Jurisprudence
Constitutional Morality versus Public Morality
At a Glance ▪ Public (popular) morality is the moral opinion that prevails among the majority of a society at a given time. Constitutional morality is adherence to the values the Constitution itself embodies: dignity, liberty, equality, fraternity and pluralism. ▪ The phrase comes from the historian George Grote (History of Greece). Dr B.R. Ambedkar used it in the Constituent Assembly on 4 November 1948, warning that constitutional morality is not a natural sentiment and has to be cultivated. ▪ It has two senses: an institutional sense (office-holders respecting constitutional forms and limits: Manoj Narula, 2014; NCT of Delhi, 2018) and a substantive sense (constitutional values overriding majority opinion: Naz, 2009; Navtej, Joseph Shine, Sabarimala, all 2018). ▪ The contrast restates the Hart-Devlin debate: Devlin would let law enforce the community's shared morality; Hart asked whether that enforcement could be justified by critical principles. The Indian answer is that the Constitution supplies the critical standard. ▪ Criticism: the concept is said to be vague, to invite judicial subjectivity and to be counter-majoritarian. The Sabarimala dissent (Indu Malhotra J) shows that constitutional morality itself includes respect for religious pluralism. |
Think of a cricket final. Fifty thousand spectators roar that the batsman is out; the umpire looks at the Laws of Cricket, sees that the ball pitched outside leg stump, and says not out. The crowd's verdict is public morality: loud, sincere, and counted by heads. The umpire's standard is constitutional morality: the rules everyone accepted before the match began. And the batsman who, given out, walks back without tearing down the stumps but complains loudly afterwards shows what Grote meant: respect for the forms, with freedom to criticise. Note 20 introduces both senses and Note 46 treats constitutional morality as a constitutional doctrine; this note sets the two moralities against each other, explains why Indian courts prefer one to the other, and asks where that preference must stop.
1. Origin: Grote and Ambedkar
George Grote, the English historian, used the phrase in his History of Greece while describing how democracy was made to work in ancient Athens. He meant by it 'a paramount reverence for the forms of the constitution', combined with the habit of open speech, free criticism of those in authority, and confidence among citizens that their political opponents would respect those forms as much as they did. Grote added, in substance, that such morality must be spread through the whole community and not merely held by a majority, because even a powerful and obstinate minority can make free institutions unworkable.
Dr B.R. Ambedkar quoted Grote in the Constituent Assembly on 4 November 1948, when he moved the Draft Constitution for consideration. He was answering the objection that the draft contained too much administrative detail. His reply was that it is possible to pervert a constitution without changing its form, simply by changing the form of the administration, so details had to be written in. He then warned that constitutional morality is not a natural sentiment; it has to be cultivated, and the Indian people had yet to learn it (the full passage is in Note 46).
For Grote and Ambedkar, constitutional morality was a discipline for those who hold power, not a weapon against majority moral opinion. The courts later added that second use; keep the two senses apart in an answer.
Classic Definitions ▪ George Grote (History of Greece): constitutional morality is a paramount reverence for the forms of the constitution, combined with freedom of speech and criticism of those in authority, and trust that opponents will respect those forms too (paraphrase, with Grote's opening words). ▪ B.R. Ambedkar (Constituent Assembly, 4 November 1948): 'Constitutional morality is not a natural sentiment. It has to be cultivated.' |
2. What Each Morality Means
Public or popular morality
Public morality is the body of moral views actually held by the majority, or by the dominant groups, of a society at a given time. It is what Austin and Hart called positive morality (Note 135): a social fact, discoverable by observing what people approve and condemn. It changes with time and place, it often carries religious or customary authority, and it can be generous or cruel. The Constitution itself uses the word morality as a ground of restriction: Art. 19(2) permits reasonable restrictions on speech in the interests of decency or morality, and Arts. 25 and 26 subject religious freedom to public order, morality and health. The obscenity cases, from Ranjit D. Udeshi (1965) to Aveek Sarkar (2014), show it at work (Note 20).
Constitutional morality
Constitutional morality in its modern Indian sense means fidelity to the values the Constitution embodies: the dignity of the individual, liberty of thought and conduct, equality and non-discrimination, fraternity, which the Preamble links to dignity and the unity of the nation, and pluralism, the acceptance that a free society will contain many ways of life. It is neither a judge's private ethics nor a count of heads, but a standard drawn from the Constitution, above all Part III and the Preamble. Where the majority's moral opinion would deny these values to a minority, constitutional morality prevails.
