Author: RITU PARNA,National Law University, Meghalaya
To the Point
In the intricate realm of Indian constitutional jurisprudence, the judiciary is often compelled to walk a delicate tightrope between constitutional morality and popular morality. While the former derives its legitimacy from the fundamental values enshrined in the Constitution—such as liberty, equality, dignity, and justice—the latter is grounded in the collective conscience, traditions, and moral codes of the majority population. This tension becomes especially pronounced in cases that challenge long-held societal norms or religious practices.
Over the past decade, the Indian Supreme Court has increasingly invoked the doctrine of constitutional morality to safeguard individual rights and promote social justice. In doing so, the Court has consciously prioritized the constitutional vision of an egalitarian society over the prevailing sentiments of the majority. This has been evident in its bold decisions on issues like gender equality, LGBTQ+ rights, and personal autonomy.
However, such judicial interventions are not without controversy. By placing constitutional morality above popular morality, the judiciary occasionally treads into territory that some view as the domain of democratic institutions like the legislature. This raises significant questions: To what extent should courts shape societal change? Is it appropriate for unelected judges to override majoritarian views in the name of constitutional values? And where should the line be drawn between protecting fundamental rights and respecting the will of the people?
In essence, the judiciary’s increasing reliance on constitutional morality represents both a progressive thrust towards transformative constitutionalism and a potential challenge to democratic legitimacy. As India continues to evolve socially and politically, this balancing act between constitutional fidelity and public sentiment will remain a defining feature of its legal landscape.
Use of Legal Jargon
• Constitutional Morality:
This refers to the unwavering adherence to the core values embedded in the Indian Constitution—namely justice, liberty, equality, and fraternity—as articulated in the Preamble and reinforced through various constitutional provisions. It requires that all institutions, including the legislature, executive, and judiciary, act in a manner consistent with these foundational ideals, even if such action contradicts prevailing societal norms or majority sentiments.
• Popular Morality:
Popular morality reflects the collective moral compass of the general public at a given point in time. It is often shaped by religion, culture, tradition, and social customs. Unlike constitutional morality, which aspires to be universal and rights-based, popular morality is inherently majoritarian and can sometimes perpetuate discriminatory or exclusionary practices under the guise of tradition or cultural sentiment.
• Transformative Constitutionalism:
A progressive interpretive doctrine that views the Constitution not as a static legal document, but as a living instrument capable of adapting to the evolving needs of society. The concept promotes social justice, empowerment of marginalized groups, and structural reform, thereby enabling the judiciary to play an active role in transforming existing social hierarchies and power imbalances.
• Judicial Review:
A fundamental feature of the Indian constitutional framework, judicial review empowers the judiciary—especially the Supreme Court and High Courts—to scrutinize the validity of legislative and executive actions. If found inconsistent with the Constitution, such actions can be declared void. It serves as a check on arbitrary state power, and is essential for the protection of fundamental rights and the preservation of constitutional supremacy.
• Basic Structure Doctrine:
A seminal judicial principle evolved in the Kesavananda Bharati v. State of Kerala (1973) case, the basic structure doctrine holds that while Parliament has wide powers to amend the Constitution, it cannot alter or destroy its fundamental features, such as the rule of law, separation of powers, judicial independence, and federalism. It acts as a constitutional safeguard against authoritarian or majoritarian amendments that threaten the essence of the Constitution.
The Proof
In contemporary Indian constitutional jurisprudence, the principle of constitutional morality has emerged as a potent judicial tool to reinforce the supremacy of the Constitution over entrenched societal norms. This concept has gained traction through a series of landmark Supreme Court decisions where fundamental rights were prioritized, even when they conflicted with deeply rooted traditional values or the sentiments of the majority.
The judiciary’s reliance on constitutional morality is evident in its robust interpretation of Part III of the Constitution, which enshrines the Fundamental Rights. Courts have increasingly held that these rights must be read expansively to include personal dignity, individual autonomy, and equal treatment before the law, regardless of public opinion or cultural orthodoxy.
One striking example is the Navtej Singh Johar v. Union of India (2018) case, wherein the Supreme Court decriminalized consensual homosexual relations between adults by reading down Section 377 of the Indian Penal Code. The Court emphatically stated that societal morality cannot dictate constitutional rights, and that dignity and privacy, as protected under Articles 14, 15, and 21, must take precedence over discriminatory moral codes rooted in colonial-era prejudices.
