Constitutional Morality is a concept or a doctrine, which simply commands the
judges to interpret this wide constitution in a moral way subject to the
Constitution and not to the public morality. The biggest example of the Indian
Judiciary applying the doctrine is the case of Naz Foundation v. State of
Delhi, where the validity of Section 377 of the Indian Penal Code was
challenged in 2009.
The Delhi High Court decriminalised Section 377 but it was reviewed in the
Supreme Court and was overturned in 2013. The Supreme Court did not consider the
aspect of constitutional morality, but rather favoured the public morality and
set aside the decision of Delhi High Court.
The judges of the Delhi High Court observed that:
The Constitution of India recognises, protects and celebrates diversity. To
stigmatise or to criminalise homosexuals only on account of their sexual
orientation would be against the constitutional morality.
In our scheme of things, constitutional morality must outweigh the argument of
public morality, even if it be the majoritarian view.
The judgement of the Delhi High Court basically concluded that when
Constitutional Morality and Public Morality are not in line with each other,
Constitutional Morality would prevail over Public Morality.
Constitutional morality as a concept is mostly misunderstood by people for it
being wide, ambiguous and its non-conformity. The word Constitutional
Morality was first used by Dr. B.R. Ambedkar in one of the debates of the
Constituent Assembly. What is the relevance of this word in the wide ambit of
modern India and modern judiciary is the question which arises in the scenario.
Constitutional morality as a concept was evolved in the United States, which
obligates the judges to act in a constitutionally moral way.
In my point of view, the word seems to have no holding in a country like India,
because the ambit of the Constitution of India is so wide, that it is almost
impossible to interpret the word in the same way. Constitutional morality is
something which can be used when the scope of Constitution is limited to a
certain extent. And, constitutional morality, is one thing which will always
have two meanings attached to it. Considering the example of Sabrimala Judgement,
what will be the yardstick for showing that the Supreme Court has acted in a
constitutionally moral way? The Judges interpreting that, women of age 10-50
years should be allowed in the temple or the practices, faiths, beliefs and the
right to profess religion prevailing over the rights of women.
When two articles are at loggerheads, it is almost impossible to show that what
is a constitutionally moral way to act in such scenario? Also, against the
review petitions filed by the petitioners, when the minority judges took a view
of dismissing them, on the basis of limited interpretation of law, whether it
would be constitutionally moral against the view of considering the future
implications of such petitions and not dismissing the petitions of Muslims,
Parsis, Dawoodi Bohra community only on the basis of Sabrimala Judgement and
denying the petitioners, the right to equality as well as the right to freely
profess the religion and also, violating the principles of natural justice. So,
it is impossible to be constitutionally moral for the judiciary because what
might be constitutionally moral or constitutionally right for one judge can hold
the exact opposite to other judges.
There is very limited scenario where there is absolute surety about
constitutional morality. Considering the case of Navtej Singh Johar v. UOI,
where Section 377 of the Indian Penal Code was decriminalised and rights to the
LGBTQ were conferred.
Now, in this case, there can be surety regarding constitutional morality, they
should be treated equally under Article 14, 15 and 21 of the Indian
Constitution, but in most cases this is not the case. Also, even in this case,
absolute constitutional morality is not ensured, and the LGBTQs cannot be
punished but still there are many rights under the Constitution which are still
not conferred upon them.
There can be no certain definition of Constitutional morality, and, in my view,
is generally used by the judges to validate their views. Considering, Justice
Chandrachud’s view in the principle judgement, he supported his view that women
should be allowed entry in the Sabirmala temple and on the other hand, on the
basis of constitutional morality, Justice Indu Malhotra said that Article 25 and
26 will prevail and the communities will have the right to profess their
Now, the question arises that which one of the judges is right? This can never
be answered by anyone, because there can or there never will be any certainty of
its application or even its definition. Even if we try to take a liberal view,
and consider that certain principles must be laid down by the highest authority
regarding its application, limitations etc. But, even if there are principles
laid down, every person or rather every judge will interpret the word in a
different way, leading to vague interpretations and ambiguous judgements and
will ultimately lead to opening the floodgates of law, and for that matter of
the Constitution too.
