International Journal of Law and Policy Review (IJLPR)

EVOLVING MEANINGS AND JUDICIAL REASONINGS - FILLING

IN THE SILENCES OF ‘CONSTITUTIONAL MORALITY’
Abhijeet Shrivastava*
Third Year B.A., LL.B. (Hons.) student at Jindal Global Law School, O.P. Jindal
Global University. E-mail: 18jgls-abhijeet.s@jgu.edu.in.

Abstract

The phrase ‘constitutional morality’ has begun to appear very

frequently in conversations concerning constitutional
interpretation and important contemporary political disputes.
Little to no consensus is present, however, on its exact impact,
meanings, or scope. This paper is a modest attempt at recording
all the prominent connotations of this phrase, with a focus on
evaluating the Indian Supreme Court’s recent trysts with
constitutional morality. While arguing that it has two broad
meanings, the first related to one’s conduct, and the second
concerning the values of the constitution, this paper engages with
the specificities that have been read into them by varying authors
and courts. Defending the evolution of constitutional morality, it
shall present certain vital questions for the Supreme Court to
resolve in order to remove uncertainties from its invocations, to
the fullest extent possible.

Keywords: Constitutional morality, Ambedkar, Dworkin, Grote, Coherence

1. Introduction
[C]onstitutional morality, as is now well-understood, did not receive much
scholarly attention 1 before recent years in which it has been invoked in
various landmark judgments by judges of the Indian Supreme Court. Today,
the phrase can be located in relation to almost any controversial event
transpiring contemporarily,2 be it related to politics generally or to matters
pending adjudication. Indeed, the Attorney General of India has gone so far
as to warn that “constitutional morality”, given its alleged dangers, must be

*I am deeply grateful to Professor (Dr.) Alexander Christoph Fischer and Mr Anujay

Shrivastava for their inputs on this paper. My warm gratitude is also owed to Professor
(Dr.) Pritam Baruah, Professor Satya Prateek, and Professor Balu G Nair for insightful
conversations concerning this paper's themes, as well as to Ms Akanksha Ramakrishna for
her support throughout my work. Views expressed here and errors, if any, are mine alone.
1
Kritika Sethi, Constitutional Morality And Bar Dancers Judgment, PL February 58, 59
(2014).
2
Akanksha Prakash & Aneesha Rastogi, Constitutional Morality: Can we Understand Our
Morals Right, Live Law, October 4, 2019, available at
https://www.livelaw.in/columns/constitutional-morality-can-we-understand-our-morals-
right-148712 (Last visited on October 30, 2020).

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eliminated from constitutional law jurisprudence at the earliest3 – leading

one to wonder what this commotion is all about. Although many learned
scholars have undertaken to outline the exact scope of the meanings this
phrase implies,4 I opine that its connotations have not yet been exhaustively
explored.
This paper is written with the ambitious aim to undertake an assessment of
the evolution of the connotations that the phrase, “constitutional morality”
has carried since its inception in the works of historians, to today, in the
court-rooms of India. In doing so, I shall bifurcate this paper’s attempt to
unpack these meanings in two broad segments – first, concerning what I call
‘conduct-based’ constitutional morality. This is to broadly ascribe those
connotations of the phrase which suggest some form of action in terms of
one’s conduct. As shall become evident from this paper, this broad set
includes various conflicting ideas of “respect” for constitutions, ethical
propriety, or sound governance, and so on. The second broad meaning is the
idea that the constitution inheres certain written and unwritten moral values
or aspirations – and this is what I term constitutional morality as ‘values’.
To clarify, these ideas are not a dichotomy in a strict sense, in that conduct-
based constitutional morality and constitutional morality as ‘values’, as I
shall argue, are deeply inter-connected. After my attempts at critically
evaluating the specificities of the different meanings of this phrase, I shall
consider certain urgent questions in relation to constitutional morality that
the Supreme Court must answer in order to cement its own construction of
constitutional morality.
2. Conduct-Based Constitutional Morality
2.1 Grote’s Constitutional Morality And The Grundnorm
The first chapter of the story of constitutional morality begins in the works
of British scholar and historian, George Grote. In particular, this phrase was
birthed in one of the volumes of his magna carta, “A History of Greece”.5
Grote was not satisfied with the contemporary records and accounts of
Athenian democracy, and he thus began the journey to pen his own. His
records have since been praised as one of the finest available renditions of

3
The First Post, Constitutional morality can be very dangerous': Attorney General KK
Venugopal fears SC may become third Parliament chamber, December 9, 2018, available at
https://www.firstpost.com/india/constitutional-morality-can-be-very-very-dangerous-
attorney-general-kk-venugopal-fears-sc-may-become-third-parliament-chamber-
5698851.html (Last visited on October 26, 2020).
4
Salman Khurshid, Constitutional Morality and Judges of the Supreme Court in Judicial
Review: Process, Powers, and Problems (Essays In Honour of Upendra Baxi) 384–410
(Salman Khurshid et al. eds., 2020).
5
George Grote, 4 A History of Greece, Cambridge University Press (2010).

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Greek history.6 Dr Mehta suggests7 that Grote’s passion for re-visiting the
inception of Athenian democracy was founded on his desire to prove, that to
an extent, Athens had truly achieved what he understood as “constitutional
morality”. However, Dr Mehta’s observation must be read with the caveat
that when Grote uses this phrase, he does not refer to an Athens which has
indeed secured the qualities which are the essentials of his constitutional
morality. In fact, I content that the very lack of what he understood as
constitutional morality in Athens had inspired his ruminations on this
phrase.
Political tumult and chaos enveloped Athens for eons, with every ruler and
government eventually usurped by another. Thus, establishments changed
frequently. Owing to this tumult, the peoples of Athens neither knew, nor
imbibed “respect” for constitutions, i.e., founding documents of stable
governments – for there had hitherto been none. 8 This was, until
Kleisthénēs, after having secured rulership of Athens, performed the
revolutionary act of introducing a constitution.9 Yet, simply introducing a
constitution is not enough. Grote commented that what was needed for this
constitution to be successful was a sentiment of “respect” or “reverence” for
the constitution, which must be imbibed by not only the government, but
also each and every citizen of Athens.10 In this sense, Grote’s constitutional
morality connotes the bare minimum requirement for a constitutional
democracy to succeed – for that constitution to be considered authoritative
and supreme. It has nothing to do with the ‘substance’ of the constitution.
All that Grote contends is that in order for constitutional governance to
fruition, ‘formal’ respect for the constitution amongst the citizenry is
necessary. Only if constitutional morality is cultivated can the possibility of
potential usurpers be eliminated, and “sizable minorities” be prevented from
creating obstacles in the way of the constitutionally empowered
government. 11 Importantly, Grote emphasises that this is not only
compatible with, but also conducive to criticism and censure from the public
against the government as in the Athenian tradition.12 Thus, the crux of his

6
Tom B. Jones, George Grote and His History of Greece, 29 The Classical Weekly 59, 61
(1935).
7
Pratap Bhanu Mehta, What is Constitutional Morality?, Seminar, 2009, available at
https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm [Last visited on
October 12, 2020].
8
H.T. Wade Gery, Studies in the Structure of Attic Society: II. The Laws of Kleisthenes,
27:1 The Classical Quarterly 17, 27 (1993).
9
Bob Develin & Martin Kilmer, What Kliesthenes Did, 46:1 Historia: Zeitschrift Fur Alte
Geschichte 3, 4 (1997).
10
George Grote, Grecian Affairs after the Expulsion of the Peisistratids — Revolution of
Kleisthenês and Establishment of Democracy at Athens in A History Of Greece 203 (2010).
11
Id.
12
See supra note 7.

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comments is that one must respect formal authority, yet one is also entitled
to criticise any action taken by the government within this authority.
Grote’s conceptualisation of constitutional morality strongly resonates with
Hans Kelsen’s descriptive jurisprudential inquiry into what is recognised as
authoritative law. I argue this specifically in relation to Kelsen’s
“Grundnorm” postulate. Kelsen believed that any legal system can be
understood with a hierarchy of “norms”, where each legal norm was
authorised or validated by a higher norm, until one reached the “highest” or
the “basic” norm, which he termed the Grundnorm.13 If we are to consider
India, then a regulatory body may declare authoritative “bye-laws”, because
the Union Parliament’s statute authorises it to make such bye-laws. Moving
further, the Parliament’s statutes themselves carry legal force given that the
Parliament is authorised by the Indian Constitution to make statutes. 14
However, the Constitution itself would not be the Grundnorm or the highest
norm in India. Contrarily, Kelsen’s theory would maintain 15 that the
Grundnorm in independent India is the ‘presupposition’ that this
Constitution carries inviolable authority. Without the meta-legal assumption
that the Constitution is authoritatively supreme, any norm that is derivative
from it has no authority at all.16 Given this, Kelsen would conclude that this
presupposition of faith in the Constitution’s authority is the inception of the
Indian legal system’s formal legal authority.
I contend that if one reads Kelsen’s and Grote’s contemplations
conjunctively, then in essence, ‘constitutional morality’ is the Grundnorm of
a state with a constitution. What separates the two’s thoughts is the contexts
in which they were authored. While Grote was concerned politically with
the success of a constitutional democracy, arguing that it is impossible
without the “sentiment” of constitutional morality, Kelsen focused on the
authority of a legal system, maintaining that it starts with such a
“presupposition”. Yet, whether one calls it a “sentiment” or a
“presupposition”, the same faith in constitutions can lead to both the inter-
twined results, i.e., the success of a democracy and the legal authority of its

13
J. W. Harris, When and Why Does the Grundnorm Change, 29 Cambridge L.J. 103, 106
(1971).
14
Kwamena Ahwoi, Kelsen, the Grundnorm and the 1979 Constitution, 15 U. Ghana L.J.
139, 152 (1978-1981); Abhijeet Shrivastava, The Failures of Kelsen’s “Grundnorm” in
International Law, NLIU Centre for Research in International Law, October 20, 2020,
available at https://nliu-cril.weebly.com/blog/the-failures-of-kelsens-grundnorm-in-
international-law [Last visited on November 25, 2020].
15
Bogdan Cristian Trandafirescu, Grundnorm - The Controversial Supporting Point of the
Kelsenian Positivist System, 4 Contemp. Readings L. & Soc. Just. 820, 822 (2012).
16
T. C. Hopton, Grundnorm and Constitution: The Legitimacy of Politics, 24 McGill L. J.
72, 83 (1978).

