• Morality is defined as the subjective interpretation of a person or a society on what is right and wrong. In simple words, it can be termed as a set of rules and regulations that enables the people to live cooperatively in society.
• Morality is the morals or ethics that distinguish between good and evil. It is the idea that a person''s behavior is either right or wrong in a moral sense. Morals are learned from society and the family.
• When we add the terms like social and constitutional to morality, they are known as Social morality and Constitutional morality. The concept of social and constitutional morality has gained a lot of importance in recent times. If we look at various judgments of the Indian Judiciary, we can figure out that India has witnessed a mixed trend of social morality prevailing over constitutional morality and vice-versa.
• One such example of it is Naz Foundation vs. Government of NCT of Delhi & Ors., Suresh Kumar Koushal vs. Naz Foundation, and Navtej Singh Johar vs. Union of India. These three judgments are the classic example of both the concepts of Social morality and constitutional morality.
• In the Naz Foundation vs. Government of NCT of Delhi & Ors., and Navtej Singh Johar vs. Union of India, the constitutional morality prevailed over social morality, while in Suresh Kumar Koushal vs. Naz Foundation; the emphasis was given to social morality over constitutional morality.

Social Morality

• Social Morality is a set of values and norms that exist in society. These are the rules that govern the members of a society on how they should behave with each other for their welfare and well-being. Social Morality does not have an exact definition as it varies from culture to culture depending on various beliefs, practices, traditions, or customs prevalent in society.
• These are a set of values or conducts that are understood and accepted by members of society. Social Morality is important because it provides the guidelines for society to live in peace. It helps people live together in harmony and avoid conflict and tension among themselves. It is about how people behave towards others in their community. It can be done through social, economic, environmental, and political means.
• One of the most critical aspects of social morality is that it provides an ethical framework for evaluating people''s actions. It also helps to address ethical questions that are often encountered in society. Social morality determines how we behave towards one another and how we treat our communities, environments, and societies as a whole. It includes such concepts as rights, justice, equality, and liberty.

The components of social morality are:

• • Shared values: What we value in society determines how we judge right from wrong. Shared values consist of what people in a culture or society think are good or bad, desirable or undesirable.
  • Norms: Norms are social rules that guide behavior in a culture or society. These norms may be written down in law or unwritten customs. They may vary from place to place within a culture or society. Sometimes, these norms may change over time as people''s opinions about acceptable change with time.
• Philosophers have studied the concept of social morality for centuries to find out what makes people do what they do and why. The study of social morality combines psychology, anthropology, sociology, and ethics. The characteristics of social morality are being based on one''s society, being based on one''s culture, being based on one''s family upbringing, and being based on one''s personal experiences.

Social morality has various characteristics. These include, but are not limited to:

• • The importance of reciprocity: It ensures that people will treat others how they want to be treated in return.
  • The importance of hierarchy: Society needs some form of organization, so it''s necessary for there to be a governing body.
• Social morality deals with how people are expected to behave in public or even in private settings, such as how one should act in a court, during a wedding ceremony, funeral, etc. Social morality also deals with what people are expected to say and do in these settings.
• Social morality is essential for two main reasons. First, society has evolved because of social morality. It has always been part of human culture to care about other people. This change can be seen in everything from politics to charitable organizations. Second, this field helps us understand how to be more empathetic by acknowledging that others have feelings like us.
• Gradually, this concept has got diverted from its essence. Its essence lies in being empathetic and acknowledging the feelings of human beings towards one another. But now, this concept is being used to traumatize the existence of minority groups. One such example is LGBTQ+. Therefore, to uphold their rights and existence in society, the concept of Constitutional morality came into being. The Indian Judiciary has started to recognize that social morality prevails over constitutional morality in their various judgments. So, let us understand the concept of constitutional morality in detail.
• Constitutional Morality
• It is an undeniable fact that the Constitution of India is the supreme law of the land. It is seen as a living document that guides our Indian Judiciary in adjudicating various issues. It is an ever-evolving document meaning that the constituent assembly, while drafting it provided a certain amount of flexibility, so that it does not become outdated with the growing requirements and circumstances of our Indian society.
• Furthermore, the various principles such as liberty, equality, fraternity, and justice serve as a moral yardstick to the different branches of the Government. For example, the legislature is guided on what kinds of laws are to be made and how they are to be implemented by the executive. The judiciaries, i.e., courts, are guided by the Constitution to decide the issues before it. They interpret the Constitution and give various decisions based on the principles derived from the interpretation.
• Sometimes, the judiciary has to craft new inventions, i.e., doctrines, to tackle various issues to maintain justice in society. This is because, despite the fact the Constitution is the longest written document in the world, it is not possible for the living document to explicitly state all the principles with the changing needs of society.
• The term ''Constitutional morality'' hasn''t been defined in the Constitution anywhere. Hence, it has been subjected to different interpretations by the Judges. Indirectly, the concept has been enshrined in the Constitution itself in the Part III-Fundamental Rights (Article 12-35), Part IV- Directive Principles of State Policy (Article 36-51), Preamble, and Fundamental Duties.

