Constitutional morality and transformative constitutionalism

The first principle

A constitution is a set of words, and words do not enforce themselves; they work only when the people who hold power respect not just the letter of the text but the values behind it. Constitutional morality is the name for that respect. It asks every office holder, and every citizen, to act within the forms of the Constitution and in the spirit of its core values, even when a majority or a custom pulls the other way. It is therefore both a restraint on power and a standard by which courts judge laws and practices.

The core

Origin

• George Grote. The British historian used the phrase in his History of Greece to describe the habit, among Athenian citizens, of reverence for the forms of the constitution combined with freedom to criticise those in authority.
• Ambedkar in the Constituent Assembly. On 4 November 1948, while moving the Draft Constitution, Ambedkar quoted Grote and said: "Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it." He used the point to explain why the Constitution includes even details of administration: where constitutional morality is weak, a legislature could pervert the Constitution simply by changing the form of administration.

Meaning

• Adherence to core values. Constitutional morality means loyalty to the core values and the spirit of the Constitution: justice, liberty, equality, fraternity, the dignity of the individual, secularism and the rule of law. It is rooted in the text itself, in the Preamble, Fundamental Rights and the structure of institutions.
• Not popular or majority morality. Social morality is what a community at a given time considers right; it may exclude, stigmatise or subordinate. Where the two conflict, the courts have held that constitutional morality must prevail, because rights exist precisely to protect those whom the majority disapproves of.
• Transformative constitutionalism. The Constitution was meant to change an unequal society, not to preserve it. On this view, it is a charter for removing caste, gender and other hierarchies, and its meaning grows as society recognises new claims to dignity.

Dimensions

Judicial use of the doctrine

• Manoj Narula v Union of India (2014). The Court held that the Prime Minister and Chief Ministers hold their power of appointing ministers as a constitutional trust and are expected, guided by constitutional morality and good governance, not to choose persons facing charges for serious offences. It left the choice to them rather than making it a binding bar.
• Government of NCT of Delhi v Union of India (2018). The Constitution Bench described constitutional morality as a check on high functionaries and citizens alike, and held that the Lieutenant Governor and the elected government must work in harmony, with the Lieutenant Governor generally bound by the aid and advice of the Council of Ministers.
• Navtej Singh Johar v Union of India (2018). Decriminalising consensual same sex relations, the Court held that constitutional morality cannot be sacrificed to social morality, and that the rights of a minority do not depend on majority approval.
• Indian Young Lawyers Association v State of Kerala (2018). By four to one, the Court held that excluding women aged 10 to 50 from the Sabarimala temple violated equality and dignity. Justice Indu Malhotra, dissenting, held that in a plural society constitutional morality also includes the freedom of a faith to follow its practices. In 2019 a review bench referred wider questions on religious freedom to a larger bench.
• Joseph Shine v Union of India (2018). The Court struck down adultery as a crime because it treated the wife as the property of the husband, a notion inconsistent with the dignity and autonomy that constitutional morality requires.

Criticism

• Vagueness. The phrase has no fixed content, so critics argue that judges can fill it with their own views. The then Attorney General publicly criticised the concept in 2018 for this reason.
• Judicial subjectivity and legitimacy. When the doctrine is used to overrule a law or a long standing practice, the charge is that unelected judges substitute their morality for that of the people. The reply is that the doctrine is anchored in the text, and that protecting minorities from majorities is the very purpose of a rights chapter.
• Selective use. The doctrine has been used boldly in some cases and not at all in others, which weakens its claim to be a principle rather than a tool.