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norms. 17 Understood this way, Grote’s constitutional morality marks not

only the necessary condition for a constitutional democracy to be successful
politically, but also acts as the starting point for its legal legitimacy. What I
find the most remarkable is that Grote’s constitutional morality is limited to
requiring “reverence” or respect for the constitution in one’s conduct, and
nothing more – since, as mentioned, it was espoused in the context of stable
governance. However, his constitutional morality has since been taken to
connote more substantive meanings, often concerned with an elusive
“spirit” of constitutions. With this understanding of Grote’s constitutional
morality, I shall now turn to Dr Ambedkar’s expansions on Grote’s
constitutional morality.
2.2 Dr Ambedkar’s Constitutional Morality
The fundamental features of Dr Ambedkar’s constitutional morality have
already been extensively discussed by various learned scholars. 18 Thus,
briefly explaining the contexts of his constitutional morality, I seek to shed
light primarily on one unexplored aspect – the departures of his
conceptualisation from Grote’s. Dr Ambedkar’s pronouncement of his
constitutional morality was realised during the Constituent Assembly
debates, when the Draft Constitution was criticised for having prescribed
administrative details. 19 These details concerned administrative relations,
such as those between the Council of Ministers and the Governor. 20 Dr
Ambedkar’s three-fold response21 to this criticism was that first, the forms
of administration must be “in the same sense” as the form of the
constitution; and second, that the “spirit” of the constitution can be
“perverted” simply by altering the forms of administration. Third, the
alternative to including these details in the constitution is entrusting the
Legislature with this prerogative, which carries risks for India as its peoples
are “yet to learn” constitutional morality as described by Grote. His well-
received remarks prompted an interesting contribution from Mr Zahir-ul-

17
A. J. Harding, Parliament and the Grundnorm in Singapore, 25 Malaya L. Rev. 351, 367
(1983).
18
Mahendra Pal Singh, Observing constitutional morality, SEMINAR, 2019, available at
http://www.india-seminar.com/2019/721/721_mahendra_pal_singh.htm [Last visited on
October 23, 2020].
19
S.S. Ray, As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the
Country, The Wire, April 3, 2020, available at https://thewire.in/law/constitutional-
morality-coronavirus-lockdown (Last visited on October 25, 2020).
20
Nath, G. V. Mahesh, Constitutional Morality - A Need for Consensus on the Concept,
SSRN, March 16, 2019, available at http://dx.doi.org/10.2139/ssrn.3353874 (Last visited on
27 October, 2020).
21
Centre for Law & Policy Research, 4th November, 1948, Constituent Assembly Of India
Debates (Proceedings) - Volume VII, (Date of publication unavailable), available at
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/%C2%AD19
48-11-04 (Last visited on 30 October, 2020).

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Hasan Lari, who added that not only the “people”, but the “government” too
needs to learn constitutional morality. 22 His basis for this anxiety was a
contemporary incident where the Calcutta High Court was expected to
pronounce on the implications of the word “reasonable” in a statute
concerning arrest and detention; in response to which the Governor
whimsically notified an ordinance deleting it from the statute, thus rendering
the case infructuous. Mr Lari reasoned that while this was within the
authority of the Governor, it was nevertheless “against constitutional
morality”. 23 The common thread in Dr Ambedkar and Mr Lari’s
apprehensions is distrust in the functional propriety or ethical conduct of
law-makers and executives, which is based on the absence of what they
consider to be ‘constitutional morality’.
Although Dr Ambedkar delivered these remarks while quoting Grote, I
contend that Ambedkarite constitutional morality is substantially different
from Grote’s for the following reasons. First, Grote saw Kleisthénēs’
constitution as a means to achieve stable governance, which could be
executed only with “respect” for this constitution, as discussed earlier. In
contrast, Dr Ambedkar’s expansions view the constitution as an end in
itself, i.e., constitutional morality not results not only in formal respect of
the constitution’s authority, but it also ensures a reverence for its unwritten
“spirit”. This is evident from his acquiescence to Mr Lari’s remark that even
if functionaries act well within their ‘formal’ authority, their conduct can be
against constitutional morality if it is politically or ethically improper. No
doubt, Grote also emphasised that the government is and should always be
open to public criticism as in the Athenian tradition.24 Yet, his constitutional
morality, unlike Dr Ambedkar’s, is not vindicated by an abstract
constitutional “spirit” that must be imbibed in functional conduct. In short,
recourse to unwritten norms or an elusive constitutional “spirit” is beyond
Grote’s conceptualisation.
Second, Dr Ambedkar elsewhere wrote that his constitutional morality is
identical to England’s conventions of the Constitution.25 Dicey explains that
these constitutional conventions or “constitutional morality” are simply
habits and practices that evolve over time, regulating the conduct of public
functionaries, institutions, and their relations. 26 They are not necessarily

22
Manupatra, Constituent Assembly Debates Official Report Volume VII (Date of
publication unavailable), available at
http://d2.manupatra.in/tempPDF/CONSTITUENT_ASSEMBLY_DEBATES_OFFICIAL_
REPORT_volumeviipartivCOM948164.pdf [Last visited on October 23, 2020].
23
Id.
24
See supra Part 2.1.
25
Bhalchandra Mungekar, The Essential Ambedkar 308, Rupa Publications (2017).
26
A.V. Dicey, Introduction To The Law Of Constitution cxli, LibertyClassics Publications
(1982).

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legally binding rules. For instance, it is now a convention, that any Bill must
be read three times before passing in either House in England to ensure
adequate deliberation. 27 Another convention is that all members of the
Cabinet are ‘collectively’ responsible to the House of Commons, even for
their individual actions, given the presumption that they are to act in
consultations for important questions of administration.28 Evidently, these
conventions stipulate norms to guide an ethically responsible and sound
functioning of the administrative units of a democracy. In summary, the aim
of England’s constitutional conventions or ‘constitutional morality’ is to
promote politically upright conduct and ethical relations between different
institutional offices.
Given the lack of any such unspoken convention of functional conduct in
India at that juncture, and since India had secured independence very
recently then after two centuries of colonial rule, Dr Ambedkar’s
apprehensions against entrusting the Legislature with prescribing
administrative details seem well-founded. Indeed, Dr Mehta suggests that
Dr Ambedkar was cautious of entrusting excessive powers in any singular
constitutional entity, while desiring a system of checks and balances.29 Dr
Ambedkar and the Constituent Assembly aspired for prescribing these
details within the Constitution to give textual permanence and expression to
the “spirit” of the constitution, i.e., one that in their view required checks
and balances is preserved in appropriate forms of administration. In this
form, one must be conscious to realise that this ‘constitutional morality’ is
fully creditable to Dr Ambedkar, since Grote makes no comment on
political propriety or checks and balances. Former Chief Justice of the
Bhutanese Supreme Court, Mr Sonam Tobgye, once discussed the
importance of certain provisions in the Bhutanese constitution concerning
essential requirements to hold public offices. He invokes Dr Ambedkar’s
constitutional morality in opining that such provisions promote “political
morality”, and hence, politically upright behaviour.30 Thus, Dr Ambedkar’s
aspirations for his constitutional morality are much beyond mere ‘respect’
or formal authority by both citizenry and state organs alike. Given this
understanding of the inception of ‘constitutional morality’, this paper shall
now discuss its trysts with the Supreme Court and other courts – both before
and after the phrase gained traction in recent times. I first consider the
courts’ views on constitutional morality in the context of political propriety.
Thereafter, I will discuss the entirely different connotation of constitutional

27
Mackenzie Dalzell Edwin Stewart & Asquith Chalmers, Cyril, Outlines of Constitutional
Law 5, Sweet & Maxwell (1936).
28
G. C. Cheshire, Stephen's Commentaries on the Laws of England 19, Butterworth (1928).
29
See supra note 7.
30
Justice Sonam Tobgye, The Enduring Values of the Constitution, 6 Journal of Indian Law
And Society 25, 38 (2016).

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morality which has earned the phrase its fame today – as the moral norms of
the constitution.31
2.3 Before 2014 – Lesser Known Obiters
Until recent years, the phrase, “constitutional morality” in the context of
propriety in political conduct can be located in a few sporadic mentions.
This is seen, for instance, in a case where the CBI failed to register a case
for a complaint against unscrupulous practices by the Congress Party, such
as bribing for defeating a No Confidence motion in 1993. Here, the Delhi
High Court remarked that this motion was defeated by indulgence in
political horse trading, and “violation” of constitutional morality. 32
Concerning the same motion, the court heard another dispute regarding the
Prevention of Corruption Act’s applicability against Members of
Parliament. The court here observed that no person, “more so a person who
at the relevant time was the Prime Minister of the country” can be allowed
to act undemocratically through such acts, not only as they are offences in
common law, but also since amount to “constitutional immorality”. 33
Interestingly, and while not in the context of political propriety, the Jammu
and Kashmir High Court once remarked that the constitution’s enactment
was to “inculcate” constitutional morality in the subjects of the Indian
state.34 As evident, the use of this phrase in the context of conduct had been
quite scattered and inconsistent. Nevertheless, while this phrase does not
have a significant legal bearing on decisional outcomes, it seems that
intuitively, courts have been included to use it in relation to conduct – for
both citizens and public office holders alike, although more extensively for
the latter.
The most illustrious instance in this vein, I opine, is an obiter by Khanna, J.
in his judgment in Kesavananda Bharati v. State of Kerala.35 As is well-
known, Khanna, J.’s judgment formed part of the majority which held that
the “basic structure” of the constitution cannot be amended. His obiters on
constitutional morality were simply ruminations on Parliamentary ethics,
not directly relating to this conclusion. He considered the possibility of
deletion by amendment of Article 836 and Article 17537 of the constitution,
which provide that the Lok Sabha and the Vidhan Sabha shall have a tenure
of five years (unless dissolved sooner). Opining that this would be a

31
See infra Part 3 of this paper.
32
See Rashtriya Mukti Morcha v. Suraj Mandal, (1996) 38 DRJ 250 (DB), ^2.
33
See P.V. Narasimha Rao v. State (CBI), (1997) 40 DRJ 136, ^16.
34
See B-2 Computers Kargil v. State, 2009 SCC OnLine J & K 25, p. 16.
35
Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC (hereinafter
Kesavananda).
36
See The Constitution of India 1950. Refer to Article 85.
37
See The Constitution of India 1950. Refer to Article 175.

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contemptible misuse of power, Khanna, J. declined to accept that “the

standards of political and Constitutional morality would sink so low” that an
amendment of this character could ever be passed. 38 Moreover, he
observed39 that even without such amendments, a party in power may make
a farce of democracy by prolonging its powers beyond five years despite
losing public support, by using the emergency provisions in Article 35840
and Article 359.41 Thus, he concluded that the most potent checks against
such abuses of power are “political responsibility” and the pressure of
public opinion.
At least four facets of Khanna, J.’s views are noteworthy. First, Khanna, J.’s
opinion that public censure is the most potent check against abuse of power
is reminiscent of Grote’s endorsement of the Athenian tradition of public
criticisms of governmental actions, as discussed earlier.42 Second, his view
on constitutional and “political” morality, which seem inter-twined with
“political responsibility”, resonate with Dr Ambedkar’s connotation of
constitutional morality as a guide in ethically sound conduct – one that
respects the “spirit” of the constitution. To this extent, Khanna J.’s view by
implication emphasizes the historical aspirations of the Constituent
Assembly. Third, contrary to Dr Ambedkar’s anxieties in the initial days of
independent India’s independence, 43 Khanna, J.’s thoughts reflect a
resounding confidence in the ethical propriety of the Legislature after three
decades of its existence. Fourth, and rather unfortunately, I contend that
Khanna, J. may have overestimated the Parliament’s integrity. In a move
that almost makes his remarks seem prescient, the Congress Party had
imposed a state of emergency to prolong its rule, following the Allahabad
High Court’s judgment against Prime Minister Indira Gandhi’s election,
only two years after his judgment was delivered.44 In a similar vein, the
Congress party’s reaction of passing an amendment to emasculate courts of
their power to judicially review emergency provisions, immediately after the
party imposed it, 45 is eerily similar to what Mr Lari had illustrated as
constitutionally immoral during the Constituent Assembly debates, as

38
See Kesavananda, ^1423.
39
See Kesavananda ^1424.
40
See The Constitution of India 1950. Refer to Article 358.
41
See The Constitution of India 1950. Refer to Article 359.
42
See supra Part 2.1.
43
See supra Part 2.2.
44
Adrija Roychowdhury, Four reasons why Indira Gandhi declared Emergency, The
Indian Express, June 25, 2018, available at https://indianexpress.com/article/research/four-
reasons-why-indira-gandhi-declared-the-emergency-5232397/ [Last visited on November
25, 2020].
45
Richard J. Kozicki, The Demise of Indian Democracy, 2:6 Asian Affairs 349, 357 (1975).

