INTRODUCTION
The Indian Constitution represents an extraordinary document that not only defines the structure of governance but also aims to create a just and equitable society. At its core, the Constitution goes beyond being just a legal framework; it serves as a set of moral ideals for a diverse nation. As India progresses in different social, political, and cultural dimensions, tensions have surfaced between the traditional beliefs held by certain segments of the population and the forward-thinking principles enshrined in the Constitution. This is often portrayed as a clash between public morality and constitutional morality. Public morality typically denotes the accepted moral standards embraced by the majority of society at a particular time. Public morality is influenced by cultural customs, religious beliefs, traditions, and social conventions. In a nation as varied as India, perceptions of public morality can differ significantly among various communities, regions, and generations. It tends to be fluid, shaped by evolving social perspectives, media influence, political changes, and grassroots activism. Nevertheless, it may also embody regressive or exclusionary attitudes, especially regarding the rights of women, LGBTQ+ individuals, or religious minorities. Conversely, Constitutional morality signifies a commitment to the fundamental values and principles established in the Constitution, including justice, liberty, equality, fraternity, secularism, and the respect for individual dignity. This form of morality is shaped not by popular opinion but by the ideals the Constitution seeks to promote and sustain. Dr. B.R. Ambedkar, who was instrumental in formulating the Indian Constitution, emphasized the significance of constitutional morality in directing the functions of state institutions and civil society. He regarded it as crucial for sustaining democracy and defending individual rights against the oppression of the majority. Recently, the Indian judiciary has become crucial in advancing constitutional morality by delivering important judgments that have questioned established social norms. These rulings encompass the decriminalization of homosexuality, the annulment of the adultery law, the entitlement of women to enter the Sabarimala temple, and the ruling against triple talaq. In all these instances, the Supreme Court prioritized constitutional principles over dominant public opinion. These verdicts have sparked renewed discussions regarding the degree to which courts should depend on constitutional morality, particularly when it clashes with entrenched cultural or religious traditions.
The central question this assignment intends to investigate is: who should ultimately establish the moral framework of society, through public morality or the judiciary and legal system guided by constitutional morality? A democracy must reflect the wishes of its citizens, while also ensuring the protection of the rights of individuals who may not represent the majority. This assignment examine both the theoretical and practical aspects of public and constitutional morality, and it also examines relevant case laws. Furthermore, it aims to understand how constitutional morality can serve as a guardian of fundamental rights and a catalyst for social transformation. It also looks into finding the right equilibrium between democratic ideals and constitutional principles. By doing so, the article aims to add to the current discourse regarding the ethical basis of the Indian Constitution and who ultimately has the authority and responsibility to define it.
CONCEPT OF PUBLIC MORALITY
A. Historical Background
Public morality in India has developed over time through a complicated interaction of religion, caste, community values, colonial impact, and contemporary democratic principles. In contrast to constitutional morality, which is based on a documented legal structure and universal concepts of justice, public morality in India has predominantly been influenced by lived experiences, traditional belief systems, and social practices that differ across regions, religions, and communities.
The evolution of public morality in India has occurred over centuries, drawing from religious texts, social traditions, and colonial influences. During ancient times, Hindu scriptures like the Manusmriti and Dharmashastras established standards for moral behaviour. These writings promoted social order grounded in caste (varna), gender, and duty, serving as a moral basis for society for numerous generations. Throughout the medieval era, Islamic governance also impacted public morality. In areas ruled by the Delhi Sultanate and the Mughal Empire, Islamic legal principles shaped societal perceptions of morality. These ethical norms varied by religion and community and generally upheld patriarchal and conservative frameworks. During the colonial era, the British introduced legal and moral perspectives into Indian society. British laws, like Section 377 of the Indian Penal Code, embodied the moral standards of the Victorian era, which considered same-gender relationships, indecency, and obscenity to be unethical. Simultaneously, British reformers abolished certain harmful customs, such as sati, and advocated for widow remarriage, proclaiming their intent to “civilize” Indian society.
In the 19th and early 20th centuries, Indian reformers like Raja Ram Mohan Roy and Dr. B.R. Ambedkar began to contest traditional public morality. They condemned caste discrimination, gender inequality, and religious conservatism. Ambedkar, in particular, championed a transition toward constitutional morality, which emphasizes liberty, equality, and dignity for every individual. Following independence, public morality continued to shape Indian laws, particularly concerning censorship, marriage, and sexuality. However, in a democracy such as India, excessive reliance on public morality can pose risks when it reinforces majoritarian viewpoints. This is why the Constitution of India establishes a superior moral benchmark—constitutional morality—which defends the rights of all citizens, rather than merely reflecting the perspectives of the majority.
