Use Of Constitutional Morality In Recent Supreme Court Judgments

Abstract

The concept of Constitutional Morality has evolved from a peripheral philosophical idea to a central justificatory principle in the jurisprudence of the Supreme Court of India. Moving beyond the literal text of the Constitution, it represents a commitment to the foundational values and the normative vision that the Constitution embodies. This article provides a detailed examination of the burgeoning doctrine of Constitutional Morality, tracing its philosophical origins and its transformative application in a series of landmark judgments delivered by the Supreme Court in recent years. It analyzes how the Court has employed this doctrine as a strategic tool to adjudicate on contentious issues pertaining to individual rights, privacy, dignity, and the decriminalization of archaic laws. The article delves into specific cases, including the decriminalization of homosexuality in Navtej Singh Johar v. Union of India, the affirmation of the right to privacy in Justice K.S. Puttaswamy (Retd.) v. Union of India, the entry of women into the Sabarimala temple in Indian Young Lawyers Association v. State of Kerala, and the judgment on the constitutional validity of the Aadhaar scheme. Through this analysis, the article demonstrates how Constitutional Morality serves as a counter-majoritarian bulwark against majoritarian impulses and traditional social morality, ensuring that constitutional governance is guided by the principles of justice, liberty, equality, and fraternity. Furthermore, the article engages with the critiques surrounding the doctrine, addressing concerns of judicial overreach and the potential for its subjective interpretation. It concludes by affirming that Constitutional Morality, despite its conceptual ambiguities, has become an indispensable hermeneutic tool for the Indian judiciary to breathe life into the Constitution's conscience and to foster a progressive, inclusive, and rights-based society.

1. Introduction

The Constitution of India is not merely a legal document enumerating the structure of the government and the rights of citizens. It is a social document, a repository of national aspirations, and a moral compass designed to transform a traditional society into a modern, progressive, and egalitarian republic. To realize this transformative potential, the bare text of the Constitution requires interpretation through a lens that captures its spirit and underlying philosophy. This is where the doctrine of "Constitutional Morality" enters the jurisprudential landscape.

Constitutional Morality, in its essence, refers to a governing culture and a set of political ethics that oblige all individuals and institutions, including the state itself, to adhere to the foundational principles of the Constitution. It is a morality that is derived from the Constitution itself, distinct from, and often in opposition to, prevailing social or public morality, which may be rooted in tradition, religion, or majoritarian beliefs. The concept demands that the actions of the state and the interpretations of the courts be guided by the overarching values of justice, liberty, equality, and fraternity, and the objective of securing the dignity of the individual.

While the term finds an early mention in the writings of Dr. B.R. Ambedkar and was sporadically referenced in judicial pronouncements, it is in the last decade that the Supreme Court has vigorously resurrected and operationalized it as a primary tool of constitutional interpretation. This judicial activism has placed Constitutional Morality at the heart of some of the most socially significant and politically charged judgments, making it a subject of both acclaim and intense debate.

This article seeks to provide a comprehensive analysis of the doctrine of Constitutional Morality as developed and applied in recent Supreme Court judgments. It will begin by exploring the philosophical and historical underpinnings of the concept. The core of the article will be a detailed, case-by-case examination of landmark judgments where the doctrine was pivotal. This analysis will demonstrate how the Court has used Constitutional Morality to expand the frontiers of fundamental rights, challenge discriminatory social practices, and reinforce the Constitution's transformative agenda. Finally, the article will engage with the critical perspectives on the doctrine, addressing concerns about its scope and application, and conclude by reflecting on its future trajectory in Indian constitutional law.

2. The Philosophical and Historical Foundations of Constitutional Morality

To understand the contemporary application of Constitutional Morality, one must first appreciate its origins. The term was significantly emphasized by Dr. B.R. Ambedkar during the Constituent Assembly Debates. While introducing the Draft Constitution, Ambedkar warned against the potential danger of a perpetual conflict between the formal structure of the Constitution and the operational dynamics of democracy. He argued that in the absence of a spirit of Constitutional Morality, the Constitution could become a mere facade.

