Contours of Constitutional Morality

Constitutional Morality: A Double-Edged Sword in Indian Jurisprudence

The revival of ‘constitutional morality’ by India’s constitutional courts may promise a progressive rulebook for governance. However, the push to subject laws and public morality to this idealistic yardstick exposes serious institutional deficits. Constitutional morality in India has become both an aspirational guidepost and a potential destabilizer of parliamentary sovereignty.

In its current trajectory, constitutional morality risks transforming judges into philosopher-kings while sidelining democratically elected representatives and weakening institutional independence. Its selective application underscores the tension between abstract ideals and the realpolitik of governance. Who referees the referees?

The Institutional Landscape: From Ambedkar to Apex Court

The concept owes its intellectual lineage to George Grote’s definition in History of Greece (1846), reframed by BR Ambedkar in the Constituent Assembly. Ambedkar described constitutional morality as adherence to principles and self-restraint, urging the nascent Indian democracy to prioritize substance over populist optics. Contemporary interpretation aligns with Ambedkar's warning that democracy could flounder on ‘undemocratic soil’.

From its dormancy at independence, constitutional morality resurfaced through landmark cases. In Manoj Narula v. Union of India (2014), the Supreme Court insisted on ethical restraint among political leaders, framing it as a judicial safeguard. In Indian Young Lawyers Association v. State of Kerala (2018), constitutional morality was wielded to override religious customs under Article 25, sparking dissent that questioned whether courts could legislate cultural reform.

However, beyond courtrooms, weak institutional mechanisms such as Election Commission politicization or legislative apathy dilute the operationalization of constitutional morality. The ideal fights an uphill battle against entrenched majoritarianism and executive overreach.

Arguments and Evidence: Judicious or Judicial Overreach?

Judges have used constitutional morality in critical judgments that define contemporary India’s political and social fabric:

• Justice KS Puttaswamy (Retd.) v. Union of India (2017): Constitutional morality upheld the right to privacy, giving liberal jurisprudence teeth in the Aadhaar controversy.
• State (NCT of Delhi) v. Union of India (2018): Reaffirmed the need for consensual governance in managing Delhi’s federal capital paradox.
• Navtej Singh Johar v. Union of India (2018): It invalidated Section 377 of the IPC, ensuring LGBTQ+ rights against majoritarian bias.

Yet, the same judiciary has been inconsistent in applying the principle. For instance, the Court upheld reservations in Maratha Reservation Case (2021), but failed to engage deeply with constitutional morality’s lessons of equality over expediency.

Further, NSSO data from 2023 notes a persistent gap between economically weaker sections and reserved communities in accessing public goods. If constitutional morality elevates abstract principles without addressing material inequalities, its efficacy risks appearing hypocritical.

Counter-Narrative: The Judiciary’s Concentration of Power

Critics argue constitutional morality empowers unelected judges to interfere with legislative intent. A recurring grievance emerges: judicial redefinitions of culture often outstrip public consensus, alienating stakeholders. For instance, the Sabarimala judgment aimed to dismantle temple entry barriers but incited societal strife, with state legislatures scrambling to stabilize the fallout.

Precedents like the SP Gupta case (1981) highlight constitutional morality as extra-legal, unenforceable political ethics. If morality lacks judicial accountability yet drives decision-making, it nurtures distrust in courts as arbiters of public will. Does the judiciary preserve democracy, or reshape it with unchecked fervor?

International Perspective: The German Example

Germany’s Basic Law embodies constitutional fidelity through restrained judicial activism. Unlike India’s courts, German courts defer strongly to the Bundestag on legislative scope, intervening only when clear violations of fundamental rights occur. What India couches in constitutional morality, Germany justifies through proportionality—a rights-balancing test with strong democratic safeguards.

While India’s judiciary has broadened constitutional morality as an interpretative tool, the German restraint illustrates that courts need not become messianic champions of morality to protect liberties.

Assessment: Striking Balance and Next Steps

Ultimately, constitutional morality should operate as an ethical compass, not a judicial sledgehammer. The judiciary must articulate precise tests to avoid arbitrary evocations of morality while negotiating its tension with parliamentary supremacy. Civic education to enhance awareness of constitutional values is equally vital—passive citizens limit constitutional morality’s societal resonance.

Judicial overreach and inconsistent frameworks dilute the concept’s promise. Institutional independence, particularly of the Election Commission and judiciary, along with academic frameworks defining its boundaries, should be prioritized in upcoming reforms.

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