Constitutional Morality vs. Popular Will: A Critical Analysis of Judicial Activism in Contemporary India

This article has been written by Rohit pursuing Ph.d from Department of Law Kurukshetra University Kurukshetra.

***This article has been selected for LegalOnus Law Journal (LLJ) Volume 1 issue 8 2025

Literature Review

The interplay between constitutional morality and popular will has become a focal point in Indian constitutional discourse. Several scholars, judges, and legal theorists have debated the judiciary’s role in shaping constitutional values, often beyond the bounds of electoral majorities.

Dr. B.R. Ambedkar, in the Constituent Assembly Debates, was among the first to emphasize the need for constitutional morality to sustain democratic institutions. He warned that mere adherence to constitutional forms would not suffice unless backed by a moral commitment to the Constitution’s values.

Upendra Baxi critiques judicial activism by highlighting its dual character: both as an instrument of social justice and a potential source of judicial overreach. In his work on the Supreme Court’s transformation in the post-Emergency era, Baxi appreciates the Court’s activist posture, especially in Public Interest Litigation (PIL), but also warns against unchecked expansion of judicial power.

Soli Sorabjee, in contrast, supports the judiciary’s role as a protector of fundamental rights. He argues that in a democracy where majoritarianism may sometimes undermine minority rights, the Court must act as a constitutional conscience-keeper.

M.P. Singh, in his writings on constitutional governance, suggests that constitutional morality empowers the judiciary to uphold the spirit of the Constitution even when it contradicts public sentiment. He sees this principle as necessary to protect the rights of the marginalized and to check populist excesses.

Arvind P. Datar and Fali S. Nariman, however, express caution. While they accept the necessity of judicial interventions in some cases, they raise concerns about the judiciary entering domains reserved for the legislature, thereby disturbing the doctrine of separation of powers.

Landmark cases such as Navtej Singh Johar v. Union of India and Indian Young Lawyers Association v. State of Kerala (Sabarimala) have further fuelled this debate. Judicial reliance on constitutional morality to override religious customs or societal norms has been both applauded and criticized in academic and public discourse. Scholars such as Menaka Guruswamy and Sridhar Ponnuraj highlight how such judgments are essential for deepening democracy, even when they challenge majoritarian beliefs.

International scholarship also informs this debate. Ronald Dworkin’s theory of rights as “trumps” over majority preferences, and John Rawls’ concept of “justice as fairness,” offer normative frameworks that support the use of constitutional morality in adjudication.

However, critics argue that excessive judicial activism may erode democratic accountability. Mark Tushnet and Jeremy Waldron have both warned that in democracies, over-reliance on courts to resolve political questions may undermine public trust in electoral institutions.

In sum, the literature reflects a divided yet rich discourse. While many scholars defend the use of constitutional morality to advance rights and justice, others urge caution against judicial overreach that bypasses democratic processes. This research seeks to evaluate these positions and contribute to a more nuanced understanding of the judiciary’s evolving role in balancing morality and majoritarianism.

Research Methodology

This research adopts a doctrinal and analytical methodology, relying primarily on secondary sources such as constitutional texts, judicial decisions, scholarly articles, and expert commentaries. The objective is to examine how the Indian judiciary has interpreted and applied the concept of constitutional morality, particularly when it comes into conflict with the popular will or majoritarian sentiments.

1. Nature of Research

The research is qualitative, focusing on theoretical and jurisprudential analysis. It does not involve any empirical data or fieldwork but instead seeks to understand legal developments through interpretative tools.

2. Sources of Data

• Primary Sources:
  • The Constitution of India
  • Judicial decisions of the Supreme Court and High Courts (e.g., Kesavananda Bharati, Navtej Singh Johar, Sabarimala, Electoral Bonds Case)
  • Constituent Assembly Debates (CAD)
• Secondary Sources:
  • Scholarly articles and books by legal experts (e.g., Upendra Baxi, M.P. Singh, Fali Nariman)
  • Commentaries on constitutional law
  • Law Commission reports, parliamentary debates, and newspaper editorials
  • Comparative foreign jurisprudence (e.g., U.S., South Africa)

3. Method of Legal Interpretation

• Doctrinal Analysis of statutes and case law
• Comparative Method to examine how constitutional morality operates in other jurisdictions
• Critical Analysis of judicial reasoning, especially in cases where courts invoked morality over public opinion

4. Scope and Limitations

• The research is limited to the Indian constitutional framework, with comparative references to a few foreign jurisdictions.
• It focuses on Supreme Court decisions post-1973, when the basic structure doctrine was laid down, and especially those in the last two decades, where constitutional morality has been expressly invoked.
• It does not cover empirical public opinion surveys or data-based policy outcomes, as the focus remains jurisprudential.