For Ambedkar, Constitutional Morality was not a natural sentiment; it had to be cultivated. It meant "a paramount reverence for the form of the Constitution" and an adherence to the principles of constitutional democracy, which include the rule of law, separation of powers, representative and accountable government, and the protection of individual rights. He was particularly concerned that in a society deeply stratified by caste, the majoritarian impulse could easily trample upon the rights of minorities and marginalized groups. Therefore, Constitutional Morality was envisaged as a necessary check on the "grammar of anarchy" – the unregulated rule of popular sentiment.

Judicially, the concept made an early, though not central, appearance in the case of S.P. Gupta v. Union of India (1981), where Justice Bhagwati spoke of it in the context of ensuring the independence of the judiciary. However, its most significant pre-modern elaboration came from Justice K. Chandru in the Madras High Court in Government of India v. George Philip (2006), where he defined it as governing the "check and balance" created by the Constitution.

The true jurisprudential foundation for its modern usage, however, was laid by a two-judge bench of the Supreme Court in the case of Dr. Ambedkar Seva Samasan v. Union of India (2015), which explicitly linked it to the objectives stated in the Preamble. But it was the landmark case of Naz Foundation v. Government of NCT of Delhi (2009) that served as a critical precursor. While the Delhi High Court decriminalized homosexuality under Section 377 of the Indian Penal Code, it heavily relied on the concepts of privacy and dignity, implicitly invoking the spirit of Constitutional Morality, even though the term itself was not the central pillar of the judgment. This set the stage for its dramatic and explicit adoption in the subsequent years.

3. Constitutional Morality in Action: A Analysis of Landmark Judgments

The period from 2017 to 2019 witnessed an unprecedented surge in the application of Constitutional Morality by the Supreme Court. In a series of constitution bench judgments, the Court wielded this doctrine as a sword to strike down discriminatory laws and as a shield to protect fundamental rights.

3.1. The Right to Privacy as a Foundational Pillar: Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)

While the primary outcome of this nine-judge bench decision was the unequivocal declaration that the right to privacy is a fundamental right under Article 21 of the Constitution, the judgment's reasoning was steeped in the language of Constitutional Morality. The Court situated privacy not just as a legal right but as an intrinsic component of human dignity and personal autonomy, which are core constitutional values.

Justice D.Y. Chandrachud, writing for the majority, explicitly stated that the protection of constitutional values would require the Court to intervene even in cases where popular sentiment or majoritarian views might be to the contrary. He argued that the moral identity of the individual is protected by the Constitution, and this protection is a key aspect of Constitutional Morality. The judgment established that in a democratic constitution founded on the rule of law, the rights of individuals are not subject to the whims of the majority. By doing so, Puttaswamy provided the philosophical and jurisprudential bedrock upon which subsequent judgments, particularly Navtej Singh Johar, were built. It signaled a shift from a majoritarian democracy to a constitutional democracy where the morality of the Constitution trumps public morality.

3.2. Decriminalizing Love and Identity: Navtej Singh Johar v. Union of India (2018)

This five-judge bench judgment, which read down Section 377 of the Indian Penal Code to decriminalize consensual homosexual acts between adults, is arguably the most celebrated application of Constitutional Morality. The Court directly confronted the conflict between "social morality" and "Constitutional Morality."

Chief Justice Dipak Misra and Justice A.M. Khanwilkar, in their opinion, held that Constitutional Morality is the "guiding light" in the interpretation of constitutional provisions. They emphasized that the Court must be guided by the "soul of the Constitution" and its "transformative" nature, which aims to remedy historical injustices. They explicitly stated that "constitutional morality would override popular morality," especially when the latter manifests as majoritarian dominance over a minority group.

Justice Chandrachud, in his concurring opinion, provided a more detailed exposition. He stated that Constitutional Morality requires the Court to police the "structural discrimination" faced by the LGBTQ+ community. He argued that the role of the Court is to protect the "discrete and insular minorities" from the tyranny of the majority, and Section 377 was a glaring example of such tyranny, as it imposed a majoritarian sexual morality on a minority. Justice Indu Malhotra added that history owed an apology to the LGBTQ+ community for the delay in providing them their rights, underscoring the restorative justice aspect of Constitutional Morality. The judgment, therefore, used the doctrine not just to interpret a law, but to fundamentally reorient the relationship between the state, society, and the individual, placing individual autonomy and dignity at the forefront.

