The Many Meanings of Constitutional Morality: Dr. Abhinav Chandrachud

The Many Meanings of Constitutional Morality
Dr. Abhinav Chandrachud1
Introduction:
Indian constitutional law is no stranger to judicially invented tests. The “basic structure”
doctrine, the “classification test”, the old “arbitrariness” and new “manifest arbitrariness”
tests – these are all judicially crafted inventions that find no express reference in formal
constitutional text. The doctrine of constitutional morality is a relatively recent addition
to this list of judge-made innovations. It came in for heavy criticism after the Supreme
Court’s Sabarimala judgment. 2 It became the subject matter of much scholarly
discussion 3 especially after the Attorney General of India, K.K. Venugopal, was
extensively reported in the press as having criticized it as a “dangerous weapon”.4 More
recently, the Supreme Court seems to have grown wary of its use. In the string of
significant judgments delivered by the Supreme Court on the eve of Chief Justice
Gogoi’s retirement in November 2019, involving questions as diverse as Ayodhya,5
Rafale,6 the Right to Information Act7 and the Finance Act,8 “constitutional morality”

1
J.S.D. (Stanford), J.S.M. (Stanford), LL.M. (Harvard). Advocate, Bombay High Court. A shorter version
of this paper appeared in Bloomberg Quint.
2
Indian Young Lawyers Association v. State of Kerala, (2018) SCC Online SC 1690.
3
Andre Béteille, “Constitutional Morality”, Economic and Political Weekly, vol. 43, no. 40, pp. 35-42
(2008); Pratap Bhanu Mehta, “What is Constitutional Morality?”, Seminar (2010), available at:
https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm (last visited 1 November 2019);
Aradhana Cherupara Vadekkethil, “Constitutional Morality in the Indian Constitution by Surabhi Shukla”,
South Asian Law Discussion Group Blog, Faculty of Law, University of Oxford, 12 March 2018, available
at: https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-
group/blog/2018/03-0 (last visited 1 November 2019); Kalpana Kannabiran, “The scope of constitutional
morality”, The Hindu, 4 October 2018, available at: https://www.thehindu.com/opinion/lead/the-scope-of-
constitutional-morality/article25115335.ece (last visited 1 November 2019).
4
See, Apoorva Mandhani, “Constitutional Morality A Dangerous Weapon, It Will Die With Its Birth: KK
Venugopal”, Livelaw, 9 December 2018, available at: https://www.livelaw.in/constitutional-morality-a-
dangerous-weapon-it-will-die-with-its-birth-kk-venugopal/ (last visited 1 November 2019); Gautam Bhatia,
“India’s Attorney General is Wrong”, Scroll.in, 21 December 2018, available at:
https://scroll.in/article/905858/indias-attorney-general-is-wrong-constitutional-morality-is-not-a-dangerous-
weapon (last visited 1 November 2019); G.V. Mahesh Nath, “Constitutional Morality – A Need for
Consensus on the Concept”, SSRN, 10 April 2019, available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3353874 (last visited 1 November 2019).
5
M. Siddiq v. Mahant Suresh Das, Civil Appeal Nos. 10866-10867 of 2010, judgment dated 9 November
2019.
6
Yashwant Sinha v. Central Bureau of Investigation, Review Petition (Crl.) No. 46 of 2019, judgment
dated 14 November 2019.
7
Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, Civil Appeal
No. 10044 of 2010, judgment dated 13 November 2019.
Electronic copy available at: https://ssrn.com/abstract=3521665

