Constitutional Morality and Transformative Constitutionalism in Recent Judgments

Constitutional morality means that laws and practices are tested against the values of the Constitution (dignity, equality, liberty and fraternity), not against what the majority of society happens to approve. Transformative constitutionalism is the idea that the Constitution was written to change Indian society, so courts should read it in a living, forward looking way. The Supreme Court used both ideas heavily in its 2018 Constitution Bench judgments in Navtej Singh Johar, Joseph Shine and the Sabarimala case.

This explainer is for B.A. LL.B. and LL.B. students preparing for constitutional law papers, and for any citizen who has seen these terms in news reports and wants to know what they actually mean. Every quote below is taken from the judgment text itself, with paragraph numbers, so you can check it in the library before you use it in an answer.

What is the difference between constitutional morality and social morality?

Social morality is what people around you think is right. Constitutional morality is what the Constitution requires. The two can clash, and when they do, the Constitution wins.

The clearest statement comes from Navtej Singh Johar v. Union of India, decided on 6 September 2018 by a five judge bench (Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra). Quoting the earlier three judge referral order (paragraph 12), the lead opinion of Chief Justice Misra (for himself and Justice Khanwilkar) says: "The morality that public perceives, the Constitution may not conceive of." The opinion treats the distinction between constitutional morality and social morality as central to the case, and in paragraph 124 it states that if a provision "falls foul to the precept of constitutional morality, then the said provision has to be declared as unconstitutional."

Think of a student in Nagercoil whose neighbours strongly disapprove of a lawful personal choice she has made. Their disapproval is social morality. It may be sincere and widely shared, but it cannot by itself justify a criminal law against her. That is the core point.

What does transformative constitutionalism mean?

Transformative constitutionalism treats the Constitution as a document with a purpose: to move Indian society away from hierarchy and discrimination. In Navtej, paragraph 96 of the lead opinion describes the Constitution as having "a pledge, promise and thirst to transform the Indian society", tied to the Preamble's ideals of justice, liberty, equality and fraternity. Paragraph 97 warns that the Constitution "would become a stale and dead testament without dynamic, vibrant and pragmatic interpretation."

In practice, this means courts ask what a provision does to dignity and equality today, rather than freezing its meaning at the date it was enacted.

Which recent judgments should you know?

Navtej Singh Johar v. Union of India (2018)

This case reconsidered Suresh Kumar Koushal v. Naz Foundation, reported at (2014) 1 SCC 1, which had upheld Section 377 of the Indian Penal Code. The referral bench had said Koushal "requires re-consideration". The lead opinion says in paragraph 119 that the Court must be guided by constitutional morality "and not by the societal morality", and in paragraph 135 says that criminalising an individual's private choice "would violate the individual's right to dignity." Read the concluding directions in the full report for the exact operative order.

Joseph Shine v. Union of India (2018)

Decided on 27 September 2018 by the same five judges, this case struck down Section 497 IPC (adultery) as manifestly arbitrary under Article 14 and violative of Article 21. Section 198 of the old Code of Criminal Procedure, so far as it dealt with adultery complaints, was also declared unconstitutional, and Sowmithri Vishnu and V. Revathi were overruled. Adultery remains a civil wrong and a ground for divorce. The lead opinion says "transformative constitutionalism asserts itself every moment" and that the Court "cannot conceive of women still being treated as a property of men."

Indian Young Lawyers Association v. State of Kerala (2018)

The Sabarimala case, decided on 28 September 2018, concerned Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which barred women aged 10 to 50 from the temple. The opinion of Chief Justice Misra (for himself and Justice Khanwilkar) says "public morality must yield to constitutional morality" (paragraph 111) and that the word "morality" must be "understood as being synonymous with constitutional morality" (paragraph 110). This matters because Article 25(1) makes freedom of religion "subject to public order, morality and health". The opinion also held that devotees of Lord Ayyappa are not a separate religious denomination and that the Travancore Devaswom Board is an "other authority" under Article 12. Later review proceedings in this case have been widely reported, so check the current status before you write about it as settled law.

Supporting case: Puttaswamy

The nine judge bench in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, held that privacy is a fundamental right traced to Articles 14, 19 and 21. Navtej draws on this privacy and dignity reasoning when it protects private choices from criminal sanction. The 2017 judgment is not the same as the 2018 Aadhaar judgment in the same name, so cite the SCC reference to avoid confusion.

Where does the new criminal law fit in?

All three cases dealt with IPC and CrPC provisions. From 1 July 2024, the Bharatiya Nyaya Sanhita, 2023 replaced the IPC, the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the CrPC, and the Bharatiya Sakshya Adhiniyam, 2023 replaced the Evidence Act. When you cite Section 377 or Section 497 IPC, present them as the provisions the Court examined, then check the text of the BNS on India Code to see how the new code deals with the same subject. Do not assume a section number carried over.

How should you write about this in an exam?

1. Define both terms in two lines each. Use the social morality versus constitutional morality contrast.
2. Anchor in the text. Mention the Preamble, Articles 14, 15, 19, 21 and, for religion questions, Article 25(1) and its words "public order, morality and health".
3. Cite three cases with year and bench strength. Navtej (2018, five judges), Joseph Shine (2018, five judges), Sabarimala (2018, five judges).
4. Quote one line accurately. "Public morality must yield to constitutional morality" is short and easy to remember.
5. Add the criticism. Examiners reward balance. A common critique is that constitutional morality is vague and can give judges wide room to substitute their own values. Say how a court can limit this by tying the concept to specific constitutional text.
6. Close with the current position. Note the BNS transition and any pending review where relevant.

If you want to see these principles applied to real people, the college's legal aid clinic is a good place to watch dignity and equality arguments move from textbooks into practice.

Sources

• Navtej Singh Johar v. Union of India (2018): full text of the Supreme Court judgment.
• Joseph Shine v. Union of India (2018): Supreme Court judgment on Section 497 IPC.
• Indian Young Lawyers Association v. State of Kerala (2018): the Sabarimala judgment.
• Justice K.S. Puttaswamy (Retd.) v. Union of India (26 September 2018, Aadhaar): the later Aadhaar judgment, which cites the 2017 nine judge privacy ruling, (2017) 10 SCC 1.
• Article 25, Constitution of India: text of the freedom of religion provision.