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mentioned earlier.46 Indeed, Khanna, J. himself resigned in protest after he

was superseded by Beg, J. to be the Chief Justice of India against the
convention of appointment by seniority,47 the likely cause of which was that
his judgment in Kesavananda Bharati went against the government.
These events demonstrate how the “spirit” of the constitution, i.e., its
democratic ethos as Dr Ambedkar understood it, remains vulnerable without
the diffusion of his constitutional morality in the citizenry and public
officials alike. The closing portion of this paper shall in part consider
whether recent events indicate that such a morality has potentially been
diffused in India today. For now, I return from this tangent to tracing the
expansions of “constitutional morality” by the Supreme Court in recent
years in relation to constitutional functionaries. I shall establish that its
recent decisions in this context are in line with Dr Ambedkar’s emphasis on
political propriety, and with the aforesaid obiters. However, the weight that
constitutional morality carries in the court’s decisions has changed
substantially. As I shall explain, the Court’s doctrinal understanding of
constitutional morality in this context is distinct from Dr Ambedkar’s. Yet,
it continues to affirm the latter’s emphasis on political propriety.
2.4 Manoj Narula And Constitutional Conventions
Dipak Misra, J. (as he was then) can be credited as the first judicial
author of constitutional morality as it is understood by the Supreme Court in
recent times. As part of a Division Bench considering a case of corruption
for monetary means, Misra, J. had remarked that such “immoral” acquisition
of wealth has historically undermined and afflicted people who act
honestly.48 However, he noted that the only “redeeming fact” is that history
respects honest people’s sufferings, since it is in “in consonance with”
constitutional morality.49 In short, he opined that those who act honestly are
remembered kindly by history as their actions promote constitutional
morality, or ethical propriety. This obiter then came to be cited by Misra, J.
in the much more influential majority view he authored in Manoj Narula v.
Union of India, 50 where for the first time, the phrase ‘constitutional
morality’ appeared fifteen times in the court’s writing. In this case, an
‘implied’ restriction was sought over the Prime Minister’s prerogative to

46
See supra Part 2.2.
47
Swapnil Tripathi, REMEMBERING JUSTICE H.R. KHANNA: The Judge who spoke out
fearlessly and eloquently for freedom, The Basic Structure, April 28, 2020, available at
https://thebasicstructure.com/2020/04/28/remembering-justice-h-r-khanna-the-judge-who-
spoke-out-fearlessly-and-eloquently-for-freedom/ (Last visited on October 30, 2020).
48
See Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra, (2013) 4 SCC 642,
^26.
49
Id.
50
Manoj Narula v. Union of India, (2014) 9 SCC 1 (hereinafter Manoj Narula).

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render “advice” to the President, based on which the President appoints

Cabinet Ministers under Article 75(1).51 Specifically, it was argued that the
Prime Minister can in no event advise the President to appoint Ministers
who have criminal antecedents, especially such politicians who are facing
charges or heinous crimes or corruption. Holding that there is no such
implied limit, the majority went on to poetically describe the historical
aspirations of the Constituent Assembly, and the expectation of good faith
reposed in the Prime Minister and other functionaries while tendering such
advice.
Misra, J. observes that “constitutional morality” means that one must “bow
down” to the norms of the Constitution, both written and unwritten.52 The
relevant unwritten norm here is that the Prime Minister is “expected” to act
with responsibility. 53 However, only “traditions and conventions” can
sustain such institutional integrity and commitment to the constitution,54 and
thus, the court emphasized that this norm can have legal effect only if it has
crystallised as a convention. Similar to Khanna, J.’s view in Kesavananda
Bharati, Misra, J. emphasises that that the Constituent Assembly had an
“intrinsic faith” in the Prime Minister’s office, which the court wishes to
honour.55 Indeed, Misra, J. cites a statement by Dr Rajendra Prasad from his
speech while moving for the Constitution’s adoption, declaring that things
which cannot be written in a constitution are covered by conventions.56 He
ended hoping that India “shall show those capacities and develop those
conventions”. Thus, respecting Dr Ambedkar, Dr Prasad, and the
Constituent Assembly’s hopes, 57 the court declined to read an ipso facto
prohibition that the Assembly did not envision, without a convention to that
effect having arisen. I contend that while the usage of the phrase
“constitutional morality” is novel in this context, this principled thread is a
reiteration of existing principles of law in India.
Unlike the particular constitutional conventions in England discussed
earlier, which may or may not be binding, constitutional conventions in
India today are unequivocally recognised as enforceable constitutional law.
Thus, in the Second Judges case,58 the Apex Court held that if it finds that a
constitutional convention has crystallised, then it forms part of law and can
be enforced. In this vein, it held that the executive and the judiciary shall

51
See The Constitution of India 1950. Refer to Article 75(1).
52
See Manoj Narula, ^75.
53
See Manoj Narula, ^98.
54
See Manoj Narula, ^75.
55
See Manoj Narula, ^96.
56
B. Shiva Rao, The Framing of India’s Constitution, Vol. IV 957-68 (1968).
57
See supra Part 2.2.
58
See Supreme Court Advocates-On-Record Association & Ors. v. Union of India, (1993) 4
SCC 441, ^353.

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work in a consultative tandem for making judicial appointments. However,

in case of disagreements, the view of the judiciary shall prevail as per
convention. 59 Similarly, when the court in Samsher Singh v. State of
Punjab 60 held that the President in her exercise of executive powers is
bound by the Cabinet’s advice, it followed a constitutional convention that
had been ‘established’ in India, borrowing from an analogous convention in
England concerning the relations between the monarch and the Council of
Ministers.61 Along these lines, in U.N.R. Rao v. Smt. Indira Gandhi,62 it held
that by an ‘established’ convention, the Union Cabinet does not ipso facto
cease to hold office ‘immediately’ after the House of the people is
dissolved.
As discussed above, the Manoj Narula judgment can be taken to mean that
there is no ‘established’ convention providing that Ministers facing serious
charges cannot be recommended for the Cabinet. To this extent, its
principled basis is simply a reiteration of established law. However, the
court’s treatment of ‘constitutional morality’ contains many nuances that
separate it from past decisions on conventions, in none of which can this
phrase be located. Whereas Dr Ambedkar’s ‘constitutional morality’ was
seemingly synonymous with constitutional conventions,63 the Apex Court’s
views these terms as distinct. To the majority, constitutional morality refers
to an ‘abstract’ and all-encompassing commitment to constitutional
“norms”. These “norms” in the concrete include constitutional provisions,
conventions, as well as non-enforceable ethical duties. Thus, the
Assembly’s faith in the Prime Minister, leading to the unwritten expectation
not to recommend Ministers facing charges is an example of such non-
enforceable duties. Consequently, I contend Misra, J.’s constitutional
morality is much more expansive than its previous renditions. Yet, it is more
cautious, in that unlike Khanna, J.’s opinion, it rightly lacks an optimism
that functionaries will always abide by such unwritten expectations. Moving
forward, much more expansive views that honour historical aspirations for
constitutional provisions concerning public offices can be found in the
court’s later judgment in National Capital Territory (NCT) of Delhi v.
Union of India 64 in which ‘constitutional morality’ appears an
unprecedented fifty-two times. This decision emphasises historical
expectations in constitutional interpretations, even absent the materialisation
of such expectations in political practice or conventions. It is in this holding

59
See Id., ^411.
60
Samsher Singh v. State of Punjab & Anr., (1974) 2 SCC 831.
61
See Id., ^122.
62
See U.N.R. Rao v. Smt. Indira Gandhi, (1971) 2 SCC 63, ^3.
63
See supra Part 2.2.
64
State (NCT of Delhi) v. Union of India & Anr., (2018) 8 SCC 501 (hereinafter NCT of
Delhi).

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that the role of constitutional morality as an ‘interpretative aid’ in

constitutional interpretation was formulated.
2.5 NCT of Delhi – Introducing Constitutional Morality as ‘Values’
In NCT of Delhi, the Apex Court was faced with two main questions, both
relating to the effects of provisions contained in Article 239AA. 65 The
provisions of this Article had been inserted via the 69th constitutional
amendment in 1991, which converted Delhi from a Union territory into the
NCT. The “Administrator” of Delhi, an office which earlier had autocratic
powers, was henceforth designated as the Lieutenant Governor, and a
representative democracy was established through the NCT Legislative
Assembly under Article 239AA(2)(a). This special scheme led to the first
question of whether the Lt. Governor is bound by the “aid and advice” of
the Council of Ministers of the NCT, a phrase used in Article 239AA(4).
Drawing analogies between the meaning of this phrase in constitutional
conventions concerning the President and the Governors of states, the court
held this in the affirmative. 66 The second question, and the one where
“constitutional morality” takes prominence even lacking established
conventions, concerned resolution of differences between the Council and
the Lt Governor. The proviso to Article 239AA(4) provides that in case of a
“difference of opinion” between the Council and the Lt Governor on “any
matter”, the latter “shall” refer it to the President, whose decision in
resolving this conflict shall be final. The question arose whether the phrase
“any matter” would include every possible difference of opinion. While the
court uses the phrase rather loosely in this judgment, it sought recourse to
what I contend are two distinct meanings of what it understands as
“constitutional morality”.
First, the majority opinion penned by Dipak Misra, C.J. (speaking for
himself, Sikri and Khanwilkar, JJ.) observed that this phrase means
‘adherence’ to constitutional “principles”. Further, constitutional morality
expects higher care and responsibility from ‘functionaries’ in showing such
adherence, since the constitution is what empowers their authority.67 To this
extent, and considering that the court cites Dr Ambedkar’s speech where he
expounded on this phrase, 68 the court’s understanding of constitutional
morality resonates with the former’s. However, the court goes on a step

65
See The Constitution of India 1950. Refer to Article 239AA.
66
Gautam Bhatia, “Working a Democratic Constitution”: The Supreme Court’s judgment
in NCT of Delhi v Union of India, Indian Constitutional Law And Philosophy, July 4, 2018,
available at https://indconlawphil.wordpress.com/2018/07/04/working-a-democratic-
constitution-the-supreme-courts-judgment-in-nct-of-delhi-v-union-of-india/ (Last visited on
October 26, 2020).
67
See NCT of Delhi, ^58.
68
See NCT of Delhi, ^59.

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further to explaining that constitutional morality also means the

“conscience” of the constitution.69 If one reads these two meanings without
using the distinction made in this paper (‘conduct-based’ and ‘values’), one
is left with the semantical paradox that constitutional morality means
respect for constitutional morality (since “conscience” is synonymous with
“principles”). Therefore, to avoid such confusion, with this bifurcation, one
can read the court’s opinion as stating that ‘conduct-based’ constitutional
morality requires functionaries to revere constitutional morality as ‘values’.
Seen this way, the court’s theorisation of constitutional morality as ‘values’
is equivalent to Dr Ambedkar’s invocation of the ‘spirit’ of the constitution,
which could be perverted with inappropriate forms of administration. 70
However, how does one locate something as abstract as the ‘spirit’ of the
constitution in the concrete? The court answers that a ‘purposive’ reading
must guide its constitutional interpretation, and that in delineating this
purpose, it is bound by historical aspirations of the provision concerned.71
The majority realised that Article 239AA(4) does not envision “constant
friction” between the Council of Ministers and the Lt. Governor. 72 Thus,
although grammatically and textually, “any” matter would indeed include
every possible difference of opinion, the court held that this grammatical
fact would be superseded by an interpretation guided by constitutional
morality73 – in which some, not all, conflicts can be referred to the President
for resolution. The two entities are expected to discuss and deliberate all
matters to ensure the common goal of sound administration in the NCT.74 If
they were unable to resolve any of their differences internally, and if the
President were to intervene at each instance, this administration would have
come to a halt. Chandrachud, J. made a remark strikingly similar to Dr
Ambedkar’s views, holding that if every conceivable difference was
reverted to the President, then the ‘form’ of the proviso to Article 239AA(4)
would remain, but its ‘substance’ or spirit would be lost.75 Consequently,
the majority held that the Lt. Governor must have some “valid ground”
before approaching the President. 76 Setting a high threshold for what a
“valid ground” is, Chandrachud, J., explains that in the event that “national
concerns” in relation to the NCT’s governance are threatened; or when the
Union Government’s executive power may be impeded by the Council of
Ministers; or when the position of the NCT as a national capital is

69
See NCT of Delhi, ^63.
70
See supra Part 2.2.
71
See NCT of Delhi, ^79.
72
See NCT of Delhi, ^241.
73
See NCT of Delhi, ^284.11.
74
See NCT of Delhi, ^240.
75
See NCT of Delhi, ^468.
76
See NCT of Delhi, ^239.

