CONSTITUTIONAL MORALITY

INTRODUCTION
“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 topdressing on an Indian
soil which is essentially undemocratic" Dr. B.R. Ambedkar1

The Supreme Court in Navtej Singh Johar case2 partially struck down Section 377 of Indian
Penal Code (IPC) which made "carnal intercourse against the order of nature" a crime. The
concept of Constitutional morality and Social morality were one of the focal points in the
decision and court observed that constitutional morality will prevail over social morality. It
was observed that while testing the constitutional validity of impugned provision of law, if a
constitutional court is of the view that the impugned provision falls foul to the precept of
constitutional morality, then the said provision has to be declared as unconstitutional for the
pure and simple reason that the constitutional courts exists to uphold the constitution.
Therefore, Section 3773 IPC was declared unconstitutional in so far as it criminalized
consensual sexual conduct between adult of same sex.

The concept of Constitutional morality was also dealt in another significant decision of
Indian Young Lawyers Association case (Sabrimala Temple case) 4. The decision was
rendered with majority of four judges by concluding that the term 'morality' occurring in
Article 25(1) of the Constitution need to be understood as being synonymous with
constitutional morality. The majority view held that women of all ages are entitled to enter
Sabrimala Temple and practice of prohibiting menstruating age women from entering temple
was held as unconstitutional and such practice was stated to be against constitutional
morality.

However, interestingly Justice Indu Malhotra giving her minority opinion concluded that
Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental
Rights, which include the right of every individual, religious denomination, or sect, to
practise their faith and belief in accordance with the tenets of their religion, irrespective of
whether the practise is rational or logical. Hence, it was opined that practice of prohibiting
menstruating age women from entering temple was held as constitutionally valid for being
1
Writings and Speeches of Dr. Baba Saheb Ambedkar, Volume No.13 Page No.61.
2
Navtej Singh Johar v Union of India, AIR 2018 SC 4321.
3
The Indian Penal Code 1872, sec 377.
4
Indian Young Lawyers Association v State of Kerala, 2018 SCC OnLine 1690.

1|Page
protected under Article 25 (1)5 of Constitution. Therefore, the concept of constitutional
morality appears to have been used by the constitutional court as an aid in interpretation of
provision of the Constitution and as well for interpretation of constitutional validity of the
statutes.

The top law officer of the country, took a critical note of constitutional morality concept as
is being used by the Supreme Court: Delivering an address at the Second J Dadachanji
Memorial Debate, Attorney General of India Sri K.K. Venugopal criticised the judiciary’s
dependence on constitutional morality in judgements such as Sabarimala temple row. He
said, “Use of constitutional morality can be very, very dangerous and we can't be sure where
it'll lead us to. I hope constitutional morality dies. Otherwise, our first PM Pandit Nehru's fear
that SC will become the third chamber might come true.”6

With the critical approach ascribed to the concept of Constitutional Morality for being used
by the Courts as an aid in interpretation of provisions in the Constitution and Constitutional
validity of the Statutes, it is necessary to locate the concept of constitutional morality by
understanding such concept. There is danger of this concept being ignorantly and
dangerously used in courts in absence of definite clarity and consensus being reached on the
concept of Constitutional Morality.

UNDERSTANDING THE CONCEPT OF CONSTITUTIONAL MORALITY

Dr. B.R. Ambedkar in one the Constituent Assembly Debates explaining the concept of
Constitutional Morality, quoted Greek historian George Grote and said: "By constitutional
morality, Grote meant a paramount reverence for the forms of the constitution, enforcing
obedience to authority and acting under and within these forms, yet combined with the habit
of open speech, of action subject only to definite legal control, and unrestrained censure of
those very authorities as to all their public acts combined, too with a perfect confidence in the
bosom of every citizen amidst the bitterness of party contest that the forms of constitution
will not be less sacred in the eyes of his opponents than his own."7

The above observation of Dr. B.R. Ambedkar concerning the concept the constitutional
morality came in the Constituent Assembly Debate for inclusion of administration details in

5
The Constitution of India 1950, art 25(1).
6
Constitutional morality must die or SC could become Parliament’s third chamber, as Nehru feared: A-G
Venugopal, Source: https://www.timesnownews.com/india/article/kk-venugopal-attorney-general-sabarimala-
news-addressnstitutional-morality-supreme-court-jawaharlal-nehru-bharatiya-janata-party-chief-justice-
of/328266.
7
Constituent Assembly Debates, Vol. 7 (4th November 1948), Grote History of Greece, Volume III page 347.