Evolution of the concept of Constitutional Morality

• The term ''Constitutional Morality'' was first used by the English Historian George Grote. He described it as popular sovereignty based on freedom and self-restraint. It also meant that citizens had the right to criticize public officials. This highlighted the limited power of the public officials and their duty to abide and respect the Constitution.
• According to him, the term Constitutional Morality is the "paramount reverence for the forms of the Constitution" of the land.
• In today''s time, the term has been used in broader connotations and has acquired newer interpretations with time. It has essentially been described as the sentiment between the common masses and the government for establishing a peaceful and stable society.
• In India, the term was first used by the father of the Indian Constitution, i.e., Dr. B.R. Ambedkar. He used this term in the debate of Constituent Assembly to justify the importance and need of including the administrative powers and functions of the legislature. The doctrine of Constitutional Morality was given much significance neither by the Constituent Assembly in their debates, nor was its meaning described in entirety by Ambedkar explicitly.
• On the whole, while drawing the work of George Grote, Ambedkar defined Constitutional morality as the "Effective coordination between the conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation amongst the various groups working for the realization of their ends at any cost."
• Post Independence, the term found its reference in various judgments by the Indian Courts, but it also lacked in substance and its explicit meaning. The terms were just mentioned in the judgment but were not discussed in detail. Like in Kesavananda Bharati v. State of Kerala, two judges invoked the term Constitutional Morality but didn''t deal with it in detail.
• Furthermore, in the SP Gupta case, also termed as the First Judges'' case, it was stated that there was a serious breach of Constitutional Morality. Later on, Justice S.B. Sinha and Justice Deepika Mishra used the term somewhere in Islamic Academy of Education v. State of Karnataka and Niranjan Hemchandra Sashittal v. State of Maharashtra, respectively but in a different context.

Supreme Court on Constitutional Morality

• In 2014, the term ''Constitutional Morality'' started to gain popularity, and various judges, especially of the Hon''ble Supreme Court, referred to this term in their judgments. There are multiple cases of the Supreme Court where Constitutional Morality has brought a revolution in our Indian society.
• In Manoj Narula v. Union of India, Justice Dipak Misra, while referring to Ambedkar''s speech on the Constitutional Morality, said, "Constitutional Morality means to bow down to the norms of the Constitution and not act in a manner which would become violative of the rule of law of action in an arbitrary manner. It along with the commitment to the Constitution is a facet of Constitutional Morality".
• Likewise, in the case of NCT of Delhi v. Union of India, the Hon''ble Supreme Court presented a different interpretation. It equated the constitutional morality with the spirit of the Constitution itself as similar to the doctrine of basic structure.
• "Constitutional morality in its strictest sense implies a strict and complete adherence to the constitutional principles as enshrined in the various segments of the document. It is required that all constitutional functionaries to "cultivate and develop a spirit of constitutionalism" where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution."