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prejudiced, the Lt. Governor may refer conflicts to the President.77 Thus,
any interpretation not methodologically constrained within the historical
expectations of provisions, he held, must be rejected by courts, as it would
be against constitutional morality as ‘values’.78
These holdings show important insights into what the court regards as its
own duty in relation to constitutional morality as ‘values’. Evidently,
functionaries must align their conduct with the historical expectations of
their responsibilities, i.e., follow ‘conduct-based’ constitutional morality –
or in other words, act in accordance with constitutional morality as ‘values’.
In a similar vein, the court itself in discharging its responsibility as the “sole
arbiter” of the constitution 79 must be guided by the historical intent of
constitutional provisions, since only in deferring to such intent can the
values behind them be respected. Lon Fuller argued that while judges
should ordinarily be morally ‘neutral’, it is inevitable that at times they must
consider the law’s internal morality. For instance, if a morally neutral
interpretation makes it impossible for a citizen to obey a provision, then an
interpretation that is in “harmony” with the provision’s internal morality or
purpose.80 With the court’s emphasis on sound governance and not brining
the administration to a halt, my contention that constitutional morality as
‘values’ is an interpretative aid is based on precisely this Fullerian idea. Dr
Ambedkar’s “constitutional morality”, since it referred to conventions or at
most, propriety in conduct, cannot be conflated with the court’s expansive
take on constitutional values. However, contrary to what existing
scholarship believes, 81 as Dr Ambedkar’s form of administrations were
intrinsically linked to the ‘spirit’ of the constitution, the court’s usage of
constitutional morality as ‘values’ is arguably not a departure from his
opinions, when seen in their context.
The NCT of Delhi holding, being the first that expounded on constitutional
morality as ‘values’, laid ground for it to ripen in the court’s following
decisions concerning the criminalisation of consensual homosexual
intercourse, coverture in adultery provisions, and on the prohibition of entry
for women into temples. In truth, it is these judgments which have arguably
led to the contentious debate over constitutional morality’s merits (or lack
thereof). However, before departing with conduct-based constitutional
morality, I wish to make one last observation. Recently, in the Supreme
Court’s Full-judge bench decision in Srimanth Balasaheb Patil v. Speaker,

77
See NCT of Delhi, ^474.
78
See NCT of Delhi, ^467.
79
See NCT of Delhi, ^4.
80
Lon Fuller, The Concept of Law in The Morality of Law 143, New Haven, London
(Revised ed., 1969).
81
Vikram Aditya Narayan, Matters Of Morality, 3.1 CALQ 4, 20 (2016).

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Legislative Assembly, 82 it was held, inter alia, that the power to bar a
member from contesting elections after their disqualification is not reposed
in any Legislative Assembly Speakers. 83 While holding this, the bench
remarked that constitutional morality should not be subverted by “political
morality” in constitutional interpretations. 84 Indeed, it noted that
functionaries too are expected not to be swayed by the prevailing political
morality in their conduct.85 I demonstrated earlier that Khanna, J.’s opinion
in Kesavananda Bharati, other decisions,86 and scholarship treated conduct-
based constitutional morality nearly as synonymous with ‘political’
morality. 87 Today, these phrases are antithetical – one guides propriety,
while the other connotes factors that can lead to unethical conduct.
Interestingly, the bench, in drawing this dichotomy, endorsed Beteille’s
assertion88 that political parties show contrasting conducts when in office
and when not, leading to the political system’s immoral perception.89 Thus,
today’s visualisation of conduct-based constitutional morality is
fundamentally distinct from its past renditions.
3. Constitutional Morality As ‘Values’
3.1 Tracing Navtej Singh Through Dworkin
Hereinafter, I shall analyse the Apex Court’s recent decisions where it
introduced its expansive views on constitutional morality as ‘values’. In
doing so, I shall adopt Dworkin’s conceptualisation of the ‘political
responsibility’ of judges, coupled with the methodology he proposed judges
must adopt in resolving ‘hard cases’. This framework will enable a thorough
examination of the coherence of the court’s reasoning in interpreting
constitutional provisions through ‘values’. In terms of ‘political
responsibility’, Dworkin espoused that judges must make only such
decisions that can justify other decisions that the judiciary had declared
earlier, thus verifying its institutional coherence. 90 In essence, a decision
must seem right not only in isolation, but also in relation to earlier decisions
binding on the court delivering it. Such coherence must fruition even in

82
Srimanth Balasaheb Patil v. Speaker, Legislative Assembly & Ors., (2020) 2 SCC 595
(hereinafter Srimanth).
83
See Srimanth, ^136.
84
See Srimanth, ^148.
85
See Srimanth, ^150.
86
Although the phrase “constitutional morality” is absent in this judgment, cursory remarks
concerning “political morality” as a guide in ethical conduct can be found in Sawant, J. (for
himself and Singh, J.) and Ramaswamy, J.’s opinions, See S.R. Bommai & Ors. v. Union of
India & Ors., (1994) 3 SCC 1, ^124, 168 & 229.
87
See supra Part 2.3.
88
See Srimanth, ^1.
89
Andre Beteille, Constitutional Morality, 43:40 Economic And Political Weekly 35, 40
(2008).
90
Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1064 (1975).

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‘hard cases’, which are situations where a court is confronted with a

question on which there is no settled law, explicit rule or precedent to guide
its judgment.91 If a constitution bench of the Supreme Court is confronted
with a question on which multiple constitutional interpretations are possible,
and no bench superior to such a bench has accepted one of such
interpretations as authoritative, then the court is faced with a hard case.
Thus, Navtej Singh Johar v. Union of India, 92 where Section 377 of the
Indian Penal Code (“IPC”) 93 was challenged insofar as it criminalised
consensual homosexual intercourse, the court was faced with a ‘hard case’
as no rule or precedent that was binding on the bench94 had given an explicit
ruling on this question. Even so, Dworkin would contend, the court’s
judgment would be constrained by the text, history, practice, and precedents
concerning constitutional provisions and their tests against which Section
377 was challenged. Moral philosophies could have at most ‘supplemented’
the court’s reading of these provisions, within these constraints.95
I argue that Navtej, to the extent of its use of constitutional morality as
‘values’, is indeed an excellent illustration of the court fulfilling its political
responsibility to justify its decision in this ‘hard case’, based on the
aforesaid institutional constraints. To prove this, I first consider different
ways in which constitutional morality acted as an ‘interpretative aid’ in the
Hon’ble judges’ decisions, with the phrase now having appeared a
prominent eighty times in the judgment. Dipak Misra, CJ. (writing for
himself and Khanwilkar, J.) held that in adjudging the constitutional validity
of laws on well established tests, courts must be “guided” by constitutional
morality, and not by ‘societal morality’.96 Misra, CJ., draws this dichotomy
to suggest that to determine if the guarantees such as equality in the
constitution have been breached by discriminatory laws, courts must never
base their decisions on majoritarian or popular sentiments. 97 This since
popular sentiments can often be oppressive, and repugnant to the beliefs or
choices of minorities, 98 thus usurping their rights. 99 Consequently, courts
must emphasize values of inclusivity envisioned in the constitution in

91
Dorota Galeza, Hard Cases, 2 Manchester REV. L. CRIME & Ethics 240, 241 (2013).
92
Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1 (hereinafter Navtej).
93
See The Indian Penal Code, 1860, § 370.
94
While the court had previously declared that Section 377 is constitutionally valid in this
regard, this decision was delivered by a Division Bench, thus not binding on the present
bench, See Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
95
Michael W. McConnell, The Importance of Humility in Judicial Review: A Comment on
Ronald Dworkin' Moral Reading of the Constitution, 65 Fordham L. Rev. 1269, 1271
(1997).
96
See Navtej, ^131.
97
See Navtej, ^128.
98
See Navtej, ^127.
99
See Navtej, ^268.5.

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making such determinations.100 Guided by these values, Misra, CJ., held that
Section 377 is indeed unconstitutional as it reflects an attempt to derogate
the sexual identity of homosexual persons as ‘unnatural’, thus excluding
their rights in view of popular social edicts.101
Nariman, J.’s concurring opinion similarly holds that the “Victorian
morality” reflected in Section 377 is inconsistent with constitutional
values,102 the latter of which must be preferred by the court to give effect to
fundamental rights.103 Nariman, J. also notes that such constitutional values
can be located in the Preamble and PART-III of the Constitution. 104
Identical conclusions were reached by Chandrachud, J.,105 and Malhotra, J.
– although it is interesting that the latter’s opinion uses the phrase
‘constitutional morality’ on only two terse occasions. 106 In summary, the
court held that the constitutional validity of laws must be tested against
well-established grounds for that purpose. It added simply that in assessing
their validity through these tests, courts are to consider constitutional values
such as inclusivity, plurality, dignity, and so on. I argue that the court’s
interpretative method in Navtej illustrates Dworkin’s espousal of political
responsibility for four reasons. First, it requires consulting the text of the
constitutional guarantees in PART-III and to apply tests of constitutional
validity which have been authoritatively recognised in various precedents.
Second, when applying these tests, the court does not invent new values, or
rely on values external to the constitution (say, religious tenets that
deprecate LGBTQIA+ identities). Instead, it consults values recognised
within the Preamble, or in earlier decisions. Indeed, Sikri, J., in an earlier
decision affirming the gender identity of transgender persons had observed
that the constitution has its “internal morality” based on dignity and
equality. 107 Similar comments on the moral values contained in the
constitution have often been made in past decisions. 108 The court thus
undertakes to locate these values methodically, and to consider the moral
repugnancy of laws to constitutional values only within the constraint of
such established tests. In doing so, the court etches safeguards against
implicitly unconstitutional values of exclusion and homogeneity.109

100
See Navtej, ^123.
101
See Navtej, ^268.15.
102
See Navtej, ^349.
103
See Navtej, ^352.
104
See Navtej, ^349.
105
See Navtej, ^608.
106
See Navtej, ^637.5 & 640.3.7.
107
See National Legal Services Authority v. Union of India, (2014) 5 SCC 438, ^129.
108
See Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, ^118.
109
See Navtej, ^472.