In practice

Balancing judicial independence and judicial accountability

• Independence. The Constitution protects judges through security of tenure, salaries that cannot be reduced to their disadvantage (except in a financial emergency), a bar on discussing their conduct in the legislature (Article 121) and the power to punish for contempt. Constitutional morality requires the executive and legislature to respect this insulation.
• Removal. Under Article 124(4), a judge of the Supreme Court can be removed only for proved misbehaviour or incapacity, by an order of the President after an address passed by each House by a special majority. The Judges (Inquiry) Act, 1968 lays down the process: a motion signed by 100 Lok Sabha or 50 Rajya Sabha members, admission by the Speaker or Chairman, and inquiry by a three member committee. Earlier motions did not end in removal: the one against Justice V. Ramaswami failed in the Lok Sabha in 1993, and Justice Soumitra Sen resigned in 2011 before the Lok Sabha could vote.
• The in house procedure (1999). Because removal is rare and political, the Supreme Court adopted an internal procedure in which the Chief Justice of India (CJI) can order an inquiry by a committee of judges; if the charge is found serious, the judge is advised to resign, failing which the report is sent to the President and the Prime Minister.
• Restatement of Values of Judicial Life (1997). Adopted by the Supreme Court in May 1997, it is a code of conduct asking judges to avoid close association with lawyers and not to hear cases involving relatives; a resolution of the same meeting asked judges to declare their assets to the Chief Justice.
• Transparency. In Central Public Information Officer (CPIO), Supreme Court v Subhash Chandra Agarwal (2019) a Constitution Bench held that the office of the CJI is a public authority under the Right to Information (RTI) Act, 2005, while protecting information whose disclosure would harm judicial independence. In 2025 the full court decided to publish the asset declarations of Supreme Court judges on its website.
• The 2025 case. After cash was reportedly found at the official residence of a High Court judge in March 2025, the CJI set up an in house committee whose findings were forwarded to the President and Prime Minister, and a removal motion was later admitted in Parliament with an inquiry committee under the 1968 Act. The case showed both procedures working in sequence: internal self regulation first, then parliamentary removal.

Morality of other high functionaries

• Governor. The Governor is expected to act on the aid and advice of the Council of Ministers except where the Constitution provides otherwise (Shamsher Singh, 1974), and not to delay Bills or appointments for political ends.
• Speaker. Deciding disqualification petitions under the Tenth Schedule as a neutral tribunal, and within a reasonable time, is a test of constitutional morality, as the courts have reminded Speakers more than once.
• Ministers and citizens. Ministers hold office as a public trust (Manoj Narula), and citizens are bound by the same values through the Fundamental Duties in Article 51A.

Issues and way forward

• Defining the content. Courts should tie each use of the doctrine to a specific provision or value in the text, so that it works as a method of interpretation rather than a free standing power.
• Codified accountability for judges. The Judicial Standards and Accountability Bill, 2010 lapsed. A statutory framework for complaints, asset disclosure and conduct, administered by the judiciary itself, would make accountability regular rather than episodic, without exposing judges to the executive.
• Transparency in appointments. Publishing collegium resolutions with reasons, within limits, would strengthen public trust (see the note on judicial independence and appointments).
• Cultivation, not just enforcement. Ambedkar's point was that constitutional morality must be cultivated. Civic education, Fundamental Duties and the conduct of leaders do more to spread it than judgements alone.

Common confusions

• Constitutional morality and the basic structure. The basic structure limits amendments; constitutional morality is a wider value used to read rights and judge conduct. The two overlap but are not the same doctrine.
• In house procedure and impeachment. The in house procedure is internal, can only advise resignation and recommend action; removal is possible only by Parliament under Article 124(4).
• Independence and immunity. Judicial independence protects decisions from pressure; it does not protect a judge's personal conduct from inquiry.

For the exam

• Keyword bank: constitutional morality, George Grote, cultivated sentiment, popular morality, transformative constitutionalism, constitutional trust, Manoj Narula, NCT of Delhi 2018, Navtej Singh Johar, Sabarimala, judicial independence, judicial accountability, in house procedure, Judges (Inquiry) Act 1968, Restatement of Values of Judicial Life.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "In 2018 alone the Supreme Court relied on constitutional morality in at least four landmark cases, from the powers of Delhi's elected government to the decriminalisation of same sex relations."
  • Introduction with a quote: "Ambedkar told the Constituent Assembly on 4 November 1948 that constitutional morality is not a natural sentiment and has to be cultivated."
  • Conclusion: "Constitutional morality is strongest when it is anchored in the text and applied consistently, so that it restrains power without becoming a power of its own."
  • Conclusion: "For the judiciary, constitutional morality means independence in deciding cases and openness about its own conduct, since public trust is the only real source of a court's authority."