B. Definitions of Public Morality
To understand the role of public morality in law, it is necessary to examine how the concept has been defined by jurists :- According to H.L.A. Hart on Public Morality: “Public morality consists of those moral convictions held by the majority, often shaped by custom, religion, and social institutions. It may or may not coincide with rational or legal principles.”1 According to Lord Devlin’s Classical View, “Society may use the law to preserve its moral code just as it uses it to safeguard anything else that is essential to its existence.”2 According to Justice Krishna Iyer, “Public morality, like law, is not a fixed concept. It must evolve with time and constitutional values. It cannot be rooted solely in outdated traditions or customs that deny individual dignity.”3 Prof. Upendra Baxi said that, “Public morality in India has too often been interpreted through the prism of dominant cultural elites; true public morality must be inclusive and plural.4
C. Theoretical Framework
Public morality is a broader set of rules about the ethics and behavioural expectations of people in a society; public morality is more or less the sum total of ethics. Public morality, while regulating the lives of the members of the society, becomes normative in nature and varies across communities, cultures, religions, and history, leading to a dynamic and sometimes contentious relationship with constitutional morality. Indeed, while public morality or collective morality may be better placed to bring about change through legislative process, it may stand in opposition to the ideals of individual rights and freedoms contained in the Constitution and distort the very core of democratic and constitutional principles.5
The theoretical analysis of public morality is essential for assessing its impact on law and the endurance of legal norms. The variability of public morality, influenced by community changes, culture, time, and space, complicates the judiciary’s task of determining public desires. This challenge is particularly pronounced in India’s diverse and majoritarian society, where balancing adherence to constitutional ideals with public sentiment becomes increasingly cumbersome.6
D. Key Legal Provisions Relating to Public Morality
If not all, some legal concepts in India do deal with public morality, especially those concerning personal and social conduct. Articles 19, 25 and 26 refer to public order and morality in relation to a person’s rights and responsibilities vis-a-vis civil liberties and religious freedom. In addition, provisions that attract obscenity legislation and those on marriage and family are also in alignment with cultural values. For instance, Section 377 of the Indian Penal Code, which prohibited homosexual acts among consenting adults, was defended on grounds of public morality until struck down by the Supreme Court in 2018
E. Judicial Interpretations on Public Morality
Public morality has often been used as a ground for lawmaking and judicial decisions in India. It refers to the commonly accepted moral values and beliefs of society at a given time. The Indian judiciary, while interpreting the Constitution, has sometimes relied on public morality to justify restrictions on individual rights, especially in matters related to religion, expression, and lifestyle. The following cases show how the Supreme Court has upheld laws based on public morality. In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005)7 The Court confirmed the prohibition on the slaughter of cows, stating it was inconsistent with public morality and reflected the sentiments of the majority Hindu population. Again in Rev. Stainislaus v. State of Madhya Pradesh (1977)8 The Court affirmed the anti-conversion laws, stating that the right to promote a religion does not encompass the right to convert individuals, and such laws were valid to maintain public order and morality In Govind v. State of Madhya Pradesh (1975)9 The Court recognized the right to privacy but said it could be limited by laws made in the interest of social order or morality. In Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi (2010)10 The Court upheld the validity of obscenity laws under Section 292 of the IPC, asserting that they serve a legitimate interest in preserving public morality and in Ajay Goswami v. Union of India (2007)11 The Court upheld press freedom but also accepted that certain content, especially if pornographic or obscene, could be restricted for the sake of community standards and ethical values From the above cases, it is clear that the Indian judiciary has, at various points, supported laws and actions based on public morality. These decisions show that the courts have considered the values and sentiments of society while interpreting constitutional rights.
F. Criticism of Public Morality
While public morality reflects the prevailing social values, customs, and traditions of society, it has been widely criticised for its limitations in a constitutional democracy. Although it represents the beliefs of the majority, public morality is not always aligned with principles of justice, equality, and individual dignity.
One of the primary criticisms of public morality is its majoritarian nature. Public morality is shaped by dominant social, cultural, or religious groups, which may result in the marginalisation of minority communities. In a diverse country like India, what is considered “moral” by the majority may not reflect the lived experiences or rights of marginalized groups. Critics argue that relying solely on public morality can legitimise discrimination under the guise of social tradition.
Another significant concern is that public morality is dynamic and unstable. Social values change over time depending on education, political climate, generational shifts, and cultural evolution. Practices once accepted as morally correct — such as untouchability or rigid gender roles — are now widely condemned. Therefore, basing legal standards on fluctuating public opinion may lead to inconsistency and injustice.
Public morality has also been criticised for reinforcing social prejudice and moral policing. In several instances, societal notions of morality have been used to control individual choices relating to marriage, sexuality, dress, and lifestyle. Critics contend that such moral regulation often intrudes upon personal autonomy and privacy, particularly affecting women and LGBTQ+ individuals. When the law endorses public morality without constitutional scrutiny, it risks validating social bias rather than protecting rights.
Additionally, public morality may conflict with the principle of individual liberty. The Constitution guarantees fundamental rights to individuals, not merely to the majority. If public morality is allowed to override constitutional protections, minority rights may be suppressed. In this sense, public morality may operate as a tool of social conformity rather than as a standard of justice. However, it must also be acknowledged that public morality plays an important role in maintaining social order. Laws relating to obscenity, public decency, and public order are often influenced by community standards. Completely disregarding public morality may create social unrest and weaken the legitimacy of legal institutions. Therefore, a balance must be maintained between respecting societal values and upholding constitutional principles.
In conclusion, while public morality reflects the conscience of society, it cannot serve as the ultimate test of legality in a constitutional democracy. Its majoritarian tendencies and susceptibility to prejudice make it insufficient as a sole standard for determining rights and freedoms.
CONSTITUTIONAL MORALITY: AN OVERVIEW
A. Origin of Constitutional Morality: Ambedkar’s Vision
The Constitution of India is more than just a legal text, but a transformative charter meant to build a welfare and just society. One of the most prominent concepts underpinning this vision is “constitutional morality,” a principle championed by Dr. B.R. Ambedkar. While the Constitution provides the framework for governance, Ambedkar believed that its success depends on the moral commitment of citizens and institutions to uphold its values. To him, constitutional morality was essential for preserving democracy, ensuring equality, and resisting the influence of narrow public or majoritarian interests.
