The idea of constitutional morality conveys how the Constitution is elevated from merely being a document that captures a social contract to becoming the moral basis of ordering and governing the polity. It does not arise only from adherence to the stated letter of the law, but also from fidelity to the spirit that undergirds the Constitution. It is contained in conventions that have evolved over time and made the Constitution workable as a living document. Dr B.R. Ambedkar used the term ‘constitutional morality’ to mean more than just obeying the letter of the law and warned that constitutional morality is not a natural sentiment and has to be cultivated. He believed that democracy in India would have to learn this ideal and that it had to be established and diffused so as to ensure a free and peaceable democracy. This understanding places constitutional morality at the centre of constitutional governance, judicial interpretation, and the conduct of constitutional actors.
Origins of the Idea
The origins of the expression ‘constitutional morality’, can be traced to the 19th century British historian, George Grote, who used the term in his account of ancient Greek political institutions. He described it as a paramount reverence for the forms of the Constitution, where the principles of freedom and self-imposed restraint coexist. Grote argued that eloquently drafted rules and procedures were not enough to ensure the longevity of a constitution. What was required was the instillation of constitutional morality as a civic culture, marked by respect for constitutional forms and offices, vigilance, public reason, self-restraint, and critique. This demanded confidence that constitutional rules would be respected even by those holding different political views and even during moments of intense political conflict. Adherence to constitutional forms and procedures to resolve disputes, with actions subject to the rule of law and unrestrained censure of authorities for their public acts, captured this rare and demanding sentiment.
Ambedkar consciously drew upon this understanding in his speech on the Draft Constitution on November 4, 1948, where he emphasised that constitutional morality was not a natural sentiment and had to be cultivated through practice. He warned that it was perfectly possible to pervert the Constitution without changing its form, merely by changing modes of administration and making them inconsistent with the spirit of the Constitution. For him, self-restraint was a prerequisite for preserving freedom under a properly constituted government. He further observed that democracy in India was a top-dressing on an essentially undemocratic soil, making the Constitution not only a legal instrument but also a training in civic restraint.
The Constitution beyond the Text
Constitutional morality underlines that the Constitution is more than a written text and more than a social contract. In legal systems influenced by the British common law, including India, law develops in a gradual and evolutionary manner through stare decisis (Latin for “to stand by things decided”), resulting in an incremental build-up of case law. This process is often marked by landmark judgments in which legal reasoning grapples with divisive social issues and difficult moral questions. The relationship between law and morality is complex, and attempts establish a strict order of precedence between them are ultimately unhelpful because the two are deeply entwined.
This perspective aligns with the idea of the Constitution as a living document. In the Kesavananda Bharati vs State of Kerala (1973), Justice H.R. Khanna described the Constitution as the vehicle of the life of a nation and observed that it is not a gate, but a road. The decision also laid down the basic structure doctrine, recognising that certain foundational features of the Constitution, such as the supremacy of the Constitution, republican and democratic form of government, secularism, separation of powers and federalism, cannot be destroyed even by constitutional amendment. Courts have often had to decide whether to adhere to the literal wording of provisions or to their underlying spirit.
The notion of a ‘penumbra’ around fundamental rights reflects the idea that constitutional guarantees have an aura extending beyond their explicit text. The judicial expansion of Article 21 represents one of the most significant developments in Indian constitutional law. Initially construed narrowly, it has been progressively interpreted to encompass the rights to livelihood, dignity, a clean environment, shelter, food, legal aid, speedy trial, and privacy.
The Supreme Court has repeatedly invoked the living document metaphor through such decisions to justify expansive interpretations that allow constitutional meaning to respond to newly emerging problems. Constitutional morality thus becomes the interpretive principle that bridges constitutional text and contemporary realities.
Law and Morality in Competing Traditions
The relationship between law and morality has occupied political and legal thinkers for centuries. In ancient times, there was no rigid separation between the legal norms and moral duty. The concept of dharma simultaneously embodied ethical obligation, social responsibility, and normative order. In modern constitutional discourse, however, the tension persists. Sometimes law leads morality, as in the abolition of untouchability before its widespread social acceptance. At other times, law follows morality, as seen in the gradual recognition of gender equality and LGBTQ rights. The central challenge is to ensure that law reflects fundamental ethical imperatives rather than transient majoritarian sentiments.
