Constitutional Morality
Chapter Twenty
Syllabus topic 1, "Constitutionalism". MU's February 2026 question asked for "the constitutional provisions and judicial interpretations that bolster Constitutionalism in India", and this is the most recent of those interpretations.
Pages 106 to 110 of 780
In one line
Constitutional morality means that the Constitution's own values, and not the prevailing morality of society, decide what is constitutional.
In the wording a student can write in an exam: constitutional morality is the principle that the standards by which State action and legal rules are judged are those the Constitution itself lays down, namely liberty, equality, fraternity, dignity and the rule of law, rather than the moral views held by a majority at a given time. The phrase is Ambedkar's, borrowed from the historian George Grote's account of Athenian democracy and used in the Constituent Assembly on 4 November 1948. It was revived after 2017 and now does substantial work in cases where a law or a practice is defended on the ground that most people approve of it.
What Ambedkar meant by it
He was arguing about administrative detail in the Constitution. Answering the objection that the Draft Constitution contained too much administrative machinery, Ambedkar said that constitutional morality is not a natural sentiment, that it has to be cultivated, and that in India democracy is only a top dressing on an Indian soil which is essentially undemocratic. Because the people had not yet learned the habits of constitutional government, the form of administration had to be prescribed in the Constitution itself and not left to be settled later.
So the original sense was about restraint in the holders of power. Grote's description, which Ambedkar quoted, is of a paramount reverence for the forms of the constitution combined with the freedom of criticism, so that opponents fight within the rules rather than about them.
The modern judicial sense is related but wider. It is used to mean that the Constitution's values govern, and that a practice cannot be saved merely because it is old, popular or religiously sanctioned.
How the courts use it, in three ways
As the answer to an appeal to popular morality. Where a law is defended on the ground that society disapproves of the conduct it punishes, the reply is that the measure of constitutionality is constitutional morality and not social morality.
As a way of giving content to open words. Article 19(2) permits restrictions in the interests of "public order" and "morality"; article 25 makes the freedom of religion subject to "public order, morality and health". A court reading "morality" in those provisions reads it as constitutional morality, which is a real interpretive move with consequences.
As a guide in disputes between an individual and a group. Where a religious denomination's practice excludes a class of people, the doctrine directs attention to the individual's dignity and equality rather than to the antiquity of the practice.
The cases
The clearest statement is in the decriminalisation case. In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. Facts. A challenge to section 377 of the Indian Penal Code so far as it criminalised consensual sexual acts between adults. Held. Unanimously that section 377, to that extent, is unconstitutional as violating articles 14, 15, 19 and 21, and that the constitutionality of a provision is not to be judged by popular morality: constitutional morality, and not social morality, is the standard, and the rights of a minority cannot depend on the approval of the majority. It also applied the manifest arbitrariness doctrine and held that the section was irrational, indefensible and arbitrary. Why it matters here is that it is the doctrine's fullest application and the passage most often quoted.
Constitutional Morality
And the most contested. In Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1; AIR 2018 SC 4720. Facts. The exclusion of women between the ages of ten and fifty from the Sabarimala temple. Held, by four to one. The exclusion violated the rights of women devotees under articles 25(1) and 14, that devotees of Lord Ayyappa do not constitute a separate religious denomination under article 26, and that the exclusion was not an essential religious practice; Indu Malhotra J. dissented, holding that questions of essential religious practice ought not to be decided by courts and that the petitioners were not devotees. The majority reasoned in terms of constitutional morality, treating the exclusion as inconsistent with the dignity and equality the Constitution guarantees. Why it matters here is that the aftermath is part of the topic: a review was admitted and larger questions were referred, so the doctrine's limits are unsettled, and an answer should say so rather than treat the case as closed.
The doctrine has also removed an offence that protected a husband. In Joseph Shine v. Union of India, (2019) 3 SCC 39; AIR 2018 SC 4898. Facts. A challenge to section 497 of the Indian Penal Code, which made a man liable for adultery with another man's wife without her consent, exempted the woman from punishment even as an abettor, and allowed the husband's consent to make the act lawful. Held. The section unconstitutional as violating articles 14, 15 and 21: it treated a wife as her husband's property, denied her sexual autonomy, and rested on a stereotype rather than a rational classification. Why it matters here is that it shows constitutional morality applied to a law that had stood for a century and had substantial social support.
And the doctrine's foundation is the privacy judgment. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161. Facts. A reference to nine judges on whether the Constitution protects a right to privacy, earlier decisions having said it did not. Held. Unanimously that privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and of the freedoms in Part III, and that any invasion must satisfy legality, a legitimate State aim and proportionality. Why it matters here is that a right of the individual against the collective is what constitutional morality presupposes, and the three cases above all rest on it.
Constitutional Morality
A worked example
A State enacts a law prohibiting inter-caste couples from residing in a village where the panchayat has passed a resolution objecting, on the ground that the practice offends the sentiments of the majority of residents and that public order will otherwise be disturbed.