Dr. B.R. Ambedkar, the main architect of the Constitution, put significant importance on the concept of constitutional ethics. He adopted the term from the works of the British historian George Grote, who referred to constitutional morality as a “set of norms and values necessary to preserve the functioning of constitutional institutions beyond mere legal compliance.”12 He believed that constitutional morality involves a spirit of respect for the Constitution and a commitment to principles such as liberty, equality, fraternity, and the rule of law. He deeply observed that constitutional morality is “not a natural sentiment, it has to be cultivated.”13 In his view, the mere existence of a constitution is insufficient unless the people and their leaders internalize and act upon its core values. Ambedkar envisioned Constitutional morality serves as a protection against the oppression of the majority and the abuse of power. In his Constituent Assembly speeches, he warned that “If constitutional values are not upheld in both letter and spirit, democracy could deteriorate into despotism despite formal legal structures.” He was particularly concerned about caste-based hierarchies and social injustices that could persist under the garb of majoritarian norms. In this framework, constitutional morality acts as a counterbalance to public morality, which may reflect dominant prejudices. Ambedkar argued that constitutional morality should prevail when societal customs violate basic human rights or undermine social justice. Thus, for him, it was not just about procedural discipline, but also about nurturing an enlightened public conscience that respects the dignity and equality of all individuals. His philosophy laid the groundwork for India’s constitutional vision as a transformative tool one that does not merely maintain order but strives to bring about social reform.
B. Meaning of Constitutional Morality
Constitutional morality, though rooted in the philosophical foundations laid by Dr. Ambedkar, has grown into a key interpretative tool in Indian constitutional jurisprudence. Jurists across time have reflected upon its meaning, scope, and significance in safeguarding democratic values. The following definitions by prominent legal thinkers and judges offer deeper understanding of this concept. According to Granville Austin, “Constitutional Morality means a commitment to the values that underlie the constitutional structure and the consistent enforcement of those values by institutions and individuals alike.”14 Madhav Khosla defines constitutional morality as “a commitment to the norms that give effect to constitutional values especially in a country like India, where democracy must contend with deep social divisions.”15Justice Nariman emphasized in the Sabarimala case that “constitutional morality is the governing ideal that requires the court to uphold the Constitution’s values even in the face of strong social resistance.” He saw it as a vital force to empower the marginalized.16 In the similar case Justice Indu Malhotra emphasized her dissenting opinion that “constitutional morality must also accommodate the plurality of Indian society, including religious freedoms, so long as they do not violate the Constitution.” These juristic voices reflect that constitutional morality is not a fixed doctrine, but a living principle that must evolve with time and context. It acts both as a shield for fundamental rights and as a check on the misuse of state power. Together, these definitions reinforce the importance of grounding judicial reasoning in moral values that support constitutional justice and societal progress.
C. Theoretical Framework
Constitutional morality is based on the upholding of the values and principles of the Constitution, which strengthens democracy. It is less to do with the form of constitution and constitutional authorities and more to do with the values of the constitution, i.e. the characteristics of constitutionalism. As firstly used by Grote, the concept was focused on the coexistence of freedom and self-restrain.17 These values and principles conform to the ideals of human rights, such as liberty, individualism, and equality before the law, further promoting an inclusive and democratic political process valuing the dignity of all individuals.18 Constitutional morality means adhering to the core values and principles outlined in the Constitution. It emphasizes the value of individual rights, equality, fairness, and the rule of law. They are further outlined and derived through some of the constitutional provisions, like in the Indian context, the preambulatory emphasis on justice, liberty, and equality, fairness, the rule of law and the provisions recognising the fundamental rights of the people under the Part III of the Indian Constitution.19 Furthermore, the key character of constitutional morality is the establishment of a political culture that acknowledges the equality of people, promoting the growth of society through healthy democratic means.20 It requires, the quality of civility, ensuring respect, restraint, patience vis-à-vis rights and concerns of other members of society.21
Constituent Assembly debates throw light on the importance of the same; wherein Dr. B.R. Ambedkar, a key figure in the Indian polity, sought out constitutional morality in the context of balancing conflicts among competing interests in society. His belief was rooted in the need to reconcile the rights of the individuals and the responsibilities of society as a whole, preventing the majoritarian sentiments from eroding the absolute principles of the Constitution.22 In recent times, this understanding has been fortified by certain judicial interpretations; in particular, the case of Navtej Singh Johar v Union of India,23 clarifying the boundaries of constitutional and popular morality. The Supreme Court stressed that the higher courts must act according to constitutional morality, especially in issues concerning fundamental rights.
D. Judicial Analysis
The idea of constitutional morality has developed into a foundational principle for the judiciary in India. It empowers courts to look beyond traditional public morality and entrenched social norms to uphold the values ennobled in the Constitution. This section examines key landmark judgments where the Supreme Court invoked constitutional morality to protect individual rights and promote transformative constitutionalism.
1. Navtej Singh Johar v. Union of India (2018)24
Facts: The petition challenged the constitutional validity of Section 377 of the Indian Penal Code, that made consensual homosexual activity among adults illegal. Judgment: The Supreme Court removed the criminal penalties for consensual same-sex relationships, holding that Section 377 violated Articles 14, 15, and 21 of the Constitution. Justice D.Y. Chandrachud noted that “constitutional morality requires that all citizens be treated as equal regardless of their identity or orientation.” The judgment emphasized that fundamental rights cannot be denied based on public disapproval or majoritarian views and also the case marked that Constitutional morality should take precedence over conventional public morals rooted in heteronormative beliefs.
