Subject: Constitutional Morality

Constitutional morality implies adherence to the core principles and spirit of the Constitution in a democracy.

As per George Grote, it involves

Paramount reverence for forms and procedures of the Constitution.

Adherence to law while enabling open criticism of authority.

Need for public reason, self-restraint, and trust in institutions.

Essential Facets and Roots within the Constitution

Preamble – It acts as the moral compass, explicitly mandating the preservation of justice, liberty, equality, and fraternity.

Fundamental Rights – Protect dignity, autonomy, equality. Eg – Navtej Johar (2018) decriminalised homosexuality.

DPSPs – Provide moral compass for social and economic justice.

Institutional Checks & Balances – Separation of powers, judicial review, federalism. Eg – Kesavananda Bharati (1973) upheld Basic Structure.

Democratic Processes – Free elections, executive accountability, judicial independence.

Judicial Decisions

Kesavananda Bharati (1973)- Upheld Basic Structure as a reflection of constitutional morality above political majority.

Naz Foundation (2009, Delhi HC)- Asserted constitutional morality over public morality in striking down Sec. 377 IPC (later affirmed in Navtej Johar).

Navtej Singh Johar (2018)- SC decriminalized homosexuality, stating constitutional morality must prevail over majority opinion.

Sabarimala case (2018)- Affirmed women’s entry in temples on grounds of constitutional morality and gender equality.

Government of NCT of Delhi v. Union of India (2018) – SC held that constitutional morality ensures cooperative federalism and prevents concentration of power in the hands of one authority.

Joseph Shine v. Union of India (2018) – struck down Section 497 IPC (Adultery) as discriminatory, invoking constitutional morality to protect individual dignity and autonomy.

Constitutional morality is the soul of Indian democracy. As Rajeev Bhargava notes, it embodies a form of constitutional patriotism that enables unity in diversity while upholding pluralism

Constitutional morality implies adherence to the core principles and spirit of the Constitution in a democracy. In the words of Ambedkar, “Constitutional morality is not a natural sentiment. It has to be cultivated”.

Constitutional morality as the fulcrum

Checks on High Functionaries

Supremacy of Constitution – Limits arbitrary use of executive or legislative power.

Rule of Law – Ensures decisions are legal, not personal or political.

Judicial Review – Eg- NJAC Judgment

Equality & Non-discrimination – Prevents rulers from favouring particular groups.

Democratic Accountability – Demands transparency and answerability in governance. Eg- D. C. Wadhwa Case – frequent promulgation of ordinance as “fraud on the Constitution.”

Separation of Powers – Eg – Indira Gandhi v. Raj Narain (1975) struck down 39th Amendment to protect judicial review.

Spirit of Justice – Requires policies and judgments to align with fairness.

Checks on Citizens

Ensures public morality does not override rights and dignity of individuals. Eg – Navtej Johar (2018) decriminalised homosexuality, Sabrimala Judgment.

Equality & Non-discrimination – Binds citizens against practising caste, gender, or religious exclusion.

Tolerance & Fraternity – Discourages hate speech, intolerance, or majoritarian excesses.

Constitutional Patriotism – Promotes loyalty to constitutional ideals over narrow identity politics. Eg- Fundamental Duties

Concept of constitutional morality

George Grote, in his History of Greece, described constitutional morality as a “rare and difficult sentiment”–

Paramount reverence for forms and procedures of the Constitution.

Adherence to law while enabling open criticism of authority.

Need for public reason, self-restraint, and trust in institutions.

Application of Constitutional Morality in Balancing Judicial Independence and Accountability

Judicial Appointments – Constitutional morality preserves judicial primacy in appointments (NJAC Case 2015), while demanding transparency and collegium reforms for accountability.

Judicial Review – Protects independence of judiciary to strike down unconstitutional laws (Kesavananda Bharati 1973), yet requires judicial restraint to avoid overreach.

Judicial Conduct – Ensures judges remain free from executive pressure, but also subject to scrutiny for corruption or misconduct (K. Veeraswami v. Union of India 1991).

Public Trust – Judicial independence protects rule of law, while accountability ensures public confidence in the judiciary.

Ensures Transparency and accountability – Subhash Agarwal Case- Brought CJI’s office under RTI.

Public Interest Litigation (PIL) – Expands access to justice for the poor and marginalised, but constitutional morality demands avoidance of frivolous PILs to preserve judicial credibility.

Contempt Powers – Secure judicial independence, but require tolerance of criticism unless it obstructs justice delivery. Eg- Prashant Bhushan Case

As Justice D.Y. Chandrachud observed, “Judicial independence is not a privilege but a responsibility owed to the Constitution.”