Constitutional Morality vs Popular Morality who Should Guide Indian Democracy?
Introduction
In a democracy like India, laws are often justified in the name of public sentiment or social values. But an important constitutional question arises, should courts and the State follow what the majority believes is right, or what the Constitution guarantees as right?
This conflict lies at the heart of the debate between Popular Morality and Constitutional Morality a debate that defines the role of judiciary, the limits of democracy, and the protection of individual rights.
Understanding Popular Morality
Popular morality refers to the beliefs, traditions, customs, and moral standards accepted by the majority of society at a particular time.
Characteristics:
Rooted in culture, religion, and tradition.
Driven by emotions and collective sentiment.
Changes with time and social conditions.
Often reflects majoritarian views.
While popular morality plays an important role in shaping social behaviour, it is not always just, rational, or inclusive.
History proves that many practices once accepted by popular morality such as untouchability, child marriage, or denial of women’s rights were later recognised as unjust and unconstitutional.
Popular acceptance does not guarantee constitutional validity.
Concept of Constitutional Morality
The term constitutional morality was introduced by Dr. B.R. Ambedkar, who emphasised that democracy cannot survive merely on political structures it requires a moral commitment to constitutional values.
Constitutional morality means adherence to the core values of the Constitution liberty, equality, dignity, fraternity, and individual autonomy regardless of social opposition.
It demands respect for individual rights, protection of minorities, limitation of State and social power and commitment to constitutional principles over personal beliefs.
Unlike popular morality, constitutional morality is normative, principled, and future-oriented.
Popular Morality vs Constitutional Morality
Popular Morality:
Based on majority opinion.
Influenced by tradition.
Can suppress minorities.
Temporary and changing.
Social approval focused.
Constitutional Morality:
Based on constitutional values.
Based on reason and justice.
Protects minority rights.
Stable and principled.
Rights and dignity focused.
The Indian Constitution deliberately empowers courts to uphold constitutional morality even when it conflicts with popular opinion.
Judicial Recognition in India
Navtej Singh Johar v. Union of India (2018) The Supreme Court decriminalised homosexuality and clearly stated that majoritarian morality cannot dictate constitutional rights.
Despite social resistance, the Court prioritised individual dignity, privacy and equality.
This case established constitutional morality as a shield against social prejudice.
Sabarimala Case (2018)
The Court held that religious traditions cannot override constitutional values like equality and non-discrimination.
The judgment reinforced that customs must be tested on the touchstone of constitutional morality.
Shayara Bano v. Union of India (2017)
Triple talaq was struck down as arbitrary and unconstitutional, despite claims of religious and social acceptance.
Here, constitutional morality prevailed over patriarchal popular morality.
Counter-Majoritarian Role of Judiciary
A common criticism is that courts act against the will of the majority. This is known as the counter-majoritarian difficulty.
However, Indian constitutionalism is built on the understanding that democracy is not merely rule by numbers, but rule by rights.
Courts are expected to protect individuals from majoritarian excesses, act as guardians of constitutional values, and ensure that democracy does not become majoritarian tyranny.
Thus, judicial decisions based on constitutional morality strengthen democracy rather than weaken it.
Criticism and Concerns
Critics argue that judges may impose personal beliefs, courts may ignore social realities and excessive reliance on constitutional morality may lead to judicial overreach.
However, it is important to clarify constitutional morality is not judicial morality it is constitutional discipline.
Courts derive legitimacy not from popular approval but from constitutional fidelity.
Conclusion
Popular morality reflects society’s comfort zone. Constitutional morality protects individual conscience and dignity.
If courts surrender to popular morality minority rights become vulnerable and constitution becomes symbolic.
If courts uphold constitutional morality democracy becomes substantive and justice becomes meaningful.
In a diverse society like India, constitutional morality is the moral compass that prevents democracy from collapsing into majoritarianism.
