The Semantics: The Indian constitution is a living document as per the old saying and therefore, one can find a culture of Invention-ism in the reading or interpretation of the constitution. The term ‘constitutional morality’ has often been invoked by Supreme court in India for striking down laws which could be termed as manifestations of popular morality. But this term is not found in our Constitution. Nevertheless, we find mention of the word ‘morality’ in the Indian constitution at various places (Article 19, 25 and 26). Dr. B R Ambedkar used ‘CM’ multiple times in ‘Parliamentary debates.

So why the need for constitutional morality? While the concept of ‘basic structure’ tended to nullify the constitutional amendments which go against the fundamental spirit of the constitution, there was a need for an alternative jurisprudential concept that can be used to nullify ordinary legislations instead of using the basic structure doctrine so as to avoid weakening the sanctity of the concept. This is not to say that only constitutional amendments come under the purview of the basic structure doctrine, however, it is true that it applies mostly to such amendments!

The case of Navjet Singh Johar¹ case is an good example of use of CM to decriminalize homosexuality by striking down of section 377 of the Indian Penal Code. The Supreme Court cited many renowned jurists to support its contentions. It cited Bentham who opined that legislators should not be overly swayed by the society’s morality. In the words of SC, “Hart avoided the specious generalization that the law must be severely quarantined from morality but still made it clear that laws like Section 377, which impose a majoritarian view of right and wrong upon a minority in order to protect societal cohesion, are jurisprudentially and democratically impermissible.” John Stuart Mill also made a strong argument against popular morality being codified into laws. SC cited him saying as those “who consider as an injury to themselves any conduct which they have a distaste for”, cannot dictate the actions of others merely because such actions contradict their own beliefs or views.

In the same case, SC held: “A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.” CM may not be just confined to striking down legislations. It may be stretched to apply upon executive actions. So, one may argue, theoretically, that if Article 21 of the Indian Constitution guarantees right to life, there exists a right with a migrant worker to go home in current lockdown scenario and a corresponding duty of government to not hinder it. The government, if it has imposed lockdown without providing means of food or transport for poor workers to return home, it has trumped their constitutional right. One may infer, therefore that CM may be expression of ‘good governance practices’ and government in failing to adhere to it has acted against CM.

While CM as a tool has been used by Supreme Court, and there is no denial of the fact of its existence, there is greater divergence when it comes to what constitutes CM? In Sabarimala case² , the majority opinion held the restriction imposed upon women in age group 10-50 years as flying in the face of CM while the lone dissenting opinion of Justice Indu Malhotra found that the “Constitutional morality will require that every single individual would have the right to his own faith and nobody can interfere with it, the courts cannot interfere with what is the matter of faith”. So as is the case with popular morality, CM may also vary based on individual perceptions of judges. So what is the element of permanence? This grey area has been used by critics of CM to vehemently oppose CM as a jurisprudential concept. Specifically, originalists (who believe in literal interpretation of constitution) subscribe to this trend.

In this context, it is worthwhile to mention the criticism of AG K Venugopal who views CM as “dangerous weapon”. Venugopal’s opinion may be relevant when judges have their own personal predilections and this shapes their own conceptions of CM but when objectively applied, the concept of CM may not be dangerous. But what remains problematic and which also gives a room to critics to feed their version is the lack of literature and clarity on the concept of CM. While the basic structure as a concept was empathetically discussed at length, in Keshvanada Bharathi case, no constitutional case has so far tried to unravel the mystery and vagueness surrounding the concept of constitutional morality. A jurisprudential analysis is the need of the hour when judges will see CM not just as a tool to nullify a particular legislation or executive practice but to establish it in the vocabulary of constitutional law as a philosophical concept having a specific meaning and scope. We have to wait for that to have a conclusive opinion regarding various facets of CM.

¹WRIT PETITION (CRIMINAL) NO. 76 OF 2016

²WRIT PETITION (CIVIL) NO. 373/2006