Hypothesis

This research is based on the hypothesis that:

“The Indian judiciary, through the doctrine of constitutional morality, has increasingly assumed an activist role that at times overrides the popular will, thereby raising critical questions about the balance between judicial authority and democratic legitimacy.”

Sub-Hypotheses (for deeper inquiry):

1. The Supreme Court’s reliance on constitutional morality has been essential in protecting individual rights and minority interests, especially where popular opinion is regressive or discriminatory.
2. However, excessive or unchecked judicial activism based on abstract moral reasoning may undermine the democratic principle of separation of powers.
3. There is a growing tension between constitutional ideals and electoral majoritarianism, which may lead to a crisis of legitimacy if the judiciary continues to intervene in policy matters without adequate institutional dialogue.

Introduction

The Indian Constitution stands as a dynamic framework that not only guarantees fundamental rights and democratic governance but also embodies a set of moral principles intended to guide the nation’s legal and political development. In recent years, the concept of constitutional morality has gained significant prominence in judicial discourse, particularly in cases where courts have intervened to protect individual rights against prevailing social or political majorities. While the term was first highlighted by Dr. B.R. Ambedkar during the Constituent Assembly Debates, its judicial invocation has become increasingly frequent, especially in controversial cases relating to gender justice, religious freedoms, and sexual identity.[2]

The rise of judicial activism—where courts take an assertive role in policymaking and social reform—has brought to the forefront a crucial constitutional dilemma: To what extent should courts interpret the Constitution in ways that override the will of the majority, as expressed through legislation or public opinion? This question becomes even more complex in a democracy like India, where the judiciary is unelected but is often called upon to act as the final guardian of constitutional values.[3] While the judiciary is constitutionally empowered to review laws and executive actions, its increasing reliance on the abstract and evolving idea of constitutional morality raises concerns about judicial overreach and the erosion of democratic legitimacy.

This paper explores the tension between constitutional morality and popular will, aiming to evaluate whether judicial activism—when grounded in constitutional morality—enhances or undermines democratic governance. Through a doctrinal and comparative analysis of landmark judgments such as Navtej Singh Johar v. Union of India, Indian Young Lawyers Association v. State of Kerala, and Government of NCT of Delhi v. Union of India, the study investigates how courts have balanced constitutional values with societal sentiments.[4] Furthermore, it assesses whether this trend aligns with the core principles of the Constitution, or whether it signals a shift toward a more juristocratic model of governance.

Constitutional Morality: Origins and Judicial Interpretation

The term constitutional morality was first invoked by Dr. B.R. Ambedkar, who described it as the commitment to respect and uphold the Constitution in both letter and spirit, beyond mere legal compliance.[5] It was intended as a safeguard against majoritarian impulses and arbitrary exercise of power.

In Government of NCT of Delhi v. Union of India, the Supreme Court emphasized that constitutional morality is not just a set of ideals but a guiding principle that ensures democratic governance through accountability, tolerance, and respect for rights.[6] Similarly, in Navtej Singh Johar, the Court relied on constitutional morality to decriminalize homosexuality, arguing that public morality rooted in social conservatism could not trump individual dignity.[7]

However, critics caution that the open-ended nature of the term leaves it vulnerable to subjective interpretation, which may result in judges imposing personal or ideological beliefs under the guise of morality.[8]

Judicial Activism and its Constitutional Legitimacy

Judicial activism in India has evolved significantly since the 1980s, especially through the mechanism of Public Interest Litigation (PIL). Courts began entertaining petitions from non-affected parties and adopted expansive interpretations of Article 21, transforming it into a source of socio-economic rights.[9]

The legitimacy of judicial activism lies in the constitutional mandate under Articles 32 and 226, which empower courts to enforce fundamental rights. However, when courts move from enforcement to creation of rights or policy directives—such as in the Sabarimala case—they risk encroaching upon the domain of the legislature.[10]

While the judiciary has often stepped in to correct executive inaction or protect minorities, its interventions have raised concerns about the undermining of separation of powers, a basic feature of the Constitution.[11]

Popular Will and the Limits of Judicial Intervention

In a representative democracy, popular will is expressed through elected legislatures. While constitutional courts are empowered to test laws against constitutional standards, invalidating laws that reflect overwhelming public sentiment may appear to counter democratic choice.[12]

The Electoral Bonds case is a recent example where the Court struck down a state-backed scheme that had support from the ruling majority, citing concerns over transparency and equal political participation.[13] Similarly, rulings on cow slaughter, environmental bans, and Aadhaar have seen the Court overriding public policies enacted through the legislature.

