CONSTITUTIONAL MORALITY AS A COUNTER-MAJORITARIAN PRINCIPLE IN INDIAN JURISPRUDENCE

Rabia Mittal

Baba Farid Law College, Affiliated to Punjabi University Patiala, Faridkot, Punjab.

ABSTRACT

This article undertakes a jurisprudential examination of the distinction between constitutional morality and popular morality in Indian constitutional law. Beginning from Grote’s nineteenth-century civic philosophy and Ambedkar’s foundational invocation before the Constituent Assembly in 1948, the article traces the doctrine’s judicial development through Kesavananda Bharati (1973), Naz Foundation (2009), Puttaswamy (2017), Navtej Singh Johar (2018), the Sabarimala case (2018), and Joseph Shine (2018). The article argues that constitutional morality functions as a structurally legitimate counter-majoritarian discipline, not an anti-democratic one, rooted in the Constitution’s own textual commitments to equality, dignity, liberty, and fraternity. It also honestly engages with the doctrine’s limitations, including conceptual vagueness and the risk of judicial subjectivity.

Keywords: Constitutional Morality, Popular Morality, Fundamental Rights, Judicial Review, Transformative Constitutionalism, Indian Supreme Court.

I. INTRODUCTION

Few tensions in constitutional law are as persistent or as consequential as the one between what the Constitution demands and what the majority happens to believe. In India, this tension has a name: constitutional morality versus popular morality. The distinction is not merely semantic. It determines whether a minority community’s rights survive a hostile legislature, whether a woman can enter a place of worship on the same terms as a man, and whether centuries-old criminal laws rooted in Victorian prudishness can continue to govern the intimate lives of citizens in a republic that calls itself free.

India’s Supreme Court has, particularly in the years between 2017 and 2019, moved this distinction from the margins of constitutional theory to its very centre. Deployment of “constitutional morality” as an interpretive standard-one that self-consciously overrides popular sentiment-has produced some of the most celebrated and most contested judgments in the Court’s history. Chief Justice Dipak Misra captured the doctrine’s animating logic with particular directness: courts must take guidance from constitutional morality, not from popular morality, and the view of the majority or public perceptions cannot be a sound basis for negating constitutional rights.¹

This article examines that doctrine systematically: its intellectual genealogy, its textual anchoring in the Constitution, its judicial development across a sequence of landmark cases, and the criticisms-some well-founded, some overstated-that it faces. The argument is ultimately that constitutional morality, properly understood, is not a rival to democracy but its self-imposed discipline: the mechanism by which a constitutional republic restrains its own majoritarian impulses in order to protect those most vulnerable to them.

II. CONCEPT AND INTELLECTUAL ORIGINS

Constitutional morality refers, broadly, to the values and principles embedded in the Constitution-equality, dignity, liberty, fraternity-which courts must treat as paramount when adjudicating rights claims. It is to be distinguished from popular morality: the prevailing moral norms of a community at any given historical moment, shaped by religion, custom, tradition, and majoritarian consensus. The distinction is not of the kind that dissolves on close inspection. These two moralities frequently diverge, and when they do, the question of which governs is ultimately a question about the nature of constitutional democracy itself.

The doctrine’s intellectual provenance in India traces to an unexpected source. George Grote, the nineteenth-century English historian, analyzed the democratic reforms of Cleisthenes in ancient Athens and described constitutional morality as “a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these 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.”² For Grote, the virtue was essentially procedural: a civic self-restraint that kept all constitutional actors-government and citizens alike-within constitutional channels even when passion or self-interest might tempt otherwise.

Dr B.R. Ambedkar took this formulation and loaded it with urgency that Grote could not have imagined. Speaking before the Constituent Assembly on November 4, 1948, Ambedkar quoted Grote and then went considerably further. He warned that constitutional morality was “not a natural sentiment” in India, a society whose soil was, in his words, “essentially undemocratic,” saturated with caste hierarchy, gender subordination, and religious exclusion.³ He further cautioned that it was “perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution.”⁴ The Constitution’s commitments to equality and fraternity were not aspirational decoration; they were intended to challenge, not merely accommodate, the moral architecture of Indian social tradition. This dual vision-procedural compliance with constitutional forms combined with substantive commitment to constitutional values-anticipates everything the Supreme Court has since done with the doctrine.

III. TEXTUAL ANCHORING IN THE CONSTITUTION

A recurring objection to the doctrine is that it lacks textual grounding-that it is, at bottom, whatever unelected judges happen to believe the Constitution ought to say. This criticism deserves engagement, but it overstates the difficulty. The doctrine draws its normative content from identifiable constitutional provisions.