2|Page
the Indian Constitution, which was borrowed from the Government of India Act, 1935. While
agreeing that administrative details should have no place in the Constitution, but the necessity
for such inclusion and justification came with reference to Grote, the historian of Greece's
quote: "The diffusion of constitutional morality not merely among the majority of any
community but throughout the whole, is the indispensable condition of government at once
free and peaceable; since even any powerful and obstinate minority may render the working
of a free institution impracticable, without being strong enough to conquer ascendency for
themselves"

While everybody recognizes the necessity of the diffusion of the Constitutional morality for
the peaceful working of a democratic Constitution, there are two things interconnected with it
which are not, unfortunately, generally recognized. One is that the form of administration has
a close connection with the form of Constitution. The form of the administration must be
appropriate to and in the same sense as the form of the Constitution. The other is that it is
perfectly possible to prevent the Constitution, without changing its form by merely changing
the form of the administration and to make it inconsistent and opposed to the spirit of the
Constitution. It follows that it is only where people are saturated with Constitutional morality
such as the one described by Grote, the historian that one can take the risk of omitting from
the Constitution details of administration and leaving it for the Legislature to prescribe them.
The question is can we presume such a diffusion of Constitution Morality?

Answering the question in the Indian context, it was observed by Dr. B.R. Ambedkar as
under: "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 topdressing on an
Indian soil which is essentially undemocratic"

In these circumstances it is wiser not to trust the Legislature to Prescribe forms of

administration. This is the justification for incorporating them in the Constitution 8. Therefore,
an understanding of constitutional morality concept shows that it relates to parliamentary
form of government which is self-restraint by providing limitation on the power of State to
control the liberty of citizen. It appears that constitutional morality shows the commitment to
liberty of citizen. The constitutional supremacy and equality with reference to rule of law also
are necessary components in understanding the term constitutional morality.

The principle of constitutional morality basically means to bow down to the norms of the
Constitution and not to act in a manner which would become violative of the rule of law or
8
Writings and Speeches of Dr. Baba Saheb Ambedkar. Volume No. 13. Page no.60.

3|Page
reflectionable of action in an arbitrary manner. It actually works at the fulcrum and guides as
a laser beam in institution building. The traditions and conventions have to grow to sustain
the value of such a morality. The democratic values survive and become successful where
the people at large and the personsincharge of the institution are strictly guided by the
constitutional parameters without paving the path of deviancy and reflecting in action the
primary concern to maintain institutional integrity and the requisite constitutional restraints.
Commitment to the Constitution is a facet of constitutional morality9.

The concept of constitutional morality is not limited to the mere observance of the core
principles of constitutionalism as the magnitude and sweep of constitutional morality is not
confined to the provisions and literal text which a Constitution contains, rather it embraces
within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive
society, while at the same time adhering to the other principles of constitutionalism. It is
further the result of embodying constitutional morality that the values of constitutionalism
trickle down and percolate through the apparatus of the State for the betterment of each and
every individual citizen of the State10.

Therefore, constitutional morality is the soul of the Constitution, which is to be found in the
Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found
in Part III of the Constitution, particularly with respect to those provisions which assure the
dignity of the individual. Constitutional morality requires in a democracy the assurance of
certain minimum rights, which are essential for free existence to every member of society.
The Preamble to the Constitution recognises these rights as “Liberty of thought, expression,
belief, faith and worship” and “Equality of status and of opportunity.” Constitutional
morality is the guarantee which seeks that all inequality is eliminated from the social
structure and each individual is assured of the means for the enforcement of the
rights guaranteed. Constitutional morality leans towards making Indian democracy vibrant
by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to
different classes, races, religions, cultures, castes and sections.

The invocation of constitutional morality must be seen as an extension of Dr Ambedkar’s

formulation of social reform and constitutional transformation. Highlighting the significance
of individual rights in social transformation, he had observed: “The assertion by the
individual of his own opinions and beliefs, his own independence and interest—over and

9
Manoj Narula v. Union of India, (2014) 9 SCC 1.
10
Navtej Singh Johar v Union of India, AIR 2018 SC 4321.

4|Page
against group standards, group authority, and group interests—is the beginning of all reform.
But whether the reform will continue depends upon what scope the group affords for such
individual assertion.”

