Constitutional Morality And Judicial Activism - Whether Compatible Or Conflicting
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
CONSTITUTIONAL MORALITY AND JUDICIAL
ACTIVISM: WHETHER COMPATIBLE OR CONFLICTING?
Riya Das, LLM, National Law University and Judicial Academy, Assam (NLUJAA)
ABSTRACT
This paper explores the evolving relationship between constitutional morality and judicial activism in India’s constitutional framework. With the judiciary playing an increasingly proactive role in the protection and interpretation of fundamental rights, the concept of constitutional morality has emerged as a powerful judicial tool. Originally introduced by ‘Dr. B. R. Ambedkar’ during the Constituent Assembly Debates, constitutional morality represents adherence to the core values and ideals enshrined in the Constitution, beyond its literal text. This paper seeks to critically assess whether the invocation of constitutional morality by an activist judiciary aligns with democratic principles, or whether it undermines the doctrine of separation of powers.
It argues while constitutional & judicial activism are not inherently conflicting, their convergence must be grounded in constitutional text, precedent, and democratic legitimacy. By analysing jurisprudence, scholarly opinions, and the normative role of courts in a constitutional democracy, this research aims to propose a balanced framework where constitutional morality serves as a guide—not a substitute—for sound legal reasoning. Ultimately, the paper advocates for a restrained yet responsive judiciary that respects institutional boundaries while promoting justice and equality through constitutional ideals. Keywords: Judicial Activism, Constitutional Morality, Transformative Constitutionalism, Fundamental Rights
INTRODUCTION
Judicial Activism and Constitutional Morality are two powerful concepts that have shaped contemporary Indian constitutional jurisprudence. The convergence of judicial activism and constitutional morality in Indian constitutional jurisprudence presents a complex dynamic that both reinforces and challenges democratic principles. Judicial activism enables courts to interpret the Constitution dynamically, often stepping in to protect fundamental rights and fill legislative gaps, while constitutional morality provides a normative framework rooted in values such as justice, equality, and liberty. Together, they have driven progressive reforms and safeguarded individual freedoms, especially for marginalized groups.
However, this synergy also raises concerns about judicial overreach, as the subjective invocation of constitutional morality may undermine the separation of powers and democratic legitimacy. Thus, while their intersection can deepen constitutional governance, it necessitates a careful balance to prevent the judiciary from encroaching upon the domain of democratically elected institutions.
UNDERSTANDING CONSTITUTIONAL MORALITY
The concept of constitutional morality, first introduced in India by Dr. B. R. Ambedkar during the Constituent Assembly Debates, serves as a cornerstone for the functioning and sustenance of a constitutional democracy. Ambedkar emphasized that constitutional morality is not a natural sentiment but has to be cultivated, and it involves a commitment to the core principles embedded in the Constitution—liberty, equality, fraternity, and justice. 1 Unlike legal or procedural compliance, constitutional morality demands fidelity to the spirit of the Constitution, ensuring that governance remains ethical, inclusive, and just. Over the decades, the Indian judiciary, particularly the Supreme Court, has played a vital role in giving life to this concept.
Landmark judgments have invoked constitutional morality to uphold the rights of the oppressed, thereby reinforcing the Constitution’s transformative character. For instance, in Navtej Singh Johar v. Union of India2, the Court ‘decriminalized consensual same-sex relations’, emphasizing that constitutional morality must override societal morality to protect individual autonomy and dignity2. Similarly, in Shayara Bano v. Union of India3,
1 Constituent Assembly Debates, Volume XI (November 4, 1948) – Dr. B. R. Ambedkar on Constitutional
Morality.
2 (2018) 10 SCC 1.
3 (2017) 9 SCC 1.
which struck down the practice of instant ‘triple talaq’, the Court leaned on constitutional morality to assert gender justice and equality. These judgments highlight that constitutional morality acts as a guiding light for judges when societal norms or majoritarian views threaten constitutional values. It encourages institutions and citizens alike to transcend rigid traditions or discriminatory customs in favor of more equitable practices rooted in constitutional ideals. Furthermore, the doctrine has evolved to become an essential interpretive tool, especially in cases involving fundamental rights. The judiciary uses it to harmonize the Constitution’s letter with its progressive ethos, enabling it to respond to new challenges and social transformations. However, constitutional morality is not without its criticisms.
