Reimagining Morality post Navtej Singh Johar

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”

-Dr B. R. Ambedkar.


Indian Constitutional Law is no stranger to judicially invented tests. The “basic structure doctrine”, the “classification test”, the old “arbitrariness” and new “manifest arbitrariness” tests- these are judiciary’s inventions that have no formal constitutional text. Constitutional Morality is another addition to the inventions which were used innovatively in some recent landmark judgments. More recently Supreme Court has grown used of wary of it. Whether it’s the Ayodhya dispute or is decriminalization of section 377 the courts are being applauded for adhering to this concept religiously for these cases. But Supreme Court is still facing criticism for its Sabarimala judgment. Professor Baxi even criticized it by stating “Such a thing has never happened in the history of the Supreme Court. It amounts to defeminizing the Basic structure. It overrules constitutional morality, which is above any religious thought or dominant ideology.”[2]

This led to a demand by many scholars to have a properly defined text of Constitutional morality. As of now, the general public is not so familiar with this concept. They are just familiar with the basic understanding that Constitutional morality is mere adherence to core principles of democracy. But the concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism, as the magnitude and sweep of constitutional morality are not confined to the provisions and literal text which a constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.[3]

When we talk about constitutional morality the other concept which comes into mind is Public Morality. Though Supreme Court in its recent judgments has been following Constitutional morality the way the court has presented the verdict in different cases the court is still being criticized for not using it with keeping in mind the democracy of the constitution. Public Morality has influenced the Courts sometimes when the cases are of a sensitive topic or which may undermine the society’s old rituals and superstitions.

This paper mainly focuses on how Supreme Court has interpreted the concept of constitutional morality and how sometimes public morality influences it. This confusion has propounded a demand amongst scholars.

The paper also focuses to present ambiguity done by the courts while deciding a major judgment and also how the apex court has delivered the historical judgments. How fundamental rights and their restrictions have played a major role in deciding landmark judgments and the role of constituent assembly’s debate in presenting the judgments.

Constituent Assembly’s Debate

Constitutional morality is not a term which is in fashion recently rather it is a subject matter since the drafting of the constitution. As soon as the constitution came into being, it brought a lot of celebrations to the nation but there were accusations too.

Dr. B. R. Ambedkar is regarded as the father of the constitution he represented himself in the constituent assembly as the representative of the constitution. The drafting committee was accused of using a good part of the Government of India Act,1935. Ambedkar in his defence said that there is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent rights in the fundamental ideas of a constitution. What he was sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration. He agreed that administrative details should have no place in the Constitution. But this was a necessary inclusion according to Ambedkar.[4] He quoted Greek historian Grote and said that by constitutional morality he meant that:

A paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own.[5]

The way Ambedkar viewed constitutional morality was quite different as we interpret it right now. Ambedkar urged moreover open speech and talks about the rights of citizens and this concept can always give them faith to approach the judiciary. Now the society has become more flexible which has given rise to more individual rights. Constitutional morality has a wider perspective now.

Constitutional morality is a necessary diffusion for preserving the democratic constitution. This concept has a mention in history, but it was not discussed in the assembly that whether this concept should have a properly defined structure and does this concept has the influence of public morality on it. Since then, this concept has been used by the judiciary in many important judgments, but society is still not familiar with this concept.

Public and Individual Morality

Public morality, as that term is customarily used, cannot be equated with morality per se, because that would include too much. This concept rather concerns laws and public actions focused on the moral conduct and especially the stable patterns of conduct (character) of individual citizens.[6]The cases of public morality are those which involve a law that limits some forms of conduct of consenting adults because they are morally wrong. It focuses on the moral quality of citizen’s conduct rather than the immediate consequences of those on other persons. Public morality if we look through the different lens we may be able to make out that it simply means the character of an individual or habits and their implications which may have tangible effects on the society. Individual character makes up for the whole of society’s moral obligations.

Though this may sound absurd of assessing someone’s character and defining it as a whole this concept always promotes the moral good of society. It concerns both individuals as well as societal practices. This concept plays a major role in many judgments and when it comes to individual acts it has sometimes played a good as well as a bad role for the perspective of the profession, acts, sexual preference, opinion and morality per se. Constitutional morality is a concept which Courts are obligated to follow and it depends totally on the present sentiments of the public. Though these two concepts are parallel to each other sometimes one may influence the other for deciding a judgment.