After the enactment of the Constitution, every individual assertion of rights is to be governed
by the principles of the Constitution, by its text and spirit. The Constitution assures to every
individual the right to lead a dignified life. It prohibits discrimination within society. The Idea
of constitutional morality relate to a set of mandatory conditions to which agents in a
constitutional setting must adhere. The most important goal of constitutional morality was
self-restraint and turning to constitutional methods for the resolution of claims. This turn to
process of claims resolution meant that constitutional morality recognised pluralism in the
deepest possible way, given the fact that India has diversity cultures and practices. Corollary
of this believe of pluralist Indian society would mean that constitutional morality was against
any claim to speak on behalf of popular sovereignty or to represent sovereignty, since such
claims would be nothing less that usurping the concept of sovereignty. Therefore, the prime
aim of constitutional morality was to prevent any branch of government from declaring that it
could uniquely represent the people. In essence, Indian Constitution is a cosmopolitan
constitution that imbibe universal principles of liberty equality, and fraternity.

Use of Constitutional Morality Concept by the Courts: "Whenever we embark on the study of
morality without interest in its application I cannot but think that it is not morality we are
studying. Morality does not arise till the point of application is reached. The effect of a moral
theory launched upon the world is next to nothing unless the application of it can be
reinforced by powerful motives" Prof. Jacks11

In the Indian Constitution, the term 'Constitutional Morality' is not used in any of the Articles
nor the concept is explained. However, the term 'Morality' find place at four places in the
Indian Constitution which are under Article 19 (2), Article, 19 (4) (Right to Freedom), Article
25 (1) and Article 26 (Right to Freedom of Religion). The Supreme Court used the concept of
Constitutional Morality as an aid in interpretation of individual fundamental rights provided
under the constitution and also used this concept for interpretation on the constitutional
validity of the statutes. It would be a useful exercise to refer to some of the decisions and
context in which the need to concept of Constitutional morality came up for consideration
before the Supreme Court.

11
Dr. Babasaheb Ambedkar: Writing and Speeches Volume No.3 Page no.333.

5|Page
In Manoj Narula v. Union of India12, the Supreme Court dealt with a point of great public
importance as to the legality of the person with criminal background and/or charged with
offences involving moral turpitude being appointed as ministers in Central and State
Governments. Dealing with issue of corruption in politics, it was observed that: "The
Constitution of India is a living instrument with capabilities of enormous dynamism. It is a
Constitution made for a progressive society. Working of such a Constitution depends upon
the prevalent atmosphere and conditions. Dr. Ambedkar had, throughout the Debate, felt that
the Constitution can live and grow on the bedrock of constitutional morality...... If men were
angels, no government would be necessary. If angels were to govern men, neither external
nor internal controls on government would be necessary. In framing a government which is
to be administered by men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to control itself. A
dependence on the people is, no doubt, the primary control on the government; but
experience has taught mankind the necessity of auxiliary precautions........In a democracy, the
people never intend to be governed by persons who have criminal antecedents. This is not
merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive
governance. It would be apt to say that when a country is governed by a Constitution, apart
from constitutional provisions, and principles constitutional morality and trust, certain
conventions are adopted and grown. "

The concept of constitutional morality and social morality was discussed and holding that
constitutional morality would prevails over social morality, the Supreme Court in Navtej
Singh Johar case13 partially struck down Section 377 of Indian Penal Code (IPC) and declared
such provision unconstitutional in so far as it criminalized consensual sexual conduct
between adult of same sex. There was reference to the decision in Suresh Koushal case 14
wherein the decision rendered by Delhi High Court in Naz Foundation case 15 was overturned.
The prime contention in Navtej Singh Johar case was that in Suresh Koushal case the bench
had been guided by social morality leaning on majoritarian perception whereas the issue, in
actuality, needed to be debated upon in the backdrop of constitutional morality. With this
factual background concerning the concept of Constitutional Morality, the relevant
observation of bench are extracted here under: "It is the concept of constitutional morality
which strives and urges the organs of the State to maintain such a heterogeneous fibre in the
12
Manoj Narula v. Union of India, (2014) 9 SCC 1.
13
Navtej Singh Johar v Union of India, AIR 2018 SC 4321.
14
Suresh Kumar Koushal & Anr v Naz Foundation & Ors, (2014) 1 SCC 1.
15
Naz Foundation v Government (NCT of Delhi) and Another, (2016) 15 SCC 619.

