Why Constitutional Morality Matters in Indian Politics
Constitutional morality is a doctrine in Indian constitutional law that holds the Constitution's own values — equality, dignity, liberty, non-discrimination — to be a superior standard of morality against which legislation and state action must be assessed, regardless of what a majority of society might consider morally acceptable at any given time.
The term itself was used by Dr. B.R. Ambedkar in the Constituent Assembly debates, where he distinguished constitutional morality — adherence to constitutional principles as a disciplined commitment above momentary popular sentiment — from the "popular morality" of particular social groups.
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| Representational Image: Why Constitutional Morality Matters in Indian Politics |
In the Navtej Singh Johar judgment, Chief Justice Dipak
Misra, writing on behalf of himself and Justice Khanwilkar, held explicitly
that "constitutional morality would prevail over social morality" —
establishing as a constitutional matter that judicial protection of rights does
not require majority social approval. The court reasoned that if rights are
conditional on popular acceptance, they cease to be rights in any meaningful
sense; constitutional guarantees of equality and dignity are precisely designed
to protect individuals from what majorities might impose on them. The doctrine
operationalises this principle by requiring courts, when adjudicating rights
claims, to evaluate them against the Constitution's own moral commitments
rather than against the prevailing sentiments of the majority. This is a
significant departure from deference to popular morality and a direct response
to the argument — made in Suresh Kumar Koushal (2013), the judgment that Navtej
Singh Johar overruled — that courts should defer to Parliament on matters
reflecting social consensus.
What You Need to Know
- Constitutional
morality as a distinct doctrinal concept in Indian law was developed
primarily in Navtej Singh Johar v. Union of India (2018), which struck
down Section 377 of the Indian Penal Code insofar as it criminalised
consensual same-sex conduct between adults; the judgment held that
"constitutional morality would prevail over social morality."
- The
earlier judgment in Suresh Kumar Koushal v. Naz Foundation (2013) — which
had reversed the Delhi High Court's decriminalisation of Section 377 —
held that the "minuscule fraction" of the population affected
could not justify judicial intervention against Parliament's choices;
Navtej Singh Johar directly repudiated this reasoning.
- The
Sabarimala case (Indian Young Lawyers Association v. State of Kerala,
2018) also invoked constitutional morality to strike down the Sabarimala
temple's practice of excluding women of menstruating age (10–50 years)
from entry; a five-judge bench majority held that this exclusion violated
constitutional equality and dignity regardless of religious tradition.
- As
of 2025–26, the Government of India's Solicitor General has argued before
a nine-judge Supreme Court bench that "constitutional morality"
is a "sentiment rather than a concrete doctrine for testing
legislation" and that it has been applied in ways that override
democratic legislative choices; the government's position challenges the
doctrinal basis of the Navtej Singh Johar and Joseph Shine (adultery)
judgments.
- The
Puttaswamy privacy judgment (2017) — which established privacy as a
fundamental right under Article 21 — relied heavily on constitutional
morality reasoning, observing that dignity, autonomy, and identity are
constitutional values that the state must respect regardless of social
attitudes.
How It Works in Practice
1. Constitutional morality as a counter to
majoritarianism: When Parliament or a state legislature enacts a law
reflecting the preferences or prejudices of a social majority, constitutional
morality doctrine holds that courts must evaluate the law against
constitutional values — not against the preferences of the majority. This is
the core judicial function in a constitutional democracy: protecting rights
from the tyranny of majority sentiment.
2. The distinction from natural law or religious
morality: Constitutional morality is specifically not natural law,
religious morality, or any trans-positive moral standard. It draws its content
from the Constitution's own text and the values embedded in it — equality
(Article 14), non-discrimination (Article 15), liberty (Article 19), dignity
(Article 21). Courts have been careful to frame constitutional morality as
internally grounded in constitutional text, not in any external moral
philosophy.
3. Application in rights adjudication: When a court
applies constitutional morality in a case, it asks: does this law or action
conform with the values of equality, dignity, liberty, and non-discrimination
as understood in the Constitution? If the answer is no — even if the law
reflects majority social approval — it must be struck down. This is the
application in Navtej Singh Johar: whatever social consensus existed about
homosexuality was irrelevant to the constitutional question of whether
criminalising consensual adult conduct violated constitutional dignity and
equality.
4. Constitutional morality and the legislature: The
doctrine does not prevent Parliament from legislating on moral questions; it
requires that such legislation conform to constitutional values. Parliament may
criminalise certain consensual conduct if doing so serves a legitimate
constitutional aim and is proportionate; it may not criminalise conduct purely
on the basis that a social majority disapproves of it without constitutional
justification.
5. Political contestation of the doctrine: The
government's challenge before the nine-judge bench in 2025–26 represents a
direct political assertion that constitutional morality as developed in recent
judgments has allowed courts to override democratic choices without adequate
constitutional grounding. This is the most significant political-legal
challenge to the doctrine since its elaboration in Navtej Singh Johar. The
nine-judge bench's eventual ruling on the scope of religious freedom and the
role of constitutional morality will be a major constitutional development.
What People Often Misunderstand
- Constitutional
morality is not the court "imposing its values": The values
being applied — equality, dignity, non-discrimination — are the
Constitution's own text, adopted by the Constituent Assembly in 1949;
courts applying constitutional morality are not imposing external
standards but enforcing the commitments India made to itself at founding.
- Constitutional
morality is not a substitute for legislation: Courts using
constitutional morality to strike down discriminatory laws do not
determine what the positive law should say; they determine what the
Constitution prohibits; Parliament must then legislate within those
constraints.
- The
Sabarimala judgment remains contested and under reference: A
three-judge bench in 2019 referred certain questions from the Sabarimala
majority judgment to a larger bench; the nine-judge bench constituted in
2023–24 is examining related questions; the ultimate constitutional
position on religious practice and gender discrimination remains to be
definitively settled by the larger bench.
- Constitutional
morality existed before Navtej Singh Johar: The term and concept were
used in earlier judgments including Manoj Narula v. Union of India (2014);
Navtej Singh Johar gave it its most developed elaboration and most
politically salient application.
- The
doctrine applies to both government and non-government parties when
fundamental rights are engaged: While constitutional morality
primarily constrains state action, the court has applied it to examine
practices of private associations, religious bodies, and institutions when
their practices engage constitutional rights.
What Changes Over Time
The nine-judge Constitution Bench assembled to examine questions of religious freedom and gender discrimination following the Sabarimala reference represents the most significant ongoing development in constitutional morality doctrine. Law Trend reporting from April 2026 notes the Solicitor General's challenge to the doctrine before this bench.
The outcome
will either consolidate constitutional morality as a robust doctrinal standard
or narrow its application in the domain of religious freedom. The intersection
of constitutional morality with India's religious diversity — where
constitutional values and religious practices may conflict — will continue to
be a primary site of legal and political contest.
Sources and Further Reading
- Global Freedom of Expression — Navtej Singh Johar v. Union of India: https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
- OHRH
Oxford — Transformative Constitutionalism: https://ohrh.law.ox.ac.uk/transformative-constitutionalism-indian-supreme-court-upholds-constitutional-morality-by-reading-down-section-377/
- Law
Trend — Centre Challenges Constitutional Morality Doctrine: https://lawtrend.in/centre-challenges-constitutional-morality-doctrine-in-supreme-court-calls-adultery-section-377-rulings-not-good-law/
- South
Asian Translaw Database — Navtej Singh Johar: https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/