The Many Meanings of Constitutional Morality Dr. Abhinav Chandrachud
was conspicuous by its absence. The task of defining it has recently been referred to a
bench of seven judges of the Supreme Court.9
Constitutional morality has meant different things at different points in time. To
th
the 19 century British historian of Greece, George Grote, it meant a culture of reverence
for the constitution among the people, which would ensure a peaceful government. In the
Constituent Assembly, Dr. B.R. Ambedkar used it as a rhetorical device to justify the
inclusion of banal details in the Constitution – details concerning matters of
administration. In subsequent years, the Supreme Court made passing references to
constitutional morality in its judgments, within different contexts. Today, constitutional
morality essentially means two things: firstly, the opposite of popular morality, and
secondly, the spirit or essence of the Constitution.
It was perhaps Chief Justice A.P. Shah of the Delhi High Court who first used
constitutional morality as a counterpoise to popular morality. In this form, constitutional
morality requires courts to disregard societal morals while testing the validity of
government action. For example, while examining the constitutional validity of Section
377 of the Indian Penal Code, which made “carnal intercourse against the order of
nature” a criminal offence, the Delhi High Court looked at the values of the Constitution
and not at popular morals or whether Indian society considered homosexuality to be
desirable or not.
In the NCT of Delhi judgment,10 Chief Justice Dipak Misra used constitutional
morality synonymously with the spirit, soul or conscience of the Constitution. In this
formulation, constitutional morality is a second basic structure doctrine. It enables courts
to test government action by looking not merely at the formal provisions of the
Constitution but also at its undefined spirit or essence. For instance, though the preamble
to the Constitution refers to India as a secular country, there is no “establishment
clause”11 in the Constitution akin to the first amendment to the U.S. Constitution. In other
words, there is no provision in the Constitution which expressly bars an official state

8
Rojer Mathew v. South Indian Bank, Civil Appeal No. 8588 of 2019, judgment dated 13 November 2019.
9
Kantaru Rajeevaru v. Indian Young Lawyers Association, Review Petition (Civil) No. 3358 of 2018,
majority judgment dated 14 November 2019.
10
(2018) 8 SCC 501.
11
The first amendment to the U.S. Constitution says: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof…”.
2

religion in India, as even a country with an established religion like the U.K. can be
secular. In a concurring judgment in the NCT of Delhi case, one judge held that
secularism was a part of constitutional morality. This would theoretically enable courts to
apply establishment-clause-like jurisprudence in Indian constitutional law. The basic
structure doctrine enables constitutional courts to examine the validity of constitutional
amendments by examining whether they violate the “basic structure” of the Constitution.
Likewise, constitutional morality, in its spirit-of-the-Constitution articulation, allows
constitutional courts to examine the validity of all government action, not merely
constitutional amendments, by looking at the “spirit”, “soul” or “conscience” of the
Constitution.
This paper examines the different meanings of constitutional morality in the
Indian constitutional law context. Part 1 traces its origins to George Grote’s history of
Greece. Part 2 explains how it was in vogue in the U.S. when Ambedkar arrived there to
study at Columbia University. It was at Columbia that Ambedkar took courses on Greek
history, where he might have been exposed to Grote’s writings. In the Constituent
Assembly, Ambedkar justified including mundane details of administration in the
Constitution by arguing that India’s people lacked a culture of constitutional morality,
that democracy was a “top-dressing” on an otherwise undemocratic Indian soil. Part 3
looks at the fleeting references that were made by the Supreme Court to constitutional
morality in subsequent decades. Part 4 examines how constitutional morality has been
used in contrast to popular morality, in judgments concerning homosexuality, adultery,
rape, and the Sabarimala temple. Part 5 looks at how the Supreme Court has used the
phrase constitutional morality as a synonym for the rule of law. Part 6 examines the
formulation of constitutional morality as a second basic structure test involving an
analysis of the “spirit”, “soul” or “conscience” of the Constitution. This paper then
concludes by discussing whether constitutional morality can be considered to be
dangerous as Attorney General Venugopal has argued.
1. Grote’s Coexistence of Freedom and Restraint:
3