2. Joseph Shine v. Union of India (2018)25
Facts: A PIL was filed questioning the constitutionality of Section 497 IPC, which made adultery a criminal offense and treated the wife as her husband’s property. Judgment: The Court reached a unanimous decision to invalidate Section 497, declaring it unconstitutional. Justice Indu Malhotra and others observed that the law violated women’s autonomy and dignity. The judgment highlighted that constitutional morality mandates gender equality and cannot be compromised by outdated patriarchal norms.
3. Indian Young Lawyers Association v. State of Kerala (2018)26
Facts: The petition contested the exclusion of women between the ages of 10 and 50 from accessing the Sabarimala temple in Kerala, arguing that it infringes on their constitutional rights. Judgment: The Court decided by a 4:1 majority that the exclusion of women was in violation of Articles 14, 15, 25, and 51A(e). Justice D.Y. Chandrachud emphasized that constitutional morality is founded on individual dignity, equality, and non-discrimination, which must override discriminatory religious practices. The judgment reaffirmed that the Constitution’s transformative goals cannot be overridden by societal customs, even when they are religiously sanctioned.
4. Shayara Bano v. Union of India (2017)27
Facts: The case challenged the validity of the practice of instant triple talaq by Muslim men. Judgment: The Court ruled that the practice was both arbitrary and unconstitutional with a majority of 3:2. Justice Nariman and Justice Lalit relied on constitutional morality to argue that personal laws must also comply with fundamental rights, particularly those ensuring gender justice and dignity. These landmark cases illustrate how the Indian judicial system has progressively embraced constitutional morality to interpret the Constitution in a progressive and rights-based manner. By doing so, the courts have reinforced that transformative constitutionalism rooted in liberty, dignity, and equality must take precedence over outdated social norms and majoritarian morality. This judicial trend not only affirms the supremacy of the Constitution but also provides a moral compass for future reforms in Indian society
E. Criticism of the Doctrine of Constitutional Morality
While the doctrine of constitutional morality has played a transformative role in protecting fundamental rights and strengthening democratic values, it has not been free from criticism. Several scholars and constitutional theorists have expressed concerns regarding its scope, interpretation, and practical implications.
One of the primary criticisms is the conceptual vagueness of the doctrine. The Constitution of India does not expressly define “constitutional morality,” nor does it lay down specific parameters for its application. As a result, its meaning is largely shaped through judicial interpretation. Critics argue that this ambiguity allows different benches of the Court to interpret the doctrine in varying ways, leading to potential inconsistency in constitutional adjudication. The absence of a clear definition may create uncertainty regarding the limits of judicial reasoning.
Another significant criticism relates to judicial overreach. It is argued that excessive reliance on constitutional morality may expand judicial power beyond its intended boundaries. In several landmark cases, courts have invalidated legislative or executive actions by invoking constitutional morality. While such interventions have often protected minority rights, critics contend that this approach risks disturbing the doctrine of separation of powers. Since judges are unelected representatives, some scholars question whether it is appropriate for the judiciary to override laws enacted by democratically elected legislatures on moral or interpretative grounds.
Further, there are concerns regarding democratic legitimacy. Public morality, though imperfect, represents the values and beliefs of the majority in society. When courts prioritize constitutional morality over public morality, they may be perceived as disregarding societal consensus. Critics argue that in a democracy, social change should ideally occur through legislative processes and public debate rather than judicial pronouncements. Excessive judicial intervention may create tension between constitutional ideals and social realities.
Additionally, some commentators caution against the risk of subjectivity. Since constitutional morality is interpreted by judges, there is a possibility that personal beliefs, philosophical inclinations, or ideological perspectives may influence judicial decisions. This raises concerns that constitutional morality could, at times, reflect the values of a judicial elite rather than a collectively evolved constitutional understanding.
However, despite these criticisms, supporters maintain that constitutional morality is indispensable in a pluralistic democracy. They argue that the Constitution is designed not merely to reflect existing social morality but to transform it. The doctrine serves as a safeguard against majoritarian excesses and ensures that fundamental rights, particularly those of minorities and marginalized communities, are not sacrificed at the altar of popular sentiment.
Thus, while the doctrine of constitutional morality raises legitimate concerns regarding scope and judicial power, it remains a crucial instrument in preserving constitutional supremacy and protecting individual dignity within the democratic framework of India.
CONFLICT BETWEEN CONSTITUTIONAL MORALITY AND PUBLIC MORALITY
The tension between constitutional morality and public morality in India often manifests in areas where individual rights clash with societal norms and values. These differences underscore a very important dimension of the judiciary, where it is entrusted with either upholding the basic rights of individuals or taking cognizance of the realities present in any social entity.
A. Areas of Conflict
Key areas of contention involve the public understanding and individual concerns around the issues of religious freedom, health, sexuality, women’s security, self-reverence, and the fight for sexual autonomy. These issues affect the right of individuals to access places of worship, public institutions, etc., invoking the interference of public morality even though it may infringe on the basic constitutional rights of equality, dignity, and liberty among individuals. Further, sensitive issues involving the rights of vulnerable groups, such as rights of sexual minorities, women’s rights and the issue of individual freedoms always honour the constant tussle between constitutional and public morality.