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Third, even the proposition that values can be an ‘interpretative aid’ was
cemented in NCT of Delhi, as discussed earlier, thus giving Navtej direct
precedential support. Lastly, while reposing new meanings to the equality
guarantees in this respect, the court emphasized the ‘transformative’
character of these provisions intended by the Constituent Assembly as
evident from the context of their creation,110 thus affirming their historical
aspirations. There are, however, two conceptual criticisms in Navtej that I
wish to highlight. For the first, the court treats Dr Ambedkar’s and Grote’s
constitutional morality as synonymous to its own, as reflected in Misra, CJ.
and Chandrachud J.’s citations of their respective views.111 I contend that
this equivocation is disingenuous, given that Grote’s “constitutional
morality” had no nexus with the substance of constitutions, but only with
their formal respect. 112 As for Dr Ambedkar’s, while his reference to
conduct-based constitutional morality was founded on the urge to preserve
the “spirit” of the constitution, he too treated these two as separate concepts
(confirmed also by his analogy of the former with conventions discussed
earlier). 113 Therefore, while the court indeed honours the transformative
intent of the constitution, its theoretical conflation of conduct-based
constitutional morality with constitutional morality as ‘values’ is not only
rather cursory, but also mistaken.
My second and more alarming criticism concerns the temporal aspect of the
bearings of constitutional morality. As mentioned earlier, the court held that
in applying tests of constitutionality, no regard must be had for the morality
‘prevalent’ at any point in time – instead, only ‘constitutional morality’ can
be accorded weight in such interpretations. In doing so, it seemingly sought
to veneer this phrase with an aura of permanence, i.e., these values are
internal to the constitution and not subject to the vagaries of changing times.
And yet, Misra, CJ. emphasises that using constitutional morality, the
constitution must be interpreted consonant to the “present needs” of society
in a way that is “sensible in the prevalent times”,114 keeping in mind the
“progressive realisation of rights”.115 Similarly, Nariman, J., holds that to
enforce Section 377’s Victorian mores would be “out of tune” with the
“march” towards today’s mores, thus making its object discriminatory and
against constitutional morality.116 Logically, this predicates the assessment
of whether its object is “discriminatory” over present public perception
(prevalent mores). I argue that the court’s curious deference to today’s

110
See Navtej, ^107-110, 615 & 616.
111
See Navtej, ^124, 126 & 598.
112
See supra Part 2.1.
113
See supra Part 2.2.
114
See Navtej, ^199.
115
See Navtej, ^200.
116
See Navtej, ^353.

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mores or the “present needs” of society defeats the very intent of the binary
it drew between ‘constitutional’ and ‘social’ morality. If it proposes that the
constitution’s values are not subject to changing mores, it cannot use the
latter as a proxy to locate the former’s contents whenever convenient. In
other words, the court’s theorisation ipso facto suggests that it would have
been bound to declare Section 377 unconstitutional even in the 1950s had
this question been raised then, even absent the “march” of mores upon
which it based its interpretation in Navtej. 117 The court’s comments are
laudable in to the extent that judicial construction of rights must not fall
short of progressive societal mores. Yet, since it implicitly notes that it is
duty bound to usher inclusivity (transformation) even if social mores are
unfavourable, 118 it ought to have limited itself to appreciating that mores
have grown more inclusive, instead of treating them as an authoritative
backdrop for its holding. Such an approach is repugnant to its aim in
detaching the constitution’s value assessments from ‘prevalent’ sentiments.
Yet, unfortunately, this criticism extends equally, if not more, to the court’s
constitution bench decision in Joseph Shine v. Union of India.119
3.2 Continuing Dilemmas In Joseph Shine
In Joseph Shine, the court had to adjudge the constitutional validity of
Section 497 of the IPC,120 which concerned the offence of “adultery”. The
court observed that the provision contains various paternalistic notions
which provide proprietary rights to a husband over his wife (coverture).121
For instance, if a man partakes in sexual activities with a married women
with her husband’s consent, no offence is committed. Nariman, J., applied
the test of ‘manifest arbitrariness’, introduced earlier in Sharaya Bano v.
Union of India, 122 which specified, inter alia, that an “irrational” law is
unconstitutional. Nariman, J.’s opinion illustrates how constitutional
morality as ‘values’ is useful as an interpretative aid, in that he holds that
Section 497 is irrational (and thus, manifestly arbitrary) since it is abhorrent
to constitutional values.123 In the same context, Chandrachud, J. considers
Section 497 to be manifestly arbitrary as it does not have an ‘adequate
determining principle’ (also laid down in Shayara Bano), for the reason that

117
Activism for the equal flourishment of LGBTQIA+ has evolved very noticeably and
strongly in recent years, See Sumit Saurabh Srivastava, Disciplining the ‘Desire’: ‘Straight’
State and LGBT Activism in India 63 3 Sociological Bulletin 368 (2014). However, I
contend that even lacking such changes, constitutional morality as ‘values’ must enable the
court ipso facto to declare Section 377 unconstitutional.
118
See Navtej, ^123.
119
Joseph Shine v. Union of India, (2019) 3 SCC 39 (hereinafter Joseph Shine).
120
See The Indian Penal Code, 1860, § 497.
121
See Joseph Shine, ^101.
122
See Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1, ^101.
123
See Joseph Shine, ^104-105.

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no principle that conflicts with constitutional values can be adequate.124 In

reaching this conclusion, he explains that this provision denies women
sexual agency, enabling the belief that women must be “protected”, holding
that such patriarchal imaginations of women are ipso facto against dignity,
equality, and similar constitutional values.125
Nonetheless, Nariman, J. bases his analysis on irrationality by holding that
Section 497 has “outlived” its purpose, and thus, its object has “since”
become manifestly arbitrary, having “lost” its rationale in “today’s day and
age”, therefore not squaring with “today’s” constitutional morality. 126 In
earlier decisions on this question, 127 it had been held that the moral
transformation a society has undergone in such situations must be put to
effect by legislators. This, Nariman, J. held, was incorrect since the court
may expand on existing constitutional guarantees through constitutional
morality. 128 Herein lies the error precisely, which is evident also in
Chandrachud, J.’s opinion.129 First, even if inadvertently, it lends an aura of
legitimacy to coverture, in that Nariman, J. concedes that its object may
once have been ‘rational’, with rationality being contingent on the
prevalence of Victorian morality. Suppose the Parliament enacts a law
today, abhorrent to a community ABC. The law reflects prevailing social
mores which normalise its exclusionary character, and there is no sign of
any potential societal “march” towards the flourishment of their rights.
Thus, the law is ‘rational’, and not manifestly arbitrary, if one were to
accept Nariman, J.’s deference to prevailing social values. Yet, such a law
clearly ought to be irrational, and consequently, manifestly arbitrary as per
Navtej, since prevalent social mores are fleeting, but the constitution’s
values are permanent and detached from prevalent social mores. Inclusivity,
secularism, plurality, dignity, and other such values would be read with
established tests to declare such a law unconstitutional.130
This brings me to my second contention – the court has once again, and
incorrectly so, hinged the ‘transformative’ character of the constitution as
commensurate with societal progressiveness. I argue that even if coverture
were reified today, the court would have been duty-bound to strike down
Section 497 since it conflicts with tests of constitutional validity, when read
with constitutional values. Since the court itself in Navtej as well as in
Joseph Shine recognised this proposition,131 its recourse to “transformed”
124
See Joseph Shine, ^166.
125
See Joseph Shine, ^189.
126
See Joseph Shine, ^103.
127
See Sowmithri Vishnu v. Union of India & Anr., 1985 Supp SCC 137, ^7.
128
See Joseph Shine, ^109.
129
See Joseph Shine, ^143.
130
See supra Part 3.1.
131
See Joseph Shine, ^111.

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social morality to seek authority is rather curious and disappointing. I

reiterate that courts must keep up their reasonings with transforming social
mores, insofar as they are consonant to constitutional values (such as
progressive attitudes towards LGBTQIA+ identities in Navtej). Yet, its
progressive inter-play of constitutional values in constitutional
interpretations may in some situations receive no ‘moral’ credence from any
sizable portion of society, unlike Navtej and Joseph Shine.132 In my opinion,
even in such an event, the court must not fear criticism and strike down
constitutionally ‘immoral’ laws (through established tests), and be the first
voice that recognises the ‘irrationality’ of certain mores, thus enabling this
recognition to “trickle down” in society, as Misra, CJ. remarked in
Navtej. 133 In this vein, it is hoped that in future decisions concerning
constitutional morality as ‘values’, even if it draws inspiration from changes
in societal moral perspectives, the court does not treat them as an
authoritative basis for its constitutional interpretations. Nonetheless, it is
remarkable that even in Joseph Shine, the court lives up to Dworkin’s
political responsibility thesis,134 insofar as the use of constitutional morality
as ‘values’ as an interpretative aid is concerned. I emphasise this in order to
analyse the court’s last judgment on constitutional morality as ‘values’,
where it may have failed to fulfil this thesis, in the Constitution Bench
decision of Indian Young Lawyers Association v. State of Kerala.135
3.3 Doctrinal Errors In Sabarimala
This hard case concerned the alleged unconstitutionality of certain rules
prohibiting women devotees of Lord Ayyappa between the age of ten to
fifty years from entering the Sabarimala temple. 136 The prohibition, to
summarise briefly, was legitimated by Rule 3(b) of the Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules, 1965,137 which states that

132
While the struggle to truly achieve equality for LGBTQIA+ identities is still underway,
the Navtej judgment was welcomed and celebrated by a sizable majority of citizenry, since
then also furthering their acceptance. See Aparna Narrain, Section 377 judgment on same
sex relations: One year later, has anything changed? , The Hindu, September 5, 2019,
available at https://www.thehindu.com/society/section-377-judgement-one-year-
later/article29342570.ece (Last visited on October 28, 2020). The same goes for the Joseph
Shine judgment, See Priyanka Mittal, Adultery no longer a crime as Supreme Court strikes
down Section 497, Live Mint, 27 September, 2018, available at
https://www.livemint.com/Politics/GAX16uG39Rn0D4RvqusuZI/Adultery-no-longer-a-
crime-as-Supreme-Court-strikes-down-Sec.html (Last visited on October 28, 2020).
133
See Navtej, ^123.
134
See supra Part 3.1.
135
Indian Young Lawyers Association & Ors. v. State of Kerala & Ors., (2019) 11 SCC 1
(hereinafter Sabarimala).
136
See Sabarimala, ^371.
137
See The Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965,
Rule 3(b).

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no one shall enter a public temple if their entry therein is restricted by a

custom. The right of all persons, including these devotee women, to freely
profess, practice and propagate religion is subject to “public order, morality
and health” under Article 25(1). 138 Thus, these devotees had the right to
enter the Sabarimala temple to offer their prayers. 139 To the court, a
question that arose concerned the exact contours of “morality” as a
limitation to this right, i.e., whether it is ‘public morality’ or ‘constitutional
morality’.140 If the answer is ‘public morality’, then Rule 3(b) could be a
valid restriction over the devotees’ right under Article 25(1), since popular
social consensus indeed abhorred their entry in favour of the custom.141 If,
however, this word is to be read as ‘constitutional morality’, then Rule 3(b)
may not be enabled by Article 25(1), since, as I shall explain, it arguably
contradicts values such as equality, dignity, liberty, and inclusivity. The
majority, through Misra, CJ. (for himself and Khanwilkar, J.) and
Chandrachud, J. held in favour of the latter interpretation.
Sai Deepak argues that a literal and grammatically proper construction of
Article 25(1) realises that following “public order”, both the words
“morality” and health” are to be read as “public morality” and “public
health. 142 I agree that this would be the unequivocal result of a literal
construction, and the word “public” before morality has indeed been held to
a necessary qualifier by the Madhya Pradesh High Court in Rev. Stainislaus
v. State of M.P. 143 His literal construction, I opine, finds support in the
debates of the Constituent Assembly, where “morality” and “health” are
indeed treated synonymously with “public morality” and “public health”.144
It is also one that scholars seem to have taken for granted before the
Sabarimala decision. 145 The Apex Court itself has fleetingly referred to
“morality” as “public morality in this context.146 Deepak contends further
that the choice of the Constituent Assembly in selecting this construction

138
See The Constitution of India 1950. Refer to Article 25(1).
139
See Sabarimala, ^104.
140
See Sabarimala, ^106.
141
BBC News, Sabarimala temple: India court to review ruling on women’s entry,
November 14, 2019, available at https://www.bbc.com/news/world-asia-india-50415356
(Last visited on October 24, 2020).
142
J. Sai Deepak, Constitutional morality versus public morality, The Daily Guardian,
August 21, 2020, available at https://thedailyguardian.com/constitutional-morality-versus-
public-morality/ (Last visited on October 29, 2020).
143
See Rev. Stainislaus v. State of M.P. & Ors., AIR 1975 MP 163, ^19.
144
Centre For Law And Policy Research, 6th December, 1948, Constituent Assembly Of
India Debates (Proceedings) - Volume VII, (Date of publication unavailable), available at
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-06
(Last visited on October 30, 2020).
145
S. Jafer Husain, Constitution, Religious Pluralism And The Courts, 16-17 ALJ (2001-2)
57, p. 65.
146
T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors., (2002) 8 SCC 481, ^93.