3.3. Challenging Religious Patriarchy: Indian Young Lawyers Association v. State of Kerala (Sabarimala Case) (2018)

In the Sabarimala case, a five-judge bench, by a 4:1 majority, held that the exclusion of women between the ages of 10 and 50 from the Sabarimala temple was unconstitutional and violated the fundamental rights of women. This judgment applied Constitutional Morality to the complex intersection of religion and gender rights.

The majority opinion, delivered by Chief Justice Misra and Justice Khanwilkar, held that the exclusion based on a biological factor (menstruation) was a form of "untouchability" and patriarchy that was antithetical to Constitutional Morality. They asserted that the subversion of fundamental rights in the guise of religious practice could not be tolerated. The Court emphasized that practices that deny dignity and equality to women cannot claim protection under the right to religion (Article 25).

Justice Chandrachud, in his concurring opinion, went step further. He argued that Constitutional Morality imposes a positive obligation on the state to eliminate "systemic discrimination" in all spheres, including within religious denominations. He stated that the religious exclusion in Sabarimala was grounded in stereotypes and the social exclusion of women, and the Court had a duty under Constitutional Morality to dismantle such hierarchical structures. The dissenting opinion by Justice Indu Malhotra, however, raised a crucial counterpoint, warning that Constitutional Morality should not be used to annihilate the identity of religious faiths and that the Court should not become a forum for theological debates. The Sabarimala judgment thus highlighted both the power and the potential controversy of applying Constitutional Morality to reform religious practices.

3.4. Upholding Individual Liberty and Due Process: Romila Thapar v. Union of India (2018) and Beyond

While not a judgment on the merits, the Court's approach in the case concerning the arrest of activists in the Bhima Koregaon case reflects the application of Constitutional Morality in the context of criminal procedure and state power. The dissenting judgment by Justice D.Y. Chandrachud (joined by Justice Gopal Gowda) powerfully invoked the doctrine. He stated that Constitutional Morality requires the state to act in a manner that is fair, just, and reasonable, and that the arbitrary use of state power to stifle dissent is a violation of this morality. This application demonstrates that the doctrine is not limited to issues of social identity but extends to the very core of the rule of law and the protection of citizens from state excesses.

3.5. The Limits and Nuances: Justice K.S. Puttaswamy (Aadhaar) v. Union of India (2018)

The Aadhaar judgment, delivered by the same bench that decided the right to privacy case, also involved a significant engagement with Constitutional Morality, albeit with a different outcome on the main challenge. While the Court upheld the constitutional validity of the Aadhaar Act, it struck down several provisions to protect citizens from potential state surveillance and commercial exploitation.

The judgment showcases a nuanced application of the doctrine. The majority, while acknowledging the importance of dignity and autonomy, balanced it against the state's legitimate aim of ensuring social welfare and preventing leakages. However, the dissenting opinion by Justice Chandrachud presented a more robust view of Constitutional Morality. He argued that the architecture of Aadhaar, which creates a surveillance state and allows for the profiling of individuals, is fundamentally incompatible with Constitutional Morality. This case illustrates that the application of Constitutional Morality is not monolithic and can lead to divergent conclusions, depending on the judicial balancing of competing constitutional values.

4. The Anatomy of Constitutional Morality: Core Components and Functions

From the analysis of these judgments, we can distill the core components and functions of the doctrine of Constitutional Morality as it stands today in Indian jurisprudence.

4.1. Core Components:

» Primacy over Social/Majoritarian Morality: This is the most critical component. It establishes that when a law or practice rooted in tradition, religion, or popular belief conflicts with constitutional values, the latter must prevail.

» Protection of Minority Rights: It acts as a counter-majoritarian tool, specifically designed to protect the rights of individuals and groups who are vulnerable to the "tyranny of the majority."

» Affirmation of Individual Autonomy and Dignity: It places the individual at the center of the constitutional universe, affirming their right to make choices about their life, body, and identity, free from unreasonable state or societal interference.