In the 19th century, a British historian by the name of George Grote wrote an authoritative
12-volume history of Greece without ever having visited that country.12 This was not
particularly uncommon for British historians to do at that time. James Mill, for instance,
wrote his three-volume history of India in the early 19th century without ever having
visited India. 13 In the fourth volume of his treatise on Greece, 14 Grote wrote of
Cleisthenes of Athens, a statesman who was considered to be the founder of Athenian
democracy.15 In the time of Cleisthenes, wrote Grote, “the great Athenian nobles had yet
to learn the lesson of respect for any constitution”.16 Cleisthenes’s contemporaries would
pursue their own ruthless ambitions “without any regard to the limits imposed by law”.17
In order to preserve Athenian democracy, Cleisthenes therefore had to kindle, in the
citizens of Athens, a “passionate attachment” to the Constitution. It was necessary, said
Grote, to “create in the multitude… that rare and difficult sentiment which we may term a
constitutional morality”.18 Grote defined “constitutional morality” as follows:
“[A] paramount reverence for the forms of the constitution, enforcing
obedience to the authorities acting under and within those 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 be not less sacred in the eyes of his opponents than in his
own.”19
Grote said that constitutional morality existed in England since the Glorious
Revolution of 1688 and in the U.S. He cautioned that it was not a “natural sentiment” and
that it was extremely difficult to “establish and diffuse [it] among a community, judging

12
“George Grote”, Encyclopaedia Britannica, available at: https://www.britannica.com/biography/George-
Grote (last visited 30 October 2019).
13
“James Mill”, Encyclopaedia Britannica, available at: https://www.britannica.com/biography/James-Mill
(last visited 30 October 2019).
14
George Grote Esq., Greece (New York: Peter Fenelon Collier, 1899), available at:
https://babel.hathitrust.org/cgi/pt?id=hvd.hw20pr&view=1up&seq=7 (last visited 31 October 2019).
15
Russell Meiggs, “Cleisthenes of Athens”, Encyclopaedia Britannica, available at:
https://www.britannica.com/biography/Cleisthenes-of-Athens (last visited 30 October 2019).
16
Grote, supra note 14, at p. 153.
17
Ibid.
18
Ibid., at p. 154.
19
Ibid.
4

by the experience of history”.20 He also wrote that constitutional morality was “the
indispensable condition of a government at once free and peaceable”.21
Importantly, the notion of “constitutional morality” was not meant to be used by
institutions resembling courts in Cleisthenes’s Athens to invalidate the will of the
democratic majority. Grote explained that it was a “sentiment” which had to be
“established and diffused” in a community in order to ensure that a government could be
established there which would be “free and peaceable”. In Grote’s formulation,
constitutional morality meant the following things:
(i) All citizens would respect the Constitution.

(ii) All citizens would obey authorities acting under the Constitution.
(iii) All citizens would have the unrestrained freedom to criticize public officials
acting in the discharge of their Constitutional duties.
(iv) Public officials would have to act within the confines of the Constitution.
(v) Contenders for political power would respect the Constitution and know that
their opponents would respect it as well.
At its heart, Grote’s formulation of constitutional morality essentially implied a

“coexstience of freedom and self-imposed restraint, - of obedience to authority with
unmeasured censure of the persons exercising it”.22 While citizens would respect the
Constitution and obey Constitutional authorities, they would also have the freedom to
criticize those Constitutional authorities, and Constitutional authorities would have to act
within the limits imposed by the law.
2. Ambedkar’s Rhetorical Device:

Ambedkar arrived at Columbia University in New York in 1913. 23 Only a year
previously, in June 1912, a leading member of the New York Bar, William D. Guthrie,

20
Ibid.
21
Ibid., at p. 155.
22
Ibid.
23
“in the 1910s”, available at:
http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/1910s.html (last visited 31 October
2019).
5