Navtej Singh V. Union of India: the case of Constitutional Morality prevailing over Social Morality

• The Navtej Singh Johar vs. Union of India is one of the landmark judgments of the Hon''ble Supreme Court, where the five-judge bench adopted a reformative and a revolutionary approach while reading down Section 377. While adjudicating the matter, the Court constructed the judgment around the three most essential principles of transformative constitutionalism, constitutional morality, and the right to privacy.
• Archaic Section 377 could not stand when it was put against these three principles. While observing the Navtej Singh Johar''s case, the then Chief Justice of India Dipak Misra said that the concept of Constitutional morality doesn''t restrict itself to the literal texts and provisions of the Constitution. The idea is not the ''mere observance of the core principles of constitutionalism''. Instead, it paves the way to make society more pluralistic and inclusive.
• Our Constitution of India aims to secure our fundamental rights that foster the spirit of growth and development of citizens in society. When our Indian Constitution was adopted, the concept of Constitutional morality was envisaged so that all the three organs of government, i.e., Judiciary, legislature, and Executive, would practice it to keep it alive to maintain heterogeneous fiber in the society.
• Any attempts to make society uniform, homogeneous with a standardized philosophy would undoubtedly violate the principle of Constitutional morality. Hence, it becomes the duty of the organs of the state to ensure that majoritarian principles do not affect the policy decisions in such a manner that one group is excluded and their rights are violated.
• In Government of NCT of Delhi v. Union of India and Ors., the Court observed that "Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse."
• The Courts must uphold the principles emerging from Constitution and decide according to what the law says and not the society. It is the duty of courts to not get influenced by the majoritarian views prevailing in society. Section 377 of the Indian Penal Code challenges the notions of social morality and popular opinions that have no validity in law. Anything that is not legally valid should not be allowed to crush the spirit of Constitutional morality.
• The principle of Constitutional morality can guide the courts to decide in a just and fair manner for all the sections of the society, even if the population of that section is relatively small. The fundamental rights are guaranteed to every citizen of India, and the State must ensure that they are not being violated.
• In the Suresh Kumar Koushal case, the court upheld the validity of archaic section 377 of the Indian Penal Code. It stated, "A miniscule fraction of the country''s population constitutes lesbians, gays, bisexuals or transgender." This statement indicates that how social morality was put over constitutional morality. Just because the LGBTQ+ constitute a small fraction of our society doesn''t mean they do not have their fundamental rights. It is a clear violation of Articles 14, 19, and 21.
• It is the foremost duty of a court to uphold the principles of constitutional morality over social morality whenever there is a violation of any fundamental right. Only because of the prevalence of the concept of social morality, the members of LGBTQ+ have been from a long time living an isolated life. They are shunned from society as they are not recognized.
• It can be seen that in the Suresh Kumar Koushal case, the Hon''ble Supreme Court failed to protect the fundamental rights of an LGBTQ+ community. One of the aims of the Constitution of India is to prevent discrimination against the backward society. Hence, homosexuals are being recognized as one of the backward communities that deserve to be protected and covered under the ambit of the Indian Constitution.
• The social morality of people cannot be the justification for the violation of any community''s fundamental rights. Any unjust treatment to any society must be rectified as early as possible because it is the constitutional morality that prevails and not the social morality.
• Law and modernization have an intense relationship inherent between them. The growing needs and suitability should always make the law of society. Similarly, the ever-increasing society should adapt to the new laws made, keeping in mind the inherent principles of our Supreme Law of land, i.e., the Constitution.
• Section 377 of IPC was drafted in the year 1860. It is a Victorian-era law that was made keeping in mind the morality prevailing at that time. But to maintain that provision of law in force in the 21st century is not relevant anymore. There is no strong reason due to which this law should be continued. Social morality, in no case, can be used as a weapon to criminalize intercourse between consenting adults. And hence, the court took a very liberal approach and struck down Section 377.
• In S. Khushboo vs. Kanniamaal, the court had already made it clear that "notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and Criminality are not coextensive."
• Fundamental Rights are a part of our Indian Constitution under Part-II, Article 12-35. The subject of dignity and liberty of any individual does not come under the ambit of majoritarian governments. Hence, the Courts can apply constitutional morality to ensure that the rights of minorities are protected. Every individual has the right to life and dignity protected under Article 21 of the Indian Constitution.
• Constitutional morality is a way to ensure that the particular view of the majority of people in the society, i.e., social morality, does not prevail in such a manner that it violates the rights of other persons in the community. The Law and the principles of the Constitution paved the way for justice and dignified life in society.
• Justice DY Chandrachud, one of the five judges in the case, stated that constitutional morality reflects how the struggle for the existence and ideals of justice should override any other prevailing notions of social acceptance. It is a balance against the popular public morality prevailing in society.
• The opponents believe homosexuality is against public morality and is unacceptable in our Indian society. Therefore, it is acceptable to criminalize it.
• In the case of Naz Foundation, the Hon''ble Delhi High Court rightly held that,
• "Thus, popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If any type of "morality" can pass the test of compelling state interest, it must be "constitutional" morality and not public morality. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view."
• In our Indian Constitution or any other law, there is nowhere mentioned that LGBTQ+ are not the citizens of India. Hence, the LGBTQ+ community has the right to live a dignified life. Section 377 of Indian Penal Code, 1860 which read as, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine" was struck down partially.
• Now, homosexuals have the right to sexual intercourse with their partners, but the only condition is that it should be consensual and between adults. We can see the hailing of constitutional morality over social morality. The LGBTQ+ community''s rights were recognized in India only because of constitutional morality. If this concept hadn''t been there, society''s morality would have continued to invade the personal life of many homosexuals, which is clearly against the fundamental principles and objectives of our Indian Constitution.