B. Case Studies of Conflicts
Judicial efforts to deal with tension between the constitution and public morality have changed over time. For example, in Mr. ‘X’ v. Hospital ‘Z’,28 the Supreme Court dealt with issues surrounding patient rights and medical ethics, while adjudicating a patient’s right to privacy and autonomy in medical treatment decisions. The case revolved around a patient’s request for confidentiality regarding his medical condition, which was challenged by hospital authorities citing public interest. The Court reaffirmed that constitutional morality demands respect for individual rights, including privacy and informed consent, even when public morality might suggest otherwise. It emphasized that public interest should not override personal rights guaranteed under the Constitution. This case illustrates the judiciary’s role in navigating conflicts between public expectations and constitutional protections, ensuring that individual dignity.
Later in Naz Foundation,29 the Delhi High Court held, while making the comparison of public morality and constitutional morality, that popular morality of certain acts is not a valid justification for restricting any person’s fundamental rights under Article 21. It further held that public morality is temporary and based on shifting and subjecting notions of right and wrong. It emphasises that if there was any type of morality that could pass the test of compelling state interest, it must be constitutional as it is based on constitutional values and not public. Afterwards, the Supreme Court’s judgment in Navtej Singh Johar v. Union of India30 further reinforced this distinction, reaffirming that constitutional morality should guide judicial decisions, particularly in matters affecting fundamental rights.31
In order to prevent legislative action from changing the fundamental principles of the Constitution, the judiciary has also underscored that “the changes made by the Parliament to the Constitution shall not alter the basic structure of the Constitution.”32 This doctrine, established in Kesavananda Bharati v State of Kerala, has been used to strike down laws that infringe upon individual rights, even if they are supported by public sentiment. However, the judiciary’s strategy has not been without criticism, either. There are persons, who contend that the courts’ involvement in “judicial activism” and intrusion into the legislative branch has exceeded its authority. The argument put out by critics is that the judiciary ought to practice “judicial restraint” and permit the legislature to enact laws that represent community values. The best example being the Supriyo case33.
PUBLIC MORALITY VS. CONSTITUTIONAL MORALITY: JUDICIAL BALANCING
The Indian judicial system often faces instances where public morality, which is based on customs, religious doctrines, and majority views, clashes with constitutional morality that prioritizes the values of freedom, equality, and dignity as outlined in the Constitution. The judiciary must find a way to reconcile these conflicting principles, frequently serving as the ultimate authority on what conforms to constitutional tenets in a democratic framework.
It is essential to strike a balance between constitutional and public morality in order to protect individual liberties and preserve social norms. The maintenance of justice, social, economic and political, the defence of fundamental rights, assurance of fraternity and the operation of democracy all depend on this equilibrium. When it comes to striking a balance between public morality and constitutional rights, the Indian court has alternated between activism and restraint. In many instances, the judiciary till recently, adopted a proactive approach while being criticized for judicial overreach, safeguarding personal liberties and preserving fundamental constitutional values when legislative measures tend to violate them.34
A. Recent Case Law Reflecting Judicial Preference
1. Hadiya v. Ashokan K.M., (2018)35
This case involved Hadiya (previously known as Akhila), a Hindu woman who embraced Islam and wed a Muslim man. The Kerala High Court invalidated the marriage based on her father’s claim that it was case of forced conversion. Nonetheless, the Supreme Court overturned the ruling, affirming that an adult woman possesses the freedom to select her religion and partner. The judgment emphasized personal liberty and constitutional morality over social anxieties and prevailing religious prejudices. The Court implicitly rejected public morality rooted in patriarchal and communal norms.
2. Farzana Batool & Ors. v. Union of India & Ors., (2021)36
The Supreme Court underscored the importance of safeguarding the educational rights of women belonging to marginalized communities in Jammu and Kashmir. Though not framed as a morality conflict, the case illustrates the use of constitutional morality in prioritizing equality and dignity in access to education over regressive societal norms that often limit women’s choices.
3. Shakti Vahini v. Union of India, (2018)37
This case dealt with the issue of honor killings and khap panchayats interfering in the marriages of consenting adults. The Court condemned extra-constitutional bodies that enforced caste and community based moral norms. It directed states to protect individuals exercising their right to marry outside caste and religion. Based on recent judicial analysis, the courts have anchored their rulings on several fundamental principles: • Supremacy of Fundamental Rights: The judiciary places a clear emphasis on Part III of the Constitution, ensuring that personal freedom and individual dignity are non-negotiable, even when they clash with prevalent moral standards.
• Transformative Constitutionalism: The Constitution is seen not as an unchanging legal text but as a dynamic, evolving entity. This perspective empowers judges to interpret rights in a progressive manner, frequently broadening their application beyond historical or cultural limits.
• Equality and Anti-discrimination: Public morality has often been invoked to rationalize patriarchal or exclusionary practices. Courts have countered this by citing constitutional guarantees of equal treatment and substantive justice.
• Cautious Judicial Activism: In cases involving religious practices or personal law, the judiciary sometimes adopts a cautious approach, acknowledging the intricate relationship between faith and law. This selective deference illustrates the delicate balance between safeguarding rights and honoring diversity.
• Counter-Majoritarian Role: The judiciary frequently defends individuals and minority groups against prevailing public sentiment, asserting that fundamental rights are not contingent on popular consent.