Similarly, in the Indian Young Lawyers Association v. State of Kerala (2018) judgment, which dealt with the entry of women into the Sabarimala temple, the Court ruled that customary exclusion based on biological characteristics violated the equality and non-discrimination guarantees of the Constitution. The majority opinion held that religious freedom under Article 25 cannot be a cover for patriarchal practices, and emphasized that the spirit of constitutional morality demands inclusion and non-subjugation.
In Joseph Shine v. Union of India (2018), the Supreme Court struck down Section 497 IPC, which criminalized adultery, as being archaic, patriarchal, and inconsistent with the Constitution’s egalitarian vision. The judgment declared that individual dignity and autonomy in marital relationships cannot be overridden by outdated notions of morality that treat women as property.
In each of these cases, the Court did not merely interpret statutory or constitutional provisions in isolation; rather, it invoked the broader transformative vision of the Constitution—aimed at breaking down entrenched hierarchies and fostering a society based on equal respect for all individuals. Constitutional morality thus served as a normative compass, guiding judicial decisions beyond the limitations of public morality and toward the realization of a just social order.
The judiciary’s reliance on this principle has not been without criticism. Detractors argue that invoking constitutional morality risks transforming judges into moral arbiters, thereby blurring the lines between judicial interpretation and legislative intent. Yet, in the face of persistent inequalities and deeply ingrained social injustices, the invocation of constitutional morality by the judiciary has proven indispensable in defending fundamental rights from the tyranny of the majority.
Abstract
The tension between constitutional morality and popular morality has become a defining feature of contemporary Indian constitutional discourse. As societal values and democratic expectations evolve, the judiciary is increasingly called upon to mediate conflicts between the enduring principles of the Constitution and the shifting contours of public morality. This article delves into the normative framework of constitutional morality, positioning it as a transformative tool that enables courts to dismantle oppressive traditions and reinforce the values of liberty, equality, and dignity. Through an analysis of recent landmark judgments—including Navtej Singh Johar, Joseph Shine, and Sabarimala—this article argues that the Indian judiciary has adopted a proactive interpretative stance, wherein constitutional ideals are prioritized over majoritarian beliefs. However, such judicial activism also raises critical concerns regarding the limits of judicial authority and the role of democratic engagement in shaping moral consensus. By evaluating both the strengths and challenges of constitutional morality as a guiding doctrine, this article seeks to contribute to the ongoing debate about the judiciary’s role in India’s democratic and constitutional ecosystem.
Case Laws
1. Navtej Singh Johar v. Union of India (2018)
The Supreme Court, in a historic judgment, read down Section 377 IPC to decriminalize consensual same-sex relations between adults. The five-judge Constitution Bench invoked constitutional morality as a foundational principle, asserting that “constitutional morality cannot be martyred at the altar of social morality.” The Court emphasized that the right to equality (Article 14), non-discrimination (Article 15), personal liberty (Article 21), and dignity must prevail over entrenched prejudices. This judgment exemplified the judiciary’s role in upholding minority rights despite societal opposition.
2. Indian Young Lawyers Association v. State of Kerala (Sabarimala Case) (2018)
This case challenged the centuries-old restriction on the entry of women of menstruating age into the Sabarimala Temple. The Supreme Court, by a 4:1 majority, ruled that the ban violated Articles 14, 15, 17, and 25 of the Constitution. Justice D.Y. Chandrachud, in a powerful concurring opinion, asserted that “constitutional morality requires us to exclude patriarchal traditions from the sanctum of religion.” The decision underscored the Court’s willingness to confront religious orthodoxy in defense of gender equality and dignity, even amid public backlash.
3. Joseph Shine v. Union of India (2018)
In this case, the Supreme Court struck down Section 497 IPC, which criminalized adultery, as unconstitutional. The Court held that the law was based on patriarchal assumptions and treated women as property of their husbands. Invoking constitutional morality, the Court ruled that such gender-biased legislation violated the principles of equality, dignity, and personal autonomy under Articles 14, 15, and 21. This judgment affirmed the Court’s role in purging outdated social norms that conflict with constitutional values.
