Constitutional Morality vs Popular Sovereignty: The New Battlefront

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Constitutional Morality vs Popular Sovereignty: The New Battlefront

Written by Anushka Srivastav

Table of Contents

Introduction

India’s constitutional democracy is founded on a delicate balance between constitutional morality—the enduring values enshrined in the Constitution—and popular sovereignty—the collective will of the people expressed through elections and majoritarian mandates. These two concepts, though complementary in theory, have increasingly come into tension in practice. The judiciary, as the custodian of constitutional values, is often called upon to restrain legislative and executive actions rooted in political expediency or populist sentiment that deviate from constitutional principles.

This evolving confrontation between constitutional morality and popular sovereignty represents a new ideological battlefront in Indian constitutional law. It raises fundamental questions about the legitimacy of judicial review, the limits of majority rule, and the role of constitutional values in a democratic society.

This article explores the meaning, origins, and interplay of these two doctrines, their application in landmark Indian cases, and the implications for democratic governance and constitutional integrity.

What is Constitutional Morality?

Constitutional morality refers to the adherence to the core principles, values, and spirit of the Constitution, even when they are at odds with prevailing social norms, political convenience, or majority opinion. The concept was originally articulated by British constitutional theorist George Grote, and in the Indian context, it was revived and emphasized by Dr. B.R. Ambedkar, who believed that for a Constitution to work, citizens and institutions must internalize and respect its moral framework.

Key elements of constitutional morality include:

  • Rule of law
  • Separation of powers
  • Individual liberty and dignity
  • Equality and non-discrimination
  • Judicial independence
  • Respect for minority rights

The doctrine insists that public power must be exercised within the bounds of constitutional principles, not merely based on electoral majorities or popular sentiment.

Popular sovereignty is the idea that ultimate political authority rests with the people, who express their will through free and fair elections. It is a core tenet of democratic governance, empowering the majority to make laws, elect representatives, and direct the course of public policy.

However, unchecked majoritarianism can lead to:

  • Marginalization of minorities
  • Erosion of civil liberties
  • Short-term populism
  • Undermining of institutional checks and balances

Thus, popular sovereignty must operate within the constitutional framework, which sets limits on what the majority can lawfully do.

The Growing Tension: Judicial vs. Political Supremacy

The Indian judiciary has increasingly invoked constitutional morality to test the validity of laws and executive actions, even when they enjoy political support. This has often led to accusations of judicial overreach and undermining the democratic mandate of elected governments.

Critics argue that judges, who are unelected, should not act as philosopher-kings, using vague moral standards to strike down laws passed by elected legislatures. Supporters counter that without judicial enforcement of constitutional morality, democracy can slide into elective despotism.

Landmark Cases Illustrating the Conflict

1. Navtej Singh Johar v. Union of India (2018)

The Supreme Court struck down Section 377 of the IPC, decriminalizing homosexuality. The judgment was grounded in constitutional morality, upholding individual dignity and privacy over prevailing public morality or majority opinion.

“Constitutional morality is not limited to the text of the Constitution but must include the social context in which it operates.” — Justice D.Y. Chandrachud

2. Sabarimala Temple Case – Indian Young Lawyers Association v. State of Kerala (2018)

The Court held that the exclusion of women between the ages of 10 and 50 from the Sabarimala temple violated Articles 14 and 25. The judgment upheld gender equality and constitutional morality over religious customs backed by a majority.

The backlash from religious groups and political leaders highlighted the tension between constitutional values and popular beliefs.

3. Kesavananda Bharati v. State of Kerala (1973)

The Court laid down the Basic Structure Doctrine, limiting the power of Parliament to amend the Constitution. Though rooted in popular sovereignty, Parliament cannot abrogate the core constitutional values, such as secularism, federalism, and judicial independence.

4. Manoj Narula v. Union of India (2014)

The Court urged political parties to avoid appointing individuals with criminal backgrounds to ministerial positions, citing constitutional morality and integrity in public life. Though advisory in nature, the judgment emphasized the primacy of ethics over electoral compulsions.

Parliamentary Sovereignty: A Counter Perspective

Supporters of popular sovereignty argue that:

  • The legislature, as the elected body, reflects the will of the people.
  • Judicial overreach can lead to judicial activism that disregards legislative intent.
  • Vague concepts like “constitutional morality” lack objective standards and may vary with judicial interpretation.

However, the Indian Constitution is not modeled on absolute parliamentary supremacy (as in the UK), but on a written Constitution with entrenched rights and judicial review (similar to the U.S. model). Therefore, popular will cannot override fundamental rights.

Why Constitutional Morality Matters

  1. Safeguard Against Tyranny of the Majority
    Protects minorities, dissenters, and marginalized groups from discriminatory laws.
  2. Ensures Rule of Law
    Prevents arbitrary action by executive or legislative majorities.
  3. Promotes Inclusive Governance
    Encourages policies that reflect constitutional ideals, not just vote-bank politics.
  4. Preserves Long-Term Democratic Values
    Upholds the sanctity of the Constitution over transient public moods.

Criticisms and Challenges

  • Ambiguity: What constitutes constitutional morality is often subjective and varies from judge to judge.
  • Judicial Activism vs. Restraint: Overuse of the doctrine can undermine institutional boundaries and separation of powers.
  • Democratic Legitimacy: Judicial decisions overriding laws passed by elected representatives may face democratic backlash.

Striking a Balance: The Way Forward

To reconcile constitutional morality with popular sovereignty:

  1. Respect Institutional Roles
    Judiciary must interpret and enforce the Constitution but avoid governance. Legislature must respect constitutional limits.
  2. Democratic Constitutionalism
    Encourage a culture where both citizens and leaders internalize constitutional values, reducing the need for judicial intervention.
  3. Public Engagement
    Promote civic education and public debate on constitutional principles, making them part of popular discourse.
  4. Transparent Reasoning
    Courts must articulate clear, principled reasoning when invoking constitutional morality to ensure accountability and legitimacy.

Conclusion

The battle between constitutional morality and popular sovereignty is not a zero-sum game. Both are essential pillars of India’s democratic order. While popular will gives legitimacy to laws, constitutional morality ensures that democracy does not descend into majoritarianism or mob rule.

The role of the judiciary is not to substitute public opinion but to ensure that all actions of the state—legislative or executive—conform to the constitutional ethos. As India evolves as a modern constitutional democracy, this dynamic tension will continue to test the resilience of its institutions, the maturity of its democracy, and the vigilance of its citizens.

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