• Dignity and Autonomy: The court’s decisions in certain instances stress dignity, privacy, and autonomy as central to the constitutional framework, even in cases where public opinion may oppose them.
• Proportionality: The courts utilize the proportionality test to ensure that limitations on rights for moral reasons are legitimate and impose the least restrictions.
• Secularism: As a foundational feature of the Constitution, Secularism holds a crucial significance in shielding legal interpretations from beliefs rooted in religious public morality.
The judiciary’s focus on constitutional morality rather than public morality indicates a conscious shift towards reaffirming the fundamental principles of the Constitution. This method demonstrates a wider dedication to transformative constitutionalism, where courts serve not only as interpreters of the law but also as catalysts for social change. By prioritizing constitutional morality, the judiciary confronts traditional norms and majoritarian perspectives that often perpetuate social exclusion, discrimination, or stagnation. This jurisprudential evolution guarantees that individual rights are defended even in the face of public sentiment, thereby fulfilling the Constitution’s role as a counter-majoritarian document. However, this developing dynamic is not without dispute. Critics contend that favouring constitutional morality may lead to judicial overreach and a detachment of the legal system from cultural and democratic realities. Nonetheless, such critiques must be weighed against the moral obligation to uphold justice and human dignity. The central guiding principles in this scenario include constitutional supremacy, the safeguarding of essential rights, and the interpretative responsibility of the judiciary to maintain constitutional integrity. As India continues to confront emerging challenges whether related to digital freedom, environmental justice, or gender inclusivity constitutional morality offers a stable, rights-based framework for legal decisions. In this regard, its application by the judiciary not only acts as a shield against regressive norms but also represents a plan for a more inclusive and forward-thinking constitutional framework. Thus, the emphasis on constitutional morality is not simply a legal approach but also a moral and democratic necessity.
B. Challenges Faced by the Judiciary
The Indian judiciary encounters various obstacles in maintaining a balance between the public and constitutional morality. Navigating the conflict between individual rights and society values is one of the main obstacles, especially when the public opinion is vehemently against the protection of particular rights. The courts must therefore carefully consider the ramifications of their decisions on both fronts, making conclusions based on the proportionality and reasonableness standards.38 The judiciary has played a proactive role in upholding constitutional morality, though this task is fraught with challenges. One significant obstacle is the potential for judicial overreach, where courts may be perceived as encroaching upon the legislative domain. Critics argue that for the government to enact laws reflective of societal values, the judiciary should exercise restraint. This raises important concerns about finding the right balance between judicial intervention and legislative authority. Potential political pressure and public backlash against judicial rulings that defy popular opinion is another difficulty. In the case of Khushboo v Kanniammal,39 the Court emphasised on the role played by media in reporting the judicial proceedings in a fair and equitable manner, as in this case the common people started questioning the way of inquiry made by the Apex Court. It is important that whether such demands made or not, the judiciary must continue upholding its independence and integrity, making sure that decisions are grounded on constitutional principles rather than majoritarian forces. It has upheld constitutional morality in landmark cases such as Naz Foundation v. Government of NCT of Delhi, where the Delhi High Court decriminalized same-sex relations by striking down Section 377 of the Indian Penal Code, emphasizing the need for constitutional morality to prevail over public morality. After a few years, in the case of Manoj Narula v. Union of India,40 the Supreme Court remarked that constant affirmance of constitutional morality was the pillar stone of good governance. Soon after, in 2018, while upholding women’s right and dignity in religious practices and marriage, in Indian Young Lawyers Association v. State of Kerala, 41the Supreme Court ruled against the ban on women’s entry into the Sabarimala temple, prioritizing constitutional values over traditional practices; and Joseph Shine v. Union of India, where the Supreme Court struck down the law criminalizing adultery, highlighting that it infringed upon women’s dignity and autonomy.
On the other hand in K.A. Abbas v Union of India,42 the court recognized public morals as sufficient grounds for limiting the right to freedom of expression of the individual as long as such restrictions were reasonable and justified. As an illustration, the case of Naz Foundation v. Government of NCT of Delhi decriminalizing same-sex relationships pointed out the conflict between the public opinion and the dilemma within judiciary in the whole decriminalization process. This took almost a decade to ensure the dignity of identity, intimacy and autonomy of sexual minority in accordance with the rights that the Constitution provides to every heterosexual. In the situation of majoritarian pressure, the Supreme Court has recently went many steps back while subtly conforming with public morality, seeking majoritarian legislative action and denying the right to marry to same sex couples in Supriyo, earlier decriminalising their sexual interactions. Thus, the courts have refrained from judicial review;62 while recognizing the place of majoritarian legislative process and public morality in the development of law, going back where we started in K.A. Abbas v. Union of India. They have posed challenges especially in a country as diverse and as multi-cultural as India, while safeguarding constitutionalism without disregarding societal norms and values. Irrefutably, public sentiment influences judicial proceedings, where emotional responses can complicate the consideration of constitutional rights and societal ethics.64 These factors collectively create a complex environment for achieving an effective balance between constitutional and public morality.
