ABSTRACT
Indian society is distinguished by a remarkable diversity of religions, customs, communities, and personal-law traditions. Numerous customs regulating marriage, divorce, inheritance, religious practices, and social interactions possess historical origins that predate the adoption of the Indian Constitution in 1950. A constitutional challenge emerges when an established tradition or customary practice clashes with modern constitutional guarantees of equality, liberty, dignity, and individual autonomy. Under such circumstances, the Supreme Court of India has increasingly turned to the doctrine of constitutional morality as a normative framework for assessing whether a tradition warrants continued legal protection.
Constitutional morality involves more than just adhering to the literal text of the Constitution. It includes the core principles of constitutionalism, such as justice, liberty, equality, fraternity, dignity, secularism, and individual autonomy. The Supreme Court's jurisprudence in cases such as Shayara Bano v. Union of India, Indian Young Lawyers Association v. State of Kerala (Sabarimala), Navtej Singh Johar v. Union of India, Joseph Shine v. Union of India, and Shafin Jahan v. Asokan K.M. illustrates a transformative approach where constitutional rights can override discriminatory or oppressive social practices. Simultaneously, the Court has acknowledged that religious freedom, denominational autonomy, and cultural diversity are also safeguarded by the Constitution.
This article explores the tension between tradition and constitutional morality, arguing that the Indian constitutional framework neither wholly rejects nor automatically validates tradition. Instead, tradition enjoys constitutional protection only insofar as it remains compatible with fundamental rights and constitutional values. This developing judicial strategy seeks to transform Indian society while safeguarding legitimate religious and cultural diversity.
INTRODUCTION
The Constitution of India was adopted within a society characterized by centuries-old religious, social, and customary traditions. Historically, key aspects of private life have been governed by personal laws derived from religious scriptures, judicial precedents, legislative acts, and community customs.[1] However, the constitutional project established a new normative hierarchy grounded in the principles of equality, liberty, dignity, and social justice.
Consequently, the core issue is not whether tradition holds value, but whether the mere fact of antiquity can serve as adequate justification for maintaining a practice that infringes upon constitutional rights.
Article 14 ensures equality before the law and equal protection of the laws, whereas Article 15 bars discrimination on specified grounds, such as religion and sex.[2] These guarantees function in conjunction with Articles 25 and 26, which safeguard the freedom of conscience, profession, practice, and propagation of religion, as well as the rights of religious denominations. Consequently, the Constitution establishes a delicate equilibrium among individual rights, religious freedom, and social reform.
The Supreme Court has increasingly relied on the concept of constitutional morality to strike this balance. In the Sabarimala litigation, the Court clarified that morality under Articles 25 and 26 cannot be reduced to transient popular sentiment; instead, it must be interpreted in light of fundamental constitutional principles such as liberty, equality, fraternity, and dignity.[3]
Consequently, the tension between constitutional morality and tradition stands as one of the most pivotal issues in modern Indian constitutional law.
BACKGROUND
1. Tradition as a Source of Indian Law
Prior to the enactment of the Constitution, Indian law was significantly shaped by religious scriptures, customs, traditions, and community practices. Hindu law, Muslim law, and various regional and tribal customs evolved through intricate historical processes.[4]
Custom may attain legal recognition if it fulfills established criteria, including continuity, certainty, reasonableness, and acceptance. However, the mere fact that a custom is ancient does not automatically grant it constitutional immunity.
The Constitution established a higher legal hierarchy. The Supreme Court itself characterizes the Constitution as the highest legal authority that binds the legislative, executive, and judicial branches of government, while also empowering the courts to strike down laws or governmental actions that conflict with constitutional mandates.[5]
2. Constitutional Transformation
The constitutional project was not simply aimed at preserving the existing social arrangements; it also aimed at transforming them, fundamental rights thus serving as tools for social reform.
This can be clearly seen when looking at caste discrimination, gender inequality, untouchability, religious exclusion, and various practices which affect individual autonomy.
For example, Article 17 of the Constitution gets rid of the practice of untouchability, and Article 25(2)(b) also clearly states that the State has the power to pass legislation for social welfare and reform.[6]
RESEARCH QUESTIONS
What is the meaning and scope of constitutional morality in India?
How does constitutional morality connect with traditional personal laws?
How does the Supreme Court decide if a custom or religious practice should be protected by the Constitution?
What do key court decisions say about gender equality, religious practices, personal freedom, and personal laws?
What is the conflict between religious freedom under Articles 25 and 26 and the fundamental rights listed in Part III?
How does India handle these issues compared to other countries dealing with similar constitutional matters?