Detractors argue that its subjective nature could lead to judicial overreach, where judges impose their personal values under the guise of constitutional interpretation4. Nevertheless, when used prudently, it serves as a safeguard against majoritarianism and an instrument for social change. In essence, constitutional morality demands that all actions of the state and its citizens be aligned with the higher ideals enshrined in the Constitution, fostering a culture of respect, tolerance, and justice. It elevates constitutional governance from a rule-bound procedure to a value-based exercise, reinforcing the foundational commitment to a just and egalitarian society.
Thus, constitutional morality continues to be a dynamic and powerful concept in Indian jurisprudence, reflecting the Constitution’s role as a transformative instrument designed not just to limit power but to enable the creation of a more inclusive and equitable society5.
JUDICIAL ACTIVISM IN INDIA
Judicial activism in India refers to the proactive role played by the judiciary, particularly the higher courts, in advancing justice, protecting fundamental rights, and filling legislative or executive voids when necessary. It evolved prominently post-Emergency (1975–77), especially with the advent of Public Interest Litigation (PIL), allowing the courts to address issues of constitutional and social importance even when traditional standing requirements were not met6. This marked a shift from the classical notion of judicial restraint to a more assertive role, where the judiciary began interpreting the Constitution expansively to uphold rights and ensure governmental accountability.
Judicial activism has led to transformative judgments on a range 4 Abhinav Chandrachud, The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India (Oxford University Press, 2014). 5 Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins India, 2019). 6 S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits, Oxford University Press, 2002.
of issues—from environmental protection and education to gender equality and human rights. However, this assertiveness has also sparked debates about the limits of judicial power and the potential encroachment into the domains of the legislature and executive, thus raising concerns about the separation of powers7. While it has undeniably played a crucial role in strengthening democracy and ensuring constitutional governance, critics argue that unchecked judicial activism can lead to judicial overreach, where courts substitute legislative wisdom with judicial preferences8. Therefore, the legitimacy and effectiveness of judicial activism depend on the balance it strikes between enforcing constitutional values and respecting institutional boundaries.
ARE CONSTITUTIONAL MORALITY AND JUDICIAL ACTIVISM COMPATIBLE
OR CONFLICTING?
The interplay between constitutional morality and judicial activism in India has sparked an ongoing debate about whether the two doctrines are inherently compatible or potentially conflicting. On the one hand, constitutional morality complements judicial activism by enabling courts to maintain the foundational principles of the Constitution—justice, liberty, equality, and fraternity—especially in cases where legislative or executive actions fall short. It serves as a moral compass, guiding judicial interpretation in a manner that prioritizes the protection of individual rights and human dignity. Through this lens, courts are empowered to interpret the Constitution as a living document, responsive to evolving social realities and human rights concerns.
In this way, constitutional morality not only counters the influence of majoritarian sentiment but also reinforces the transformative goals of the Indian Constitution by ensuring that justice is not merely procedural but substantive in nature. It strengthens democratic values by safeguarding minority rights and insulating fundamental freedoms from the pressures of popular morality. However, this alignment between judicial activism and constitutional morality is not without its complications. Critics argue that the use of constitutional morality in judicial reasoning can lead to subjective interpretations, where judges project their personal or ideological beliefs under the guise of constitutional values.
This raises concerns about moral paternalism and the erosion of democratic accountability, particularly when judicial decisions override legislative 7 Upendra Baxi, “The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]Justice,” in The Politics of Judicial Reform (New Delhi: Sage, 2003).
8 Justice R.C. Lahoti, “Judicial Activism and Judicial Restraint,” SCC Journal, 2005 (3) SCC J 1.
intent or societal consensus without adequate justification. Such actions may blur the lines between interpretation and law-making, threatening the principle of separation of powers. When courts appear to encroach upon the domain of the legislature, it can lead to institutional imbalance and reduce public confidence in the judiciary's neutrality. The tension becomes more pronounced in cases involving sensitive cultural, religious, or political issues, where judicial intervention, even if well-intentioned, may be perceived as overreach. Thus, while constitutional morality provides a robust normative foundation for judicial activism, its application must be tempered with institutional humility and respect for democratic processes.
