality” during the Constituent Assembly Debates. He borrowed it from George Grote, a historian of Greece, who defined it as “a paramount reverence for the forms of the Constitution, enforcing obedience to authority and acting under and within these forms.”¹
Ambedkar, however, gave the term a distinctly Indian meaning. He warned that Indian society, fractured by caste and religion, lacked the social foundations to sustain democracy. Constitutional morality, he argued, was not innate but had to be “cultivated.”² Unless citizens internalized respect for constitutional forms and values, democracy would degenerate into chaos or majoritarian tyranny. His warning remains prescient today: “Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”³
Ambedkar saw constitutional morality as a safeguard against the dominance of social morality rooted in caste and patriarchy. For him, constitutional morality meant fidelity to justice, equality, and liberty even when they conflicted with prevailing customs.
Philosophical Underpinnings
From a theoretical standpoint, the tension between constitutional and social morality echoes classic jurisprudential debates:
- Rawlsian justice: John Rawls’s idea of justice as fairness, emphasizing equal basic liberties and fair equality of opportunity, resonates with constitutional morality’s universalism.
- Dworkin’s rights as trumps: Ronald Dworkin argued that individual rights should function as “trumps” against collective preferences, a philosophy mirrored in Indian courts’ reliance on constitutional morality to protect minorities.
- Legal positivism vs. natural law: Social morality aligns with legal positivism’s emphasis on law as a reflection of prevailing norms, whereas constitutional morality resembles natural law’s emphasis on higher principles of justice.
Social Morality in the Indian Context
Social morality is neither static nor monolithic. It is shaped by caste practices, religious dogmas, patriarchal traditions, and cultural conventions. Often, it resists reform, privileging continuity over change. Examples include the defense of practices like sati, child marriage, untouchability, and gender-based exclusion from religious spaces. While social morality reflects democratic majoritarianism, it can perpetuate systemic discrimination.
Judicial Interpretation of Constitutional Morality
The Supreme Court has increasingly employed constitutional morality to reconcile constitutional ideals with entrenched social practices.
1. Naz Foundation v. Govt of NCT of Delhi (2009)
In the Naz Foundation, the Delhi High Court decriminalized consensual homosexual acts under Section 377 IPC. The Court held that constitutional morality, not popular morality, should guide constitutional interpretation. ⁴ It emphasized dignity and privacy as essential rights. Although this judgment was overturned in Suresh Kumar Koushal v. Naz Foundation (2013)⁵—where the Supreme Court infamously remarked that the LGBTQ+ community constituted only a “minuscule minority”—the seeds of constitutional morality had been sown.
2. Navtej Singh Johar v. Union of India (2018)
In a landmark judgment, a five-judge bench unanimously struck down Section 377 IPC to the extent it criminalized consensual homosexual acts. Justice Chandrachud stressed that “constitutional morality cannot be martyred at the altar of social morality.”⁶ Justice Indu Malhotra poignantly declared that “history owes an apology” to the LGBTQ+ community. The Court held that dignity, autonomy, and equality were non-negotiable aspects of constitutional morality, regardless of prevailing social prejudice.
3. Indian Young Lawyers Association v. State of Kerala (2018) – Sabarimala Case
The Court invalidated the exclusion of menstruating-age women from the Sabarimala temple. Justice Chandrachud described the practice as entrenched in patriarchy, incompatible with constitutional morality. Justice Nariman held that customs contrary to constitutional rights cannot be shielded under religious freedom.⁷ However, Justice Indu Malhotra’s dissent warned against courts interfering in matters of faith, illustrating the contentiousness of applying constitutional morality against religious practices.
The Sabarimala case highlights the tension: while constitutional morality favors gender equality, social morality defends religious custom. The verdict triggered widespread protests and review petitions, underscoring the social resistance constitutional morality can provoke.
4. Joseph Shine v. Union of India (2019)
The Court struck down Section 497 IPC, which criminalized adultery, holding it to be discriminatory and patriarchal. Justice Malhotra observed that marriage is a private sphere, and constitutional morality requires the law to treat men and women equally. ⁸ By rejecting patriarchal morality, the Court aligned adultery law with constitutional guarantees of dignity and equality.
5. K.S. Puttaswamy v. Union of India (2017)
In this nine-judge bench decision, the Court recognized the right to privacy as a fundamental right. Justice Chandrachud underscored that privacy was central to dignity and autonomy, both key aspects of constitutional morality. ⁹ This case illustrates how constitutional morality safeguards individual freedoms even against collective demands for surveillance and state control.
6. Shayara Bano v. Union of India (2017)
The Court struck down instant triple talaq (talaq-e-biddat) as unconstitutional. While rooted in religious tradition, the practice was found to violate constitutional guarantees of equality and dignity. Constitutional morality was again deployed to override discriminatory personal law. ¹⁰
7. Same-Sex Marriage Case (Supriyo v. Union of India, 2023)
Most recently, the Supreme Court declined to recognize same-sex marriage, ruling that it was a matter for Parliament. Chief Justice Chandrachud invoked constitutional morality to argue for recognition, but the majority emphasized judicial restraint.¹¹ This judgment demonstrates the limits of constitutional morality: while the Court acknowledged the injustice of excluding same-sex couples, it refrained from expanding marriage rights without legislative backing.
Social Morality and Its Place in Indian Society
Social morality has historically been invoked to justify practices later struck down as unconstitutional. For example, sati and untouchability were once defended as social norms but outlawed under constitutional principles. Even after constitutional reforms, practices such as child marriage, caste discrimination, and exclusionary customs persist, showing the resilience of social morality.