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suggests a special meaning to be given to the word, which cannot be

usurped by a judicially invented ‘constitutional morality’. His assertion is
that the historical intent of Article 25(1) was to allow democratically elected
dispensation to implement their versions of public morals.147 Although he
concedes that this power is limited by doctrines such as arbitrariness and
reasonableness, he argues that the distinction between this constitutional
morality and ‘public morality’ under Article 25(1) must be preserved.
Interestingly, the majority in Sabarimala concedes that by such a literal
construction, morality is qualified by the word “public” in Article 25(1), and
thus reads as “public morality”.148 However, it holds that “public morality”
is to be understood as meaning “constitutional morality”.149 Naturally, given
views such as Deepak’s, one would anticipate that the court gave strong
justifications based on locating the purpose or intent of Article 25(1) in
reaching this conclusion. Regrettably, the majority’s view is a
disappointment on this point.
Misra, CJ. holds that since the people (read as “public”) of India gave the
constitution to themselves, “public” morality in the constitution necessarily
implies “constitutional” morality.150 Yet, in Kalpana Mehta & Ors. v. Union
of India,151 Misra CJ., speaking for the majority, held that in interpreting a
constitutional provision, guidance must be sought in the “letter, spirit and
purpose” of the language adopted in such provisions, and that constitutional
silences can be filled only within such constraints. It is curious that Misra,
CJ. makes no such inquiry into the meaning of “morality” as intended for
Article 25(1), thus making his holding vulnerable to claims of having
dismissed its “special” meaning as argued by Deepak. Misra, CJ.’s generic
emphasis of constitutional values fails to address the special question of
Article 25(1)’s allegedly special purpose. Chandrachud, J., on the other
hand, emphasises that the constitution’s ‘overarching’ purpose is to protect
human dignity, and for that reason, “public morality” must be synonymous
with “constitutional morality”. 152 Once again, while Chandrachud, J.’s
emphasis on dignity is laudable, it fails to consider why, in what context,
and for what reason “morality” was specified as a ground for the State to
abridge an individual’s right to religious freedom. In NCT of Delhi, both
Misra, CJ. and Chandrachud, J. laid great emphasis on the history of the
proviso to Article 239AA(4), its context, and its inter-play with related

147
J. Sai Deepak, Constitutional morality, public morality and moral diversity, The Daily
Guardian, August 28, 2020, available at https://thedailyguardian.com/constitutional-
morality-public-morality-and-moral-diversity/ (Last visited on October 29, 2020).
148
See Sabarimala, ^110.
149
See Sabarimala, ^144.5.
150
See Sabarimala, ^110.
151
See Kalpana Mehta & Ors. v. Union of India & Ors., (2018) 7 SCC 1, ^54.
152
See Sabarimala, ^215.

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provisions, as discussed earlier. Only upon fulfilling this onus were they
satisfied to forgo the grammatical construction of “any” difference as
meaning “every” difference, to one that put the proviso’s intent to effect.
Indeed, the majority in NCT of Delhi held that authoritative constitutional
interpretations must be justified, at least in part, on their historical intent.153
Given this high standard of judicial inquiry the Hon’ble judges had
espoused earlier, their interpretations in Sabarimala are rather
disappointing.
Earlier in Ratilal Panachand Gandhi v. State of Bombay,154 a Constitution
Bench of the Apex Court had held that “morality” under Article 25(1)
implies the “morals of the people”. As mentioned above, Misra, CJ.’s
holding suggests that the relevant morals of the people are reflected only in
the constitution. However, many scholars opine that “public morality” must
be read as the prevalent sentiment at a given point in time (similar to how
the court connoted this phrase in Navtej and Joseph Shine), thus contending
that in limiting rights, the State need only demonstrate that such limitations
are necessary to protect public morals. 155 If this construction is accepted,
then Rule 3(b), in disallowing entry to women may possibly be enabled by
“public morality”. In considering these alternative interpretations, the point I
am seeking to make is that the majority view in Sabarimala was a failed
opportunity of making an enriching and detailed inquiry into the purpose,
history, and scheme of Article 25(1). Perhaps, had such an inquiry been
made, the legal fraternity may not have been as polarised as to the merits of
the decision on this point. 156 However, one should not think that an
interpretation akin to Sai Deepak’s would necessarily make the prohibition
on temple entry immune.
In Shri Vishwothama Thirtha Swamiar v. State of Madras,157 the Madras
High Court held that the State could abridge denominations’ right to manage
their own affairs under Article 26(b)158 on the ground of “public morality”,
as mentioned therein, in situations where such denominations seek to
practice untouchability. This was since Article 17, 159 which abolishes
untouchability without any qualification, appeared to the court to have made

153
See supra Part 2.5.
154
See Ratilal Panachand Gandhi v. State of Bombay & Ors., AIR 1954 SC 388, ^10.
155
Vipula Bhatt, Rise of Religious Unfreedom in India: Inception and Exigency of the
Essential Religious Practices Test, 3 RSRR 126, 136 (2016).
156
Md Zeeshan Ahmad, The Challenge of Constitutional Morality before the Supreme
Court, The Leaflet, March 26, 2020, available at https://www.theleaflet.in/the-challenge-of-
constitutional-morality-before-the-supreme-court/# (Last visited on October 28, 2020).
157
See His Holiness Sri Vishwothama Thirtha Swamiar of Sode Mutt v. The State of
Madras, AIR 1956 Mad 541, ^199-200.
158
See The Constitution of India 1950. Refer to Article 26(b).
159
See The Constitution of India 1950. Refer to Article 17.

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its prohibition a standard of “public morality”.160 Since Chandrachud, J. had

held that the prohibition of women’s entry owing to menstruation amounts
to practicing untouchability,161 the Rule 3(b) cannot be enabled by Article
25(1) as a manifestation of “public morality”, as per this standard. In other
words, elements of ‘public morality’ may be reflected in the Constitution
and the phrase need not in all occasions be dichotomized with
‘constitutional morality’. Yet, the High Court’s approach does not account
for the idea that public morality refers to sentiments prevalent at certain
points of time. Even absent this unique metric, the merits of Chandrachud,
J.’s expansion of Article 17 require greater consideration.162 It is very much
possible that Article 17 was intended to cover only caste-based
discrimination, and that its “non-conventional” expansions akin to
Chandrachud, J.’s may be fundamentally flawed. 163 These complex
confusions are all the more reason that the court ought to have gone on
further in Sabarimala, as it did in Navtej and Joseph Shine, to consider the
text, history, practice and precedents concerning Article 25(1) before
reaching its conclusion, thus following Dworkin’s methodology of judicial
interpretation.164 Following a referral to this end,165 the majority verdict in
Sabarimala is now pending review by a resounding nine-judge bench of the
Apex Court.166 It is hoped that the omission of the majority to conduct an in-
depth inquiry into the history, intent, purpose, and language of these
provisions is not repeated in the review. In the last part of this paper, I shall
now turn to some questions that this nine-judge bench must consider in
addition to the ones it has determined (i.e. the meaning of ‘morality’ under
Articles 25 and 26).
4. Considerations For The Upcoming Review
4.1 From Recent Judgments
In Sabarimala, Chandrachud, J. and Malhotra, J. reached strikingly
contrasting views on how competing values may be harmonised in
160
See supra note 157.
161
See Sabarimala, ^357-358.
162
Marc Galanter, Temple-Entry and the Untouchability (Offences) Act, 1955, 6 JILI 185,
191 (1964). For contemporary insight into this debate, See Kamya Vishwanath and Ananya
Narain, Sabarimala judgment: The limits of ‘expanding’ law, The Leaflet, September 3,
2020, available at https://www.theleaflet.in/sabarimala-judgment-the-limits-of-expanding-
law/ (Last visited on October 30, 2020).
163
Rishit Vimadalal, THE DOOR LEFT AJAR: UNTOUCHABILITY’S PROBLEMATIC
HISTORY WITH THE LAW, 11 1 Indian Constitutional Law Review 45, 60 (2020).
164
See supra Part 3.1 and 3.2.
165
See Kantaru Rajeevaru (Sabarimala Temple Review-5 J.) v. Indian Young Lawyers
Association & Ors., (2020) 2 SCC 1, ^5.3.
166
Kantaru Rajeevaru (Right to Religion, In Re-9 J.) v. Indian Young Lawyers Association
& Ors., (2020) 3 SCC 52. Interestingly, most of the judges in the bench have not yet been a
part of any previous bench that expounded on constitutional morality.

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constitutional interpretations. Malhotra, J., holding that the prohibition on

entry was valid, noted that the equality guarantee under Article 14167 for
women cannot override the rights under Article 25 of devotees who favour
their entry-prohibition as a religious custom. 168 The values of equality,
dignity, and liberty may conflict with secularism, but this conflict, she held,
requires balancing, 169 which in her judgment meant that the prohibition was
valid owing to its temporary character. Malhotra, J.’s understanding of
secularism is predicated on the freedom of the denomination in question to
practise its religion freely, 170 which free from questions of “rationality”.
Thus, secularism is seen as an ‘end’ in itself. On the other hand,
Chandrachud, J.’s judgment in NCT of Delhi opined that secularism is the
‘means’ to achieving the “freedom, liberty, dignity, and equality” of each
citizen. 171 Therefore, for Chandrachud, J., secularism is predicated on
realising these values. This reflects in his holding in Sabarimala as he writes
that the dignity of women cannot be disassociated from the exercise of
religious freedom by devotees, 172 leading to his conclusion that the
prohibition on entry is against constitutional morality. 173 The nine-judge
bench that reviews these judgments would necessarily have to take on the
task of locating which of these two conceptualisations of secularism as a
constitutional value (end versus means) is correct. Otherwise, it must evolve
its own theorisation of constitutional values and the extent of their inter-
dependence. Only if the Apex Court shines light on these contours will it
become possible for courts to be able to harmonise competing values in hard
cases in the future with maximum consistency.
Given that this bench may crystallise constitutional morality as ‘values’
with finality, it must also consider a question which has of yet has not been
explicitly answered – particularly, as to whether the enforcement of
constitutional morality can pass the compelling state interest test laid down
in Gobind v. State of M.P.174 While the court in Gobind did acknowledge
that it is unclear whether morality can be a compelling state interest
sufficient to justify intrusions of fundamental rights, it made no authoritative
comment on this question.175 In Naz Foundation v. State of NCT, when the
Delhi High Court was faced with the question of the unconstitutionality of
Section 377 in 2009, the court had remarked that if there is any morality that

167
See The Constitution of India 1950. Refer to Article 14.
168
See Sabarimala, ^540.2.
169
See Sabarimala, ^481.
170
See Sabarimala, ^478.
171
See NCT of Delhi, ^350.4.
172
See Sabarimala, ^417.
173
See Sabarimala, ^422.4.
174
See Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148, ^22.
175
Id.