The long-term compatibility between the two depends on the judiciary’s ability to strike a balance—using constitutional morality to expand rights and correct injustices, while refraining from substituting judicial wisdom for legislative mandate.
POINTS OF COMPATIBILITY
1. Acts as a Moral Compass: Constitutional morality allows the judiciary to interpret
constitutional provisions in light of the underlying values of justice, dignity, and equality. This moral compass ensures that laws are applied in a manner that protects individual rights, especially for marginalised groups.
2. Facilitates Progressive Interpretation: It equips the judiciary to respond to
changing societal norms and complexities by interpreting the Constitution as a living document. Through this approach, courts can bridge the gap between existing laws and emerging human rights concerns.9
3. Empowers the Marginalised: By prioritising constitutional morality, the judiciary
can recognise and address systemic inequalities. It becomes an effective tool in correcting historical wrongs and ensuring inclusivity in legal outcomes.
4. Protects Against Majoritarian Morality: Constitutional morality provides a
counterbalance to majoritarian impulses by affirming that fundamental rights cannot be overridden by popular sentiment or cultural traditions. This reinforces the core democratic value of individual liberty. 9 Tarunabh Khaitan, 'Beyond Reasonableness—A Rigorous Standard of Review for Article 15 Infringement' (2009) 50(2) Indian Journal of International Law 177.
5. Strengthens Transformative Constitutionalism: Constitutional morality reinforces
the Indian Constitution's transformative goals by ensuring that justice is substantive, not just procedural. It enables courts to actively promote social change in accordance with constitutional ideals.10
POINTS OF CONFLICT
1. Risk of Subjective Interpretation- Constitutional morality is not precisely defined in
the Constitution and can be interpreted in varied ways by different judges. This opens the door to personal discretion and subjectivity, leading to unpredictability in constitutional adjudication.11
2. Judicial Overreach and Moral Paternalism Courts may cross into policy-making
territory by imposing moral standards under the guise of constitutional morality. This raises concerns about judicial paternalism, where judges act as moral arbiters in ways that override democratic processes.
3. Undermining the Doctrine of Separation of Powers Judicial activism justified by
constitutional morality can disrupt the delicate balance among the legislature, executive, and judiciary. When courts actively enforce moral standards not explicitly laid out in the Constitution, it can be perceived as encroaching upon the legislative domain, thereby diluting institutional boundaries.
4. Erosion of Democratic Legitimacy- In a democracy, elected representatives are
entrusted with law-making based on popular mandate. When courts use constitutional morality to invalidate laws or direct policy changes, it may bypass democratic will, leading to questions of legitimacy and accountability, since judges are not directly answerable to the electorate.
5. Potential Conflict with Societal Morality or Cultural Practices-Constitutional
morality may be at odds with prevailing societal or religious norms. When courts 10 Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins 2019). 11 Abhinav Chandrachud, “The Use and Misuse of Constitutional Morality,” The Indian Journal of Constitutional Law, Vol. 9 (2015).
impose a top-down interpretation of morality (e.g., in Sabarimala12 or Triple Talaq13 cases), it can result in public backlash, deepening the rift between constitutional ideals and cultural practices.
SIGNIFICANT
JUDGMENTS
ILLUSTRATING
COMPATIBILITY
AND
CONTENTION
The interplay between constitutional morality and judicial activism has been vividly demonstrated through several landmark judgments in India’s constitutional history. These decisions highlight moments where judicial intervention harmonized with constitutional principles, as well as instances where such activism sparked controversy, raising questions about the limits of judicial power. One of the earliest and most foundational cases is Kesavananda Bharati v. State of Kerala,14 which established the “basic structure doctrine. ” Here, the Supreme Court asserted that ‘while the Parliament has wide powers to amend the Constitution, it cannot alter its basic structure’, which embodies the core constitutional morality of India, including democracy, secularism, and the rule of law. This judgment exemplifies a scenario where judicial activism and constitutional morality are compatible.
