The Constitution of India is a living document as per the old saying and,
therefore, one can find a culture of Invention-ism in the reading or
interpretation of the Constitution. The supreme law of land i. e Constitution of
India is a living document rather than a book containing words. Of late, use of
the 'Doctrine of Constitutional Morality' has become much more significant and
relevant while interpreting the Constitution of India by the Judges than ever
The Supreme Court has applied different facets of this progressive and
transformative doctrine, as it has come to be known, in a catena of cases, some
of which may possibly be counted as the finest and seminal Judgments. The term
constitutional morality has often been invoked by Supreme court in India
for striking down laws which could be termed as manifestations of popular
morality. There are many judicially crafted inventions that is not explicitly
mentioned in constitutional text formally anywhere.
The Doctrine of Constitutional Morality is relatively recent addition
which is time and again provoked by the Supreme Court in past rulings by giving
some landmark Judgement. This phrase of constitutional morality,
existed in the Indian Constitutional Scheme since times of Dr B. R. Ambedkar,
but post-1950 until recently it was in a somewhat dormant state. But this term
is not found in Constitution of India. Nevertheless, the word 'morality' in the
Constitution of India at various places (Article 19, 25 & 26). Dr. B R Ambedkar
used Constitutional Morality multiple times in Parliamentary debates.
While the concept of Basic Structure tended to nullify the constitutional
amendments which go against the fundamental spirit of the Constitution of India,
there was a need for an alternative jurisprudential concept that can be used to
nullify ordinary legislations instead of using the 'Basic Structure' doctrine so
as to avoid weakening the sanctity of the concept. This is not to say that only
constitutional amendments come under the purview of the 'Basic Structure'
doctrine, however, it is true that it applies mostly to such amendments!
What is the Doctrine?
The Constitutional Morality is not still defined anywhere, there are
many different notions on the same. The doctrine of
constitutional morality means adherence to noble principles enshrined in a
Constitution of India, principle interpretation of the Constitution in line with
the ethos of constitutional democracy. It may also be defined as it means
adherence to core values of principles and philosophy of constitutional
democracy that extended to create egalitarian moral based society based on
social, economic and political justice.
Elements of Constitutional Morality
- Rule of Law
- Individual liberty
- Right to Equality
- Freedom of choice expression
- social justice
- Due process of law
Constitutional Morality is not limited only to following the
constitutional provisions literally but vast enough to ensure the ultimate aim
of the Constitution it is so broad that it includes commitment to inclusive and
democratic political process in which the individual and collective interests
are satisfied, a judicial scenario providing an opportunity to unfold the full
personhood of every citizen for whom and by whom the Constitution exists etc. It
specifies norms for institution to survive and an expectation behaviour that
will mere not just the text but the soul and spirit of the Constitution of
It means practical percolation of constitutional values in governance and
citizen entitlement requires a sensitive state apparatus. The Judiciary as a
interpreter of Constitution of India has effectively used 'constitutional
morality' to overcome age old laws, which needs to get reformed with changing
time, as society can't be static it gets evolved with changing times same goes
with the law to cater the needs of society by keeping in mind the spirit of
Constitution of India.
The Doctrine of Constitutional Morality is concept which commands and
empower the Judicial minds to interpret the Constitution of India and its
provisions in a moral way subject to the Constitution and not to the public
morality, in the recent development we get to see this from our Judiciary. The
essence of constitutionalism which provides as rigid feature and serves as a
moral compass in the interpretation and implementation of the Constitution of
India is the Doctrine of Constitutional Morality.
Evolution of Doctrine
The doctrine is not new but in Indian context it is now evoked in many
Judgements recently, first time the concept of constitutional morality
was first propounded by the British Classicist named George Grote in the 19th
Century in his book A History of Greece. In Grote's formulation,
constitutional morality meant as:
- That all citizens would respect and adhere the constitution.
- No own would disobey authorities acting under the constitution.
- All citizens would have the unrestrained freedom to criticize public officials
acting in the discharge of their constitutional duties.
- All Public officials would have to act within the confines of the
- All the contenders for political power would respect the constitution and know
that their rivals also respect the same.
In Indian context first the word 'constitutional morality' was propounded by Dr.
B. R. Ambedkar on 4th November, 1948 in Parliamentary Debate to inculcate the
morality in the Constitution of India with its great importance and
effectiveness. While addressing he said quoted Grote's word that constitutional
morality was not a natural sentiment and said that Indians Have yet to
According to Ambedkar, constitutional morality was not to be used
by Courts to invalidate legislation or Government action. Simply he used the Grote's idea as a persuasive or rhetorical device to justify why seemingly
mundane details about the administration of the Government had been in
Constitution of India. In Ambedkar's view, constitutional morality means an
effective coordination between conflicting interest of different people and the
administrative cooperation to solve those issues or conflicts amicably or in
friendly way as far as possible.
The phrase had been used in less than 10 reported cases by the Apex Court till
2010 from the time the Constitution of India was adopted but in recent time in
the year 2018 alone it has been used more than in 10 reported cases by Supreme
Court of India.