Question of constitutional morality also arose during the case of Shayra Bano
v. UOI (Triple Talaq case). The prevalence of constitutional morality as to
religious beliefs was one of the major questions that needed to be answered by
the Supreme Court.
In this case, they ruled the case in favour of the petitioner, striking down the
practice of Triple Talaq as being unconstitutional and in August, 2019 the
Triple Talaq bill was also passed by the Parliament. The view taken by the
court, considering constitutional morality, in lieu of Article 14 and Article
21, was in favour of the petitioner and against the religious beliefs of the
Muslim community. So, the question, was regarding the parameters of
constitutional morality and its application with respect to different cases.
So, the point is how are different judges able to apply the same doctrine of
Constitutional Morality in their favour or rather to validate their views and
judgements. There should be some amount of unwaveringness and certainty in its
application and construal.
Another problem of Constitutional morality is its absurdity, ambiguity and
absence of absoluteness. Though the word was first used by Dr. Ambedkar in a
Constituent Assembly Debate, the application of it is very recent and new. If
constitutional morality is to be considered in every matter, there will always
be conflict, when the matter of fundamental rights, duties or DPSPs arises.
As had happened in Indian Young Lawyers Association v. State of Kerala or
the Sabrimala case, where the Court by a majority of 4:1, allowed the
entry of women in Sabrimala temple, curtailing or rather absolutely taking the
rights of Ayyappans to profess their religious practices, beliefs, or faiths
without any judicial intervention.
Consider the judgement of ADM Jabalpur v. Shivakant Shukla where the
government moved the Supreme Court against the decisions given by 7 High Courts
against the government and questioning the maintainability of writ petitions
especially Habeas Corpus in case of an emergency declared by the Government
under Article 359(1) of the Constitution of India. The decision given by the
Supreme Court opened the floodgates and loopholes of law, and is considered a
bad law and the dark side of judiciary and governments was exposed.
The Court held that in case of an emergency, there will be absolute suspension
of fundamental rights, and writ of Habeas Corpus will not be maintainable
against the decision of the state, and the state can order for preventive
detention of any person without any invocation of any of fundamental rights
guaranteed by the Constitution of India. Now, the question which arises, is that
whether the decision of the court can be considered constitutionally moral?
Even if such a bad view is taken by the judges, it still cannot be said that
there was no constitutional morality, because it is the interpretation of judges
of law, so the Constitutional morality cannot even be challenged even if it is
constitutionally right but morally wrong. This case of ADM Jabalpur shows that,
constitutional morality is such an absurd and vague concept that it can even
make a decision such as of ADM Jabalpur to be constitutionally correct or
The decision of ADM Jabalpur was finally overturned in 2017 in the landmark
judgement of K.S. Puttuswamy v. UOI and right to privacy was considered
as a fundamental right under Article 21 of the Constitution of India. The view
taken by the judges including Justice Misra, Justice Chandrachud was primarily
based on Constitutional Morality and a very liberal view was taken by the
So, focussing on the case of reference of Sabrimala petitions to a larger bench,
Justice Nariman and Justice Chandrachud took the defence of constitutional
morality to validate their decision and they are not wrong in taking it as a
defence because they are following the realist approach, and sticking to the
bookish interpretations of law, and not giving a wider interpretations and
worrying about future implications of such decisions.
