What is the role of ‘constitutional morality’ in legal interpretation?

“… We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth ….”

—Justice Bhagwati, as he then was, in National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228.

The Indian Constitution was not born in an epistemic vacuum; rather, it was born from the pain of colonial rule, the struggle for independence and the rich tapestry of intellectual, moral and political traditions that preceded it. It drew from the ideals of Enlightenment, Indian philosophies and comparative constitutionalism across the world. It was crafted carefully through debates in the Constituent Assembly that reflected deep disagreements and aspirations about justice, liberty, equality and fraternity. It was intended to reflect its historical moment, while simultaneously serving as a transformative charter for the future, aiming to redress historical injustices while laying the foundation for a democratic, inclusive and pluralistic society. The Indian Constitution was therefore dynamic by design: eternal, organic, living. Constitutional interpretation, too, must then reflect the living nature of the document. 

In a substantial departure from the “originalist” approach championed by American judges such as Justice Antonin Scalia—where the meaning of the Constitution is as seen as fixed at the time of its drafting—the Indian Supreme Court has embraced a more dynamic and contextual approach. Likening the Constitution to a “living tree”, Indian courts have held that constitutional interpretation can and should evolve in response to changing circumstances and values. This ensures that the Constitution does not remain static or frozen, but responsive, resilient and relevant across generations. 

The use of constitutional morality in Indian jurisprudence reflects a deep fidelity to the idea that constitutional interpretation must be guided by the principles of justice, equality, fraternity and secularism, in a manner that resonates with contemporary realities. 

(i) Constitutional morality in Fundamental Rights adjudication

One of the earliest invocations of constitutional morality by the Supreme Court was perhaps in Kesavananda Bharati in 1973. It was cited by three judges—Justice A.N. Ray in his dissent and by Justices H.R. Khanna and P. Jagmohan Reddy in their concurring opinions—though the references were brief and peripheral to their reasoning. It was again mentioned in passing in S.P. Gupta v. Union of India, where Justice Venkataramiah was persuaded by Dicey’s conception of constitutional morality as being coextensive with constitutional conventions. 

It was in 2014 when the Delhi High Court first used constitutional morality in a distinct substantive sense in Naz Foundation, which involved a challenge to Section 377 of the Indian Penal Code, which criminalised sodomy. Chief Justice A.P. Shah rejected the State’s argument that “popular morality” was a valid justification for restriction of the fundamental rights under Article 21 since it was based on “shifting and subjecting notions of right and wrong”. On the contrary, only “constitutional morality” derived from “constitutional values” could pass the test of compelling state interest. The Court observed that “[T]his aspect of constitutional morality” was “strongly insisted upon” by Dr. Ambedkar while invoking Grote before the Constituent Assembly.

Where in the Constitution was this morality to be found? Justice A.P. Shah cited Granville Austin to declare that the Indian Constitution was first and foremost a social document whose provisions were aimed at furthering the goals of “social revolution”. He held that the “core of the commitments to the social revolution” lay in Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy) of the Constitution. The Court held that Section 377 of the Indian Penal Code, 1860 insofar it criminalised consensual sexual acts of adults in private, was violative of Articles 21, 14 and 15 of the Constitution.

Pertinently, the Court’s conception of morality was an objective standard, which could be ascertained by sustained engagement with the Constitution and its values. Unlike the “shifting and subjecting notions” of public morality, constitutional morality was rooted in the text and context of the Constitution. This distinction is crucial, since it enables courts to act as a countermeasure to majoritarian impulses and social prejudices. It is a non-interventionist constitutional reform. That is the duty of the Court as the custodian of the Constitution.

It is critical to highlight that while attributing this substantive notion of constitutional morality to Dr. Ambedkar, the Court’s adoption of an identity and values-based interpretive approach is well-established and widely accepted, consistent with the best traditions of Dworkinian interpretation—where constitutional adjudication is grounded in moral reasoning, ‘fit’, coherence, and a principled pursuit of ‘integrity’. Such an approach aids courts in engaging with difficult and morally contentious legal issues by engaging with a constitution’s text not in isolation but in light of its history, underlying principles and social values, ensuring that legal reasoning remains both contextually sensitive and normatively justified.

This conception of constitutional morality was reaffirmed by the Supreme Court in Navtej Johar v. Union of India,  where a five-judge bench upheld the decision in Naz Foundation after it was reversed by a two-judge bench in appeal. It was also reiterated in Joseph Shine, where the Court struck down Section 497 of the Indian Penal Code which criminalised adultery as unconstitutional. Most controversially, it was deployed by the Supreme Court in Indian Young Lawyers Association to declare as unconstitutional the prohibition on the entry of menstruating women to the Sabarimala temple. In these decisions, the deployment of constitutional morality was often in tandem with a “transformative” reading of the Constitution, viewing the Constitution as a charter for social revolution.

(ii) Constitutional morality in structuring political institutions

Apart from its role in Fundamental Rights adjudication, constitutional morality has also been used as a tool of interpretation in resolving institutional disputes and structuring the exercise of power by political institutions. It has served as a moral compass protecting the sanctity of the principle of separation of powers by ensuring that no organ of the State transgresses its constitutional mandate. In this sense, constitutional morality fosters a sense of both institutional respect and institutional restraint. Through fidelity to constitutional discipline, it safeguards against the usurpation of power.

For instance, in the political power struggle over the administration of the NCT of Delhi between the popularly elected Chief Minister of Delhi and centrally appointed Lieutenant Governor, the Court in State (NCT of Delhi) v. Union of India invoked constitutional morality to conclude that the Lieutenant Governor could not interfere with the decisions of the Chief Minister except on limited constitutional grounds. For instance, in interpreting “any matter” in the proviso to clause (4) of Article 239-AA of the Constitution, the majority held that the Lieutenant Governor could not interpret it to mean “every matter” and refer all decisions of the Council of Ministers to the President. Such an interpretation would undermine the principles of collaborative federalism and representative governance, which were identified as core components of constitutional morality.

The Court has also employed constitutional morality to interpret Article 75(1) of the Constitution in Manoj Narula, concluding that there was a “constitutional expectation” that the Prime Minister would not appoint a person with serious criminal antecedents to the Council of Ministers. In addition to imposing responsibilities upon political institutions and offices, the Court has also invoked the doctrine as a political ideal for citizens to strive towards ideas such as “responsive participation” and to “imbibe the values of the Constitution”.

Most recently, in State of Tamil Nadu v. Governor of Tamil Nadu, the Supreme Court held that the Governor of Tamil Nadu under Article 200 of the Constitution did not have the discretion to withhold assent or exercise a veto over bills passed and duly reconsidered by the State Legislative Assembly. While the Judgement did not explicitly invoke constitutional morality, it was found that constitutional authorities occupying high offices must be guided by the “values of the Constitution”.

This is an excerpt from Senior Advocate Gopal Subramanium’s essay “Constitutional Morality and the Making of Indian Constitutional Identity” in ‘Supreme Court at 75: The Journey So Far’. The Book was produced by the Bar Association of India in collaboration with the Supreme Court Observer and published by Mohan Law House in August 2025.