Constitutional morality and judicial justice are the dimensions of the same
sphere. Constitutional morality without judicial justice is not sufficient for
the development of Indian society, they both collaterally participate in the
growth of social justice. The judiciary is empowered by constitutional morality
to think about and interpret constitutional provisions in a moral manner. The
constitutional morality acts as a catalyst for the court to alter the
legislation to meet social requirements.
Because the Indian constitution combines moral and legal characteristics, the
constitutional morality and judiciary both exist with the same goal in mind: to
eradicate disparities and non-constitutional elements from society.
Recently, the judiciary has enacted a slew of laws that go counter to the
notion of constitutional morality:
- Decriminalization of Section 377 of the Indian Penal Code (1860)
- Nullify the Section 66 of the Information Technology Act (2000) in
Shreya Singhal Case, 2015
- Medical termination of Pregnancy Act
- Criminal Law Amendment Act
- Opening of Sabarimala temple to women of all age in Indian Young Lawyers
Association case, 2006
- Ban and criminalize the legislation of Triple Talaq in Shayara Bano
This article focuses on the overall concept of constitutional morality in the
field of judicial justice, such as how they are related, the importance of
constitutional morality in the judiciary, and recent judgments passed by the
Judiciary in the commitment of constitutional morality, as well as suggestions
that the judiciary should adopt in regards to constitutional morality.
As we can see, the concept of constitutional morality is being employed by the
Indian judiciary as a source of judicial interpretation to address difficulties
in modern society. It acts as a transformational instrument for the judiciary to
safeguard individual interests, as seen by recent Judgements. The Supreme Court
ruled in the case of Indian Young Lawyers Association & Ors. V. Kerala & Ors
that Sabarimala Temple's custom of preventing women in their "menstruating
years" from entering was unconstitutional and enabled all women, regardless of
age, to enter. In this circumstance, devotees of Lord Ayyappa held the religious
conviction that menstruation women could not enter into the temple.
However, the judiciary saw this issue through the lens of constitutional
morality and rendered a decision in favour of individual rights. In the case of
Shayara Bano V. Union Of India
the Supreme Court of India analysed this
case in the light of constitutional morality and rendered a judgement in favour
of individual interests by declaring the Triple Talaq (Talaq -ul- Biddat) null
and void. As a result, the Supreme Court, as a constitutional protector and
interpreter, has ensured that the supremacy of the constitution and
constitutional morality always triumphs over personal laws and traditions.
Evolution Of Constitutional Morality
The doctrine of constitutional morality was propounded by Grote. He defined
constitutional morality as an attitude that must be spread among many
stakeholders, including people, public officials, political parties,
oppositions, and political institutions, in order to achieve free and peaceful
Later, in the Constituent Assembly discussion on November 4, 1948, the Chairman
of the Drafting Committee, Dr. Ambedkar, expressed his views on constitutional
morality. He proposed that administrative details had no place in the
constitution, but only in places where people are saturated with constitutional
morality, such as the one outlined by Grote. One can take the risk of deleting
administrative matters from the constitution and leave it up to the legislature
to prescribe them.
He invoked Grote's words that constitutional morality is not a 'natural
sentiment' and said that Indians, "have yet to learn it". "Democracy in India"
is only a top-dressing on an Indian soil, which is essentially undemocratic. As
a result, according to both of them, constitutional morality is not being
observed in India.
How The Concept Of Constitutional Morality Is Evolving Through Judicial Judgements
Naz Foundation V. Government Of Nct Of Delhi (2009)
This was one of the first cases in which Section 377 of the IPC was found to be
illegal because it rendered "canal intercourse against the order of nature" a
criminal felony. It discriminated against the LGBTQ community of the country and
breached their privacy as individuals. In this case it was ruled that Section
377 of IPC is in clear violation of Article 14, 15 & 21 of the Indian
Constitution by stating that "popular morality or public disapproval of certain
act is not a valid justification for restriction of the fundamental rights under
In this case the concept of constitutional and social morality was discussed and
holding that constitution morality would prevails over social morality. It was
also held that while determining whether a law could be considered justified or
not, the court must take into account the 'constitutional morality' and not
popular or societal morality.
Navtej Singh Johar V. Union Of India
In this case the section 377 of IPC was challenged as it criminalizes the "canal
intercourse" sexual intercourse against the order of the nature but the Supreme
found it to be discriminatory towards the LGQBT community and concluded that
sexual orientation is an inherent part of their identity, dignity and autonomy
and declared it unconstitutional.
The Supreme court rendered this judgement in the light of constitutional
morality by stating that the court must not be "remotely guided by majoritarian
view or popular perception", that they must be "guided by the conception of
constitutional morality and not by the societal morality".