6|Page
society, not just in the limited sense, but also in multifarious ways. It is the responsibility of
all the three organs of the State to curb any propensity or proclivity of popular sentiment or
majoritarianism. Any attempt to push and shove a homogeneous, uniform, consistent and a
standardised philosophy throughout the society would violate the principle of constitutional
morality. Devotion and fidelity to constitutional morality must not be equated with the
popular sentiment prevalent at a particular point of time.

Any asymmetrical attitude in the society, so long as it is within the legal and constitutional
framework, must at least be provided an environment in which it could be sustained, if not
fostered. It is only when such an approach is adopted that the freedom of expression
including that of choice would be allowed to prosper and flourish and if that is achieved,
freedom and liberty, which is the quintessence of constitutional morality, will be allowed to
survive."16

"In this regard, we have to telescopically analyse social morality vis-à-vis constitutional
morality. It needs no special emphasis to state that whenever the constitutional courts come
across a situation of transgression or dereliction in the sphere of fundamental rights, which
are also the basic human rights of a section, howsoever small part of the society, then it is for
the constitutional courts to ensure, with the aid of judicial engagement and creativity, that
constitutional morality prevails over social morality"

CRITICAL VIEW ON APPLICATION OF CONSTITUTIONAL MORALITY

CONCEPT BY THE COURTS

The Law Minister took a critical view of Constitutional Morality concept for being used by
the Supreme Court on the occasion of Constitutional Day celebration as under:

"We hear about Constitutional Morality, we appreciate innovations but nuances of

Constitutional Morality should be outlined with clarity and should not differ from judge to
judge and there must be a consensus". 17 In Indian Young Lawyers Association case
(Sabrimala Temple case)18, the concept of Constitutional Morality was applied in the majority
view and as well in minority view. It appears that a critical note is taken on this decision for
having applied the concept of Constitutional Morality for allowing (with majority opinion)
and declining (with minority opinion) the relief in the writ petition. The writ petition was

16
Navtej Singh Johar v Union of India, AIR 2018 SC 4321.
17
Law Minister Sri Ravi Shanker Prasad on Celebration of Constitutional Day Source:
http://www.newindianexpress.com/nation/2018/nov/27/apply-yardstick-of-constitutional-morality
evenly1903665.html
18
Indian Young Lawyers Association v State of Kerala, 2018 SCC OnLine 1690.

7|Page
preferred under Article 3219 of the Constitution by seeking relief for issuance of directions
against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of
Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female
devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala
(Kerala) which has been denied to them on the basis of certain custom and usage; to declare
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965
(for short, “the 1965 Rules”) framed in exercise of the powers conferred by Section 4 of the
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, “the
1965 Act”) as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the
Constitution of India and further to pass directions for the safety of women pilgrims.

The majority opinion delivered by Hon'ble Justice Dipak Mishra, CJI observed: "The term
‘morality’ occurring in Article 25 (1) of the Constitution cannot be viewed with a narrow lens
so as to confine the sphere of definition of morality to what an individual, a section or
religious sect may perceive the term to mean. We must remember that when there is a
violation of the fundamental rights, the term “morality naturally implies constitutional
morality” and any view that is ultimately taken by the Constitutional Courts must be in
conformity with the principles and basic tenets of the concept of this constitutional morality
that gets support from the Constitution 20. "Having said so, the notions of public order,
morality and health cannot be used as colourable device to restrict the freedom to freely
practise religion and discriminate against women of the age group of 10 to 50 years by
denying them their legal right to enter and offer their prayers at the Sabarimala temple for the
simple reason that public morality must yield to constitutional morality."21

Concurring with the majority view, Hon'ble Justice Chandrachud observed: "Constitutional
morality must have a value of permanence which is not subject to the fleeting fancies of
every time and age. If the vision which the founders of the Constitution adopted has to
survive, constitutional morality must have a content which is firmly rooted in the
fundamental postulates of human liberty, equality, fraternity and dignity. These are the means
to secure justice in all its dimensions to the individual citizen. Once these postulates are
accepted, the necessary consequence is that the freedom of religion and, likewise, the
freedom to manage the affairs of a religious denomination is subject to and must yield to
these fundamental notions of constitutional morality. In the public law conversations

19
The Constitution of India 1950, art 32.
20
Indian Young Lawyers Association v State of Kerala, 2018 SCC OnLine 1690.
21
Ibid.