What are the strengths and weaknesses of using constitutional morality as a legal principle?
What is a fair way to balance constitutional rights with the diversity of cultures and religions?
OBJECTIVES AND METHODOLOGY
The main objectives of this research are:
To examine the meaning and basic ideas of constitutional morality in India;
To explore how constitutional morality connects with traditional personal laws;
To understand how the Supreme Court decides if a custom or religious practice should be protected by the Constitution;
To review key court decisions related to gender equality, religious practices, personal freedom, and personal laws;
To examine the conflict between religious freedom under Articles 25 and 26 and the fundamental rights listed in Part III;
To compare how India handles these issues with how other countries deal with similar constitutional matters;
To identify the strengths and weaknesses of using constitutional morality as a legal principle; and
To propose a fair way to balance constitutional rights with the diversity of cultures and religions.
The methodology adopted is primarily doctrinal and comparative. The research is based on constitutional provisions, judicial decisions, books, academic materials, and reliable legal sources.
1. MEANING OF CONSTITUTIONAL MORALITY
Constitutional morality means sticking to the basic values of the Constitution instead of following what society thinks is right at a given time.[7]
The idea comes from the writings of George Grote and was talked about by Dr B.R. Ambedkar during the discussions to make the Constitution. In the case of Navtej Singh Johar v Union of India, the Supreme Court said that constitutional morality isn't just about following the Constitution's words exactly. It's about creating a society that is diverse, includes everyone, and respects rights.[8]
This idea includes several important ideas that are connected to each other:
The Constitution is the highest law;
Everyone must follow the law;
Everyone is equal;
People have freedom;
Everyone has dignity;
People should care for each other;
The government shouldn't favor one religion over another;
People should be able to make their own choices;
Minority groups should be protected; and
People should not be ruled by the majority alone.
Constitutional morality is different from what is commonly accepted as right or wrong in society. Popular morality is what people believe at a certain time, but constitutional morality is based on the lasting values written in the Constitution.
This difference is especially important when courts have to deal with traditions that have been accepted for a long time but are unfair to some people.
2. CONSTITUTIONAL MORALITY VERSUS SOCIAL MORALITY
Social morality can make a practice seem acceptable because it has been around for a long time. But constitutional morality looks at things differently. It asks: "Does this practice respect the rights and dignity of each person?"[9]
In the case of Indian Young Lawyers Association v State of Kerala, Justice D.Y. Chandrachud stressed that a person's dignity should not be ruled by the beliefs of the majority or the opinions of the crowd. The court connected constitutional morality with key values like liberty, equality, fraternity, and dignity. It also said that if religious freedom clashes with these basic principles, the constitutional values should take priority.[10]
This way of thinking is key to transformative constitutionalism.
The Constitution isn't just seen as a tool to keep the current social system in place. Instead, it's viewed as a guide to gradually remove unfair hierarchies that don't fit with the law.
MOST IMPORTANT ACTS
Special Marriage Act 1954;
Hindu Marriage Act 1955, Hindu Succession Act 1956;
Hindu Minority and Guardianship Act 1956;
Hindu Adoptions and Maintenance Act 1956;
Muslim Personal Law (Shariat) Application Act 1937;
Dissolution of Muslim Marriages Act 1939;
Muslim Women (Protection of Rights on Divorce) Act 1986;
Muslim Women (Protection of Rights on Marriage) Act 2019;
Hindu Religious and Charitable Endowments laws;
Protection of Civil Rights Act 1955;
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989;
Dowry Prohibition Act 1961;
Prohibition of Child Marriage Act 2006;
Domestic Violence Act 2005;
Hindu Widows' Remarriage Act 1856;
Commission of Sati (Prevention) Act 1987;
Protection of Children from Sexual Offences Act 2012;
Indian Succession Act 1925.
CASE LAW ANALYSIS
1. Shayara Bano v Union of India — Triple Talaq
The decision in Shayara Bano v Union of India, (2017) 9 SCC 1, represents a major constitutional intervention into Muslim personal law.[11]
The issue concerned the validity of talaq-e-biddat, commonly known as triple talaq. The majority invalidated the practice through different constitutional and statutory approaches.
The judgment demonstrated that a practice associated with personal law is not automatically immune from constitutional scrutiny merely because it has religious or historical significance.
The case also illustrated the significance of the essential religious practices doctrine. The Court examined whether triple talaq was an essential element of Islamic religious practice. The majority concluded that the practice could not claim the strongest constitutional protection merely because it had been historically permitted.