» A Transformative and Progressive Mandate: It is not a static concept. It is dynamic and forward-looking, intended to transform society by dismantling hierarchical and discriminatory structures like caste, patriarchy, and homophobia.

» A Guiding Principle for State Action: It imposes a positive obligation on all state organs to act in a manner that is consistent with the constitutional conscience—fair, just, reasonable, and non-arbitrary.

4.2. Key Functions:

» A Hermeneutic Tool: It provides judges with a philosophical framework to interpret open-textured constitutional provisions, especially fundamental rights, in a manner that furthers the Constitution's transformative goals.

» A Check on Majoritarian Power: It serves as a judicial brake on legislative and executive actions that, while potentially popular, undermine the basic structure or fundamental rights of citizens.

» A Source of Constitutional Identity: It helps define the character of the Indian state as a constitutional democracy, as opposed to a majoritarian democracy, where the Constitution is the supreme moral authority.

5. Critical Perspectives and the Counter-Narrative

The rise of Constitutional Morality has not been without its staunch critics. The primary criticisms revolve around the following points:

5.1. The Specter of Judicial Overreach: The most potent criticism is that the doctrine provides an open-ended and subjective justification for judges to impose their personal moral and political preferences, effectively engaging in judicial legislation. Critics argue that it allows the judiciary to strike down laws and practices not because they violate a specific constitutional provision, but because they are deemed to be against the "spirit" of the Constitution, a spirit that is defined by the judges themselves. This, they contend, undermines the principle of separation of powers and the democratic will of the people as expressed through their elected representatives.

5.2. Vagueness and Lack of Definitive Content: Unlike specific constitutional articles, Constitutional Morality is an abstract concept. Its content is fluid and can be interpreted differently by different judges. This vagueness, critics argue, leads to legal uncertainty and allows for inconsistent application. The dissenting judgment in the Sabarimala case powerfully articulated this fear, suggesting that the doctrine could be used to invalidate a vast array of religious practices based on a judge's perception of what is "progressive."

5.3. Conflict with Religious Freedom and Cultural Pluralism: As seen in the Sabarimala case and subsequent review petitions, the application of Constitutional Morality to religious practices is deeply contentious. Critics argue that the Court, by using this doctrine, is entering the theological domain and imposing a uniform, secular morality on diverse religious communities, thereby threatening the pluralistic fabric of the nation and the fundamental right to freedom of religion.

5.4. The Majoritarian Backlash: The use of Constitutional Morality in cases like Sabarimala has led to significant public and political backlash, with accusations that the judiciary is disconnected from the sentiments of the majority. This can potentially erode the legitimacy and social capital of the judiciary, which relies on public trust for the enforcement of its decrees.

6. The Judicial Defence and the Path Forward

In response to these criticisms, proponents and the judiciary itself have offered a robust defence of the doctrine.

6.1. A Necessary Counter-Majoritarian Tool: The judiciary argues that its primary role in a constitutional democracy is to protect the rights of individuals and minorities. The Constitution itself is a counter-majoritarian document, and Constitutional Morality is simply the tool to enforce its counter-majoritarian provisions. Without it, fundamental rights would be rendered meaningless in the face of a hostile majority.

6.2. Rooted in the Constitutional Text: Proponents argue that Constitutional Morality is not an external imposition but is derived from the text itself—the Preamble, the Fundamental Rights, and the Directive Principles of State Policy. The values of justice, liberty, equality, and dignity are explicitly enumerated; the doctrine merely provides a cohesive framework to interpret and apply them harmoniously.

6.3. A Guard Against Authoritarianism: In an era where majoritarian governments can wield significant power, Constitutional Morality serves as a crucial check on the state's potential to act arbitrarily and oppressively, as highlighted in cases like Romila Thapar.

» The Path Forward: The future of Constitutional Morality lies in its careful and prudent application. The judiciary must strive to develop a more structured and predictable framework for its use to mitigate charges of subjectivity. This involves:

» Grounded Reasoning: Ensuring that every invocation of the doctrine is firmly and explicitly linked to specific constitutional provisions and values.

» Incrementalism: Applying the doctrine in a cautious, step-by-step manner, building a consistent body of precedent.

