CONSTITUTIONAL MORALITY: CONCEPTION, THE SUPREME COURT'S ELASTIC YARDSTICK AND ITS IMPLICATIONS

Abstract

Over the past decade, the Supreme Court of India has invoked constitutional morality to decriminalise homosexuality, open the Sabarimala temple to women of menstruating age, strike down the criminal offence of adultery, invalidate instant triple talaq, recognise the right to die with dignity, ground the right to privacy, and police the conduct of a State Legislative Assembly during a political crisis. This paper examines constitutional morality both as a jurisprudential concept and as an emerging, freestanding ground of judicial review. It traces the concept's philosophical antecedents in the natural law and positivist debate over the relationship between law and morality, its genealogy in George Grote's account of Athenian democracy, and its adaptation by Dr B.R. Ambedkar during the Constituent Assembly debates as a civic virtue India would have to consciously cultivate rather than inherit. It then undertakes a critical appraisal of the doctrine's judicial deployment since Manoj Narula v. Union of India, arguing that constitutional morality, unlike the settled grounds of legislative incompetence, fundamental rights violation and basic structure infirmity, supplies no comparable interpretive discipline, and that its near-uniform deployment in one ideological direction across radically different fact patterns invites the concern that it functions less as an independent legal standard than as a rhetorical device dressing a preferred outcome in constitutional language. The paper concludes that constitutional morality, if it is to remain part of India's constitutional vocabulary, must be tethered expressly to the textual rights and structural principles the Constitution already contains, rather than treated as a sovereign, self-defining ground capable of overriding legislative competence, religious freedom, and the deliberately narrow architecture of basic structure review.