First it was referred by two judges (Justice A. N. Ray & Justice
P. Jaganmohan) Reddy in celebrated Basic Structure case [Kesavananda Bharati
& Ors. Vs State of Kerala & Anr., (1973) 4 SCC 225]. Justice Venkataramiah
in [S. P. Gupta Vs. Union of India 1981 Suppl (1) SCC 87] also known as
First Judge Case found that violation of constitutional convention would be a serious
breach of constitutional morality.
In 2003, Justice S. B. Sinha held that affirmative actions' might be valid but
it would violate constitutional
morality if it is not in consonance with doctrine of equality. The doctrine is
continuously evolving from the adoption of Constitution of India itself as it's
a form of Judicial activism. Tracing the evolution of doctrine from the 'Basic
structure' case to the recent landmark Judgements which was delivered by Supreme
In recent, the doctrine become buzzword as the word Constitutional Morality is
reiterated by Supreme Court in many landmark Judgements. CJI Dipak Mishra (as he
then was) in his Judgement said that magnitude and sweep of constitutional
morality is not confined to the provisions and a literal text which a
Constitution contains, rather it embraces within itself a virtue of a wide
magnitude that ushers in a pluralistic and inclusive society. The doctrine is
an emphatic guarantee that Court plays a counter majoritarian role within
constitutional scheme and it is committed to protecting all minorities.
The salient features of doctrine of constitutional morality can be stated as
- Commitment to liberty
- The constitutional supremacy and equality.
- It is a synonym for the Rule of Law.
- It relates to parliamentary form of government which is self-restraint by
providing limitation on the functioning of state to curtail liberty of citizen.
- It is soul and spirit of constitution; it assures that all inequality is
eliminated by it from social milieu.
- It empowers judiciary to take a step ahead for purposive interpretation, as we
have written constitution it allows rooms, space and flexibility.
- It always supersedes majoritarian morality or public morality for better of
- Not limited by provisions of constitution but it is mandate to accomplish the
aim of the constitution.
- It is akin to doctrine of basic structure and perfect remedy what is
called constitutional silence.
There are many landmark Judgements which have been rendered by Supreme Court by
applying this doctrine, they are as following:
[Navtej Singh Johar & Ors. Vs Union of India & Ors., (2018) 10 SCC 1]: To
protect the right of LGBTQ community, the Apex Court comes up with the Judgement
which partially struck down Section 377 of IPC which made
carnal intercourse against the order of nature (Homosexuality) a crime. The
doctrine is applied here. The former CJ Dipak Misra found that Court must not be
remotely guided by majoritarian view or popular perception, they must be guided
by constitutional morality.
Justice Chandrachud differentiated between public
and constitutional morality and said that the ideal of Justice always have an
overriding effect i.e. constitutional morality have an overriding effect on
public morality. Out of 5 Judges 3 held that goal of the Court is to transform
society or to convert public morality into constitutional morality. The Court
took a progressive and proactive approach, the human dignity, freedom and right
to privacy under Article 21 of Constitution of India was cited as the ratio of
[Joseph Shine Vs. Union of India, 2018 SCC OnLine SC 1676: Upholding the
right of gender equality and right to equality Supreme Court struck down Section
497 of IPC which made adultery (a crime for a man to have sexual intercourse
with a married woman, though the married woman was not to be punished as an
abettor. Here it was noted by Supreme Court that the constitutional validity of
criminal laws not be determined by popular/public morality which are not in
consonance with constitutional morality. The idea of Husband as master of
Women or a Woman as a possession of her Spouse was held to be completely
contrary to the spirit of constitutional facets and ideals. Here doctrine comes
as counterpoise to Public Morality.
[Indian Young lawyers Association & Ors. Vs State of Kerala & Ors., 2018 SCC
OnLine SC 1690] Judgement which is biggest blow on the Public morality and also
criticised by religious prophets and other. Supreme Court held that exclusion
between the age of 10-50 in Sabrimala temple for worship of Lord Ayyappan is
violative of 4 key constitutional morality tests, which includes: 1. Justice 2.
Liberty 3. Equality 4. Fraternity.
To pass constitutional muster and get rights under Article 25 & 26 of
Constitution of India must be in conformity with these four tests, the same
principle was used by Supreme Court in Triple Talaq case. Supreme Court noted
that the word morality in Article 25 & 26 of Constitution of India must mean constitutional morality and not popular. There is minority decision by Justice Indu Malhotra.
[NCT of Delhi Vs Union of India & Anr., 2019 SCC OnLine SC 193] The Judgement
again reiterated the doctrine of constitutional morality. The issue is to figure
out how power is to be shared between the Central and provincial Government of
Delhi under Constitution of India. It was unanimously held that Chief Minister
and not the Lieutenant Governor is the Executive head of Government, Court noted
that morality is constitutional norm and conscience of the Constitution of
Analysing the above series of Judgments, one thing becomes amply clear that:
the silences of the Constitution of India are also to be ascertained to
understand the Constitution. 'Constitutional Morality' is this silence of the
constitutional text regarding which Justice Chalemeshwar talks eruditely in the
[Justice K S Puttaswamy (Retd.) & Anr Vs. Union of India & Ors., Latest Caselaw
604 SC] where Right to Privacy was elevated to the status of a
The doctrine is not only restricted to some texts of the Constitution rather it
is in the spirit of Constitution of India. It requires in a democracy the
assurance of basic rights, which are essential for existence to every member of
society. The doctrine is a counterpoise to public morality and also it is a
facet of 'Basic Structure' of Constitution of India, which provide Judiciary a
power to keep check on the spirit, soul of the Constitution of India by
taking a step ahead then purposive and literal interpretation. The doctrine is a
progressive approach with change in time and evolution of society but there are
no demerits of doctrine?