Justice Chandrachud distinguishes "public morality" from "constitutional
morality". In the former, "the conduct of society is determined by popular
perceptions existent in society", while the latter "requires that the rights of
an individual ought not to be prejudiced by popular notions of society".
Indian Young Lawyers Association V. The State Of Kerala
This lawsuit is also known as the Sabarimala temple case since it involves the
admission of women to the Sabarimala shrine. The devotees of Lord Ayappa have a
religious belief that forbids menstruating women from visiting the temple. The
court ruled in favour of women, ruling that the Sabarimala Temple's practise of
excluding women in their "menstruating years" from attending is
unconstitutional, violating Articles 15, 17, 25, and 26 of the Indian
Constitution, and allowing entrance to all women, regardless of age.
The court assessed this issue with the notion of constitutional morality in
mind, and it preserved the scope of individual rights by guaranteeing that
constitutional morality always takes precedence over customs and religious
Importance Of Constitutional Morality In Judiciary
The Doctrine of Constitutional Morality is a relatively new concept that has
been repeatedly triggered by the Supreme Court in previous judgements by issuing
a landmark decision. In a democratic order, the idea of constitutional morality
and judicial principles takes on many aspects and has several implications for
the individual's dignity and freedom. The use of this word in various judgments
has grown extremely common in the Indian judiciary in recent years.
The word 'constitutional morality' is likewise a judicial interpretation, as it
does not appear expressly in the Constitution. In the modern period,
constitutional morality may be divided into two sub-categories: as a spirit or
force of the Constitution and as the antonym of popular morality. The Supreme
Court has used various aspects of this progressive and revolutionary doctrine,
as it has come to be called, in a slew of cases, some of which may be considered
among the best and important decisions. Its objective was to guarantee that the
values of the constitution took precedence over the people's changeable
morality. In Navtej Singh Johar's case, the Delhi High Court's decision was
subsequently upheld by the Supreme Court.
'The Doctrine of Colorable Legislation elucidates the principle that what cannot
be done directly cannot be done indirectly.'
The Judiciary is an independent body of government constitutionally entrusted
with the fair and just settlement of disputes and is committed to maintaining
law and order and preserving the rights and liberties provided by the
Constitution and laws of the State. The main argument against the Doctrine of
Constitutional Morality as a judicial principle is that it is clearly in
violation of a very basic tenet of democracy, that is, of separation of power
between the three wings of the State governance framework: judiciary,
legislature, and the executive.
Another point of view advanced by individuals opposed to the notion of
constitutional morality is that it has been left up to individual judges to
determine its essence and apply it in appropriate conditions.
Furthermore, it impedes the organic and natural evolution of liberalism or the
repair of societal wrongs or ethical evils by vesting powers in the hands of the
courts to apply a 'top-down approach' in the name of the morality front concept.
Judiciary that limits its authority fairly and removes its jurisdiction
sparingly when needed is not subject to public scrutiny and lacks
Constitutional morality is a feeling that should be instilled in the minds of
all responsible citizens. It may be argued that both Ambedkar and Grote saw
Constitutional Morality as a self-imposed restriction by the people to respect
the constitutional values, rather than as a tool for resisting or resolving
government action. However, over seventy years after Dr. Ambedkar made his
Constituent Assembly address in 1948, a variety of interpretations of the
concept have been assigned by various scholars and courts.
Maintaining constitutional morality is not just the responsibility of the
judiciary or the state, but also of individuals. The sort of society we aspire
to construct is plainly mentioned in the constitution's preamble; it can only
become a reality via constitutional morality.
The judiciary has established progressive and monumental precedents in the last
several years, where this theory has been used particularly in circumstances of
gender-justice, institutional propriety, social uplift, curbing majoritarianism,
and other such ills. The Constitution, embodied with the will of the people to
govern them, is not an end in itself, but rather a means to an end, namely
Justice, Social, Economic, and Political, a triune phenomenon enshrined as a
pledge in the Preambular Glory of our Constitution, and adherence to
Constitutional Morality and Judicial Values is inalienable in achieving it.
For the time being, the two-pronged definition of constitutional morality
includes: first, a legal mechanism for combating popular morality, and second, a
reminder that Courts should keep themselves free of, sometimes rigid, societal
beliefs and opinions that need to be revamped for the betterment and overall
advancement of the country. Second, it aids in keeping the government
responsible by allowing the courts to investigate the spirit and conscience of
the Indian Constitution.
As a result, it is correctly classified as a second basic structural doctrine.
It is understandably imprecise and ambiguous in its description, as are most
other constitutional principles, which are significantly dependent and dependant
on the interpretation of judges while giving verdicts in various situations.
However, the country's judicial system necessitates it, as does the requirement
for judges to fill up the "empty vessels of these theories" with words of legal
skill and experience gained through years of practice.