C. Challenges in Balancing Morality
As much as there is an active engagement by the judiciary, there are many factors that create challenges to effective balancing of government and general public morality:
1) Judicial Overreach:
The activist stance of the Indian judiciary has not been immune to criticism. Some contend that by indulging in “judicial overreach” and intruding upon the legislative branch, the courts have exceeded their authority. Critics argue that the legislature should be allowed to use legislation to represent public morality, as the legislature represents people. Ensuring separation of power, they seek judicial restraint, as shown by the Madras High Court in Khushboo’s case and Supreme Court in Supriyo v. Union of India. Judicial activism proponents, on the other side contend that even in the face of opposing laws and societal norms, the courts must defend individual rights and preserve constitutional principles. They point to cases like Navtej Singh Johar and Indian Young Lawyers Association as examples of the judiciary fulfilling its role as a guardian of the Constitution.
2) Cultural Sensitivity:
The extending range of public morality that co-exists and differs in the diverse communities that form the society poses problem for the judges to balance even the public morality itself, leave the balancing of both public and constitutional morality. In these cases, the cultural practices of the public and beliefs on one side and conditioning of the judges on other pose problems in upholding constitutional values. However, the judges shall neither invoke their own personal morality nor the people’s religious, philosophical views or political values without restrictions.43
3) Public Sentiment:
It is understandable that having the public’s emotions be taken into consideration during judicial proceedings can ultimately bring some challenges to the legal system when it comes to the considerations of constitutional and societal ethics. Though, the judges can refer to reasonable understanding of public conception and political values of justice and reason. Yet again, the duty of civility gets to the core where freedom and self-restrain by the people comes to the force.44
Thus, the judiciary has to not only save itself from judicial overreach, but also from cultural sensitivity and public sentiments. It has to negotiate the complexity of a heterogeneous society in which public morality varies greatly throughout localities. The courts in this situation will have a difficult time striking a balance between upholding individual rights and honouring cultural and religious customs. Therefore, an erudite comprehension of public morals and the constitution is necessary for this delicate balancing act, as suggested by Nehru during the Constitutional Assembly debates. Here, the legislature also plays a crucial role in the process of mitigating conflicts between constitutional and public morality. The legislature can help create a legal framework, that balances these often competing interests, by enacting laws that address societal needs while adhering to constitutional principles. The civil society further recognizes the importance of mediated debate among the legislature, civil society, lawyers, and other legal experts. Such discussions ensure that legislation not only considers public opinion but also aligns with constitutional values. This collaborative approach fosters an environment where diverse perspectives are considered, leading to more inclusive and equitable laws. However, in many instances, the majoritarian legislature, while putting political interest above all, underreads constitutional values. The judiciary also has to negotiate the complexity of a heterogeneous society in which public morality varies greatly throughout localities. The courts in this situation will have a difficult time striking a balance between upholding individual rights and honouring cultural and religious customs. Therefore, the Indian courts must continue to interpret the Constitution in a way that upholds its fundamental ideals and principles while making adjustments for the circumstances of a changing society. Thus, an erudite comprehension of public morals and the constitution is necessary for this delicate balancing act, as suggested by Nehru during the Constitutional Assembly debates.
D. The Necessity for a more Systematic Approach
The challenges and opportunities in balancing constitutional and public morality underscore the need for a more systematic approach that recognizes their separateness, interrelation, and interdependence. A comprehensive framework should include broad-based legal principles such as proportionality, ensuring that restrictions on individual rights are necessary for achieving legitimate objectives, thereby preventing abuses of public morality; reasonableness, which requires that state actions align with constitutional values and prompts courts to evaluate public morality arguments in terms of their impact on human rights; inclusivity, which acknowledges diverse value systems and protects minority interests by involving civil society and legal professionals; and dialogue, fostering communication among the judiciary, legislature, and civil society to bridge gaps between constitutional provisions and societal norms, ultimately promoting mutual understanding and effective governance. Accordingly, it is important to strike a balance between constitutional morality and public morality for the health of a working democracy. In this regard, the Indian judicial system has to maintain this balance as the custodian of constitutionalism and at the same time fulfil societal demands for justice and rule of law. Employing proportionality, reasonableness, inclusivity, and dialogue enables the judiciary to cope with conflicts arising from the utilization of the two sources of morality. In this backdrop, we need to be practical to ensure the balance between the two, keeping in mind the voice of Dr. Ambedkar, who realised the core structure of India being undemocratic and therefore stated during the Constituent Assembly debates that “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”45
CONCLUSION
The tension between public morality and constitutional morality lies at the heart of constitutional governance in a pluralistic democracy like India. Public morality, rooted in social customs, traditions, religion, and collective conscience, undoubtedly plays a significant role in shaping societal behaviour and influencing legislative policies. It reflects the prevailing moral sentiments of the majority at a given time and contributes to maintaining social order and cultural continuity. However, history has consistently demonstrated that societal morality is neither uniform nor infallible. Social norms evolve, and practices once considered morally acceptable may later be recognised as unjust or discriminatory. Therefore, public morality, though socially relevant, cannot serve as the ultimate measure of justice in a constitutional framework.
Constitutional morality, in contrast, derives its authority from the Constitution itself. It embodies enduring principles such as liberty, equality, dignity, fraternity, and the rule of law. Unlike public morality, which is shaped by majority opinion, constitutional morality is anchored in fundamental rights and institutional values that protect both individuals and minorities. It requires adherence not merely to the text of the Constitution but also to its spirit and transformative vision. In this sense, constitutional morality does not simply mirror society; it seeks to reform and elevate it.