But, the problem of constitutional morality arises because one can say that they
are not constitutionally moral because merely on the basis of principle
judgement of Sabrimala, they are curtailing the religious rights of Muslims,
Parsis and other communities and also, contradicting the Preamble as it
guarantees Secularity in India, and dismissing the petitions of different
communities which was not to challenge the decision of Sabrimala, but for the
Court to guide them to the same in lieu of the Sabrimala decision regarding the
religious rights available to them, in case if similar situation arises. And,
pedantic view, cannot be taken by the Court, not being against the law, but
being against the constitutional morality guaranteed by the Constitution itself
under many articles but especially Article 25 and 26 of the Indian Constitution.
Also, consider the Kashmir issue that is going on in the Supreme Court, with
respect to the decision of the state to impose S.144 of the Criminal Procedure
Code, 1973 immediately after scrapping of Constitutional morality in the name of
Anuradha Bhasin v. UOI.
Having followed the case closely, and also being the part of major proceedings
of this case and hearing the arguments of counsels of petitioner and of the
Union, one thing that can be concluded here is that none of the parties are
wrong, considering the constitutional principles, constitutional rights, and
constitutional morality and its applications.
Mr. Kapil Sibal, arguing on the part of the petitioner is arguing that, the
state has no reason to impose S. 144 and mere apprehension of danger without
application of mind and curtailing the freedoms guaranteed to the citizens under
Article 19 of the Constitution is not a solution for such a situation. The
principle argument, is regarding internet ban on the part of the state, and a
more liberal measure of banning social media like facebook, twitter, instagram
could have been taken by the state, assuming reasonable apprehension of danger.
Contradictory statements were presented by the Solicitor General of India, Mr.
Tushar Mehta, contending that it is the duty of the state to protect the state
from internal disturbances and even external disturbances presented by the
neighbouring countries. Also, in response to the argument of curtailing of
rights under Article 19, the Solicitor argued that, after scrapping of Article
370, certain rights such as Prevention of Child Marriage Act, Dowry Prohibition
Act were conferred upon the citizens of Jammu and Kashmir.
Now, considering the facts and circumstances of the case and the arguments
presented by the learned counsels, the role of constitutional morality is huge,
and the primary role of judiciary in interpreting constitutional morality is to
strike a balance between the state’s power and rights of the citizens. But, the
difficulty to strike a balance is huge in this scenario, and that is why there
is a requirement of certain principles and limitations for application of
The viewpoint here is not to completely dissolve the aspect of constitutional
morality but rather harmoniously construct it in order to better functioning of
judiciary and judicial powers embarked upon them. Consider, the case of
Maharashtra elections, the governor has certain powers under the Constitution
which should be exercised by him subject to constitutional morality, so that the
purpose of granting such powers is ultimately not defeated.
The application by the judiciary in this case was absolutely correct and
unquestionable by ordering a floor test in Maharashtra, so that the powers
aren’t misused by the authority in light of the Constitution of India. The
application of constitutional morality cannot be disputed in this case, because
the Supreme Court has acted rightly with respect to the facts and circumstances
of the case. Same can be laid down, in the case of disqualification of MLAs case
of Karnataka Legislative Assembly, with respect to the facts and circumstances
of the case.
The issues that were raised in this case are as follows:
- Maintainability of writ petition under A.32 of Indian Constitution?
- Order of Speaker of rejecting the resignation and disqualifying the
petitioners in accordance with the Constitution?
- Assuming the validity of Speaker’s order, power of Speaker to disqualify
members for rest of the term?
- Reference to larger bench with respect to issues?
Now, the Bench in this case concluded that:
- The Speaker, while adjudicating a disqualification petition, acts as a
quasi-judicial authority and the validity of the orders thus passed can be
questioned before this Court under Article 32 of the Constitution. However,
ordinarily, the party challenging the disqualification is required to first
approach the High Court as the same would be appropriate, effective and
- The Speaker’s scope of inquiry with respect to acceptance or rejection
of a resignation tendered by a member of the legislature is limited to
examine whether such a resignation was tendered voluntarily or genuinely.