The Preamble commits the Republic to “Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and Fraternity assuring the dignity of the individual and the unity and integrity of the Nation.”⁵ The Supreme Court in Sabarimala applied this fourfold framework-justice, liberty, equality, fraternity-as a constitutional morality test for the temple exclusion practice precisely, and found the practice wanting on every count.⁶

Part III provides the doctrine with its primary operational site. Articles 14 (equality before law), 15 (non-discrimination), 19 (freedoms of speech and expression), and 21 (life and personal liberty) have all been interpreted through the lens of constitutional morality. Article 21 has proven especially capacious: it now shelters not only physical liberty but also dignity, privacy, and personal autonomy.

The morality clauses in Articles 25 and 26 present the most technically charged site of contestation. Both articles protect religious freedom, but subject it to “public order, morality and health.”⁷ What “morality” means in that context is a live jurisprudential question. If it means popular morality-the prevailing moral sensibility of the devout majority-then religious practices, however exclusionary, could claim constitutional shelter. In Sabarimala, the Court authoritatively rejected this reading: the word “morality” in Articles 25 and 26 means constitutional morality, not popular or religious morality. ⁸Any other interpretation would transform the religion clauses into instruments for the perpetuation of discrimination, which no coherent reading of the Constitution can sanction.

IV. THE JUDICIAL JOURNEY: KEY CASES

The doctrine’s judicial life begins, in spirit if not in name, with Kesavananda Bharati v. State of Kerala.⁹ That thirteen-judge bench decision established the Basic Structure Doctrine: Parliament cannot amend the Constitution so as to destroy its fundamental identity. The phrase “constitutional morality” did not appear prominently in the judgment, but the underlying logic was structurally identical: certain constitutional values are non-negotiable, and democratic majorities cannot abrogate them. This counter-majoritarian principle was thus embedded in Indian constitutional law decades before the current doctrinal discourse.

The first explicit and sustained judicial invocation came with Naz Foundation v. Government of NCT of Delhi.¹⁰ A Division Bench of the Delhi High Court was called upon to decide whether Section 377 of the Indian Penal Code, which criminalised “carnal intercourse against the order of nature”, and thereby penalised consensual same-sex conduct between adults, was constitutionally valid. The Court held that it was not, and framed its holding in terms that went directly to the morality distinction: “Social morality has to succumb to the concept of constitutional morality.”¹¹ The judgment cited Ambedkar directly, anchored the analysis in Fundamental Rights, and treated the Constitution’s commitment to equality and dignity as decisive-without regard to majoritarian moral attitudes.

What followed was an instructive object lesson in doctrinal regression. In 2013, a two-judge Supreme Court bench in Suresh Kumar Koushal v. Naz Foundation reversed the Delhi High Court entirely and restored the constitutional validity of Section 377.¹² The Court’s central rationale was that LGBT persons constituted a “minuscule fraction” of the population and that decriminalisation was a matter for the legislature rather than the judiciary. The judgment attracted immediate and well-founded criticism. It applied no serious proportionality analysis, engaged superficially with Fundamental Rights, and, most damaging from a doctrinal standpoint, allowed prevailing moral attitudes to perform constitutional work that the Court had no business permitting. Koushal reads, in retrospect, as a study in what happens when a court either cannot or will not distinguish between the two kinds of morality at stake.

The correction began with Justice K.S. Puttaswamy (Retd.) v. Union of India in 2017, where a nine-judge bench unanimously recognised the right to privacy as a fundamental right under Article 21.¹³ Justice Chandrachud’s plurality opinion explicitly identified the Koushal rationale as constitutionally unsound, noting that the “minuscule fraction” argument was “not a sound basis” for denying fundamental rights. ¹⁴Puttaswamy also grounded privacy in dignity and personal autonomy-the very concepts that would carry the subsequent decriminalization argument.

The watershed arrived with Navtej Singh Johar v. Union of India, decided by a five-judge Constitution Bench in September 2018. The Bench unanimously overruled Koushal and held Section 377 unconstitutional to the extent that it criminalised consensual adult same-sex conduct.¹⁵ Each of the four concurring opinions engaged substantively with the morality distinction. Chief Justice Misra held that courts must be guided by constitutional morality, not popular morality. Justice Chandrachud characterised Section 377 as an “anachronistic colonial law” that had denied a class of citizens the dignity and privacy the Constitution guarantees. Justice Malhotra concluded, in language that was as much moral reckoning as legal reasoning, that history “owes an apology” to the LGBT community for decades of state-sanctioned ostracism.¹⁶

The Sabarimala case, decided the same month, carried this logic into religious practice. The prohibition on women between ten and fifty years of age entering the Sabarimala temple in Kerala had centuries of custom and popular religious fervour behind it. The majority struck down the codified prohibition, holding that “public morality must yield to constitutional morality and that the physiological characteristics of women, menstruation, bore no relation to their constitutional entitlements.¹⁷ The sole dissent, from Justice Malhotra, argued for harmonisation of competing rights and warned that courts should be cautious about intervening in matters of sincere religious faith. Her position raises questions that deserve serious engagement, though they ultimately identify the difficulty of the doctrine rather than defeating it.¹⁸