8|Page
between religion and morality, it is the overarching sense of constitutional morality which has
to prevail."22

"A liberal Constitution such as ours recognizes a wide range of rights to inhere in each
individual. Without freedom, the individual would be bereft of her individuality. Anything
that is destructive of individual dignity is anachronistic to our constitutional ethos. The
equality between sexes and equal protection of gender is an emanation of Article 15 23.
Whether or not Article is attracted to a particular source of the invasion of rights is not of
overarching importance for the simple reason that the fundamental principles which emerge
from the Preamble, as we have noticed earlier, infuse constitutional morality into its content."

Differing with the majority view, Justice Indu Malhotra in her minority opinion observed:

"11.5. The concept of Constitutional Morality refers to the moral values underpinning the text
of the Constitution, which are instructive in ascertaining the true meaning of the Constitution,
and achieve the objects contemplated therein.

11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the
followers of various sects have the freedom to practise their faith in accordance with the
tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of
rationality cannot be invoked in matters of religion by courts.

11.7. The followers of this denomination, or sect, as the case may be, submit that the
worshippers of this deity in Sabarimala Temple even individually have the right to practise
and profess their religion under Article 25 (1) in accordance with the tenets of their faith,
which is protected as a Fundamental Right.

11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality.
However, the concept of equality and non-discrimination in matters of religion cannot be
viewed in isolation. Under our Constitutional scheme, a balance is required to be struck
between the principles of equality and non-discrimination on the one hand, and the protection
of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to
persons belonging to all religions in a secular polity, on the other hand. Constitutional
morality requires the harmonisation or balancing of all such rights, to ensure that the religious
beliefs of none are obliterated or undermined."

22
Ibid.
23
The Constitution of India 1950, art 15.

9|Page
For philosophical, juridical, and even parliamentary debate, the concept of constitutional
morality is a substantial issue. Here it is relevant to quote Dr. Ambedkar: "There are
movement when I think that the future of Democracy in India is very dark. But I do not want
to say that I have no other moments when I felt that if all of us put our shoulders together and
pledge ourselves to "Constitutional morality" we should be able to build up a regular party
system in which there could be liberty equality and fraternity"24

24
Dr. Babasaheb Ambedkar: Writing and Speeches Volume 17 page 378.

10 | P a g e
 CONCLUSION

The duty of the constitutional courts is to adjudge the validity of law on well-established
principles, namely, legislative competence or violations of fundamental rights or of any other
constitutional provisions. At the same time, it is expected from the courts as the final arbiter
of the Constitution to uphold the cherished principles of the Constitution and not to be
remotely guided by majoritarian view or popular perception. The Court has to be guided by
the conception of constitutional morality and not by the societal morality25.

The concept of Constitutional Morality was used in an important case of Navtej Singh Johar 26
which employed this concept in an innovative manner to strike down Section 377 of the
Indian Penal Code and decriminalise homosexuality. However, this concept appears to have
come under severe criticism with Sabarimala Temple Case27. There appears to be an
agreement among the legal scholars that the concept of Constitutional Morality remained to
be understudied and there is need for a consensus to be reached for defining and applying this
concept. The source for understanding this concept could be Text of Constitution, Constituent
Assembly debates and history of events that took place during the framing of the Indian
Constitution. In absence of this concreate study and consensus being reached on this
significant concept of Constitutional morality, there is danger of popular morality being
interpreted as Constitutional morality.

25
Navtej Singh Johar v Union of India, AIR 2018 SC 4321.
26
Ibid.
27
Indian Young Lawyers Association v State of Kerala, 2018 SCC OnLine 1690.

11 | P a g e
 REFERENCES

 https://indianlegalsolution.com/law-and-morality/
 file:///C:/Users/hp/Desktop/SSRN-id3353874.pdf
 https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm

12 | P a g e