» Dialogue with other Organs: The judiciary should use the doctrine not to supplant legislative function but to create a constitutional dialogue, prompting the legislature to reform laws in line with constitutional values.

7. Conclusion: The Conscience of the Constitution

The emergence of Constitutional Morality as a central tenet of Indian constitutional law marks a significant evolution in the role of the judiciary. It represents a conscious move from a literal, text-bound interpretation to a purposive and value-oriented one, aimed at realizing the transformative promise of the Constitution. Through its application in cases like Navtej Singh Johar, Puttaswamy, and Sabarimala, the Supreme Court has demonstrated a renewed commitment to acting as the guardian of the Constitution's conscience.

While the doctrine is not without its legitimate concerns regarding judicial discretion and its boundaries, its necessity in a heterogeneous and deeply stratified society like India cannot be overstated. It is the judiciary's primary weapon against the forces of majoritarianism, discrimination, and social inertia. It is the legal articulation of the idea that the Constitution is not a document for the status quo but a charter for social change.

The journey of Constitutional Morality is still unfolding. Its contours will be shaped by future benches and the cases that come before them. However, one thing is clear: it has irrevocably altered the landscape of Indian rights jurisprudence. It has empowered the courts to look beyond the letter of the law and into its soul, ensuring that the Republic of India is governed not by the fleeting passions of the majority, but by the enduring morality of its Constitution. In doing so, it continues to strive towards the ideal of securing for all its citizens, "JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual."

8. Post-Script: Recent Expansions and Ongoing Debates (Beyond 2019)

To ensure this article is comprehensive, it is crucial to note that the application of Constitutional Morality has continued beyond the landmark judgments of 2017-2019. The doctrine has been invoked in subsequent cases, further cementing its place in Indian jurisprudence.

Anuradha Bhasin v. Union of India (2020): In a case concerning the internet shutdown in Jammu and Kashmir, the Supreme Court held that the freedom of speech and expression and the freedom to practice any profession over the medium of the internet are protected under Article 19. The Court implicitly invoked Constitutional Morality by emphasizing that indefinite suspension of the internet without justification violates the fundamental rights framework and the rule of law, which are core to constitutional governance.

Internet and Mobile Association of India v. Reserve Bank of India (2020): The Court struck down the RBI's circular banning regulated entities from dealing in virtual currencies. While not explicitly using the term "Constitutional Morality" extensively, the Court's reasoning was grounded in the principles of proportionality and reasonableness, which are key components of the doctrine, protecting economic activities from arbitrary state action.

Vijay Madanlal Choudhary v. Union of India (2022) - The PMLA Judgment: This judgment, which largely upheld the stringent provisions of the Prevention of Money Laundering Act (PMLA), also featured a powerful dissenting opinion by Justice Chandrachud (as he then was) that invoked Constitutional Morality. He argued that the amendments to the PMLA, which reverse the burden of proof and make bail conditions extremely onerous, violate the presumption of innocence and the right to a fair trial, which are foundational to Constitutional Morality and the rule of law.

These ongoing applications demonstrate that Constitutional Morality is not a transient phenomenon but a sustained and evolving judicial principle. It continues to be the lens through which the Court examines the validity of state action across a wide spectrum of issues, from civil liberties and economic rights to criminal procedure. The debates it sparks—between judicial activism and restraint, between individual rights and collective interests, and between transformative change and traditional order—are central to the life of Indian democracy and will undoubtedly continue to shape its constitutional future.

9. The Global Context: Constitutional Morality in Comparative Perspective

While the Indian Supreme Court has given the doctrine a distinct and prominent character, the underlying idea—that a constitution embodies a higher morality that transcends ordinary law and popular sentiment—is not unique to India. A comparative perspective enriches our understanding.

• United States: The concept is analogous to the American idea of a "living constitution," interpreted in light of evolving standards of decency and fundamental values. The U.S. Supreme Court, in landmark cases like Brown v. Board of Education (ending racial segregation) and Obergefell v. Hodges (legalizing same-sex marriage), has often invoked the spirit of the Equal Protection Clause and the concept of liberty under the Due Process Clause, moving beyond original intent to reflect contemporary understandings of justice and equality.