Supreme Court’s Different Views

In the case of the State of Maharashtra and another vs. Indian Hotel and Restaurants Association Supreme court was very careful while deciding this case. This case was regarding the ban of dance bars in Mumbai and not giving proper license to the bar owners which was challenged in the high court. The high court gave the decision in favour of the appellant and permitted the club owners to commence their work. But the case was again filed in the Supreme court and the judgment was upheld with few inclusions in it. The Supreme court has once again recognized the principle that the fundamental rights of women cannot be infringed on the paternal grounds of “safety”.[7] The verdict upheld the right to livelihood for dancers impeded by the 2016 Act by striking down many strict rules which denied them the use of this right. In the eye of the public women is regarded as the idle of purity which is not supposed to be engaging in this profession. But when it is a matter of fundamental right of practising any profession which is mentioned in article19(1)(g) then constitutional morality comes into play.

The judgment was in the favor of the dancers but at the same time, this judgment had latently used public morality. It was stated in the judgment that obscene dance shows a negative influence on society. Supreme court amended The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein),2015 and defined obscene dancing. It stated that obscene dance consists of ” a sexual act, lascivious movements, gestures for sexual propositioning or indicating the availability of sexual access to the dancer, or in the course of which, the dancer exposes his or her genitals or, if a female, is topless.”[8] This definition is vague in itself who gets to decide what can be lascivious movements? This was the question of many legal experts as this judgment is still too vague on the part of defining obscenity based on constitutional morality. The apex court gave powers to the state to regulate and put restrictions on obscene dancing. Constitutional morality presented in this case was supporting on the part of fundamental rights of the dancers but what about the latent use of public morality which gave this definition of obscene dancing and that can be used as a tool by the state government for restricting their rights.

Constitutional morality has been more into debates after two historical judgments of section 377 which was regarded as the exemplary work delivered by the courts. It all started from Delhi high court delivering their judgment for Naz Foundation vs Govt of NCT of Delhi and held that law criminalizing homosexuality in India is unconstitutional. This was a landmark judgment, and it was a great achievement for the judiciary. The court referred to the Constituent assembly’s debate and used Ambedkar’s arguments to prove that it was less about the constitutional values themselves but more about inculcating the constitutional values. With this historical background, the way justice was delivered was remarkable. The court has dexterously appropriated the expression “constitutional morality” to radically transform its meaning and reconstitute it to suit the present context. The High Court was appreciated for their critical and favourable usage of constitutional morality leaving behind the populace viewpoint. [9] The court also mentioned that if there is any type of ‘morality that can pass the test of compelling state interest should be constitutional morality and not public morality. But Supreme court quashed this judgment and criminalized section 377 again.

In Navtej Singh Johar vs. Union of India, the apex court was again appreciated for their innovative use of constitutional morality and for decriminalizing the section again. This judgment discarded the populist argument of criminalizing the section. According to the argument, homosexuality is against public morality and deserves to be penalized. The court while presenting the judgment used this argument presented in Naz that is enforcement of public morality does not amount to a ‘compelling state interest’. Engaging in consensual sex is something that comes under the zone of privacy and the Right to privacy is mentioned under article 21 of the constitution. On one hand, the constitution celebrates any kind of diversity and restricting their rights would be something not expected from Supreme Court. Every kind of religion, culture, gender etc. are always accepted by society but when it comes to sexual orientation society is still not able to accept that. While the judgment was a win for different individuals it was a win for the constitution too.

The role of constitutional morality was applauded by many scholars as the court presented this judgment beautifully. They mentioned the importance of the concept by stating it is the concept of constitutional morality that strives and urges the organs of the State to maintain such a heterogeneous fiber in the society, not just in the limited sense, but also in multifarious ways.[10] The court also mentioned that it is a major responsibility of the three organs of the State to protect and curb the popularity of sentiments which is supported by the majority and any kind of homogeneity and the standardized philosophy would violate the principle of constitutional morality. Supreme Court was very clear while giving this judgment and they properly interpreted the concept.


The case of dance bars of Maharashtra was a win for the bar dancers fundamental rights but was it a total win for them? This is a question which Supreme Court has yet to answer. This petition was filed by the bar dancers who does not have any other source to earn after the shutdowns of the bars. Supreme Court in its judgment was fair and adhered to the concept of constitutional morality but does this really what case verdict would have supposed to be?

This outcome of the judgment would have presented a win of the constitutional morality over popular morality but it has failed the bar dancers by giving wide powers to the state. By giving these powers to the state it is understandable that how the court has manipulated their decision and also presenting themselves as a strict user of constitutional morality.

On the other hand, if we see that Article 19(2) has permitted reasonable restrictions in the interests of Public Decency and Morality. The definition of obscenity was presented under this restriction and banning any form of dance that is against public morality. The apex court here plays a very opposite role to the concept of constitutional morality.