The Indian judiciary has repeatedly affirmed that in cases of conflict, constitutional morality must prevail over public morality. This approach recognises that democracy is not merely about majority rule, but about constitutional supremacy. The Constitution exists precisely to safeguard individual freedoms against arbitrary social or political pressures. If public morality were permitted to override constitutional guarantees, minority rights and personal autonomy would remain vulnerable to fluctuating social attitudes. Thus, constitutional morality acts as a shield against majoritarian excess and ensures that the rights of marginalized communities are not sacrificed for social conformity. At the same time, it would be simplistic to entirely dismiss public morality. Laws relating to public order, decency, and community welfare often draw from societal standards. A complete disconnect between law and social values may weaken the legitimacy of legal institutions and create resistance to reform. Therefore, the relationship between public morality and constitutional morality should not be viewed as a rigid opposition but as a dynamic interaction. Public morality provides social context, while constitutional morality supplies normative direction.
The true strength of a constitutional democracy lies in maintaining this delicate balance. Courts must exercise caution to avoid excessive judicial overreach, while legislatures must ensure that laws reflect constitutional principles rather than transient popular sentiment. Ultimately, the Constitution represents a higher moral commitment — one that aspires toward justice, inclusivity, and human dignity. It is designed not only to reflect society as it is, but to guide it toward what it ought to become.
In conclusion, while public morality reflects the conscience of the majority, constitutional morality embodies the conscience of the Constitution. In a diverse and evolving democracy, it is constitutional morality that must serve as the final touchstone of legality. By upholding constitutional values over fluctuating social norms, the Indian legal system reinforces its commitment to equality, liberty, and dignity for all citizens, thereby strengthening the foundations of democratic governance.
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Footnotes
1. H.L.A. Hart, Law, Liberty and Morality 49 (Stanford University Press 1963)
2. Patrick Devlin, The Enforcement of Morals 10 (Oxford Univ. Press 1965)
3. V.R Krishna Iyer, Off the Bench: The Story of a Humanist Judge 138 (Universal Law Publications 2004)
4. Upendra Baxi, The Future of Human Rights 88 (Oxford University Press 2012)
5. Rohit Sharma, ‘The Public and Constitutional Morality Conundrum: A Case-Note on The Naz Foundation Judgment’ (2009) 2(2) NUJSLR
6. Deepak K Srivastava, ‘Pearls and Pitfalls of the Doctrine of Constitutional Morality: Constitutional Morality’ (2022) 61(2) Punjab University Law Review
7. (2005) 8 SCC 534
8. (1977) 1 SCC 677
9. (1975) 2 SCC 148
10. (2010) 1 SCC 234
11. (2007) 1 SCC 143
12. George Grote, History of Greece vol. IV, ch. XLVII (London: J. Murray, 1846)
13. 1 Constituent Assembly Debates, Vol. VII, 4 Nov. 1948, Speech by Dr. B.R. Ambedkar, available at https://cadindia.clpr.org.in
14. Granville Austin, The Indian Constitution: Cornerstone of a Nation 50 (Oxford University Press, 1966)
15. Madhav Khosla, The Indian Constitution 43 (Oxford Univ. Press, 2012)
16. (2018) 10 SCC 1, ¶ 481 (Nariman, J.)
17. Pratap Bhanu Mehta, ‘What is Constitutional Morality?’ (2010) 615 SEMINAR,
18. Deepak K Srivastava, ‘Pearls and Pitfalls of the Doctrine of Constitutional Morality: Constitutional Morality’ (2022) 61(2) Punjab University Law Review
19. A S Rane, ‘Executive Authority on Constitutional Morality in India: A Critical Study’ (2023) 34 Journal of Namibian Studies: History Politics Culture 5606.
20. Md. Zeeshan Ahmad and Showkat Ahmad Wani, ‘Constitutional Morality and Authoritarianism: Percolating Constitutionalism Through Judicial Interpretation’ (2023) 69(3), Indian Journal of Public Administration 624
21. Andre Beteille, ‘Constitutional Morality’ (2008) 43 (40) Economic and Political Weekly 35
22. Nakul Nayak, ‘Constitutional Morality: An Indian Framework’ (JGU Research Blog, February 23 2024) a
23. AIR 2018 SC 4321.
24. (2018) 10 SCC 1
25. (2019) 3 SCC 39
26. (2019) 11 SCC 1
27. (2017) 9 SCC 1
28. 1998 (8) SCC 296
29. 2009 (6) SCC 712
30. 2018 SC 4321.
31. Ananya Chakravarti, ‘Constitutional Morality in the Context of Indian Legal System’ (2020) 3(2) IJLMH
32. AIR 1973 SC 1461
33. 2023 INSC 920
34. Dr. G. V. Mahesh Nath, Constitutional Morality-A Need for Consensus on the Concept (2019)
35. (2018) 2 SCC 408
36. (2021) SCC OnLine SC 230
37. (2018) 7 SCC 192
38. Indu Bharti Jain and Madhu Bala, “The Role of Indian Judiciary in Justifying the Constitutional Morality over Social Morality” (2024) 4 GLS KALP: Journal of Multidisciplinary Studies.
39. (2010) 5 S.C.R. 322.
40. 2014) 9 SCC 1.
41. (2018) 10 SCC 689
42. 1971 AIR 481
43. John Rawls, ‘The Idea of Public Reason’ in James Bohman and William Rehg (eds.), Deliberative Democracy: Essays on Reason and Politics (9780262268936, The MIT Press, 1997)
44. Supra (n 43).
45. Vasant Moon(ed), Dr. Babasaheb Ambedkar Writings and Speeches, Volume No. 13 (2020).