• South Africa: The post-apartheid Constitution of South Africa is explicitly transformative. The Constitutional Court of South Africa frequently employs a purposive interpretation, guided by the values of human dignity, equality, and freedom, to dismantle the legacy of apartheid. This is a direct parallel to the Indian use of Constitutional Morality for social transformation.

• Canada: The Canadian Charter of Rights and Freedoms is interpreted through a "purposive approach," which seeks to understand the purpose of a right and the interests it was meant to protect. The "living tree doctrine" in Canadian constitutional law, which allows the constitution to adapt to new social realities, shares a strong philosophical kinship with the Indian doctrine of Constitutional Morality.

What distinguishes the Indian experience is the explicit and repeated use of the term "Constitutional Morality" and its direct juxtaposition against "public morality" or "social morality." The Indian judiciary has been more forthright in articulating this conflict and in positioning itself as the arbiter tasked with ensuring the primacy of the former.

10. Final Synthesis and Reflection

The journey of Constitutional Morality in India is a narrative of the Constitution coming into its own. It is the story of a post-colonial nation grappling with its deep-seated social inequalities and attempting to forge a common civic identity based on the principles of liberal democracy. The doctrine is the judicial acknowledgment that the success of this project cannot be left to the vagaries of majoritarian politics or the inertia of tradition.

The Supreme Court, through its innovative and courageous application of this doctrine, has positioned itself as the custodian of the republic's moral compass. It has used it to champion the cause of the marginalized, to protect the autonomy of the individual, and to hold the state accountable to its highest promises. The judgments discussed are not merely legal corrections; they are profound moral statements that redefine the relationship between the citizen and the state, and between different groups of citizens themselves.

The challenges are real. The doctrine walks a tightrope between transformative justice and judicial supremacy. Its future will depend on the wisdom with which it is applied. It must be a tool for emancipation, not a weapon of ideological conquest. It must be used to build a broader consensus on constitutional values, not to deepen social divisions.

In the final analysis, Constitutional Morality is more than a legal doctrine; it is the ongoing project of building a constitutional culture. It is a reminder that the Constitution is not just a document preserved in the archives of Parliament, but a living spirit that must inhabit the hearts and minds of the people and their institutions. As India continues to navigate the complex currents of the 21st century, the robust and principled application of Constitutional Morality will be crucial in ensuring that the country remains true to the visionary promise of its founding document.

Here are some questions and answers on the topic:

1. What is Constitutional Morality and how does it differ from Social Morality?

Constitutional Morality refers to the guiding spirit and the foundational value system inherent in a constitution that must inform the actions of all state institutions and the interpretation of laws. It is not about the personal morals of judges or citizens but is derived directly from the constitution's preamble, its fundamental rights, and its directive principles. In the Indian context, it embodies the supreme principles of justice, liberty, equality, and fraternity, and is dedicated to securing the dignity of the individual. Its primary function is to ensure that the governance of the country is conducted in accordance with these constitutional norms. In stark contrast, Social Morality, or Public Morality, is rooted in the prevailing customs, traditions, religious beliefs, and majoritarian sentiments of a society at a given time. The critical distinction, as emphasized by the Supreme Court in judgments like Navtej Singh Johar, is that when a conflict arises between the two, Constitutional Morality must invariably override Social Morality. This is because Social Morality can often be majoritarian, parochial, and discriminatory towards minority groups and individuals, whereas Constitutional Morality is designed to protect those very individuals and groups from such majoritarian impulses, acting as a counter-majoritarian safeguard to uphold the rule of law and the essence of a constitutional democracy.