If see-through the cases which were recently decided by the Courts for decriminalizing section 377 constitutional morality played a vital role. In the eyes of the general public homosexuality is still taboo and is regarded as a social stigma. Still, the judgment was in the favour of LGBTQ.

In the case of Navtej Singh Johar vs. Union of India Right to privacy was referred to declare the judgment and one of the senior-most Justice Chandrachud, J. referred approvingly to the NALSA judgment and went on to hold that privacy is intrinsic to freedom and liberty. In referring to Suresh Kumar Koushal, Chandrachud, J. referred to the judgment as “another discordant note” which directly bears upon the evolution of constitutional jurisprudence on the right to privacy.[11] Now from here, the role of the fundamental rights and their reasonable restrictions comes into play. In dance bars, judgment courts ban the dancing of women by stating Article 19(2) which mentions its reasonable restrictions and it has highlighted public morality as a major restriction the same restrictions are on the Right to privacy. Though the courts are aware of the fact that same-sex relations are still against public morality and they have declared the case strictly using the concept of constitutional morality.

While on the other hand courts were sort of negligent on this part in the case of bar dancers by just merely stating that obscene dancing may put a negative impact on society. There are many countries where homosexuality and as well as bar dancing have been given the freedom to carry on their lives as they want. But closely looking through the lens of the judiciary the bar dance judgment was vague in itself which ignored that constitutional morality should strictly adhere on the part of the courts. Obscene dancing as defined by the Supreme court may be harmful to some sects of society but at the same time, this definition is difficult to interpret. But public morality and society’s thinking may only progress when courts progress with their approach and that can only be achieved if there could be a proper study and authorized definition of Constitutional morality. This is a big legislative gap that since generations State has been ignoring. The need for the definition is a must in a society that is constantly evolving.


From this paper, I draw several conclusions. Constitutional morality is a very important concept for courts as well as for every individual of society. This concept has a very small role in the history of the constitution but this concept is gaining importance slowly as the public is getting more aware of their rights. That is why this concept needs to have a proper study and defined structure of itself. Not only just because of this concept’s popularity but it has been in debate with public morality. Public morality is another concept that has a major role to back the former concept. This concept is also not defined by the state but the need to define constitutional morality is on high alert. From the other part of the paper which presents a summary of the cases, it was evident to conclude that the Supreme court has used the concept of Constitutional morality very differently in every case. The dance bar case was assessed under this concept but the judiciary was not able to present a judgment that totally ruled in the favor of bar dancers. The court gave the power to states which indirectly indicated that the court was not lucid enough to justify their part of delivery. They presented a definition of obscenity which was also vague and was difficult to interpret practically. This was another flaw delivered by the court.

The Supreme court was very clear and was strictly following the concept of constitutional morality while decriminalizing homosexuality, both the High Court of Delhi as well as Supreme Court of India. Both of the Courts justified themselves by saying that Constitution’s democracy is maintained through Constitutional morality but not through public morality and used the concept so beautifully that it was appreciated by many scholars. After looking through the judgments the only thing concerning was the judgment of dance bars it was delivered under the light of constitutional morality but was having a huge backing of popular morality. While the judgments of homosexuality also had a huge play of fundamental rights it same did in the other one. Both of these cases were regarded as something which was against public morality, but the court had a distinct interpretation. On one hand, the court plays in the favour but also at the same time presents a very unbalanced judgment, On the other hand, the court uses the concept of constitutional morality very clearly. This proposes an urge of having a proper definition of Constitutional morality and its guidelines. The sooner there is clarity about the less would be the conflicts.


    • Dr. Babasaheb Ambedkar Writings and Speeches Vol.13,
    • Dr. B. R. Ambedkar and Vasant Moon Offend, Shock, or Disturb- Gautam Bhatia
    • Re- Thinking criminalisable harm in India: Constitutional Morality As A Restraint On Criminalisation, Latika Vashist
    • Public Morality And The Modern Supreme Court, Christopher Wolf
    • Constitutional Morality – a need for consensus on the concept , G.V. Mahesh Nath
    • Lok Sabha: Debates
    • Navtej Singh Johar v Union Of India Thr. Secretary Ministry Of Law And Justice
    • Indian Supreme Court on Dance Bar Regulations: Victory for Bar Dancers?, Prankul Baboona.
    • SC modifies law imposing restrictions on dance bars in Maharashtra.
    • Constitutional Morality versus Public Morality, J. Sai Deepak

This article is authored by Minal Nihore, student at National Academy of Legal Studies and Research, Hyderabad

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