This debate is reflected in the contrast between natural law and legal positivism. Natural law theory draws an intense connection between morality and law and appeals to a universal sense of right and wrong. It has been associated with thinkers, such as the Stoics, Thomas Aquinas, a 13th century theologian, and in contemporary jurisprudence, John Finnis. American jurist Lon L. Fuller argued that law contains an ‘inner morality’ and that procedural fairness and coherence are intrinsic to legality itself.
Legal positivism, by contrast, focuses on the social fact of law as enacted authority and does not emphasise a moral element within law. Its roots lie in the work of English philosophers Jeremy Bentham and John Austin, who conceptualised law as the command of a sovereign, backed by sanctions. In the 20th century, H.L.A. Hart refined positivism by a distinction drawn between softer versions that allow some room for moral considerations and harder versions that seek to exclude them, while Joseph Raz emphasised the authority-based nature of law. Against this backdrop, American judicial expert and public philosopher, Ronald Dworkin, challenged strict positivism by arguing that law is a continuous process of interpretation with moral and evaluative dimensions. He likened judicial interpretation to literary criticism, where judges add chapters to a seamless web of law. This approach becomes especially significant in addressing difficult issues, such as euthanasia, abortion, pornography and torture, suggesting that even hard cases could be resolved within the principles of law rather than through arbitrariness.
The Indian Judicial Trajectory
In India, the Kesavananda Bharati judgment (1973) marked a turning point by laying down the basic structure doctrine, which placed substantive limits on Parliament’s amending power. In 2017, the Justice K.S. Puttaswamy judgment affirmed the right to privacy as a fundamental right and located individual dignity beyond the reach of state intrusion, reinforcing the idea that constitutional morality protects the individual against the demands of a moral majority.
The expression ‘constitutional morality’ itself appeared early in Indian jurisprudence in Kesavananda Bharati, where Justice A.N. Ray, referring to Grote, equated it with the social contract. Justice Sinha in Islamic Academy of Education held that the doctrine of equality forms part of constitutional morality.
The concept was further developed in Naz foundation case (2009), where the Delhi High Court held that constitutional morality must prevail over public majoritarian morality and the notion of compelling state interest should be understood in terms of constitutional morality rather than public morality.
This line of reasoning was reaffirmed and expanded in Navtej Singh Johar case (2018), which overturned the earlier Koushal vs Naz Foundation (2013) decision. The court spoke at length about constitutional morality, with the then chief justice observing that its primary purpose was to preserve a multicultural society and the constitutional morality is the only thing that should be allowed to enter social morality.
Justice R.F. Nariman located the concept within the Preamble and in the guaranteed Fundamental Rights. Justice D.Y. Chandrachud, echoing Ambedkar, noted that the principles of justice, liberty, equality, and fraternity in the Preamble could be realised through the State’s commitment to constitutional morality.
In Kapila Hingorani vs State of Bihar (2003), the SC addressed the prolonged non-payment of salaries to employees of public sector undertakings and held that deprivation of livelihood directly implicates the right to life under Article 21.
In the Sabarimala case (2018), constitutional morality was invoked to reach different conclusions. Justice, D.Y. Chandrachud identified equality, fraternity, justice, and liberty as aspects of constitutional morality. Justice Indu Malhotra dissented, holding that courts do not have jurisdiction to test religious practices on the notion of rationality. The divergence demonstrated that constitutional morality is not a fixed formula but a principled framework that must be applied contextually.
In the Manoj Narula case (2014), the court was asked to read a disqualification into Article 75 for legislators facing serious criminal charges. The court declined to rewrite the provision but stated that it could legitimately expect the prime minister not to choose a person accused of heinous offences as a minister, leaving the matter to constitutional convention and political wisdom. In State (NCT of Delhi) vs Union of India (2018), the court clarified that constitutional morality does not mean mere allegiance to the text of the Constitution but includes liberal values, consensual decision-making among state agencies, and the responsibilities of constitutional offices. In Justice K.S. Puttaswamy vs Union of India (2017), the court stressed that constitutional morality requires the government to act in accordance with the rule of law and to respect judicial orders.
Taken together, these decisions show that constitutional morality embodies standards of conduct expected from constitutional actors. While a breach may not always be directly enforceable in courts, accountability may lie in Parliament or with the electorate.
The Constitution as an Enduring Framework
The Indian Constitution has remained a site of contestation over reservations, federalism, emergency powers, and the basic structure. It operates both as a charter of rights and as a statement of collective aspiration, resting on the belief that an egalitarian nation could be built through law. Its imaginative dimension begins with the Preamble and extends to the calligraphy and artworks of the original document, pointing to a deeper cultural inheritance.