Basis | Constitutional morality | Public morality |
|---|---|---|
Source | Text, structure and values of the Constitution | Prevailing opinion, religion, custom, tradition |
Content | Dignity, liberty, equality, fraternity, pluralism | Whatever the majority approves or condemns |
How it is found | By reasoned interpretation of the Constitution | By observing actual social attitudes |
Stability | Entrenched; changes only by constitutional method | Shifts from generation to generation |
Attitude to minorities | Protects them against majority disapproval | May express disgust or prejudice towards them |
Jurisprudential parallel | Hart's critical morality | Austin's and Hart's positive morality; Devlin's shared morality |
Leading Indian cases | Naz (2009), Navtej, Joseph Shine, Sabarimala (2018) | Suresh Kumar Koushal (2013) deferred to it |
Main risk | Judicial subjectivity and vagueness | Tyranny of the majority |
3. The Jurisprudential Background: Devlin and Hart
The Indian contrast is a constitutional version of the English Hart-Devlin debate (Note 66). Lord Devlin, in his Maccabaean Lecture (1959), argued that a society is held together by a shared morality, that its disintegration can follow when that morality is abandoned, and that the law may therefore enforce it. His test was the reasonable man in the jury box and his intolerance, indignation and disgust: a defence of enforcing public morality.
H.L.A. Hart, in Law, Liberty and Morality (1963), replied that the disintegration thesis was unproven, that disgust is not a reason for punishment, and that the question whether a society may enforce its accepted morality is itself a question of critical morality. Indian constitutional morality takes Hart's side on the central issue but gives it a firmer footing: the critical standard is not a philosopher's theory but the Constitution the people gave themselves. Note 66 compares the two jurists point by point.
4. The Two Senses in Indian Cases
Basis | Institutional sense | Substantive sense |
|---|---|---|
Origin | Grote; Ambedkar (4 November 1948) | Developed by the courts from Part III and the Preamble |
Addressed to | Constitutional functionaries | Legislature and society, through judicial review |
Demand | Act within constitutional forms, in good faith | Protect rights against majority opinion |
Illustrations | Manoj Narula (2014); NCT of Delhi (2018) | Naz (2009); Navtej, Joseph Shine, Sabarimala (2018) |
The institutional sense
Manoj Narula v Union of India Supreme Court of India, 2014 (5 judges) The Court declined to read into Art. 75(1) a bar on appointing as Ministers persons facing serious criminal charges; the choice belongs to the Prime Minister. It said, however, that constitutional morality, good governance and constitutional trust expect the Prime Minister and Chief Ministers to consider not choosing persons against whom charges have been framed for heinous or serious offences or corruption. Constitutional morality here meant, in substance, bowing to the norms of the Constitution and not acting arbitrarily or against the rule of law. |
Government of NCT of Delhi v Union of India Supreme Court of India, 2018 (5 judges) Under Art. 239AA, the Court treated constitutional morality as binding constitutional functionaries themselves. Both must work in the spirit of the Constitution and of collaborative federalism; the Lieutenant Governor is ordinarily bound by the aid and advice of the Council of Ministers and has no independent decision-making power (Note 46). |
The substantive sense
Naz Foundation v Govt of NCT of Delhi Delhi High Court, 2009 A Division Bench (A.P. Shah CJ and S. Muralidhar J) read down Section 377 IPC so far as it criminalised consensual sexual acts between adults in private, holding it contrary to Arts. 14, 15 and 21. It held that moral indignation, however strong, is no valid basis for overriding the fundamental rights of dignity and privacy, and that only constitutional morality, not public morality, can justify restricting them. Suresh Kumar Koushal v Naz Foundation (2013) reversed the decision and left the matter to Parliament. |
Navtej Singh Johar v Union of India Supreme Court of India, 2018 (5 judges) Overruling Koushal, the Court unanimously read down Section 377 IPC for consenting adults. The opinions held that fundamental rights do not depend on majority approval, and that where social morality and constitutional morality conflict, constitutional morality prevails. |
Joseph Shine v Union of India Supreme Court of India, 2018 (5 judges) The Court struck down Section 497 IPC (adultery), which punished only the man and treated the wife as her husband's property, together with the matching complaint provision (formerly Section 198(2) CrPC). A patriarchal social morality could not override equality and dignity. The BNS has no offence of adultery. |
Indian Young Lawyers Association v State of Kerala (Sabarimala) Supreme Court of India, 2018 (5 judges, 4:1) The majority held that excluding women aged 10 to 50 from the Sabarimala temple was unconstitutional, preferring constitutional morality to exclusionary custom. Chandrachud J, among others, read the word morality in Art. 25(1) as constitutional morality, not the morality of a section of worshippers. Indu Malhotra J, dissenting, held that in a pluralistic society constitutional morality also requires respect for the freedom of religious denominations. Wider questions were later referred to a larger bench (2019). |
5. Criticism
The main objections ▪ Vagueness. The Constitution nowhere uses the phrase, and its content is not listed. A standard that can mean institutional restraint in one case and social reform in the next is hard to predict. ▪ Judicial subjectivity. Critics fear that judges may present their own moral views as the Constitution's, turning a principle of restraint into a licence for activism. The criticism was voiced publicly in 2018, including by the then Attorney General, K.K. Venugopal, who warned against the expanding use of the doctrine. ▪ Counter-majoritarian difficulty. Unelected judges set aside the moral choices of elected legislatures (Note 107). In Koushal (2013) the Court itself preferred to leave the question to Parliament. ▪ Shifted source. Grote's idea was a discipline for rulers; its use against society's moral views is a later judicial extension. ▪ Internal conflict. Constitutional values can pull against each other, as equality and religious freedom did in Sabarimala. |
Defenders reply that dignity, liberty and equality are written into Part III and the Preamble, and that protecting minorities from majority sentiment is the very reason rights are entrenched.