had delivered an address before the Pennsylvania Bar Association where he had spoken
about Grote’s “constitutional morality”.24 Guthrie had lamented how, at that time, there
was a “growing tendency throughout the country to disregard constitutional morality”,
that there was “impatience with constitutional restraints” and “criticism of the courts for
refusing to enforce unconstitutional statutes.” He believed that the “essence” of
constitutional morality was “self-imposed restraint” that must be exercised by legislative
bodies. In short, Guthrie had spoken about how there was a demand in the U.S. during
that period for absolute legislative power unchecked by judicial review. This, he had
argued, was contrary to the spirit of constitutional morality. Guthrie’s speech was soon
read out in the House of Representatives in the U.S.
In other words, “constitutional morality” was in vogue in the U.S. when
Ambedkar arrived there. In the academic year 1914-15, Ambedkar took the course
“History 121” at Columbia University, which included elements of Greek history.25 It is
also possible that he came across the work of Grote in that course.
Decades later, on 4 November 1948, Ambedkar stood up in the Constituent
Assembly of India to move a motion that the draft constitution, prepared by the drafting
committee, be taken into consideration by the Constituent Assembly.26 In his speech in
support of the motion, he explained why seemingly banal details concerning
administration had been incorporated into India’s Constitution rather than being left to be
worked out by India’s parliament. He began by saying that he agreed that “administrative
details should have no place in the Constitution”. However, he then quoted the passage of
Grote’s treatise on the history of Greece which has been extracted above and said that it
was possible for a person to alter the Constitution without formally amending it by
changing the form of its administration.27 This was because “the form of administration
has a close connection with the form of the Constitution.”28

24
See, “Extension of Remarks of Hon. Marlin E. Olmsted, of Pennsylvania, in the House of
Representatives”, 16 July 1912, Congressional Record ID: CR-1912-0716 (available on Lexisnexis.com);
“Bulletin of the New York County Lawyers Association”, Bench and Bar, vol. 2, issue 1, at pp. 31-32
(1912).
25
“Dr. Ambedkar’s Courses at Columbia”, available at:
http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/timeline/graphics/courses.html (last visited 31
October 2019).
26
Constituent Assembly Debates of India, vol. 7, at p. 31.
27
Ibid., at p. 38.
28
Ibid.
6

“It follows”, he continued, “that it is only where people are saturated

with Constitutional morality such as the one described by Grote the historian that one can
take the risk of omitting from the Constitution details of administration and leaving it for
the Legislature to prescribe them.” 29 He invoked Grote’s words that constitutional
morality was not a “natural sentiment” and said that Indians “have yet to learn it”.30
“Democracy in India”, he said, “is only a top-dressing on an Indian soil, which is
essentially undemocratic.”31 “In these circumstances”, he concluded, “it is wiser not to
trust the Legislature to prescribe forms of administration.”32
In other words, constitutional morality was not, in Ambedkar’s formulation,
meant to be used as a test by courts to invalidate legislation or government action.
Grote’s idea of “constitutional morality” was a rhetorical device used by Ambedkar to
justify why seemingly mundane details about the administration of the government had
been included in India’s Constitution.
3. A Fleeting Catchphrase:
For several decades thereafter, stray references were made to the words “constitutional
morality” in Supreme Court judgments. It was referred to, in passing, by two judges in
the Basic Structure case.33 In the First Judges case, one judge found that a violation of a
constitutional convention would “be a serious breach of constitutional morality”.34 In a
concurring judgment delivered in 2003, Justice S.B. Sinha held that though a measure of
affirmative action might be valid under Articles 15(4) and 16(4) of the Constitution, it
would violate “constitutional morality” if it violated the doctrine of equality. In his
words, “[i]t would be constitutionally immoral to perpetuate inequality among majority
people of the country in the guise of protecting the constitutional rights of minorities and
constitutional rights of the backward and downtrodden.”35 In 2013, Justice Dipak Misra
(as he then was) held, in passing, that it was a part of “collective sensibility” to respect

29
Ibid.
30
Ibid.
31
Ibid.
32
Ibid.
33
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225 (paragraph 747, per
A.N. Ray J; paragraph 1112, per P. Jaganmohan Reddy J).
34
S.P. Gupta v. Union of India, (1981) Supp SCC 87 (paragraph 1077, per Venkataramiah J).
35
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 (paragraph 118).
7

those who had suffered at the hands of corrupt public officials, because this was “in
consonance with the constitutional morality.” 36 These references to constitutional
morality were too fleeting and insubstantial to have amounted to any serious exposition
of the law.
4. A Counterpoise to “Popular Morality”:

Then came Naz Foundation v. Government of NCT of Delhi,37 a case in which the
constitutional validity of Section 377 of the Indian Penal Code, which made “carnal
intercourse against the order of nature” a criminal offence, was challenged. The court
asked itself an interesting question: could the impugned provision be sustained because it
amounted to enforcing “public morality” which was a “compelling state interest”?38
The court referred to a judgment of the European Court of Human Rights in
Norris v. Republic of Ireland39 in which it was held that “[a]lthough members of the
public who regard homosexuality as immoral may be shocked, offended or disturbed by
the commission by others of private homosexual acts, this cannot on its own warrant the
application of penal sanctions when it is consenting adults alone who are involved.”40
Relying on this judgment, Chief Justice A.P. Shah of the Delhi High Court held
that “popular morality or public disapproval of certain acts is not a valid justification for
restriction of the fundamental rights under Article 21.”41 The court added that unlike
constitutional morality, popular morality was “based on shifting and [subjective] notions
of right and wrong.”42 It held that while determining whether a law could be considered
justified for achieving a “compelling state interest”, the court must take into account
constitutional morality and not popular morality.43 The court added that “[t]his aspect
of constitutional morality was strongly insisted upon by Dr. Ambedkar in the Constituent
Assembly.”

36
Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642 (paragraph 26).
37
(2009) SCC Online Del 1762.
38
Ibid., paragraph 75.
39
142 Eur. Ct. H.R. (ser. A) (1988).
40
41
(2009) SCC Online Del 1762 (paragraph 79).
42
Ibid.
43
Ibid.
8

In other words, Chief Justice Shah’s formulation of constitutional morality saw

the court as a counter-majoritarian institution. Its purpose was to ensure that the
principles of the Constitution prevailed over the fleeting morals of the majority. The court
could not uphold an otherwise unconstitutional law by finding that it satisfied the morals
of the people. However, the Delhi High Court perhaps erred in equating this conception
of constitutional morality with Ambedkar’s view of constitutional morality in the
Constituent Assembly. Ambedkar had used Grote’s vision of constitutional morality as a
rhetorical device to justify the inclusion of banal details in the Indian Constitution.
Ambedkar had not, in referring to constitutional morality, meant to imply that courts
must not take popular morality into account while testing the constitutional validity of
statutes. Ambedkar may certainly have applauded Chief Justice Shah’s view that the
Constitution must prevail over popular morals, but that is not what he meant when he
used the phrase “constitutional morality”.
Though the Delhi High Court’s judgment in the Naz Foundation case was
reversed by the Supreme Court,44 it eventually found favor with a larger bench of the
Supreme Court in Navtej Singh Johar v. Union of India.45 Chief Justice Misra (speaking
for both himself and Justice Khanwilkar), who had previously invoked “constitutional
morality” in a different context, found that courts must not be “remotely guided by
majoritarian view or popular perception”, that they must be “guided by the conception of
constitutional morality and not by the societal morality.”46 Justice Nariman found that it
is “not…open for a constitutional court to substitute societal morality with constitutional
morality”.47 He held that “social morality” was “inherently subjective” and morality and
criminality were not co-extensive. Justice Chandrachud distinguished “public morality”
from “constitutional morality”. In the former, “the conduct of society is determined by
popular perceptions existent in society”, while the latter “requires that the rights of an
individual ought not to be prejudiced by popular notions of society.” “Constitutional
morality”, he found, “reflects that the ideal of justice is an overriding factor in the

44
Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
45
(2018) 10 SCC 1. See further, Abhinav Chandrachud, “Guest Post: Navtej Johar v. Union of India – Key
Highlights”, Indian Constitutional Law and Philosophy, 9 September 2018, available at:
https://indconlawphil.wordpress.com/2018/09/09/guest-post-navtej-johar-v-union-of-india-key-highlights/
(last visited 31 October 2019).
46
47
9

