When Constitutional Values Collide with Social Norms: Constitutional Morality as an Interpretive Tool in Post-Johar Jurisprudence

The paper will discuss the concept of constitutional morality in Indian jurisprudence as it is developing in response to Navtej Singh Johar (2018) and similar cases. The paper follows the history of constitutional morality since the Constituent Assembly debates with landmark Supreme Court decisions examining the ways it has been employed to safeguard fundamental rights against majoritarian social norms. Also, it will examine primary (constitutional text, case law) and secondary analyses of the topic using a doctrinal approach to the role of constitutional morality as a counter-majoritarian principle that supports Articles 14, 15, 19, 21, and 25 of the Constitution of India. The literature review points out academic understandings of constitutional morality (grounded in the pledges of justice, liberty, equality and fraternity of the Constitution) and changeable popular or social morality . The primary analysis of the case law of the Supreme Court over the last few years: in Navtej Johar, the Supreme Court did not only invalidate Section 377 IPC, but also made it clear that even constitutional morality should dictate judges, not social mores . Likewise, in Joseph Shine the Court struck down the archaic law on adultery in Articles 14, 15 and 21, it pointed out that criminal law must be in line with the constitutional morality . The Sabarimala ruling was another illustration of the idea in action: the Constitution Bench ruled that practices within the temples that do not admit women are unconstitutional because they contravene the theme of equality and non-discrimination that is implicit in the Constitution, and that it is a responsibility to weigh rights against each other, without obliterating or undermining either of the two facets of religion . Similar judicial tendencies toward liberty and dignity as opposed to majority morality can be found in Hodges (US, 2015) and Fourie (S. Africa, 2005). The results indicate that constitutional morality has emerged as an inseparable interpretive resource to enforce basic rights, but its open-ended character poses some controversies of judicial activism. It has been suggested that there should be clearer constitutional morality doctrines, that the old laws that are not in harmony with the constitutional values should be reviewed by the legislature, and that judiciary and the populace should be educated on the constitutional ethos so that the enabling framework of our Constitution would still provide a society with the possibilities of self-renewal .