Constitutional Significance
Shayara Bano established that:
Personal law practices may be subject to constitutional scrutiny;
Antiquity does not automatically establish constitutional validity;
Manifest arbitrariness can invalidate legal rules; and
Religious freedom must operate within the constitutional framework.
The case therefore represents a transition from traditional validity to constitutional legitimacy.
2. Indian Young Lawyers Association v State of Kerala — Sabarimala
The Sabarimala case constitutes perhaps the clearest judicial confrontation between tradition and constitutional morality.[12]
The dispute concerned the exclusion of women of menstruating age from the Sabarimala temple.
The majority examined the practice through Articles 14, 15, 17, 25, and 26 and concluded that constitutional equality and dignity could not be subordinated to discriminatory exclusion.
The Court's constitutional-morality reasoning rejected the proposition that "morality" under Articles 25 and 26 should simply reflect popular opinion. Instead, constitutional morality was connected to justice, liberty, equality, fraternity, and dignity.
Significance
The case illustrates a transformative understanding of religious freedom:
Religion → protected by the Constitution;
Religious practice → subject to constitutional limitations;
Discriminatory practice → capable of constitutional invalidation.
However, the judgment also generated considerable debate regarding judicial competence, religious autonomy, and the essential religious practices doctrine.
Justice Indu Malhotra's dissent warned against excessive judicial interference in matters of genuine religious faith and practice. The dissent therefore represents an important counterargument to an unrestricted application of constitutional morality.[13]
3. Navtej Singh Johar v Union of India — Constitutional Morality and Sexual Autonomy
Although Navtej Singh Johar v Union of India, (2018) 10 SCC 1, did not directly concern personal law, it substantially developed the constitutional morality doctrine.[14]
The Supreme Court invalidated the application of Section 377 IPC to consensual same-sex relations between adults.
The Court stated that constitutional morality is not confined to the literal text of constitutional provisions. It also promotes pluralism and inclusiveness and requires State institutions to protect the dignity of individuals.
The decision is important to the present research because it establishes a general principle:
"Constitutional rights cannot be defeated merely because a section of society considers a particular identity or practice socially unacceptable."
The judgment thus displaced Victorian-era morality with constitutional morality, emphasising dignity and individual liberty.
4. Joseph Shine v Union of India — Patriarchy and Archaic Legal Morality
In Joseph Shine v Union of India, (2019) 3 SCC 39, the Supreme Court struck down the adultery offence under Section 497 IPC.[15]
The Court found that the statutory framework treated women as subordinate to husbands and rested upon outdated assumptions concerning marriage and female autonomy.
The Court expressly observed that the archaic law no longer corresponded with contemporary constitutional morality and was manifestly arbitrary.
Importance for Personal-Law Analysis
The case illustrates how constitutional morality can expose the patriarchal assumptions embedded within apparently traditional legal rules.
The Court's reasoning may be summarised as:
Historical acceptance ≠ constitutional legitimacy
A rule may have existed for decades and still be unconstitutional if its underlying rationale violates equality, autonomy, and dignity.
5. Shafin Jahan v Asokan K.M. — Choice of Partner
In Shafin Jahan v Asokan K.M., (2018) 16 SCC 368, the Court protected an adult's choice of marital partner.[16]
The judgment recognised individual autonomy in intimate decisions and rejected social disapproval as a sufficient reason to interfere with an individual's constitutionally protected freedom. The Supreme Court has subsequently relied upon Shafin Jahan in developing jurisprudence concerning individual choice and personal relationships.
The case demonstrates that constitutional morality protects not merely formal equality but also the individual's capacity to make fundamental personal decisions.
HOW DOES THE SUPREME COURT OF INDIA RECONCILE TRADITION WITH CONSTITUTIONAL MORALITY?
The Supreme Court of India follows a step-by-step process to handle cases involving traditional practices:
First, the Court identifies exactly what the disputed custom or practice is;
Next, the Court checks if the practice is based on law, personal law, custom, religion, denominational belief, or just a social norm;
Then, the Court looks into whether the practice is protected by the Constitution, especially Articles 25 and 26, or other relevant provisions;
After that, the practice is checked against fundamental rights such as equality, dignity, freedom, and non-discrimination;
If religious freedom is involved, the Court may determine if the practice is considered an essential part of the religion;
Finally, the Court evaluates whether the practice aligns with the core values of the Constitution.
This method shows that being part of history does not automatically mean it is protected by the Constitution.
COMPARATIVE ANGLE
The idea of constitutional morality in India can be compared with how other countries have developed their constitutions.
