Constitutional morality vs social morality – OPSC OAS Mains GS Paper II PYQ

📝Model Answer

Introduction

Constitutional morality refers to adherence to the core values and spirit of the Constitution—justice, liberty, equality, fraternity and dignity—rather than mere literal compliance with its text. First invoked by Dr. B.R. Ambedkar, it requires citizens and institutions to internalise constitutional values and resolve conflicts in conformity with the constitutional ethos.

Body

"Constitutional Morality is Not a Natural Sentiment; It Has to be Cultivated"

• Ambedkar cautioned that constitutional morality does not arise spontaneously in society. In a deeply hierarchical and diverse society like India, sentiments of caste, religion and tradition are natural, whereas commitment to constitutional values such as equality and individual liberty is acquired.
• It therefore has to be consciously nurtured through education, institutions, judicial interpretation and democratic practice, so that people learn to subordinate sectional loyalties to the larger constitutional order.

Constitutional Morality vis-à-vis Social Morality in the Indian Context

1. Source of authority — Constitutional morality flows from the text and spirit of the Constitution, while social morality flows from prevailing customs, traditions and majority sentiment.
2. Nature — Constitutional morality is rights-based, progressive and universal; social morality is often community-based, conservative and shifting with popular opinion.
3. Protection of minorities — Constitutional morality safeguards individual and minority rights even against majoritarian moral views, whereas social morality may suppress them.
4. Primacy in conflict — Where the two collide, the judiciary has held that constitutional morality must prevail over popular social morality.
5. Function — Social morality can legitimise discrimination (caste, gender, sexuality); constitutional morality acts as a corrective, anchoring governance in justice and dignity.

Scope and Purpose of Constitutional Morality

1. Upholding constitutional supremacy — Ensures that all actions of the State and citizens conform to constitutional values, not transient majorities.
2. Protecting fundamental rights — Acts as a shield for liberty, equality and dignity, especially of marginalised and vulnerable sections.
3. Guiding institutions — Disciplines the conduct of organs of the State, promoting accountability, transparency and checks and balances.
4. Countering majoritarianism — Prevents the tyranny of the majority by privileging constitutional principles over popular prejudice.
5. Enabling transformative constitutionalism — Helps the Constitution evolve as a living document, advancing social reform and inclusion.
6. Promoting fraternity and pluralism — Fosters tolerance, mutual respect and unity in a diverse society.

Landmark Judgement: Decriminalisation of Homosexuality (Navtej Singh Johar v. Union of India, 2018)

1. Background — Section 377 of the IPC criminalised "carnal intercourse against the order of nature," effectively penalising consensual same-sex relations and reflecting Victorian-era social morality.
2. The challenge — Petitioners argued the provision violated the rights to equality (Article 14), non-discrimination (Article 15), freedom of expression (Article 19) and life and dignity (Article 21).
3. Constitutional morality over social morality — The Supreme Court held that constitutional morality, not majoritarian social morality, must govern, and that popular acceptance cannot be the basis for denying fundamental rights.
4. Affirmation of dignity and autonomy — The Court recognised sexual orientation as an intrinsic part of identity, privacy and dignity under Article 21, building on the Puttaswamy (2017) privacy judgement.
5. Outcome — Section 377 was read down to decriminalise consensual same-sex relations between adults, while retaining its application to non-consensual acts.
6. Significance — The judgement exemplified transformative constitutionalism, prioritising individual liberty and equality over inherited social prejudice. (Other key cases reinforcing this doctrine include Sabarimala (2018), Joseph Shine v. Union of India (2018) decriminalising adultery, and the Government of NCT of Delhi case (2018).)

Conclusion