Once it is demonstrated that a member is willing to resign out of his free
will, the speaker has no option but to accept the resignation. It is
constitutionally impermissible for the Speaker to take into account any
extraneous factors while considering the resignation. The satisfaction of
the Speaker is subject to judicial review.
- Resignation and disqualification on account of defection under the Tenth
Schedule, both result in vacancy of the seat held by the member in the
legislature, but further consequences envisaged are different
- Object and purpose of the Tenth Schedule is to curb the evil of
political defection motivated by lure of office or rather similar
considerations which endanger the foundation of our democracy. By the 91st
Constitutional Amendment, Articles 71 (1B), 164(1B) and 361B were enacted to
ensure that a member disqualified by the Speaker on account of defection is
not appointed as a Minister or holds any remunerative political post from
the date of disqualification or till the date on which his term of office
would expire or he/she is re-elected to the legislature, whichever is
- Disqualification relates back to the date when the act of defection
takes place. Factum and taint of disqualification does not vaporise by
tendering a resignation letter to the Speaker. A pending or impending
disqualification action does not become infructuous by submission of the
resignation letter, when act(s) of disqualification have arisen prior to the
member’s resignation letter.
- In the earlier Constitution Bench judgment of Kihoto Hollohan case, the
order of the Speaker under Tenth Schedule can be subject to judicial review
on four grounds: mala fide, perversity, violation of the constitutional
mandate and order passed in violation of natural justice.
- Our findings on allegations of not granting specific time in all the
above cases are based on the unique facts and circumstances of the case. It
should not be understood to mean that the Speaker could cut short the
hearing period. The Speaker should give sufficient opportunity to a member
before deciding a disqualification proceeding and ordinarily follow the time
limit prescribed in the Rules of the Legislature.
- In light of the existing Constitutional mandate, the Speaker is not
empowered to disqualify any member till the end of the term. However, a
member disqualified under the Tenth Schedule shall be subjected to sanctions
provided under Articles 75(1B), 164(1B) and 361B of Constitution, which
provides for a bar from being appointed as a Minister or from holding any
remunerative political post from the date of disqualification till the date
on which the term of his office would expire or if he is re-elected to the
legislature, whichever is earlier.
- There is a growing trend of the Speaker acting against the
constitutional duty of being neutral. Further horse trading and corrupt
practices associated with defection and change of loyalty for lure of office
or wrong reasons have not abated. Thereby the citizens are denied stable
governments. In these circumstances, there is need to consider strengthening
certain aspects, so that such undemocratic practices are discouraged and
- The existence of a substantial question of law does not weigh on the
stakes involved in the case, rather, it depends on the impact the question
of law will have on the final determination. If the questions having a
determining effect on the final outcome have already been decided by a
conclusive authority, then such questions cannot be called as substantial
questions of law. In any case, no substantial question of law exists in
present matter, which needs reference to larger bench.
The Karnataka Legislative Assembly decision is a classic case of perfect
application of constitutional morality, where the issues were properly answered,
keeping in mind the relevance and importance of morality of the Indian
Constitution. There was harmonious construction of powers of Speaker,
resignations of MLAs and also complete understanding of constitutional
principles and its applications, which made this decision undisputable. The
purpose of Constitutional morality can be understood, considering such decisions
of the Supreme Court of India.
So, after discussing various aspects of Constitutional Morality, in light of the
Sabrimala judgement and other landmark judgements, the defence of Constitutional
Morality taken by Justice Nariman and Justice Chandrachud to validate the
decisions does not seem to hold any standing, considering the current situation
of judge-based laws in India.
The Honourable judges are trying to support their realist and orthodox approach
by taking a liberal view of Constitutional Morality. The view is not only
hindering the rights of the petitioners and other religious communities but is
also opening the floodgates of law and justice which would lead to more
controversial and reviewable decisions of the Supreme Court. And, an only way to
deal with the concept of Constitutional Morality is limiting the scope of its
usage and laying down authoritative principles, to guide the judges and
ultimately the courts of judiciary.