Conclusion

• When the Hon''ble Supreme Court pronounced the judgment against Section 377, some people were not satisfied. For instance, in the media, Rashtriya Sawayamsevak Sangh (RSS) leader Arun Kumar said, "Gay marriage and relationship are not compatible with nature and are not natural, so we do not support this kind of relationship. Traditionally, India''s society also does not recognize such relations".
• Similarly, many people have expressed their opinions and termed homosexual relations unacceptable in society. They term it as something that is ''neither natural nor desirable''.
• It is interesting to note that the ancient Vedic system recognized the marriage between homosexuals. Now, if the marriages were recognized in ancient India, it directly implies that the community was also recognized.
• The Sanskrit texts from ancient and medieval India prove that homosexuals and the third gender were not only in our Indian society but also widely accepted²².
• The early sculptures also depict that besides accepting sexual relations between males and females, the intimacy between the same sexes was also accepted. US-based techie Hrishikesh Sathawane said, "If you think homosexuality is a western concept, go to Khajuraho". It is debatable if these things were socially acceptable in India, but they existed".
• But the present-day society is reluctant to accept homosexual relations. And this thinking in the Indian society that admits homosexuality as an unnatural offense is precisely the concept of social morality. The public has their own opinion on one or the other stance. Every man in this universe has their own idea. They have the right to freely express it but only to that extent when it does not violate the rights of others.
• But here, the personal morality and thoughts of our Indian society were indeed violating the rights of LGBTQ+. Why don''t they have the right to live a life according to their own will when they are recognized as citizens?
• Neither Constitution nor any law says that homosexuals are not citizens. Then why the public should be allowed to invade the principles of law. Law is always above the people. It is made for society, and hence every citizen living in this society should feel that it is a part of it.
• To make this possible, the role of the Constitution becomes utmost important. It is the sole document that forms the basis of law. From it, originates the other laws. The constitution protects the fundamental rights of an individual. The principles of the Indian constitution serve as a guiding light to pave the way for justice in society.
• As the then Chief justice of India, Justice Dipak Misra, stated, the Constitution aims to provide an inclusive and pluralistic society. It is only constitutional morality that can help uphold the principles of our Indian Constitution.
• The Judgment of Navtej Singh Johar vs. Union of India has given a new dimension to the concept of constitutional morality. This has created a revolution, and it is hoped that in the coming future as well, the Indian Judiciary will incorporate the principles of constitutional morality in their judgments, so that the people can live happily and cooperatively in Indian society without violating each other''s fundamental rights. Justice should prevail, and it must be the main objective of the state to maintain it.