2. How did the Supreme Court use Constitutional Morality in the Navtej Singh Johar case to decriminalize homosexuality?

In the landmark Navtej Singh Johar v. Union of India case, the Supreme Court employed Constitutional Morality as the central justificatory principle to read down Section 377 of the Indian Penal Code and decriminalize consensual homosexual acts between adults. The Court explicitly positioned Constitutional Morality in direct opposition to the social morality that had long justified the criminalization of homosexuality. The justices reasoned that the Constitution, with its core values of autonomy, dignity, and equality, possesses a transformative character aimed at remedying historical injustices. They held that it would be deeply immoral, from a constitutional standpoint, to allow a discriminatory law based on Victorian-era social morals to persist and deny a group of citizens their full personhood. The Court stated that Constitutional Morality serves as a check on the "tyranny of the majority" and obligates the judiciary to protect "discrete and insular minorities." By doing so, the Court moved beyond a mere literal interpretation of the law and invoked the spirit of the Constitution to affirm that the LGBTQ+ community possesses the same intrinsic worth and is entitled to the same fundamental rights, including the right to privacy and the right to live with dignity, as any other citizen, thereby making Constitutional Morality the vehicle for a profound social and legal transformation.

3. In the Sabarimala judgment, how was Constitutional Morality applied to challenge a religious practice?

In the Indian Young Lawyers Association v. State of Kerala (the Sabarimala case), the Supreme Court applied the doctrine of Constitutional Morality to invalidate the religious practice of excluding women of menstruating age from the Sabarimala temple. The majority on the bench held that this exclusion was unconstitutional as it violated the fundamental rights of women to equality (Article 14), freedom of religion (Article 25), and against discrimination (Article 15). The Court argued that a religious practice that discriminates against individuals based on a biological characteristic inextricably linked to their gender is a form of systemic discrimination and patriarchy that is antithetical to the principles of Constitutional Morality. The Court emphasized that the subversion of fundamental rights in the guise of religious tradition cannot be permitted, and that the morality of the Constitution must prevail over the morality of a religious group. The judgment asserted that practices which deny dignity and equal status to women cannot claim the protection of the right to religion. In essence, the Court used Constitutional Morality as a tool to reform religion from within the constitutional framework, establishing that the freedom to manage religious affairs is not absolute and is subject to the overarching mandate of fundamental rights and the egalitarian conscience of the Constitution.

4. What are the primary criticisms against the judicial use of Constitutional Morality?

The primary criticisms leveled against the judicial use of Constitutional Morality revolve around the charges of judicial overreach, vagueness, and its disruptive impact on social harmony. Critics argue that the doctrine is inherently abstract and lacks a precise, objective definition, which grants judges an alarmingly wide discretion to impose their own subjective moral and political beliefs under the guise of interpreting the Constitution's spirit. This, they contend, undermines the principle of separation of powers, as an unelected judiciary effectively engages in lawmaking, supplanting the will of the democratically elected legislature. Furthermore, its application in sensitive areas like religion, as seen in the Sabarimala case, has been criticized for triggering a clash between individual rights and community rights, potentially threatening cultural pluralism and religious freedom. Critics, including dissenting judges, warn that using Constitutional Morality to invalidate long-standing religious customs can lead to social backlash and erode the legitimacy of the judiciary, as it may be perceived as being disconnected from the beliefs and sentiments of the majority of the populace. The central fear is that this powerful doctrine, if not applied with immense restraint and clear principles, could transform the judiciary from an interpreter of the law into a supreme moral authority without sufficient accountability.

5. How does the doctrine of Constitutional Morality strengthen democracy in India?

Rather than undermining democracy, the doctrine of Constitutional Morality fundamentally strengthens it by ensuring that India functions as a substantive constitutional democracy rather than a mere majoritarian one. In a purely majoritarian system, the rights of minorities and individuals could be easily trampled by the will of the majority expressed through popular sentiment or even legislation. Constitutional Morality acts as a crucial counter-majoritarian bulwark against this danger. It empowers the judiciary to protect the fundamental rights of all citizens, especially vulnerable and marginalized groups, from the tyranny of popular prejudice and majoritarian dominance. By upholding the principles of justice, liberty, and equality as enumerated in the Constitution, it guarantees that the democratic process is conducted within a framework that respects human dignity and individual autonomy. It ensures that the state, including the majority, operates under the constraints of the Constitution, thereby preventing democratic majoritarianism from descending into authoritarianism. Therefore, Constitutional Morality is not anti-democratic; it is, in fact, essential for a healthy and inclusive democracy, as it safeguards the very conditions of freedom and equality that allow a democracy to thrive and endure for all its citizens, not just for the majority.

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