Copyright © 2020 - Ex Gratia Law Journal

Transforming Epithets of Constitutional Morality in India

“The Constitution of a country is written in blood, rather than in ink”

Laurence Henry Tribe

1. Introduction

The facets of India’s Constitution have been put to test a number of times, including the “basic structure test” in Keshavanandha Bharathi,[1] “manifest arbitrariness test” in ShyaraBano,[2] and the “reasonable classification test” in a plethora of cases including the Indira Swahney case.[3]The recent addition to these judge-made innovations is the test of ‘constitutional morality’ that has been a matter of heavy criticism in several controversial judgements, including the cases of Sabarimala[4] and Navtej Singh Johar.[5]This doctrine has become a concern of scholarly parley, especially after the Attorney General of India, K.K. Venugopal, was extensively reported in the press as having criticized it as a “dangerous weapon”.[6] The exact meaning of this particular term has succumbed to a lot of debate and is sometimes viewed as an arm of judicial overreach. To understand this concept holistically, it is important to comprehend its origin.

2. History

2.1. Grote’s Point of View

George Grote, an English historian,wrote an authoritative 12-volume history of Greece without ever having visited that country in the 19thcentury.Constitutional morality as first discussed by Grotewas in the context of the history of Greece and, more particularly, in the attachment to constitutional forms at Athens and how this sentiment was used by Antiphon to destroy the Constitution.[7]Grote defined “constitutional morality” as:

“A paramount reverence for the forms of the constitution, enforcing obedience to the authorities acting under and within those 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 the constitution will be not less sacred in the eyes of his opponents than in his own.”[8]

For Grote, there were only two other plausible instances of constitutional morality having been remotely realized: the aristocratic combination of liberty and self-restraint experienced in 1688 in England, and American constitutionalism. All other attempts at enshrining constitutional morality had grievously foundered.[9] Grote has also warned that constitutional morality is not a ‘natural sentiment’ and that ‘it was the indispensable condition of a government once free and peaceable’.[10] From an analysis of Grote’s perspective, a plausible conclusion that can be drawn is that it meant absolute reverence to the Constitution and placing the ideals of the Constitution above everything else. This was the context in which the Father of the Indian Constitution, Dr. B.R. Ambedkar mentioned this idealistic concept in one of the Constituent Assembly Debates.

3. Views of Dr. B.R. Ambedkar

One of the key contributors to the drafting of India’s Constitution, Dr. B.R Ambedkar, during the course of the Constitutional Assembly debates used the term ‘constitutional morality’ as a rhetorical device to justify the inclusion of banal details in the Constitution – details concerning matters of administration.[11]

It is in this context that Ambedkar had quoted Grote:

“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 ascendancy for themselves.”

The explanation of this concept was necessary so as to justify the inclusion of the administration as it had a ‘close connection with the form of the Constitution.’[12]He invoked Grote’s words and said that Indians “have yet to learn it”.[13] “Democracy in India”, he said, “is only a top-dressing on an Indian soil, which is essentially undemocratic.”[14] “In these circumstances”, he concluded, “it is wiser not to trust the Legislature to prescribe forms of administration.”[15]

From this vantage, we are most likely to conclude that constitutional morality was not meant to be a test for adjudging the vires of a legislation vis-à-vis the Indian Constitution. The term “Constitutional morality” was introduced as an intellectual inducement to forgo the practices furthering social disabilities for the creation of an egalitarian society. Therefore, the term was used with an intent to invoke obedience towards the Constitutional institutions in a society that was largely undemocratic.This was not propounded to be a constitutional test, per se.

4. Transformation of Constitutional morality following the SP Gupta judgement.

In the SP Gupta[16]dictum, the Supreme Court reconstructed the term constitutional morality to mean the affirmance of certain rights arising from well-established constitutional practices. This uncertainty infused into the term of Constitutional morality was pursued in several succeeding judgements making the interpretation of the term ambiguous.

Two decades later, theSupreme Court in the Manoj Narula[17]caseheld that to uphold the principle of constitutional morality would imply the sustenance of constitutional values. Although the phrases “constitutional practices” and “constitutional values” remained debatable, the Court in Krishnamoorthy v. Sivakumar,[18]held that: “Democracy expects constant affirmance of constitutional morality. Therefore, corruption being antithetical to democracy is a breach of constitutional morality.” This clearly reveals that the term constitutional morality was a wheel spun to accommodate the subjective interpretations of the judges.

The scope of Constitutional morality was suddenly narrowed by the Supreme Court of India in the cases of Independent Thought[19]and Asha Ranjan.[20]In the Asha Ranjan dictum, Justice Dipak Misra held that: “There can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day.” Merely a year later, the scope of constitutional morality was liberalized to preserve the spirit of Indian Constitution.