Two additional 2018 judgments completed this constitutional cycle. Joseph Shine v. Union of India struck down Section 497 IPC, the adultery provision, on the ground that it treated wives as their husbands’ property, violating Articles 14, 15, and 21.¹⁹ And the Government of NCT of Delhi v. Union of India extended constitutional morality beyond rights adjudication into the structural domain of governance, treating it as a “governing ideal” that demands institutional accountability to the constitutional spirit.²⁰

V. THE CORE TENSION: JUSTIFICATION AND STRUCTURE

The structural justification for giving constitutional morality priority over popular morality is not complex, though its implications are. A constitutional democracy is not a pure majoritarian democracy. Under Article 13, any law that abridges the Fundamental Rights guaranteed by Part III is void to that extent.²¹ Judicial review under Articles 32 and 226 exists precisely to enforce this guarantee against legislative majorities. If courts were to assess constitutional validity against popular sentiment rather than constitutional standards, they would defeat the entire purpose of that scheme. The Constitution protects, above all, the person whom majoritarian society would prefer to ignore: the member of a persecuted minority, the woman excluded from sacred spaces by religious convention, the citizen whose identity makes the majority uncomfortable.

The “minuscule fraction” argument rejected in Navtej Singh Johar is not merely logically flawed; it is constitutionally illiterate. Fundamental rights are not quantitative entitlements that scale with population.²² They attach to each person by virtue of their constitutional standing as a citizen, not because of their membership in a numerically significant bloc. Constitutional morality enforces this guarantee, even when popular morality would prefer otherwise.

The tension is sharpest in the domain of religion and custom. Religious practices carry centuries of tradition, the weight of sincere faith, and popular majority behind them. But the Constitution was deliberately designed as a reforming document, not merely a conserving one. Ambedkar was explicit: the Constitution’s commitments to equality and dignity were intended to challenge the hierarchies of caste, gender, and religion that had structured Indian society for centuries.²³ To interpret “morality” in Articles 25 and 26 as popular or religious morality would convert the religion clauses from provisions protecting freedom into provisions protecting discrimination, an outcome that sits uneasily with every other textual commitment the Constitution makes.

VI. CRITICISMS AND THEIR LIMITS

Constitutional morality attracts serious criticism, and the honest case for the doctrine requires engaging with it rather than dismissing it.

The most significant objection is conceptual vagueness. The doctrine has no single authoritative definition in the Constitution or in case law. Courts have used it differently across different decisions, and there is real risk that “constitutional morality” becomes a rhetorical vessel into which judges pour personal moral preferences dressed in constitutional language, what some scholars have aptly called “judicial subjectivity.”²⁴ The Supreme Court’s own acknowledgement that a larger bench should attempt a more definitive formulation, still pending, is itself an admission that the doctrine’s conceptual contours remain unsettled.

The democratic legitimacy objection holds that an unelected judiciary has no business overriding the moral judgments of elected legislatures. The concern has an intellectual pedigree-Alexander Bickel called the Court’s counter-majoritarian role the central difficulty of constitutional law.²⁵ But the objection rests on a contestable premise: that democratic legitimacy means majoritarian supremacy. Under the Indian Constitution, it does not. Article 32 designates the Supreme Court as the guarantor of fundamental rights; that institutional assignment is itself the product of democratic deliberation through the Constituent Assembly. Judicial review of legislative enactments is not a usurpation of democratic function; it is the constitutional function.

The backlash problem is the most practically urgent criticism. The protests following Sabarimala, during which activists were physically prevented from entering the temple despite the Court’s order-illustrated vividly the gap between a judicial declaration and social compliance. Courts can articulate constitutional morality; they cannot, by themselves, cultivate it. Ambedkar understood this better than anyone. He insisted that constitutional morality needed to be grown through education, democratic institutions, and civic participation. The judgment is a necessary condition, not a sufficient one.

VII. CONCLUSION

Constitutional morality is not a rival to democracy. It is democracy’s discipline-the mechanism through which a constitutional republic restrains its own majoritarian impulses to protect the persons most vulnerable to them. The Indian Supreme Court’s sustained engagement with the doctrine across the 2017–2019 landmark cases represents one of the most intellectually serious exercises in rights-based constitutionalism in the Court’s history. These judgments did not invent new rights out of nowhere; they gave operational content to values that Ambedkar had inscribed into the constitutional project more than seventy years earlier.

The doctrine has real problems. Its vagueness demands greater definitional rigour; its judicial application demands transparency about which constitutional values are being invoked and why. And no court should be indifferent to the limits of litigation as a mechanism for social transformation. But the alternative-allowing popular morality, with all its historical baggage of exclusion and prejudice, to function as the measure of constitutional validity-is simply not an option in a republic premised on equal dignity for all persons. When the Constitution speaks differently from the crowd, the crowd must listen.