Courts have warned against using public morality to justify rights restrictions. In Navtej Johar, Justice Chandrachud cautioned that constitutional morality must guide interpretation, not majoritarian prejudice. Similarly, in obscenity cases like Aveek Sarkar v. State of West Bengal (2014), the Court noted that standards of public morality are unstable and subjective, whereas constitutional morality offers a principled benchmark.
The conflict is also evident in ongoing debates around the Uniform Civil Code, same-sex marriage, and women’s entry into mosques. These debates illustrate that constitutional morality often clashes with entrenched cultural and religious norms.
Criticism of Judicial Use of Constitutional Morality
Despite its transformative role, reliance on constitutional morality has drawn sustained criticism:
- Judicial Overreach: Critics argue that judges use constitutional morality as a tool for imposing personal philosophies. The Sabarimala judgment is cited as an example where judicial interpretation clashed with widespread religious sentiment, undermining cultural pluralism.
- Democratic Deficit: By prioritizing constitutional morality over legislative or societal consensus, courts risk undermining parliamentary sovereignty. Some critics argue that elected representatives, not judges, should decide morally contested issues.
- Subjectivity: Constitutional morality lacks a precise definition. Different benches have applied it inconsistently, raising concerns about predictability in constitutional interpretation.
- Social Backlash: Reliance on constitutional morality without adequate societal engagement can trigger backlash, as seen in protests following Sabarimala. Critics argue that rapid judicial imposition of constitutional values without gradual social reform risks alienating citizens.
Scholars like Upendra Baxi caution that constitutional morality should not become “judicial morality.” ¹² Others, like Gautam Bhatia, defend it as a necessary counter-majoritarian tool that ensures fidelity to constitutional values. ¹³
Comparative Perspectives
United States
The U.S. Supreme Court in Obergefell v. Hodges (2015) recognized same-sex marriage as a constitutional right, despite conservative opposition. Justice Kennedy emphasized dignity, autonomy, and equality—principles resonant with constitutional morality. ¹⁴ However, recent decisions like Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade, show how shifts in judicial philosophy can reshape moral baselines.
South Africa
The South African Constitutional Court has explicitly prioritized constitutional values over societal prejudice. In National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), it struck down sodomy laws, citing equality and dignity. The Court frequently frames its reasoning in terms akin to constitutional morality, reflecting the transformative vision of its post-apartheid Constitution.
Germany
Germany’s Federal Constitutional Court uses the concept of wehrhafte Demokratie (militant democracy) to safeguard constitutional principles even against popular will. Its emphasis on dignity under Article 1 of the Basic Law mirrors constitutional morality in India.
Canada
Canadian courts often invoke “Charter values” to balance individual rights against social norms. The Supreme Court of Canada in Trinity Western University v. Law Society of British Columbia (2018) prioritized equality and dignity over religious freedom claims, reflecting an approach similar to constitutional morality.
These comparative insights highlight that India is not unique. Across democracies, courts act as counter-majoritarian institutions, privileging constitutional values over transient social norms.
The Way Forward
To ensure constitutional morality remains a legitimate and effective tool, certain measures are necessary:
- Clearer Doctrinal Framework: Courts should articulate consistent principles for applying constitutional morality, reducing subjectivity and enhancing predictability.
- Legislative Reinforcement: Parliament should codify key constitutional values—such as non-discrimination and gender equality—into clearer statutes, reducing the need for judicial improvisation.
- Public Engagement: Courts must accompany progressive rulings with strategies to build public understanding, ensuring smoother social acceptance.
- Civic Education: Constitutional values should be integrated into school curricula, civic programs, and public campaigns. As Ambedkar emphasized, constitutional morality must be cultivated.
- Judicial Restraint in Faith Matters: Courts must tread carefully in sensitive cultural or religious disputes, balancing constitutional principles with respect for pluralism, as highlighted in Justice Malhotra’s dissent in Sabarimala.
- Encouraging Social Reform Movements: Lasting change requires grassroots movements that align social morality with constitutional values. The women’s rights and LGBTQ+ movements exemplify how social transformation complements judicial intervention.
Conclusion
Constitutional morality is indispensable to India’s democratic project. It ensures that the Constitution functions as a shield for individuals against the tyranny of the majority. Landmark judgments on privacy, LGBTQ+ rights, gender equality, and personal liberty demonstrate how the doctrine has advanced transformative constitutionalism.
Yet constitutional morality must not become synonymous with judicial fiat. Over-reliance without societal dialogue risks alienation and democratic backlash. The future lies in harmonizing constitutional morality with evolving social morality through legislative action, civic education, and public engagement.
Ambedkar’s warning remains timeless: constitutional morality must be cultivated, for without it, democracy becomes fragile. The task for India is to ensure that constitutional values of liberty, equality, and dignity gradually permeate social morality itself, achieving a truly just and inclusive society.
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References:
- George Grote, History of Greece (1846).
- Constituent Assembly Debates, Vol. VII (4 November 1948).
- B.R. Ambedkar, Annihilation of Caste (1936).
- Naz Foundation v Govt of NCT of Delhi [2009] 160 DLT 277
(Del HC). - Suresh Kumar Koushal v Naz Foundation (2013) 1 SCC 1.
- Navtej Singh Johar v Union of India (2018) 10 SCC 1.
- Indian Young Lawyers Association v State of Kerala (2018) 10
SCC 1. - Joseph Shine v Union of India (2019) 3 SCC 39.
- KS Puttaswamy v Union of India (2017) 10 SCC 1.
- Shayara Bano v Union of India (2017) 9 SCC 1.
- Supriyo v Union of India (2023) SCC OnLine SC 1500.
- Upendra Baxi, “Constitutional Morality: Is it Judicial Morality?” (2019) India Legal.
- Gautam Bhatia, The Transformative Constitution (HarperCollins 2019).
- Obergefell v Hodges 576 US 644 (2015).