Navigating the Contours of Constitutional Morality: A Guide to Adjudication
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Introduction
The Supreme Court of India’s ongoing engagement with the Sabarimala reference case has brought a fundamental concept back into the legal spotlight: "constitutional morality." As a nine-judge bench examines the scope of Articles 25 and 26, critics of the doctrine have argued that the term is too indeterminate, fearing that it grants the judiciary excessive, unrestrained discretion. However, a deeper analysis reveals that constitutional morality, when properly understood, is not a freestanding test for the validity of legislation. Instead, it serves as a critical interpretive tool that guides courts in navigating the ambiguous moral terrain of the Constitution.
The Constitutional Placement of "Morality"
To understand why this debate is critical, one must examine where the word "morality" appears in the Indian Constitution. The term is mentioned four times, exclusively within Part III, which deals with Fundamental Rights. Specifically, it appears as a ground for restricting those rights. Article 19(2) allows reasonable restrictions on the freedom of speech and expression in the interests of "decency or morality," while Article 19(4) applies a similar restriction to the freedom of association. Similarly, Articles 25(1) and 26—which guarantee freedom of religion and the right of religious denominations to manage their internal affairs—are made expressly subject to public order, morality, and health.
Because the Constitution uses the term "morality" but leaves it undefined, its content must be worked out through constitutional interpretation. The central challenge lies in determining the standard of morality to be applied. In a heterogeneous society, one cannot rely on a uniform, singular societal morality. What the majority perceives as moral or sacred can often be deeply oppressive to minorities or marginalized groups.
Societal Morality versus Constitutional Morality
Philosophically, social morality is often understood as the set of accepted norms recognized by a community. But history warns us against yielding to societal morality uncritically. Practices that were once viewed by dominant societies as moral or essential—such as caste-based discrimination, untouchability, gender subordination, and the criminalization of same-sex relationships—were sustained by prevailing social norms and defended in the language of morality.
The insights of Dr. B. R. Ambedkar offer invaluable guidance on this distinction. Dr. Ambedkar was highly skeptical of deriving morality solely from social practice. He pointed out that customary morality is often in flux and can easily act as a mechanism for institutionalizing hierarchy. He famously remarked that if observing restraints without regard to sense or sensibility makes a system moral, the caste system could be considered a "moral" system. For him, customary morality lacks an internal commitment to justice and equality; it serves as an anchor dragging society backward.
Dr. Ambedkar argued that legal life must not be guided by just any set of habits, but by a morality that allows people to flourish. This normative shift—from customary practices to constitutional principles—marks the entry point for constitutional morality.
The Dual Dimensions of Constitutional Morality
When the concept of constitutional morality is discussed today, critics often point to Dr. Ambedkar's November 1948 speech in the Constituent Assembly, where he cited the historian George Grote. In this narrow view, constitutional morality describes an institutional reverence for the forms of the Constitution and adherence to its established rules and conventions.
However, Dr. Ambedkar’s broader philosophy reveals a deeper dimension. In 1946, before the adoption of the Constitution, he argued that while habits of constitutional morality are necessary, they are not sufficient. The well-being of marginalized or servile classes depends heavily on the social outlook and philosophy of the governing class. This perspective shifts the focus from mere institutional discipline to the deeper structures of power and inequality in society.
Therefore, constitutional morality contains at least two dimensions:
- Procedural/Institutional: A formal commitment to the text, processes, and forms of the Constitution.
- Substantive: A commitment to transforming unjust social structures and combating historical dominance.
Adjudication and the Role of the Courts
In the context of the Sabarimala reference and the interpretation of Articles 25 and 26, the application of constitutional morality must be carefully calibrated. It should not be used as an independent, free-standing normative test to strike down laws. Doing so might indeed invite the criticism of unbridled judicial discretion.
Instead, constitutional morality should act as an interpretive aid. When courts interpret the scope of "morality" under Articles 19, 25, and 26, they must infuse the term with the foundational values of the Constitution itself. This includes the principles of equality, human dignity, individual liberty, and an inclusive social order.
By doing so, the judiciary prevents the term from being co-opted by majoritarian preferences. If "morality" in the Constitution were interpreted as the prevailing views of the majority at any given time, the protective function of fundamental rights would be rendered ineffective. The application of constitutional morality ensures that when courts interpret what is "moral," they remain grounded in the transformative vision of the Indian Constitution.
Conclusion
The debate surrounding constitutional morality is not merely an academic exercise; it defines the future of judicial review and the protection of minority rights in India. By anchoring the interpretation of "morality" in the Constitution's commitment to justice and equality, constitutional morality provides a safeguard against regressive societal norms. As the Supreme Court continues its deliberations on the Sabarimala reference, embracing this principled approach will be essential to upholding the rights of all citizens in a diverse democracy.