struggle for existence over any other notion of social acceptance.”48 Three judges held
that the goal of the court is to transform society,49 or convert public morality into
constitutional morality.
This formulation of constitutional morality as a counterpoise to public morality
appeared again in Joseph Shine v. Union of India.50 The court in that case was concerned
with whether Section 497 of the Indian Penal Code was constitutionally valid. The
section made it a crime for a man to have sexual intercourse with a married woman,
though the married woman was not to be punished as an abettor. The court struck the
provision down. Justice Chandrachud found that the exemption given to married women
from being punished as abettors assumed that a woman was a “victim of being seduced
into a sexual relationship” and that she “has no sexual agency”.51 He held that a woman’s
“purity” and a man’s “entitlement” to “her exclusive sexual possession” may have been
“reflective of the antiquated social and sexual mores of the nineteenth century”, but “[i]t
is not the ‘common morality’ of the State at any time in history, but rather constitutional
morality, which must guide the law.” 52 He added that the constitutional validity of
criminal laws “must not be determined by majoritarian notions of morality which are at
odds with constitutional morality.”53 He concluded by finding that Section 497 denuded a
married woman of “her agency and identity, employing the force of law to preserve a
patriarchal conception of marriage which is at odds with constitutional morality”. 54
“Criminal law”, he held, “must be in consonance with constitutional morality.”55
The judgment of the Supreme Court in Navtej Singh Johar’s case was preceded
by the court’s decision in Independent Thought v. Union of India.56 The second exception
to Section 375 of the Indian Penal Code says that a man who has sexual intercourse with
his wife who is fifteen years of age or over does not commit rape. The court read the
provision down and held that sexual intercourse between a man and his wife did not

48
49
Ibid., paragraph 122 (per Misra CJ); paragraph 405 (per Chandrachud J).
50
(2019) 3 SCC 39.
51
Ibid., at paragraph 187.
52
53
54
55
56
(2017) 10 SCC 800.
10

amount to rape provided the wife was of the age of eighteen or more.57 In arriving at this
view, the court found that “constitutional morality forbids us from giving an
interpretation to Exception 2 to Section 375 IPC that sanctifies a tradition or custom that
is no longer sustainable.”58
However, in the Independent Thought case, the court did not really apply the
doctrine of constitutional morality, as a counterpoise to popular morality, to its fullest
extent. Had it done so, it could have found the exemption from rape laws granted to
married men by the second exception to Section 375 of the Indian Penal Code to be
completely contrary to constitutional morality. After all, why should a man who sexually
forces himself upon a woman not be considered as having committed rape merely
because the woman is his adult wife? However, the court merely diluted the provision
and removed the exemption as far as it applied to married men who had sexual
intercourse with their below-eighteen-year-old wives.59
In the Sabarimala case,60 the Supreme Court was concerned with the question of
whether a rule that barred women between the ages of 10-50 from entering a Hindu
temple was unconstitutional. Articles 25 and 26 of the Constitution, which confer the
fundamental rights to profess, practice and propagate religion, to establish and maintain
religious institutions, etc., are subject to, among other things, “morality”. The question
was whether the temple entry restriction could be justified because it was in consonance
with “morality”. Answering this question in the negative and holding the restriction to be
unconstitutional, Chief Justice Misra (along with Justice Khanwilkar) held that the word
“morality” contained in Articles 25 and 26 of the Constitution must mean constitutional
morality and not popular morality.61
5. A Synonym for the Rule of Law:

57
58
59
However, the court clarified that the issue of marital rape of adult women had not been raised by the
petitioner or intervenor. Ibid., at paragraph 108.
60
61
Ibid., at paragraphs 110-111. In footnote 2 of his judgment, Justice Nariman disagreed with this
proposition.
11

In a case decided by the Supreme Court in 2014, Manoj Narula v. Union of India,62 the
question involved was whether a person who had a criminal background or against whom
charges had been framed in a criminal case involving moral turpitude could be prevented
from becoming a minister in the central or state governments. The court decided that no
such implied limits could be imposed upon the Prime Minister of India or the Chief
Ministers of the States, though these functionaries would be well advised to consider
excluding such persons from the Council of Ministers. Justice Dipak Misra, speaking for
himself, Chief Justice Lodha and Justice Bobde, referred to Ambedkar’s speech in the
Constituent Assembly on constitutional morality and held that it “basically means to bow
down to the norms of the Constitution and not to act in a manner which would become
violative of the rule of law or reflectible (sic) of action in an arbitrary manner.”63
“Commitment to the Constitution”, he added, “is a facet of constitutional morality.”64 In
this sense, constitutional morality was essentially used as a synonym for the rule of law.
6. The Spirit of the Constitution:

In State (NCT of Delhi) v. Union of India,65 the Supreme Court was called upon to figure
out how power is to be shared between the central government and provincial
government of Delhi under the Constitution. In arriving at his conclusions, Chief Justice
Dipak Misra, speaking for Justice Sikri, Justice Khanwilkar and himself, seemed to
suggest that “constitutional morality” meant the spirit of the Constitution itself –
something that can be compared to the basic structure doctrine.
“While interpreting the provisions of the Constitution,” wrote Chief Justice Misra,
constitutional courts must read the words in the document “in the light of the spirit of the
Constitution”. 66 “Constitutional morality in its strictest sense of the term”, he held,
“implies strict and complete adherence to the constitutional principles as enshrined in
various segments of the document.”67 It requires constitutional functionaries to “cultivate
and develop a spirit of constitutionalism where every action taken by them is governed by

62
(2014) 9 SCC 1.
63
64
Ibid.
65
(2018) 8 SCC 501.
66
Ibid, at paragraph 284.1.
67
12

and is in strict conformity with the basic tenets of the Constitution.”68 “Constitutional
morality”, he added, “means the morality that has inherent elements in the constitutional
norms and the conscience of the Constitution.”69
In his concurring judgment, Justice Chandrachud too referred to constitutional
morality in terms of the spirit of the Constitution. “Constitutional morality”, he wrote,
“requires filling in constitutional silences to enhance and complete the spirit of the
Constitution.” 70 “It specifies norms for institutions to survive”, he added, “and an
expectation of behaviour that will meet not just the text but the soul of the
Constitution.”71 He referred to the basic structure doctrine and held that secularism was
both part of the basic structure of the Constitution and of constitutional morality.72
In his concurring judgment in the case involving the Sabarimala temple,73 Justice
Chandrachud explained this articulation of constitutional morality. He found that
constitutional morality was rooted in “four precepts” contained in the Preamble to India’s
Constitution: justice, liberty, equality and fraternity. To this, he added the principle of
secularism. “These founding principles”, he held, “must govern our constitutional notions
of morality.”74 Constitutional morality, he concluded, “must have a value of permanence
which is not subject to the fleeting fancies of every time and age.”75
In Kantaru Rajeevaru v. Indian Young Lawyers Association,76 the Supreme Court
decided to refer to a larger bench of not less than seven judges of the Supreme Court the
question of how to define constitutional morality. The expression “constitutional
morality”, the court noted, had not been defined in the Constitution, and the “contours of
that expression” needed to be “delineate[d]”, “lest it becomes subjective”.77 On the other
hand, in his dissenting judgment, Justice Nariman reiterated the spirit-of-the-Constitution
formulation of constitutional morality. Constitutional morality, he found, was “nothing
but the values inculcated by the Constitution, which are contained in the Preamble read

68
Ibid.
69
70
71 Ibid., at paragraph 302.
72
73
74
75
Ibid.
76
Review Petition (Civil) No. 3358 of 2018, majority judgment dated 14 November 2019.
77
Ibid, paragraph 5(iii).
13