The State's argument is an appeal to social morality and to public order. Both must be dealt with, and dealing with the second is what separates a good answer.
On social morality the answer is direct. Navtej Johar holds that constitutionality is measured by constitutional morality and not by popular morality, and that the rights of a minority do not depend on majority approval. Articles 14, 15(1), 19(1)(e) and 21 are all engaged.
On public order the answer is more careful, because public order is a legitimate constitutional ground. The State is not entitled to convert the threat of unlawful action by objectors into a restriction on the rights of the people threatened. That would let a majority manufacture the very disorder it relies on, which is sometimes called a heckler's veto. The proper response is to police the objectors.
And note the constitutional morality point in its strongest form. The panchayat resolution is itself an exercise of public power and is therefore bound by the same values. A body created by Part IX cannot make a rule the Constitution forbids the State to make.
Distinctions
| Social or popular morality | Constitutional morality | |
|---|---|---|
| Source | Prevailing opinion in society | The text, structure and values of the Constitution |
| Changes with | Time and place | Amendment and authoritative interpretation |
| Whose view counts | The majority's | Nobody's in particular; the document's |
| Use in constitutional adjudication | Not a test of validity | The test of validity |
| Example | The defence of section 377 | Its rejection in Navtej Johar |
What it does NOT mean
It does not mean judges may decide by their own moral views. That is precisely what the doctrine forbids, and it is also the criticism made of it, which is the tension at its heart.
It does not mean religion has no constitutional protection. Articles 25 and 26 are fundamental rights, and constitutional morality operates on the limits in those articles rather than in place of them.
Constitutional Morality
It does not mean popular opinion is irrelevant to law. It is decisive in a legislature and irrelevant in a court asked whether a law is valid, and stating that division cleanly is worth a mark.
And it does not mean the doctrine is settled. The Sabarimala review and the reference of larger questions leave its scope open, and the criticism below is not answered by the cases.
The criticism, stated fairly
It has no textual basis. The phrase appears nowhere in the Constitution. It is drawn from a speech in the Constituent Assembly, which is a legitimate aid to construction but not a provision.
Its content is uncertain. Liberty, equality, fraternity and dignity are capable of supporting more than one result in a hard case, so the doctrine may describe a conclusion rather than produce one.
It risks displacing the political process. Deciding by constitutional morality what a legislature has decided by ordinary morality moves a contested question from an accountable body to an unaccountable one.
The reply is the one constitutionalism always makes. Some questions are removed from the majority precisely because the majority is a party to them, and a Constitution that leaves the rights of an unpopular group to a popular vote has not protected them at all. Whether the courts have drawn that line in the right places is a fair question, and answering it is what the examiner is looking for.
Quick revision
Constitutional morality: the Constitution's own values, not prevailing social morality, decide constitutionality. Ambedkar, Constituent Assembly, 4 November 1948, borrowing from Grote on Athens; his sense was reverence for constitutional forms combined with freedom of criticism, and his point was that it must be cultivated. Modern uses: as the answer to an appeal to popular morality; as the meaning of "morality" in articles 19(2) and 25; and as the guide where an individual's dignity meets a group's practice. Navtej Johar 2018: section 377 unconstitutional so far as it criminalises consensual adult acts; constitutional morality, not social morality, is the standard. Indian Young Lawyers Association 2018: Sabarimala exclusion invalid, four to one, Indu Malhotra J. dissenting; a review was admitted and larger questions referred. Joseph Shine 2018: section 497 unconstitutional. Puttaswamy 2017: privacy under article 21, with the proportionality test. Criticisms: no textual basis, uncertain content, and displacement of the political process.
Test yourself
1. Where does the phrase come from and what did Ambedkar mean by it? From George Grote's account of Athenian democracy, quoted by Ambedkar in the Constituent Assembly on 4 November 1948. He meant a paramount reverence for constitutional forms combined with freedom of criticism, and he argued that because it had to be cultivated, the administrative machinery had to be written into the Constitution rather than left to convention.
Constitutional Morality
2. State the proposition Navtej Johar is cited for. That the constitutionality of a provision is judged by constitutional morality and not by popular morality, and that the rights of a minority do not depend on the approval of the majority.
3. Give two places where the doctrine changes the meaning of a constitutional word. "Morality" in article 19(2), and "morality" in article 25(1), both of which are read as constitutional morality rather than as the moral opinion of the majority.
4. Why is the Sabarimala case an incomplete authority? Because a review was admitted and larger questions about the relationship between articles 25 and 26 and the scope of judicial inquiry into religious practice were referred, so the majority's reasoning has not been finally settled.
5. State the three main criticisms of the doctrine. That it has no textual basis in the Constitution; that its content is uncertain, so it may describe a conclusion rather than produce one; and that it transfers contested moral questions from an accountable legislature to an unaccountable court.
6. What is the constitutional answer to a heckler's veto? That the State may not restrict the rights of the people threatened in order to avoid disorder threatened by objectors, because that would allow a majority to manufacture the very ground it relies on. The proper response is to police the objectors.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.