Yet, scholars argue that unchecked majoritarianism poses its own dangers and must be balanced by an independent judiciary. Constitutional morality becomes a tool to safeguard minority rights when the legislature is driven by populist or electoral considerations.[14]

 Comparative Perspectives on Constitutional Morality

The Indian judiciary’s approach to constitutional morality finds some parallels in global jurisprudence. In South Africa, the Constitutional Court in Minister of Home Affairs v Fourie recognized same-sex marriages using constitutional values of dignity and equality, even when popular opinion was opposed.[15]

In the United States, however, the judiciary has retreated from progressive interpretations, as seen in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, reflecting a tilt toward majoritarian constitutionalism.[16]

These comparative examples show that while courts worldwide grapple with similar tensions, the Indian model of judicial moral leadership is more assertive, especially in socio-cultural matters.

The Balance Between Morality and Democracy: A Constitutional Necessity

The ideal role of the judiciary lies not in dominating the legislative space but in acting as a constitutional check on majoritarian excesses. Constitutional morality should not become a substitute for democratic will but should act as a normative compass for interpreting rights and laws.[17]

Courts must avoid relying on abstract morality without clear constitutional grounding. At the same time, the legislature must ensure that its actions do not violate the basic structure of the Constitution, especially the principles of liberty, dignity, and equality.[18]

A structured dialogue between institutions, rather than confrontation, may be the most sustainable path forward for Indian democracy.

Conclusion

The evolving jurisprudence on constitutional morality in India reflects a dynamic and often contentious relationship between the judiciary and democracy. By invoking constitutional morality, the Indian judiciary has often positioned itself as the guardian of fundamental rights and constitutional values, particularly in contexts where majoritarian sentiment or political considerations may erode those very principles.

From Navtej Singh Johar to the Electoral Bonds verdict, courts have actively intervened to uphold liberty, dignity, and equality—even when it meant overriding prevailing public opinion or legislative mandates. These interventions underscore the transformative potential of the Constitution as envisioned by its framers, where morality is not dictated by the majority, but rooted in justice and fairness.

However, this growing judicial assertiveness also raises legitimate concerns. When courts rely on broad, indeterminate notions of morality, there is a risk of judicial subjectivism, where personal preferences may masquerade as constitutional interpretation. Moreover, repeated judicial incursions into areas traditionally reserved for the legislature could undermine democratic legitimacy and blur the separation of powers.

The challenge, therefore, lies in striking a delicate balance. Constitutional morality must be a tool for interpretation, not domination. It should guide the judiciary in checking majoritarian excesses, but not become a vehicle for judicial populism. Democratic institutions must be strengthened, and a culture of constitutional dialogue fostered between the judiciary, legislature, and executive.

Ultimately, the strength of a constitutional democracy lies in its ability to uphold the Constitution against both populist pressures and institutional overreach. As India continues to navigate complex socio-political terrain, the judiciary must wield its moral compass with both principled restraint and unwavering commitment to constitutional justice.

[1] Authored by Rohit pursuing Ph.d from Department of Law Kurukshetra University Kurukshetra

[2] B Shiva Rao (ed), The Framing of India’s Constitution: A Study (Indian Institute of Public Administration 1966) vol II, 10

[3] Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]justice’ in S K Verma and Kusum (eds), Fifty Years of the Supreme Court of India: Its Grasp and Reach (Oxford University Press 2000).

[4] Navtej Singh Johar v Union of India (2018) 10 SCC 1; Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1; Government of NCT of Delhi v Union of India (2018) 8 SCC 501

[5] B Shiva Rao (ed), The Framing of India’s Constitution: A Study (Indian Institute of Public Administration 1966) vol II, 10.

[6] Government of NCT of Delhi v Union of India (2018) 8 SCC 501, [253].

[7] Navtej Singh Johar v Union of India (2018) 10 SCC 1, [118].

[8] Fali S Nariman, The State of the Nation: In Context of India’s Constitution (Hay House 2013) 172.

[9] Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4 Third World Legal Studies 107.

[10] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1.

[11] State of Rajasthan v Union of India (1977) 3 SCC 592; M P Singh, ‘Separation of Powers in India’ (2002) 46 Journal of Indian Law Institute 1, 2.

[12] Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale LJ 1346.

[13] Association for Democratic Reforms v Union of India (2024) 1 SCC 303.

[14] Ronald Dworkin, Taking Rights Seriously (Harvard University Press 1977) 134.

[15] Minister of Home Affairs v Fourie (2006) (1) SA 524 (CC).

[16] Dobbs v Jackson Women’s Health Organization 597 US ___ (2022).

[17] Sujit Choudhry, ‘Transformative Constitutionalism and the Case of India’ in Rosalind Dixon and Tom Ginsburg (eds), Comparative Constitutional Law in Asia (Edward Elgar 2014) 23.

[18] Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.