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can pass this test, it is “constitutional” morality.176 Since the reversal of Naz
2014,177 this question has remained unanswered. Interestingly, in Navtej, the
court rejected the Union’s argument that Section 377 serves a compelling
state interest of reinforcing prevailing social mores in public life, opining
that a constitutional court cannot uphold societal morality in lieu of
constitutional morality. 178 By implication, this may be considered an
endorsement of the proposition that the state may indeed infringe
fundamental rights on the ground of “constitutional morality”. Yet, even if
that is the case, the nine-judge bench must clarify a determinable threshold
for when exactly this test may be met by the state’s infringements,179 so as
to prevent misuse of this newly recognised ground by setting objective
standards for its assessment.
4.2 Independent Ground To Assess Unconstitutionality?
The nine-judge bench, I contend, must answer another question in the
negative for the benefit of clarity for the legal fraternity – specifically,
whether courts can adjudge the constitutional validity of laws on the basis of
constitutional values alone. This paper has demonstrated that the court
continues to rely on well-established tests to adjudge constitutional validity
of laws.180 What changed is that its inquiries into these tests’ application is
often interspersed with the moral contents of the constitution. Thus, so far,
‘constitutional morality’ has not been treated as an independent test of
adjudging the constitutional validity of laws. In truth, any reading of these
judgments to the contrary would be per incuriam, in light of a judgment that
has thus far not been referenced in any judgments concerning constitutional
morality. In R.K. Garg. v. Union of India, a Constitution Bench of the
Supreme court was concerned with enactments that allowed any person who
acquired Special Bearer Bonds not to disclose the nature and source of such
acquisition – with the intent that this would incentivise the reinvestment of
black money.181 The question arose whether the Act is unconstitutional as it
offends morality by placating dishonest assesses who evaded payment of
tax. Speaking for the majority, Bhagwati, J. (as he was then), rejected this
contention. Bhagwati, J. held that “immorality” by itself is not a ground of
constitutional challenge, and it cannot be, since morality is subjective,
except where it is reflected in the constitution or has crystallised into a well-

176
See Naz Foundation v. Government of NCT of Delhi & Ors., (2009) 111 DRJ 1 (DB),
^79.
177
See supra note 94.
178
See Navtej, ^351.
179
Rohit Sharma, The Public and Constitutional Morality Conundrum: A Case-Note on the
Naz Foundation Judgment, 2 NUJS L. Rev. 448, 450 (2009).
180
See supra Part 3.1 & 3.2.
181
See R.K. Garg v. Union of India & Ors., (1981) 4 SCC 675, ^2.

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accepted norm of social behaviour.182 Nonetheless, he acknowledged that in

some cases, some laws can be so immoral that they can readily be struck
down as arbitrary or irrational and hence, violative of Article 14.183
Upon reading this with the aforesaid recent judgments, R.K. Garg confirms
that constitutional values cannot be the sole ground for declaring a law
invalid. Courts are bound to consider established tests for that reason. It
seems, however, that to the extent that R.K Garg considers a “well-accepted
norm” external to the constitution to be a valid aid in interpreting the
Constitution, it may stand modified by Navtej and Joseph Shine, to the
extent that these cannot be norms with the potential to offend the rights of
any class of citizens.184 However, one may argue that Navtej and Joseph
Shine are per incuriam even to the extent of using constitutional morality as
an interpretative aid, since they breach the essence of this point in R.K.
Garg. Recalling, for instance, Chandrachud, J. and Nariman, J.’s views in
Joseph Shine, both holding Section 497 to be manifestly arbitrary, had
partly based their decision on the fact that the provision reflects Victorian
morality which is against constitutional morality. 185 In effect, then, these
tests could be a guise for morality to be used by courts to their will, thus
violating R.K. Garg’s limitation. However, I contend that this line of
thinking is flawed. First, even R.K. Garg concedes that morality as
“reflected in” the constitution has an aura of objectivity, as mentioned
earlier. Second, aside from Sabarimala, in all recent judgments that heeded
constitutional values, great weight was accorded to the language of the
provisions concerned, their historical aspirations, purpose, and precedents.
Thus, morality entered the picture within these constraints of coherence.
In Joseph Shine, Chandrachud, J. and Nariman, J. did not use morality
loosely or to their convenience. Instead, they used it, as discussed, as a
shield against “societal morality” in order to ensure that the effect of PART-
III is not subverted by majoritarian governments against minorities. 186 In
other words, the court eliminates moral values external to the constitution in
its interpretations, takes on the onus to found its judgment on values that can
be coherently located in the constitution, 187 and finally, to situate these
values within the limits of the established tests of constitutionality to
maximise objectivity. Had it been the case that morality were used by the
court without regard to any of what Dworkin called institutional

182
See Id., ^18.
183
Id.
184
See supra Part 3.1 & 3.2.
185
See supra Part 3.2
186
See Joseph Shine, ^201.
187
Pritam Baruah, Logic and Coherence in Naz Foundation: The Arguments Of Non-
Discrimination, Privacy, and Dignity, NUJS L Rev 505, 524 (2009).

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constraints,188 the judgments would have failed his coherence thesis as they
would not have been able to justify their own conclusions or the decision in
R.K. Garg. Since this is not the case, I concur with the commentators who
have been optimistic 189 about the benefits of constitutional morality as
‘values’ in constitutional interpretation. Needless to admit, there is a
personal subjectivity of how these values may inter-play in hard cases, as
evident from the differences in defining secularism in Chandrachud, J. and
Malhotra, J.’s opinions in Sabarimala. Yet, as discussed, this is a question
for the nine-judge bench to resolve, which is a rare opportunity to strengthen
the theoretical basis of using constitutional values in interpretations. The
legal fraternity must hope for an improvement in constitutional morality’s
coherence, not that its status as an interpretative aid is “eliminated” as
Attorney General KK Venugopal had opined.190
4.3 Against Older Benches’ Disapproval Of Morality
While R.K. Garg does not pose a daunting challenge to recent judgments
concerning constitutional values, this cannot be said for the Constitution
Bench decision in Raghunathrao Ganpatrao v. Union of India.191 Akin to
R.K. Garg, but this time in the context of an alleged basic structure breach,
it was argued that the twenty-sixth constitutional amendment, insofar as it
abolished privy purses and privileges of the erstwhile Rulers of Indian
States, was an “ugly epitome of immorality”, and an assault on the “spirit” of
the constitution.192 Unlike R.K. Garg, which admitted to the possibility of
the weight of constitutional values in interpreting the constitution, the court
here held that no law can ever be interpreted on the basis of moral
principles.193 The court holds that there is a clear demarcation between the
law and morals, and thus, a moral obligation cannot be “converted” into a
legal obligation. 194 On the latter point, the court relied on a previous
Constitution Bench decision in Krishena Kumar v. Union of India, where
when the court could not locate any legal duty on the State obliging it to
provide pension to certain retirees, it held that lacking such an obligation, it
cannot enforce the state to do so based on an alleged moral duty.195

188
See supra Part 3.1.
189
Upendra Baxi, Constitutional Morality: “No Entry” in Adjudication?, India Legal, April
5, 2019, available at https://www.indialegallive.com/viewpoint/constitutional-morality-no-
entry-in-adjudication-62817 [Last visited on October 24, 2020].
190
See supra note 3.
191
Raghunathrao Ganpatrao v. Union of India, 1994 Supp (1) SCC 191 (hereinafter
Raghunathrao).
192
See Raghunathrao, ^27.
193
See Raghunathrao, ^101.
194
See Raghunathrao, ^104.
195
See Krishena Kumar v. Union of India & Ors., (1990) 4 SCC 207, ^31.

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I argue that this portion of the Raghunathrao judgment is flawed for at least
three prominent reasons. First, in Krishena Kumar, the reason the bench
dismissed moral claims was because there was no explicit legal obligation to
which they could be sourced. In contrast, in Raghunathrao, the contention
of morality arose in relation to an alleged basic structure violation – which
is indeed recognised as a legal constraint over the Parliament’s amending
powers in Article 368.196 Thus, the court could not have blanketly dismissed
constitutional values as interpretative aids on the basis of Krishena Kumar,
since this judgment did not preclude the possibility of moral values
reflecting in constitutional provisions. Second, the court sought recourse to
Hart’s positivist understanding of what can be identified as law.197 The court
acknowledges, and rightly so,198 that when Hart attempts to identify law, he
does not focus on its moral standing or inequities, but only on whether the
process for it to be so called in a legal system has been followed. However, I
argue that the court fails to appreciate Hart’s ideas as this conflates two
separate inquiries – the first being a descriptive inquiry of what the law is,
and the second, of what the substantive content of law is, as revealed in
judicial interpretation. Hart’s descriptive inquiry ends at confirming that the
twenty-sixth amendment had the force of law as it was enacted by the
Parliament. For the question of uncovering the meanings of the basic
structure vis-à-vis this hard case, Hart would readily accept that the
constitution’s text may be required to be filled out with the “aid” of moral
principles.199 In other words, Hart recognised that the law’s contents can be
rooted in morality. Thus, constitutional values and the “spirit” of
constitutional provisions could legitimately have had a bearing on the
question of law before the court. The court may have been justified to hold
that the petitioners failed to prove how the amendment was abhorrent to
constitutional values. Yet, it was incorrect in holding that these values had
no bearing at all.
Lastly, Bhagwati, J., in his dissenting opinion in Bachan Singh v. State of
Punjab200, which concerned the validity of the death penalty, acknowledged
that the Constitution is not “a mere pedantic” legal document, and that it
contains many humanist values. Bhagwati, J. admitted that the answer to his
hard case may depend on the judicial “philosophy” of each judge. 201 Yet, he
posited that this is a problem of any hard case.202 In a similar vein, Abhinav
196
See The Constitution of India 1950. Refer to Article 368.
197
See Raghunathrao, ^101.
198
For more insight into Hart’s views, See H.L.A Hart, Essays in Jurisprudence And
Philosophy 49, Clarendon Press Oxford (1983).
199
William C. Starr, Law and Morality in H.L.A. Hart's Legal Philosophy, 67 Marq. L.
Rev. 673, 687 (1984).
200
See Bachan Singh v. State of Punjab, (1982) 3 SCC 24, ^9.
201
See Id., ^3.
202
Id.