1. United States
The U.S. Supreme Court has created legal principles around substantive due process and equality, which help courts protect personal freedom from the influence of majority opinions. Cases about interracial marriage, birth control, and same-sex marriage show a shift from old-fashioned social beliefs to a focus on individual rights and fairness.[17]
2. South Africa
The South African Constitution serves as an important example to compare with. The country's Constitutional Court has used ideas like supremacy of the constitution, equality, dignity, and freedom to remove the effects of the apartheid system. This shows how a constitution can be a tool for change, not just for keeping things the same.[18]
3. European Human Rights Framework
The European system of human rights also tries to balance religious freedom with equal treatment, privacy, and individual choice.
However, the Indian approach has to deal with a unique situation involving many religions and different personal laws.
FINDINGS AND DISCUSSION
The research yields these core conclusions:
Tradition matters under the Constitution, yet it is not the highest authority. India's Constitution acknowledges the nation's diverse religious and cultural makeup. Still, a long-established past does not shield any custom from review by courts.
Constitutional morality focuses on rights. This concept chiefly aims to safeguard equality, freedom, dignity, fraternity, and the primacy of the Constitution.
Personal law is more often being examined through constitutional standards. Shayara Bano shows that personal-law norms rooted in religion may fall within the scope of constitutional assessment.
Equality between genders is now a key element. The rulings in Sabarimala and Joseph Shine illustrate a growing readiness by the Court to confront male-dominated arrangements.
Personal autonomy now carries constitutional weight. Shafin Jahan and Navtej Singh Johar show that personal decision-making holds a significant place in current constitutional doctrine.
Constitutional morality is still disputed. This doctrine draws objections. If courts lean on it too heavily, judges could shift into deciding moral questions instead of applying legal meaning.
Religious self-governance continues to hold constitutional value. The Constitution does not create a wholly secular order where faith lacks any legal relevance. Articles 25 and 26 explicitly secure freedom of religion. Accordingly, the task is to harmonise constitutional commitments, rather than merely pushing religion aside.
CONCLUSION
A basic dilemma at the heart of Indian constitutionalism is captured by the pull between constitutional morality and custom: is the Constitution meant to keep intact the social order that prevailed before 1950, or is it meant to remake that order in line with constitutional ideals?
From the Supreme Court's case law, what emerges is an approach that neither fully keeps tradition as it is nor entirely discards it.
Because India is culturally varied and plural, custom carries constitutional relevance. Still, tradition cannot be treated as unquestionably higher than fundamental rights. The Constitution marks a conscious break from social arrangements that sustain inequality, untouchability, discrimination, and the denial of human dignity.
Decisions such as Shayara Bano, Indian Young Lawyers Association, Navtej Singh Johar, Joseph Shine, and Shafin Jahan show a developing constitutional framework where dignity, equality, and freedom of the individual more and more serve as decisive norms when they collide with exclusionary customary practices. For that reason, the Court's work on constitutional morality forms a significant part of transformative constitutionalism.
Even so, constitutional morality needs to be used with doctrinal restraint. Taken too expansively, it may allow judges to replace valid religious or cultural decisions with their own views. Taken too restrictively, it may allow harsh customs to persist simply because they are longstanding or widely accepted.
A sound constitutional stance sits in the middle of these poles. The Supreme Court ought to safeguard genuine religious and cultural plurality, yet deny constitutional shelter to practices that seriously breach equality, dignity, liberty, and other foundational constitutional pledges.
In the end, the Constitution does not demand that Indians give up their customs. Rather, it insists that when traditions gain legal effect or are brought before constitutional courts, they must live alongside the highest principles of the constitutional system. On this view, constitutional morality is not opposed to tradition; it is the constitutional measure through which tradition becomes legitimate within a democratic republic.
Reference
[1] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press).
[2] Constitution of India, 1950, arts 14, 15.
[3] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.
[4] Dr. Paras Diwan and Peeyushi Diwan, Modern Hindu Law (Codified and Uncodified), 27th Edition, Allahabad Law Agency.
[5] S.R. Bommai v Union of India (1994) 3 SCC 1.
[6] Constitution of India, 1950, arts 17, 25(2)(b).
[7] B.R. Ambedkar, Constituent Assembly Debates.
[8] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[9] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins India).
[10] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.
[11] Shayara Bano v Union of India (2017) 9 SCC 1.
[12] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.
[13] Ibid (Indu Malhotra J, dissenting).
[14] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[15] Joseph Shine v Union of India (2019) 3 SCC 39.
[16] Shafin Jahan v Asokan K.M. (2018) 16 SCC 368.
[17] Upendra Baxi, The Future of Human Rights.
[18] Constitution of the Republic of South Africa, 1996.