The Court proactively acted as a guardian of constitutional values, ensuring that legislative action does not undermine fundamental constitutional principles. In a more contemporary context, the Supreme Court’s judgment in Navtej Singh Johar v. Union of India15 ‘decriminalizing consensual homosexual acts under Section 377 of the Indian Penal Code’ is a powerful example of compatibility between judicial activism and constitutional morality. The Court invoked constitutional morality to affirm the rights to dignity, privacy, and equality, reinforcing the Constitution’s commitment to individual freedoms and social justice. This decision reflects judicial activism guided by constitutional morality to protect marginalized communities, advancing progressive social change in the absence of legislative reform.
However, the application of constitutional morality by the judiciary has not always been uncontroversial. The Sabarimala case16, where the Court ruled in favor of permitting women of all ages to enter the Sabarimala temple, brought to the forefront a conflict between constitutional morality and traditional religious beliefs. While the Court acted in the name of
12 Indian Young Lawyers Association v. State of Kerala (Sabarimala case), (2018) 11 SCC 1.
13 Shayara Bano v. Union of India, (2017) 9 SCC 1.
14 (1973) 4 SCC 225.
15 (2018) 10 SCC 1.
16 Indian Young Lawyers Association v. State of Kerala, (2018) 11 SCC 1.
constitutional morality to uphold gender equality and non-discrimination, it faced criticism for overriding religious sentiments and cultural practices. This judgment revealed the tension that can arise when judicial activism confronts deeply entrenched societal norms and raised debates about the judiciary’s role in balancing competing constitutional values. Similarly, the Shayara Bano v. Union of India17 showcased judicial activism intervening in personal law on the grounds of constitutional morality. The Supreme Court declared the practice of instant triple talaq unconstitutional, emphasizing the principles of gender justice and equality embedded in the Constitution. Though widely welcomed as a progressive step, it also sparked debate about judicial overreach into religious laws and legislative competence, illustrating the contentious nature of such judicial interventions.
These judgments collectively demonstrate the dual nature of judicial activism inspired by constitutional morality — it can serve as a powerful tool to uphold constitutional rights and values but also risks crossing boundaries by imposing subjective moral standards or disrupting democratic processes. The judiciary’s challenge remains to balance activism with restraint, ensuring that constitutional morality guides decisions without overshadowing democratic legitimacy or legal certainty.
CONCLUSION
The interplay between constitutional morality and judicial activism represents one of the most significant dimensions of modern constitutional governance. Both concepts aim to uphold the spirit of the Constitution, yet their convergence often raises difficult questions about the limits of judicial power, democratic legitimacy, and institutional balance. Constitutional morality refers to the adherence to the core principles embedded in the Constitution “justice, liberty, equality, and the rule of law”. Judicial activism, on the other hand, is the active role of the judiciary in interpreting and applying the Constitution, often stepping in where the legislative or executive branches have failed or remained inactive. When used judiciously, judicial activism becomes a mechanism to realize constitutional morality in practice. However, this dynamic also presents inherent tensions.
Constitutional morality is not a fixed or codified doctrine. Its broad and interpretive nature gives judges significant discretion in determining what constitutes “moral” or “just” within a constitutional framework. This opens the door to subjectivity, where personal ideologies may influence judicial reasoning. Such
17 (2017) 9 SCC 1.
discretion, when unchecked, risks turning the judiciary into a moral authority rather than a neutral interpreter of law. Moreover, judicial activism under the banner of constitutional morality can sometimes lead to the judiciary overstepping its mandate. When courts begin to prescribe policies, enforce social reforms, or override legislative intent purely based on abstract moral grounds, it undermines the legitimacy of democratic institutions and the will of the people. Another critical point of contention arises when constitutional morality, as interpreted by the courts, comes into conflict with societal or cultural values. While constitutional principles must take precedence, courts must also recognize the pluralistic and diverse nature of society.
Imposing one set of moral standards uniformly can lead to alienation and resistance from sections of the population, even when the intentions are rooted in equality or justice. Hence, a sensitive and inclusive approach is essential. Thus, the relationship between constitutional morality and judicial activism is not one of strict opposition, but of delicate balance and compatibility depends on judicial discipline, contextsensitive reasoning, and a commitment to strengthening democracy without supplanting it. When guided by these principles, the judiciary can uphold the transformative vision of the Constitution without venturing into overreach.