Every coin has two faces, same here with the doctrine. The constitutional
morality is nowhere located in Constitution of India and it is necessary to do
the same, as there is evident danger that might concept be used in
constitutional Courts as per the whim and fancies of Judicial brains as in
absence of definite clarity and consensus being reached on the doctrine. The
objective of doctrine is to preserve the Rule of Law and also not to act in a
manner which is in violation of provision of Constitution of India or arbitrary
in any manner.
Liberals and progressives have lauded the Supreme Court for espousing this
progressive approach. However, at the same time, on the opposite end of the
ideological spectrum, many among those who rail against liberals', claims that
the application of this doctrine amounts to Judicial overreach and are thereby
pitting constitutional morality against societal/popular morality.
Even the Attorney General of India, taking a pot shot at the application of this
doctrine, has observed that constitutional morality is a dangerous weapon as
the Courts have applied it subjectively. Senior Advocate Abhishek Manu Singhvi,
in his latest book, From The Trenches (2020), commenting on constitutional
morality, specifically in regard to the Sabarimala case (2018) argues that this
phrase is full of subjectivity.
Further, Singhvi maintains that the Judicial
approach to constitutional morality could vary from Judge to Judge like the
proverbial Chancellor's foot. As Rule of Law is not explicitly mentioned in
the constitutional text still it is not just part of the Constitution of India
but also Basic Structure. In the want of an express definition should we say
that Rule of Law is also subjective?
However, on the other hand, apologists of social morality basically premise
their argument on two grounds. First, premised upon the wrong presumption that
constitutional morality is for mature society. This is possibly a superficial
understanding of the issue. Second, the Courts are not the appropriate fora to
adjudicate upon these issues. It is quite strange that these arguments just
sweep under the carpet the well-established dictum that the Supreme Court, the
sentinel on qui vive, is mandated by the Constitution of India to protect the
fundamental rights of every citizen.
Also, giving leeway to social morality, at the altar of constitutional
morality, in a highly religious and diverse nation, as India is, can embolden majoritarianism. However, it is the Rule of Law which should be the order of the
day and not the social morality, an enabler of majoritarianism. It should,
therefore, be sparingly used while interpreting the Constitution of India.
However, taking a diametrically opposite stand and in an unprecedented move,
gives primacy to Social Morality over constitutional morality, wouldn't it
amount to losing the forest for the woods?
Significantly, in the Navtej Singh Johar verdict, the Supreme Court observed in
regard to social morality, that Any attempt to push and shove a homogeneous,
uniform, and consistent and a standardized philosophy throughout the society
would violate the principle of constitutional morality. Further, it was added, Devotion and fidelity to constitutional morality must not be equated with the
popular sentiment prevalent at a particular point of time.
Referring to Judgements in which it was used each one connotes a different
meaning, as resulted in confusion that what actually this doctrine is? e. g
when we see the dissenting note of Justice Indu Malhotra in Sabrimala case it is
also based on the same doctrine but with different interpretation for allowing
ban under, while the same concept used by Justice Chandrachud for saying that
ban as not permitted as this is discrimination, is it like a mercury sleeping
from fingers. There is need to think is this doctrine now used as a touchstone
Dynamism of constitutional morality has to be understood in proper
perspective. It expects the constitutional authorities to behave in accordance
with Constitution of India, similarly if there is any kind of practice which is
not in conformity then holistic application of doctrine can be used, not in a
narrower manner and it does not mean that every public policy decided on the
ground of this doctrine. It's absolutely within the constitutional paradigm,
it's not an uncharted plan.
Constitution embodied with the will of the people to govern them is not an end
but a means to an end i.e. Justice, Social, Economic and Political, a triune
phenomenon inscribed as a pledge in the Preambular glory of Constitution of
India and the adherence to constitutional morality and Judicial Values is
inalienable in accomplishing it. Let heaven falls, but Justice shall triumph!
the presence of a Constitution of India embodying every human aspect for
safeguarding the morality of individual and ensuring Judicial values, if things
go wrong under the Constitution of India the reason will not be that we had a
bad Constitution. What we will have to say is that Man is vile! The Constitution
was made possible by a constitutional morality that was liberal at its core.
Not liberal in the eviscerated ideological sense, but in the deeper virtues from
which it sprang: an ability to combine individuality with mutual regard,
intellectualism with a democratic sensibility, conviction with a sense of
fallibility, deliberation with decision, ambition with a commitment to
institutions, and hope for a future with due regard for the past and present.
Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of