Attorney General of India KK Venugopal caused a furore recently when he observed that constitutional morality was a “dangerous weapon” because the courts applied it subjectively and hoped that it would “die at birth”. The comments came on the heels of three Supreme Court judgements in which the concept of constitutional morality played a significant role. The rulings decriminalised same-sex relations and adultery and permitted menstruating-age women to enter Kerala’s Sabarimala temple.

The attorney general is right that the concept of constitutional morality is open to interpretation and different judges might understand it differently. However, the same could be said about many words and phrases familiar to us. Liberty, for example. Equality. Discrimination. Dignity. It is, therefore, a non-sequitur to argue, as the attorney general did, that because constitutional morality is open to interpretation, it is a dangerous weapon that should be discarded. The question rather is how we should understand – and defend – the meaning of this phrase.

What is constitutional morality?

The simplest definition of constitutional morality was provided by the Court of Appeal for Ontario in Canada, in a 1995 judgement. The court noted that “when governments define the ambit of morality, as they do when they enunciate laws, they are obliged to do so in accordance with constitutional guarantees, not with unwarranted assumptions”. In other words, constitutional guarantees are based upon a set of basic – or fundamental – values. When framing laws, governments must ensure that those foundational values are respected. Nothing more, nothing less.

The Ontario court’s articulation was taken forward in India by the Delhi High Court in its Naz Foundation judgement which decriminalised same-sex relations for the first time. One of the arguments used to defend the constitutionality of Section 377 was that public morality was strongly against decriminalising same-sex relations. To this, the court observed that constitutional morality was to be understood as “morality derived from constitutional values”, distinct from “popular morality...based on shifting and subjective notions of right and wrong”. The Delhi High Court, therefore, added gloss to the Ontario court’s definition: it held that when a law was challenged on the ground that it violated the Constitution, the state’s defence could not merely be that the law was justified because it conformed with public morality. A constitutional violation, in other words, could not be cured by a reference to public morality.

It should be immediately clear that there is nothing remotely controversial or “dangerous” about the definitions offered by the Ontario court or the Delhi High Court. Far from striking down laws on some vague ground or subjective notion of constitutional morality – the attorney general’s doomsday scenario – the High Court, for example, was careful to stipulate that constitutional morality became relevant when it was the state seeking to defend a constitutional violation by invoking moral values. It was in this context that a court would have to examine whether the values relied upon by the state had some grounding in the Constitution or they were based entirely on “shifting and subjective notions of right and wrong”.

Testing constitutional morality

What of the argument that constitutional morality is inherently so vague and subjective that it defies coherent application? To test that proposition, let us undertake a brief, practical analysis, sticking with the Naz Foundation judgement.

The core argument in Naz Foundation was that criminalising same-sex relations violated Article 14 of the Constitution (guaranteeing the equal protection of laws) as well as Article 15(1) (guaranteeing, among other things, non-discrimination on grounds of sex). The state countered, among other arguments, that Section 377 – whose language criminalised “carnal intercourse against the order of nature” – merely prohibited a set of acts, based on concerns of public health, and public morality.

What role might constitutional morality play in the court’s adjudicatory process? The words “equal protection of laws” and “discrimination” are not self-interpreting. They can have a host of meanings, based on the context, the intention of the speaker, and so on. Clearly, they are abstract words that are framed as moral principles, that is, they encode a set of values. What might these values be? Let us start by taking a look at the grounds on which Article 15(1) prohibits discrimination: race, caste, sex, place of birth, and religion.

Now, what unites these five grounds? A little reflection should make it clear that there are two uniting features: these are personal characteristics, that is they are either unchangeable (place of birth, caste, race), changeable only at great personal cost (sex), or matters of fundamental choice (religion). Secondly, these are all characteristics that have been historically used to brand people as members of suspect groups (Dalits, religious minorities) and to persecute them on the basis of their group identity.

What, then, is the “constitutional morality” that underlies the equality and non-discrimination guarantees of the Indian Constitution? It is that the Constitution bars the state from singling out people on the basis of their personal characteristics, identifying them as groups on that basis, and then discriminating against them. Our Constitution reflects an inclusive and tolerant philosophy, not an exclusive and hierarchical one – a conviction that is buttressed when we consider the many-layered freedom struggle that led to the Constitution’s creation.

Armed with this knowledge, Naz Foundation becomes an easy case. Sexual orientation self-evidently falls within the set of identities that Articles 14 and 15(1) are meant to protect. When, therefore, Article 14 promises to all “the equal protection of laws”, it promises to homosexual people that their sexual orientation cannot be made a basis to criminalise, stigmatise and persecute them.

Paying attention to Constitution

The above analysis is relatively straightforward. Discerning fundamental values underlying concrete constitutional provisions is not always an easy task and, indeed, disagreements are possible – even probable. That, however, is no reason to discard the very concept of constitutional morality. In fact, the above discussion should show that any attempt to do so is self-defeating: whenever a judge is called upon to decide a case that involves interpreting words such as “equality”, “discrimination”, “freedom of speech”, “personal liberty”, “freedom of religion”, they will necessarily have to engage in a search for the underlying values that give these words meaning.

The issue, therefore, is not whether we should have the concept of constitutional morality. It is to ensure that, by paying close attention to the text of the Constitution, its structure, the inter-relationship between its provisions and the historical context in which it was framed, we ensure that the morality we identify as belonging to the Constitution actually is constitutional morality, and not our own subjective desires that we have projected onto the document. As long as judges continue to perform that task, the attorney general’s fears about the “weaponisation” of constitutional morality can be put to bed.