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Chandrachud rightly argues that such subjectivities can manifest not only
when considering the moral values of the constitution, but also in applying
any well-known test such as “basic structure”, “reasonable classification”,
“arbitrariness”, and so forth. 203 All Constitutions contain such moral
presuppositions, 204 and several judgments show how honouring these
presuppositions and historical aspirations in constitutional interpretations
has led to opinions more enriched in reasoning than bare textualist ones.205
Thus, the decision in Raghnuathrao reflects an unsophisticated
understanding of the moral values that undeniably underpin the
Constitution. As for the subjectivity that Bhagwati, J. hints at, it has, barring
in Sabarimala, been contained by many institutional constraints in
interpretations. 206 More importantly, today’s conception of constitutional
morality as ‘values’ has indeed ensured that even if judges seek to
underscore their interpretations with their own “philosophy”, they are
obligated to justify their views within the constraint of values that can be
found in the constitution.207 Nonetheless, since the bench in Raghunathrao
had a strength equal to all recent benches that expounded on constitutional
morality (five-judge benches), it remains open for litigants to claim that the
latter are per incuriam in light of the former. Therefore, my last appeal to
the 9-judge-bench decision reviewing the Sabarimala decision, is to
acknowledge these old cases and uphold the effects of NCT of Delhi, Navtej,
and Joseph Shine, insofar as the very premise of constitutional morality as
an interpretative aid is concerned, along with answering the questions I
enumerated earlier.
5. Concluding Comments On Constitutional Morality’s Future
Constitutional morality is here to stay. The High Courts too, in their
judgments, have begun to reflect their confidence of the Supreme Court’s
conception of constitutional morality – both as a guide for proper and
ethical conduct and as an aid in constitutional interpretation. This includes
in the least the Kerala High Court, 208 the Meghalaya High Court, 209 the
Tripura High Court, 210 the Bombay High Court, 211 and the Madras High
203
Abhinav Chandrachud, The Many Meanings of Constitutional Morality, SSRN, February
12, 2020, available at http://dx.doi.org/10.2139/ssrn.3521665 [Last visited on October 30,
2020].
204
Paul R. DeHart, Uncovering The Constitution’s Moral Design 274, University of
Missouri Press (2007).
205
For such an account in Kesavananda, See Sudhir Krishnaswamy, Democracy And
Constitutionalism In India 32-33, Oxford University Press (2009).
206
See supra Part 4.2
207
See supra Part 2.5, 3.1 and 3.2.
208
See Trustee Hidaya Educational & Charitable Trust v. State of Kerala, 2020 SCC
OnLine Ker 312, ^9-10.
209
See Stevie M. Marak & Ors. v. GHADC & Ors, 2020 SCC OnLine Megh 1, ^69.
210
See Subhas Bhattacharjee v. State of Tripura, 2019 SCC OnLine Tri 441, ^52.

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Court.212 Thus, the entire legal fraternity remains in high anticipation of the
Apex Court’s judgment in the nine-bench review of Sabarimala, waiting
steadfast for the clarifications on its meaning and scope that the court would
have to offer. To ensure that a culture that can allow constitutional morality
as ‘values’ to flourish in constitutional interpretations is able to form, the
Apex Court must consider the questions I have penned in this paper, and
many more. It must also acknowledge some conceptual mistakes made in
Navtej and Joseph Shine that I highlighted earlier, particularly, with regard
to the transformative character of the constitution not necessarily being
contingent on societal acceptance of such transformation to any degree.213 It
must also ensure that whatever be the outcome of its primary question of
whether morality under Article 25(1) and Article 26(b) is to be read as
“constitutional” morality, it does so following Dworkin’s political
responsibility thesis, displaying coherence in filling such silences within its
institutional constraints, as displayed in Navtej and Joseph Shine.
Other than this review, there are indeed several other ongoing disputes
where constitutional morality can, and should assume prominence in the
Apex Court’s constitutional interpretations. For instance – in the
constitutional challenges to the abrogation of Article 370 214 for which
hearings have begun. 215 Article 370, to give a crude account, provided a
special status to the erstwhile State of Jammu and Kashmir in terms of the
application of laws, exempting the State from the Indian Constitution.216
Article 370(3) provided that the President may declare that this article shall
become inoperative. However, its proviso necessitates that a
recommendation from the Constituent Assembly of the State to that effect
be secured prior to such a declaration. No such recommendation was made
by the Constituent Assembly of the State when it dissolved.217 To forgo this
specification, the Parliament passed an amendment to Article 367 218 to
provide that the “Constituent Assembly” of the State is to be read as the
“Legislative Assembly” of the State in clause (2) of Article 370. Thus, since
211
See Vijay Namdeorao Wadettiwar v. State of Maharashtra, (2019) 6 AIR Bom R 205,
^63.
212
See V. Anbazhagan v. Commissioner, Hindu Religious and Charitable Endowments
Department, 2019 SCC OnLine Mad 8908, ^13.
213
See supra Part 3.2.
214
See The Constitution of India 1950. Refer to Article 370.
215
Supreme Court Observer, Article 370 Manohar Lal Sharma v. Union of India, (Date of
publication unavailable), available at https://www.scobserver.in/court-case/article-
370/article-370-day-6-arguments (Last visited on October 30, 2020).
216
Aljazeera, Kashmir special status explained: What are Articles 370 and 35A?, August 5
2019, available at https://www.aljazeera.com/news/2019/08/kashmir-special-status-
explained-articles-370-35a-190805054643431.html (Last visited on October 30, 2020).
217
Vaibhav Goel Bhartiya and Shivani Sharma, Anatomy of Article 370 and 35A: Tracing
the Past to the Present, 10 CPJLJ 13, 16 (2020).
218
See The Constitution of India 1950. Refer to Article 367.

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a state of emergency was imposed in the State and because President’s rule
was imposed as a result, the President acted as a proxy in giving such
concurrence in the place of the erstwhile State’s Legislative Assembly.219
An objection that has been raised in response to these events is that it runs
counter to the well-established principle that what cannot be done directly,
cannot be done indirectly.220 This means that if Article 370 had intended the
Constituent Assembly’s concurrence as necessary before it ceased to
operate, Article 367 cannot be used as a proxy to undo that intent. Given not
only the complex analysis this question requires, as also similar questions
from concomitant events that have arisen in this dispute, I do not seek to
analyse it in-depth in this concluding note. What I wish to highlight is that
the court shall be bound to consider the complex historical aspirations and
expectations of the Constituent Assembly, the language employed in Article
370, precedents suggesting their ‘permanence’, and the context in which
they were drafted,221 in order to reach its conclusion – in light of its holdings
in NCT of Delhi discussed earlier in this paper.222 The inter-relations of the
President and the State’s Constituent Assembly’s roles, as originally
intended (conduct-based constitutional morality), must carry great weight in
the court’s interpretation, just as they did in NCT of Delhi.
Another contentious instance where constitutional morality must assume
prominence is the ongoing dispute concerning the constitutional validity of
the Citizenship Amendment Act, 2019 (“CAA”). Under the new proviso to
Section 2(1)(b) of the Citizenship Act, Hindus, Sikhs, Buddhists, Jains,
Parsis and Christians are excluded from the class of “illegal migrants” as
defined in Section 2(1)(b). However, the same benefit is not extended to
individuals from other religions who migrated to Indian territory from
Pakistan, Afghanistan and Bangladesh on or before the same cut-off date of
December 31, 2014. Khamroi has succinctly argued that the CAA treats
similarly situated persons dissimilarly, and is therefore violative of Article
14. This is because all these persons have the common primary identity of
219
Tanmay Gupta and Amishi Agarwal, Deciphering the Conundrum apropos of the
Constitutionality of the Abrogation of Article 370, Constitutional Law Society, NUJS,
September 13, 2020, available at https://wbnujscls.wordpress.com/2020/09/13/deciphering-
the-conundrum-apropos-of-the-constitutionality-of-the-abrogation-of-article-370/ (Last
visited on October 29, 2020).
220
Gaurav Vivek Bhatnagar, Is the Division of J&K Unconstitutional? Here's What a
Petition in SC Says, The Wire, August 22, 2019, available at
https://m.thewire.in/article/law/article-370-amendment-reorganisation-jammu-kashmir-
unconstitutional-violate-fundamental-rights-petition-supreme-court/amp (Last visited on
October 29, 2020).
221
Balu G. Nair, Abrogation of Article 370: can the president act without the
recommendation of the constituent assembly?, Indian Law Review, 11 December, 2019,
available at https://doi.org/10.1080/24730580.2019.1700592 (Last visited on October 30,
2020).
222
See supra Part 2.5.

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“illegal-immigrants”, and hence, one’s religion is at best a secondary

consideration vis-à-vis Article 14.223 The grant of citizenship based on select
religions, leading to the exclusion of illegal immigrants from other religions,
suggests that the CAA falls foul of the test of reasonable classification.224
Further, the idea that the CAA makes this classification to be of relief only
for “persecuted” communities has its own flaws. Abhinav Chandrachud
rightly explains225 that Jews, Muslim minorities like Shias or Ahmadiyas,
and even atheists or agnostics, are indeed persecuted or may be persecuted
on grounds of religion, in Afghanistan, Pakistan or Bangladesh. In addition,
the CAA does not cover minorities from other states who face similar
persecutions such as the Hindu Tamils from Sri Lanka and Christians from
Bhutan. 226 These facts strongly suggest that the CAA’s exclusionary
character is against values that the court in Navtej and Joseph Shine has read
to be part of constitutional morality – equality, inclusivity, fraternity,
secularism, and plurality.227 It remains to be seen whether, and if yes, then
what impact these values may have as an interpretative aid for the Apex
Court in applying tests such as reasonable classification and manifest
arbitrariness while adjudging the CAA’s validity.
Thus, there is a lot to unpack in upcoming legal contentions concerning the
scope of constitutional morality, both in its conduct-based form and as
‘values’. These events seem to show that it is unlikely, or at least debatable,
that constitutional morality, at least how Dr Ambedkar’s ruminations
understood it has truly been diffused in India today. Yet, it is quite
remarkable if one takes a moment to reflect on this tumultuous and long
journey of constitutional morality from its inception in Grote’s ruminations,
to today with its new complexities in India. This paper began writing that
the “first chapter” in the story of constitutional morality formed Grote’s
formal respect for constitutions.228 The many chapters of this phrase since,
from Dr Ambedkar’s speeches, to different meanings attached to it by
scholars, to different meanings transposed by varying judges of different

223
Anubhav Khamroi, Despite What Harish Salve Says, We Can't Dismiss the Legal
Challenge to the CAA, The Wire, March 16, 2020, available at https://thewire.in/law/caa-
supreme-court-harish-salve (Last visited on October 30, 2020).
224
Id.
225
Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, SSRN, 27
January, 2020, available at
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3513828_code1340242.pdf?abstractid
=3513828&mirid=1 (Last visited on October 27, 2020).
226
Varun Kannan, The Constitutionality of the Citizenship (Amendment) Act – A Rejoinder,
Indian Constituional Law and Philosophy, January 3, 2020, available at
https://indconlawphil.wordpress.com/2020/01/03/guest-post-the-constitutionality-of-the-
citizenship-amendment-act-a-rejoinder/ (Last visited on October 27, 2020).
227
See supra Part 3.1 & 3.2.
228
See supra Part 2.1.

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courts in different times – to today, where there continues to be

disagreement even within the Apex Court over what the phrase’s contours
are – show that the conversation over constitutional morality is one that will
keep continuing to expand.
William Guthrie, a renowned lawyer in the United States, had once
expounded on Grote’s constitutional morality by adding his own version of
conduct-based constitutional morality. Courts, he posited, carry a high
burden to discharge in upholding the norms of the constitution, and in doing
so, must not only usher constitutional values in decision-making, but also
exercise self-restraint. 229 Guthrie’s forewarning resonates with Dworkin’s
thesis of political responsibility which required judges to justify their
judgments strongly in hard cases. Given the subjectivity in using morality
without institutional constraints as discussed in this paper, this responsibility
becomes especially paramount. This paper ends hoping that in future cases,
the Supreme Court is able to discharge this burden of coherence, as it did in
Navtej and Joseph Shine, 230 thus allowing its realisation of constitutional
morality to definitively redress any and all anxieties against it. In this vein,
only time will tell whether KK Venugopal’s fears for the potential misuse of
‘constitutional morality’ may have contained any truth or prescience.

229
William D Guthrie, Constitutional Morality, 196:681 The North American Review 154,
167 (1912).
230
See supra Part 3.1 and 3.2.

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