6. Limits and Evaluation
Constitutional morality is best treated as a method of reading rights, not as an independent power to strike down whatever a judge thinks wrong. Four limits follow. It must be anchored in a specific provision of the Constitution. It binds the courts too: in Grote's sense it demands judicial restraint as much as executive restraint. It must include pluralism, so that respect for diverse ways of life, religious ones included, is part of the standard and not its casualty. And where the Constitution itself makes morality a ground of restriction, as in Art. 19(2), it disciplines that ground rather than abolishing it.
On this view the contrast is not between morality and its absence, but between two kinds of morality. Public morality tells us what most people believe; constitutional morality tells us which of those beliefs the State may enforce through law. Note 135 shows that the same structure appears in Hart's distinction between positive and critical morality.
Memory Aid ▪ Analogy: the umpire and the crowd. The crowd's roar is public morality; the Laws and spirit of the game are constitutional morality; the batsman who walks off and complains later shows Grote's reverence for forms with freedom to criticise. ▪ Values: 'Please Don't Let Equality Fail'. Pluralism, Dignity, Liberty, Equality, Fraternity. ▪ Cases: 'Four Ns and a J S'. Naz (2009), Narula (2014), NCT of Delhi (2018), Navtej (2018), then Joseph Shine and Sabarimala (2018). Narula and NCT are the institutional sense; the rest are substantive. ▪ Two words to separate: 'Cultivated versus Counted'. Constitutional morality is cultivated (Ambedkar); public morality is counted by heads. |
Exam Corner: Likely Questions ▪ 'Constitutional morality is not a natural sentiment. It has to be cultivated.' Explain the origin of the concept and its use by Indian courts. ▪ Distinguish constitutional morality from public morality with reference to Naz Foundation, Navtej Singh Johar and Joseph Shine. ▪ Explain the institutional and substantive senses of constitutional morality with reference to Manoj Narula and Government of NCT of Delhi. ▪ Is constitutional morality a vague and subjective standard? Critically examine in the light of the Sabarimala judgment. |
Exam Corner: MCQ Traps ▪ The phrase is Grote's (History of Greece), quoted by Ambedkar on 4 November 1948; it is not Ambedkar's coinage and does not appear in the constitutional text. ▪ Naz Foundation (2009) is a Delhi High Court decision; the Supreme Court reversed it in Koushal (2013) and overruled Koushal in Navtej (2018). ▪ Sabarimala was decided 4:1; the lone dissent was by Indu Malhotra J, the only woman on the bench. ▪ Manoj Narula (2014) did not disqualify tainted Ministers; it left the choice to the Prime Minister while invoking constitutional morality and constitutional trust. |
7. Frequently Asked Questions
Q. Is constitutional morality the same as Hart's critical morality?
A. It plays the same role, as a standard for judging accepted morality, but it is narrower and more concrete: its content is fixed by the Constitution's values, not by any moral theory a judge prefers (Note 135).
Q. Did Ambedkar use constitutional morality against popular morality?
A. Not directly. He used Grote's idea to explain why administrative detail had to be written into the Constitution and why those in power must respect constitutional forms. The rights-protective use against majority opinion was developed later by the courts.
See also: Note 20 (law and morality), Note 46 (constitutional doctrines), Note 50 (law versus morality), Note 66 (Hart versus Devlin), Note 107 (judicial activism versus restraint), Note 135 (positive versus critical morality).
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