The Supreme Court is currently hearing arguments in the Sabarimala review matter. The outcome of the judgment, however, will extend beyond the immediate question of the entry of menstruating women into the Sabarimala temple.

It raises broader issues, including the ambit of the right to freedom of religion under Article 25, its interplay with the rights of religious denominations under Article 26, the scope of judicial review over religious practices and the meaning of “morality” under Articles 25 and 26, including whether it encompasses constitutional morality. This article focuses on the last of these.

The genesis of the phrase ‘constitutional morality’ in constitutional law discourse traces back to the remarks of Dr BR Ambedkar in the Constituent Assembly on November 4, 1948. These remarks have since been invoked by courts, initially as non-binding moral precepts that must guide the society and, more recently, as standalone legal thresholds to strike down statutory provisions. The latter interpretation is not only inconsistent with Ambedkar’s remarks, but also raises serious constitutional concerns, including vagueness and the absence of a clear constitutional basis or necessity.

In his speech while introducing the Draft Constitution, Ambedkar responded to allegations that the Constitution was significantly borrowed from the Government of India Act, 1935 and contained numerous provisions dealing with matters of administration. He remarked,

“As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a Constitution.”

He then justified the inclusion of provisions on matters of administration on grounds of necessity, arguing that citizens lack the constitutional morality required to manage their affairs without them. He proceeded to quote the British historian George Grote to explain what he means by ‘constitutional morality’. He remarked, 

“By constitutional morality Grote meant a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.”

Ambedkar further argued that such provisions can be omitted once constitutional morality is cultivated which, in his view, was absent at the time, as “democracy is a top-dressing on an Indian soil.” He remarked,

“The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution.”

This was the context of Ambedkar’s remarks. He invoked the idea to defend a detailed Constitution and, in that sense, the phrase ‘constitutional morality’ is best understood as rhetorical, describing a choice made by the Drafting Committee. It was not intended to operate as a standalone legal principle for use by courts. This is also evident from Grote’s own work (quoted above), which emphasised reverence for the Constitution, obedience to authorities acting under it and the censure of authorities that act beyond it. At best, Ambedkar’s focus was on cultivating respect for the Constitution within the society - including legislators, judges and ministers -rather than articulating a legal precept.

My research highlights that the phrase ‘constitutional morality’ has been mentioned in 73 judgments of the Supreme Court, but discussed substantively in only 8. Its interpretation across these decisions has been inconsistent and can be clubbed in three categories – (a) as a moral precept; (b) basis to fill constitutional silences; and (c) standalone legal threshold to strike down statutory provisions.

In Manoj Narula v. Union of India (2014), the Court interpreted the principle, in light of Ambedkar’s remarks, as a moral precept requiring adherence to constitutional norms and discouraging their subversion. The Court declined to treat it as a legally enforceable standard, instead viewing it as a duty to be observed by constitutional actors.

In State (NCT of Delhi) v. Union of India (2018), Chandrachud J, in his concurring opinion, elevated the principle to a legal standard by holding that courts may rely on constitutional morality as a gap-filling device to interpret constitutional silences. He observed,

“Constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution. A Constitution can establish a structure of government, but how these structures work rests upon the fulcrum of constitutional values. Constitutional morality purports to stop the past from tearing the soul of the nation apart by acting as a guiding basis to settle constitutional disputes.”

The Supreme Court took this further in Navtej Singh Johar v. Union of India (2018), holding that courts must be guided by constitutional morality while adjudicating questions of fundamental rights, and may strike down a provision for violating this principle. Misra J observed, 

“While testing the constitutional validity of impugned provision of law, if a constitutional court is of the view that the impugned provision falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional for the pure and simple reason that the constitutional courts exist to uphold the Constitution.”

Of these three interpretations, only the first accurately reflects Ambedkar’s remarks and constitutes an appropriate use of the doctrine. The others extend the principle beyond its original context, treating it as something it was never intended to be - a standalone legal precept or threshold.

These divergent approaches also reveal the inherent ambiguity and vagueness of the principle, which undermine predictability and stability -core virtues that the law is expected to uphold. This vagueness is evident not only from its varied application, but also from the manner in which courts have attempted to define it.

For instance, in Navtej Singh Johar, Misra J defines constitutional morality as a principle that “urges the organs of the State, including the judiciary, to preserve the heterogeneous nature of society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace”. Chandrachud J, in the same case, frames it in terms of broad constitutional values such as liberty, dignity, equality and fraternity. While these values undoubtedly form part of the constitutional framework, defining constitutional morality through such expansive and open-ended formulations renders the concept capable of multiple interpretations.

However, this is not merely a question of vagueness in definition, but also of divergent application. Even within the Sabarimala decision itself, the principle is invoked to support contrasting outcomes. Chandrachud J relies on it to strike down the entry restriction, while Malhotra J, in dissent, invokes it to uphold the practice, emphasising the need to balance the rights to equality and non-discrimination with the liberty of faith and belief. This is not a case of a settled legal principle being applied differently to the facts - such as a disagreement over the scope of Article 14 - but one where the indeterminacy of the principle itself permits and, perhaps even produces, such conflicting outcomes.

Constitutional morality, as it has come to be applied by the Court, suffers from a lack of definitional clarity. Its uncertain content undermines the values of certainty and predictability that the law is meant to uphold and rests on an interpretation that is difficult to reconcile with the constitutional text.

The difficulty, however, is not limited to indeterminacy. It also raises a more fundamental question of necessity. The ends that a substantive interpretation of constitutional morality is invoked to serve - such as protecting individual dignity, preventing discrimination and ensuring equal treatment - are already addressed within the framework of Part III. Articles 14, 15 and 21 provide a comprehensive set of guarantees against arbitrariness, discrimination and violations of personal liberty.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.