Additionally, the Constitution stands at the end of a long pre-history of constitutional drafting, including the 1895 Constitution of India Bill and the Hindu Mahasabha’s 1944 Constitution of Hindustan Free State, reflecting a robust constitutional imagination.
The document resists being confined to a single ideological frame. It holds together liberal ideals of dignity and liberty, a commitment to redistribution for the common good and a communitarian vision of collective progress. Article 21’s expansive protection of life exists alongside Article 22’s preventive-detention powers, reflecting competing imperatives. The Supreme Court has consistently described it as a living Constitution through which each generation renegotiates the terms of shared life. This dynamic quality reinforces the importance of constitutional morality as a stabilising yet progressive force that ensures continuity without rigidity.
Contemporary Tests and the Question of Process
A recent illustration of these tensions is the Constitution (130th Amendment) Bill, 2025, which proposes that a prime minister, chief minister or minister who is arrested and kept in custody for 30 consecutive days on a serious criminal charge, would automatically lose office. The stated aim is to cleanse politics and prevent governance from behind bars. However, the proposal raises concerns about whether detention could substitute democratic legitimacy and whether elected leaders should lose office without a judicial determination of guilt.
Historical experience from the Emergency period shows how constitutional amendments could be misused. The 39th Amendment (1975) placed the election of the prime minister beyond judicial scrutiny, while the 42nd Amendment (1976), concentrated power in the executive and weakened the checks and balances, developments later partly corrected through the basic structure doctrine and the 44th Amendment (1978). The proposed amendment risks conflating custody with guilt and undermining the presumption of innocence and the guarantee of fair, just, and reasonable procedure under Article 21. The court’s observation that bail is the rule and jail the exception, the fact that a large proportion of prisoners are undertrials and the history of releasing undertrial prisoners in 1979 highlight the danger of turning process into punishment. Stringent laws, such as the Unlawful Activities (Prevention) Act (UAPA) and Prevention of Money Laundering Act (PMLA), with low conviction rates, further illustrate how denial of bail could itself become punitive.
The selective focus of the proposal on the executive and not legislators, introduces an extrajudicial criterion that bypasses both judicial adjudication and legislative confidence. In a federal system where central agencies operate in the states and where a large share of investigations have targeted opposition politicians with few convictions, such measures could weaken federalism and distort democratic mandates, echoing past misuse of constitutional provisions like Article 356.
Integrity, Accountability, and Constitutional Means
Public frustration is fuelled by the fact that a significant proportion of elected representatives face criminal cases, many involving serious charges. The demand that governance should not be conducted from a jail cell is understandable. Yet equating detention with guilt undermines the presumption of innocence and opens the door to abuse.
History shows that measures justified in the name of necessity could become instruments of constitutional overreach. More credible paths lie in faster trials through fast-track courts, reform of bail practices and political parties refusing to field candidates with serious criminal records. Constitutional morality requires that accountability be secured through due process rather than shortcuts. It insists that the legitimacy of outcomes must rest not only on intent but also on the fairness of the means adopted.
Debates and the Need for Clarity
The concept of constitutional morality has further attracted criticism. It is described as too recent and too ambiguous to be treated as a settled doctrine, with concerns about subjectivity and judicial overreach. Former law officers and scholars have argued for clearer definition and broader consensus.
At the same time, it has been argued that without constitutional morality, the Constitution risks becoming a pawn in the hands of powerbrokers. The concept is not about securing preferred outcomes but about adhering to principles regardless of personal belief and about ensuring that social morality is not used to violate the fundamental rights of even a single citizen. As contemporary commentary highlights, constitutional morality operates not as a substitute for the constitution but as a guide to its faithful interpretation, ensuring coherence between constitutional text, values, and institutional practice.
Conclusion
Constitutional morality represents a civic culture of respect for constitutional forms and offices, sustained by public reason, self-restraint, and critique. In Indian constitutional practice, it has served as a guide to interpretation, a shield for dignity, equality, liberty and fraternity, and a normative standard for the conduct of constitutional actors.
It is also tested when moral rhetoric threatens to replace due process with expediency. The task ahead lies in the continuous cultivation of constitutional morality among citizens, lawmakers and judges alike, so that the Constitution remains not merely a text but a living framework for justice, inclusion, and equality.
As Ambedkar warned, constitutional morality is not inherited; it must be learned and nurtured, and upon it depends the difference between constitutional form and constitutional freedom.
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