with various other parts, in particular, Parts III and IV thereof.”78 He held that it had been
explained in several Constitution Bench judgments of the Supreme Court and had risen to
the level of stare decisis.
This conception of constitutional morality is akin to the basic structure doctrine.
Textually speaking, there is no limit to the constituent power of India’s Parliament –
which can, going by the bare text of the Constitution, amend or abrogate any provision of
the Constitution. However, in the Basic Structure case, the Supreme Court held that there
are implied limits on Parliament’s power to amend the Constitution, that Parliament
cannot destroy the “basic structure” of the Constitution. What constitutes the basic
structure is, of course, subject to judicial determination over time. Similarly, the notion of
constitutional morality articulated by the court in the NCT of Delhi case and in Justice
Chandrachud’s concurring judgment in the Sabarimala case, postulates that a
government’s actions can be tested not merely by looking at the formal provisions of the
Constitution but also by ensuring that they do not violate, to invoke the Supreme Court’s
words in the NCT of Delhi case, the “spirit”, “soul” or “conscience” of the Constitution.
This formulation of constitutional morality, like the basic structure test, imposes implied
constitutional limits on the government, rooted in principles of the Constitution that
judges consider to be essential to its existence.
Conclusion:
Neither Grote nor Ambedkar intended constitutional morality to be used by courts to test
the validity of government action. To them, it was an aspiration – a hope that citizens
would inculcate a love for the Constitution which would make it difficult for the
Constitution to be obliterated by the political powers of the day. On this understanding,
some would argue that the defeat handed by the Janata Party to the Indira Gandhi
government at the end of the Emergency marked the rise of constitutional morality in the
Indian electorate.
Decades after Ambedkar’s speech in November 1948, constitutional morality has
meant different things at different points in time. It has been equated with constitutional
conventions, anti-corruption, equality, and the rule of law. However, two meanings now

78
Ibid, paragraph 19.
14

attributed to constitutional morality are particularly interesting. Firstly, constitutional

morality is the enemy of popular morality and a reminder that courts must disregard the
morals of the people while deciding constitutional cases. As a constitutional doctrine, this
is an unremarkable proposition. If someone were to tell a judge that she has to decide a
case according to law and the Constitution, not according to the talking heads on
television, the media pundits and the tabloids, she would say, “but of course!” There is
nothing “dangerous”, to use Attorney General Venugopal’s words, about this formulation
of constitutional morality. In a democracy, it is obviously the unelected court which has
the institutional capacity to decide cases in a counter-majoritarian manner.
The second contemporary meaning of constitutional morality is perhaps even
more interesting. It enables courts to look at the “spirit”, “soul” or “conscience” of the
Constitution while testing the validity of government action. In this sense, constitutional
morality is a second basic structure doctrine and is no more or less dangerous than the
basic structure doctrine itself. True, this articulation of constitutional morality renders it
vague and subject to the value choices and personal predilections of each individual
judge. What is to stop a judge, for example, from finding that communism is a part of the
undefined “spirit” of the Constitution or that the spirit of the Constitution mandates that
India be declared a Hindu State? On the other hand, much constitutional doctrine itself is
vague. Concepts like “arbitrariness”, “manifest arbitrariness”, “reasonableness” – these
are catchphrases, by themselves hollow meaningless vessels into which content is poured
by judges who decide cases according to their own sense of right and wrong. At some
level, all constitutional doctrine is empty – judges’ words inhabit constitutional spaces on
the basis of their own lived experiences. Those who would argue that constitutional
morality in this formulation is dangerous must equally argue against doctrines like the
basic structure test, the tests of manifest arbitrariness and reasonableness, indeed against
the ubiquitous catchphrases used in constitutional law.
15

The Many Meanings of Constitutional Morality: Dr. Abhinav Chandrachud

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The Many Meanings of Constitutional Morality

Dr. Abhinav Chandrachud1

Electronic copy available at: https://ssrn.com/abstract=3521665

Electronic copy available at: https://ssrn.com/abstract=3521665

1. Grote’s Coexistence of Freedom and Restraint:

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(i) All citizens would respect the Constitution.

At its heart, Grote’s formulation of constitutional morality essentially implied a

2. Ambedkar’s Rhetorical Device:

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“It follows”, he continued, “that it is only where people are saturated

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4. A Counterpoise to “Popular Morality”:

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In other words, Chief Justice Shah’s formulation of constitutional morality saw

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5. A Synonym for the Rule of Law:

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6. The Spirit of the Constitution:

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attributed to constitutional morality are particularly interesting. Firstly, constitutional

Electronic copy available at: https://ssrn.com/abstract=3521665

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