4. Naz Foundation v. Government of NCT of Delhi (2009)
Although eventually overturned in Suresh Kumar Koushal v. Naz Foundation (2013), the Delhi High Court’s decision in Naz Foundation was pivotal in introducing the doctrine of constitutional morality into Indian jurisprudence. The Court held that criminalizing consensual homosexual acts violated Article 21’s right to privacy and dignity. It marked an early judicial effort to elevate constitutional values over moralistic legislation rooted in colonial morality.
5. Shafin Jahan v. Asokan K.M. (2018)
Known popularly as the “Hadiya case”, the Supreme Court restored the marital liberty and personal autonomy of a woman who had converted to Islam and married against her parents’ wishes. The Court held that an adult’s choice of faith and partner is a part of individual liberty under Article 21 and cannot be scrutinized through the lens of public disapproval. The judgment reaffirmed the supremacy of constitutional morality in safeguarding personal freedoms.
These cases collectively demonstrate how the Indian judiciary has elevated constitutional morality above popular morality, thereby reinforcing the vision of the Constitution as a transformative charter. However, they also invite critical reflection on the scope of judicial intervention in morally contested domains.
Conclusion
The constitutional vision of India, as envisaged by its framers, is not merely a legal framework but a moral compass aimed at guiding the nation toward justice, equality, and human dignity. In recent years, the judiciary has played a pivotal role in operationalizing this vision through its assertive invocation of constitutional morality. By prioritizing constitutional principles over transient social norms and majoritarian sentiments, the courts have sought to advance a transformative constitutional agenda.
However, this judicial strategy—though grounded in the values of liberty and dignity—raises complex questions about institutional legitimacy, democratic accountability, and the limits of judicial discretion. Critics argue that frequent reliance on constitutional morality could lead to judicial paternalism, where the judiciary displaces public discourse and democratic engagement with a top-down imposition of values. While this concern is valid, it must be balanced against the reality that popular morality often lags behind the Constitution’s egalitarian aspirations, especially in a society still grappling with casteism, patriarchy, and religious orthodoxy.
The key, therefore, lies not in abandoning constitutional morality, but in applying it with judicial restraint, clarity, and consistency. Courts must act not as moral legislators, but as guardians of the constitutional conscience—ensuring that the fundamental rights of individuals are not sacrificed at the altar of tradition or majoritarian will.
As India navigates the complexities of pluralism, religion, and modernity, the debate between constitutional and popular morality will remain central to its democratic ethos. The judiciary’s continued reliance on constitutional morality must be complemented by efforts to promote civic education, legislative reform, and societal dialogue, thereby enabling a harmonious convergence of constitutional ideals with collective moral evolution.
FAQs
Q1. What is the core difference between constitutional morality and popular morality?
Ans: Constitutional morality refers to the values and principles enshrined in the Constitution—such as justice, equality, liberty, and fraternity—which act as guiding norms for governance and adjudication. Popular morality, on the other hand, reflects the prevailing beliefs, traditions, and ethical values of the majority population, which may or may not align with constitutional ideals.
Q2. Why has the judiciary favored constitutional morality over popular morality in recent years?
Ans: The judiciary has increasingly invoked constitutional morality to protect fundamental rights, particularly those of marginalized communities, against discriminatory practices rooted in majoritarian beliefs. It ensures that the rule of law and constitutional values prevail over regressive customs, thereby advancing transformative constitutionalism.
Q3. Does invoking constitutional morality lead to judicial overreach?
Ans: While some critics argue that the frequent use of constitutional morality risks overstepping the judiciary’s boundaries, courts generally use it to uphold constitutional guarantees, not to substitute legislative functions. The key lies in balancing judicial intervention with democratic respect, ensuring rights are protected without undermining institutional legitimacy.
Q4. Can popular morality ever influence constitutional interpretation?
Ans: Although constitutional morality takes precedence, courts may consider the evolving social conscience of the public, especially when interpreting vague or open-textured constitutional provisions. However, such influence is permissible only when it aligns with or reinforces constitutional values—not when it undermines them.
Q5. How can constitutional morality be reconciled with democratic values?
Ans: True democracy is not merely about majority rule—it also entails protection of minority rights and adherence to constitutional norms. Constitutional morality complements democracy by ensuring that the exercise of political power remains constrained by legal and moral principles rooted in the Constitution.
