A nine-judge Bench of the Supreme Court of India is presently hearing a review petition against its judgment in Indian Young Lawyers Association v. State of Kerala, wherein the Court upheld the right of women of menstruating age to enter the Sabrimala Temple, notwithstanding the temple’s exclusionary practice. During the proceedings, the focal point of the controversy has shifted to the legitimacy of the doctrine of constitutional morality as a ground of judicial review. Over the past decade, the Court has invoked this doctrine to strike down provisions criminalising homosexuality and adultery, invalidate the practice of triple talaq, and recognise the right to privacy as a fundamental right. As the Court now turns to examine the validity of the doctrine itself, its judgment is likely to have far-reaching implications for the future of human rights in India.

Although the term ‘Constitutional Morality’ featured in Dr. Ambedkar’s speech introducing the Draft Constitution, it was not expressly incorporated into the text of Article 13, which recognises power of judicial review. In 1951, the newly established Supreme Court of India declined to accept that the ‘spirit of the Constitution’, a term often used interchangeably with constitutional morality, constituted a legitimate ground for judicial review, holding that “the court should construe the language of Article 13 according to the established rules of interpretation and arrive at its true meaning uninfluenced by any assumed spirit of the Constitution.” This position was reiterated in State of Bihar v. Kameshwar Singh, despite Dr. Ambedkar appearing as a counsel and urging the Court to accept the spirit of the Constitution as a valid test of statutory legitimacy.

The tide turned with the landmark decision in Kesavananda Bharati v. State of Kerala, wherein the Court, while adjudicating upon the scope of the Parliament’s power under Article 368, held that the “basic structure” of the Constitution could not be amended. In its subsequent decisions, the Court expanded this basic structure, which now encompasses various fundamental rights and constitutional norms. The recognition and expansion of the basic structure doctrine created a clear anomaly: while a constitutional amendment passed by the Parliament could be struck down for breaching this ever-expanding doctrine, an ordinary legislation could be invalidated only on the limited ground of infringing Fundamental Rights in the Constitution. It is perhaps to remedy this very anomaly that constitutional morality emerged as a test for legislative validity, effectively elevating the undefined moral code within the Constitution over its express text.

The doctrine of constitutional morality played a crucial role in ending the prohibition on the entry of menstruating women into the Sabrimala temple. Article 25 and 26 of the Constitution guarantee religious freedoms to individuals and groups, respectively, subject to public order, health, and morality. Previously, the Court, while striking down the exclusionary practice, held that the term ‘morality’ in the aforesaid provisions must be understood as constitutional morality and not morality as perceived by individuals or religious sects. Thus, by reading constitutional morality into Article 25 and 26, the Court was able to uphold women’s right under Article 25 to enter the temple, despite the same being at loggerheads with the existing religious beliefs, while simultaneously limiting the ambit of denominational rights under Article 26 by denying constitutional protection to religious practices that are discriminatory, oppressive and exclusionary.

While advancing arguments in the ongoing review proceedings, the Solicitor General of India urged the Supreme Court to reinterpret the term ‘morality’ in Article 25 and 26 as “public morality and not some vague concept of constitutional morality”. If accepted, such an interpretation would not only result in denying menstruating women entry into the Sabrimala temple, but would also subject the legitimate exercise of religious freedoms, particularly by individuals belonging to marginalised groups, to popular yet regressive religious sentiments. Importantly, the Court was further urged to strike down the doctrine of constitutional morality altogether, with the Solicitor suggesting that “it better dies sooner”. However, such a declaration would dilute the Supreme Court’s recent judgments that have emboldened India’s human rights framework, and would crucially impact the fate of numerous constitutionally significant cases pending before the Court.