5. Constitutional morality as a test of Constitutional justness.

In the NCT of Delhi case,[21] the Supreme Court went on to hold that: “Constitutional morality, aptly understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. It advocates the principle of constitutional justness without subjective exposition of generosity.” In the same judgement, Justice Dr. D.Y. Chandrachud elucidated that Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution but provides an “enabling framework that allows a society the possibilities of self-renewal.”[22]

In the same letter and spirit of the NCT dictum, the Court recognized woman’s agency and individual identity in affirmance with Constitutional morality.[23] The Court also went on to hold that the norms of equality, liberty and dignity set forth in the Preamble of the Constitution should guide the application of the test of Constitutional justness in the path to attain Constitutional morality.[24]

6. Constitutional morality as an antithesis to societal morality.

The breakthrough in constitutional morality came in the NavtejSingh dictum[25] where Constitutional morality was recalled as antithetical to societal morality. Constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance.[26]Contemporaneously, constitutional morality does not envisage the creation of a homogenous society. To mark the words of Justice Dipak Misra: “Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality.”[27]Accordingly, constitutional morality advocates for the balance between constitutional values and the diversity existing in the Indian society.

7. Public morality, a synonym for Constitutional morality.

In the eminent Sabarimala Judgement,[28] the Court undertook a different attitude towards morality. Apart from holding that the exclusionary practice preventing women of menstruating age from entering the shrine of Lord Ayyapan to be incompatible with the Constitutional values of equality, liberty and dignity, the Court went to determine that “public morality” has to be appropriately understood as being synonymous with constitutional morality.[29]

 On the other hand, Justice RF Nariman, in his concurring opinion, expressed his fear of reading the term “morality” appearing in Articles 25 and 26 as Constitutional morality. According to him, “if so read, this would bring in, through the back door, the other provisions of Part III of the Constitution, which Article 26 is not subject to, in contrast with Article 25(1).”[30] However, D.Y.Chandrachud.,J in his concurring opinion, maintained that Constitution although is solicitous in its protection of religious freedom as well as denominational rights, prioritizesthe norms of dignity, liberty and equality, for, they comprisethe faith of the Constitution. Together, these three values combine to define a constitutional order of priorities.[31]

Contrastingly, Justice InduMalhotra in her dissenting opinion took a stand which was similar to that of Dipak Misra, J., in the Navtej dictum. She went onto opine that Constitutional morality requires the harmonization or balancing of the principles of equality and liberty, to ensure that the religious beliefs of none are obliterated or undermined[32]. The contrasting interpretations attributed to the term Constitutional morality combined with stare decisis makes it a powerful tool in the hands of the Judges while determining the fate of any impugned legislation or custom. Therefore, the principle must be evaluated sceptically to safeguard the true spirit of democracy. 

8. Constitutional morality, a boon or a bane: An appraisal of the Indian Jurisprudence.

Constitutional morality, as it stands today, can be a blessing as well as a dangerous weapon in disguise. The distinct lacuna in the test of constitutional morality would rest with the fact that the term has been put into several inconsistent- in some cases, contradictoryinterpretations. Honourable Justice Dr. D.Y. Chandrachud noted that the element of constitutional morality is the ground for contesting interpretations.[33] The judiciary being the only unelected organ of the Indian State, cannot be granted the power to infuse the relative opinions of the judges under the head of “constitutional morality”. Any attempt to do so would undermine the spirit of democracy.

Another difficulty in the test of constitutional morality is associated with its inconsistent application. It is pertinent to point out that the test of Constitutional morality was omitted in the Ayodhya Judgment[34]and the Rafale Judgment.[35] This showcases the fact that the concept has been employed as and when the judges deem it fit and not otherwise, vividly showing the irregularity in its application.

Moreover, the test was not employed exhaustively in the Independent Thought and Asha Ranjan dictums. In the Independent thought judgement, the Supreme Court of India partly struck down Exception 2 to Section 395 of the Indian Penal Code on the grounds that such a provision was incompatible to the existing Constitutional morality. However, the Court read down the provision as: “Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.”[36] However, the irony here is that there should be no exception to penalize heinous crimes such as rape whatsoever. Rape shatters the dignity of women. To uphold an exception to rape would be to contradict constitutional morality itself.

In the Sabarimala decision, the Supreme Court of India struck down an age-old custom on the grounds that such a custom failed to satiate the test of Constitutional morality. Further, the Court read the term public morality enumerated in Articles 25 and 26 of the Constitution to mean “constitutional morality”. In this regard, it is pertinent to note that Dr. B.R.Ambedkar envisioned the affirmance of Constitutional morality, but he did not totally disregard public morality. To completely disregard public morality would mean dismantling the heterogeneity in the Indian society. Also, the exclusionary practice was not in furtherance of the morals that existed in the patriarchal society. The practice was carried on owing to the “naishtika brahmacharya” character of Lord Ayyapan. Therefore, to determine the propriety of a faith would be to surrender the liberty of belief set out in the Constitution.

Unless the test of constitutional morality is subjected to a uniform underlying principle and application, the test serves as an aperture for the Judges to shove their subjective opinions in the interpretation of the Constitution.

9. Constitutional morality: Envisaging the future.

Akin to the test of reasonable classification, the test of Constitutional morality can promote   Constitutionalism while maintaining the diversity of the Indian society. To uphold the spirit of Constitution and to develop trust in the democratic institutions, it is inevitable that there be Constitutional morality guided by the objective principles of justice. However, it is the despondent reality that constitutional morality operates as an arbitrary tool in the hands of the judges as revealed by various conflicting interpretations and applications.

Attorney General of India, K.K.Venugopal lambasted that, through this test, the Apex Court has garnered to itself vast power which no apex court in the world has ever exercised”.[37] Further, it is also fit to examinewhether through this test of constitutionality; the judiciary is colourably exercising the powers of legislature. If they do, itwould go against the doctrine ofseparation of powers upon which our Constitution functions. Jawaharlal Nehru, back in the years, expressed concerns over the Supreme Court becoming the third chamber of the Parliament, which albeit, seems to be occurring now owing to such vague and indefinite doctrines.

Though Article 142 of theConstitution confers abundance of powers to the Apex Court in order to ensure complete justice, there is growing concerns regarding the use of the same and  the article is treated as a ‘Kamadhenu‘ from which unlimited powers flow to the Apex Court of the country.[38]It is also pertinent to understand that constitutional morality is not being used in the sense that it evolved to be and has been given a completely new interpretation by the Supreme Court judges which to an extent, portrays judicial overreach as the lines between the powers of the judiciary and the legislature seems to be blurry and inconsistent vis-à-vis such ideals. 

Now, the task of framing a uniform and standard judicial policy with respect to religious freedom and Constitutional morality has been referred to a nine-judge bench of the Supreme Court.[39]

The question, Is Constitutional morality, a blessing, or a perilis for the Supreme Court of India to conclude


[1]Kesavananda Bharati v. State of Kerala And Anr, (1973) 4 SCC 225.

[2]Shayara Bano v. Union of India, (2017) 9 SCC 1.

[3]Indra Sawhney v. Union of India And Others, 1992 Supp 2 SCR 454.

[4] Indian Young Lawyers Association v. State of Kerala, (2018) SCC Online SC 1690.

[5] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

[6] Apoorva Mandhani, “Constitutional Morality A Dangerous Weapon, It Will Die With Its Birth: KK Venugopal”, Livelaw, 9 December 2018, available at: https://www.livelaw.in/constitutional-morality-adangerous-weapon-it-will-die-with-its-birth-kk-venugopal/, Accessed on: 07/07/2020, 18:27 HRS.

[7]As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the Country, The Wire, https://thewire.in/law/constitutional-morality-coronavirus-lockdown, Accessed on: 09/07/2020, 19:10 HRS.

[8] Russell Meiggs, “Cleisthenes of Athens”, Encyclopaedia Britannica, available at: https://www.britannica.com/biography/Cleisthenes-of-Athens, Accessed on: 13/07/2020, 11:15 HRS.

[9] Pratap Bhanu Mehta, What is Constitutional Morality, Available at: https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm, Accessed on: 13/07/2020, 10:49 HRS.

[10] Russell Meigss Supra Note xi.

[11] Dr. Abhinav Chandrachud, The Many Meanings of Constitutional Morality, Available at: file:///C:/Users/User/Downloads/SSRN-id3521665.pdf, Accessed on: 09/07/2020, 18:26 HRS.

[12]  Constituent Assembly Debates of India, Vol. 7.

[13] Id.

[14] Id.

[15] Dr. Abhinav Chandrachud, Supra Note xiv.

[16]S.P. Gupta v. Union of India, (1981) Supp SCC 87, p.1080.

[17]Manoj Narula v. Union of India, (2014) 9 SCC 1, p.76.

[18]Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467, p.81.

[19]Independent Thought v. Union of India, (2017) 10 SCC 800, p.197.

[20]Asha Ranjan v. State of Bihar, (2017) 4 SCC 397, p.56.

[21]State (NCT of Delhi) v. Union of India, (2018) 8 SCC 50, p.63.

[22] Ibid., p.298.

[23]Joseph Shine v. Union of India, (2019) 3 SCC 39, p.218.

[24] Ibid., p.219.

[25]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, p.131.

[26] Ibid., p.598.

[27] Ibid., p.128.

[28]Indian Young Lawyers Association and Ors v. State of Kerala and Ors, 2019 11 SCC 1, p.298.

[29] Ibid., p.110.

[30] Ibid., p.176.7.

[31] Ibid., para. 289.

[32] Ibid., para. 483.

[33]State (NCT of Delhi) v. Union of India, (2018) 8 SCC 50, para. 293.

[34]M. Siddiq v. Mahant Suresh Das and Ors, (2020) 1 SCC 1.

[35]Yashwant Sinha and Ors v. Central Bureau of Investigation and Anr, (2020) 2 SCC 338.

[36]Independent Thought v. Union of India, (2017) 10 SCC 800, p.197.

[37] The First Post, https://www.firstpost.com/india/constitutional-morality-can-be-very-very-dangerous-attorney-general-kk-venugopal-fears-sc-may-become-third-parliament-chamber-5698851.html, Accessed on 13/07/2020, 15:34 HRS.

[38] Id.

[39]Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors, 2020 2 SCC 1.

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Author

Aparna Raju
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.
Harshini Ranganathan
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.