“VICTORIAN MORALITY must give way to constitutional morality.” Eight years ago today, on September 6, 2018, the Supreme Court used these words in Navtej Singh Johar v. Union of India to decriminalise consensual same-sex relations, grounding queer rights in the Constitution’s promise of dignity and equality. Eight years on, as the Supreme Court’s judgment in the Sabarimala Reference remains reserved, we find ourselves still debating the very foundation on which that promise was built: is constitutional morality a binding doctrine, or merely a “sentiment”?
The issue of constitutional morality affects the sexual subalterns
Constitutional morality has undergone a transient shift as the judicial understanding of how these enduring commitments apply to previously unrecognised or inadequately addressed forms of exclusion. Constitutional morality is not an extraneous moral standard created by judges or altered according to changing judicial preferences. However, over the past few decades, it has been seen as an ‘important tool’ for keeping up with the changing socio-economic fabric of the country. While constitutional values are inherent and enduring, their interpretation and application have been evolutionary. Entry of women in the Sabarimala temple, right to choose your partner for marriage, decriminalisation of Section 377 of the Indian Penal Code, 1860 (consensual sexual autonomy), decriminalising adultery, amongst others.
The recent arguments advanced in the Sabarimala Reference, for which the final judgement has been reserved by the Supreme Court, also challenged the premise of constitutional morality in light of the Solicitor General’s submissions. In light of the cases pertaining to decriminalisation of adultery and Section 377, the SG stated that constitutional morality is merely a “sentiment” and not a doctrine on which legislation can be tested on the premise of judicial review while stating that such ‘constitutional morality’ is an alien concept of separation of powers and judicial review doctrines, and legislation cannot be tested on such vague premises.
However, this debate is not merely restricted to the principle of whether a woman can enter the Sabarimala Temple but has become a thread through which past precedents are also being unravelled, which have been decided on the Constitution’s commitment to equality, and whether it can withstand the weight of tradition, sentiment, and political expediency.
Hence, if such a submission is accepted, it could eventually lead to a broadened scope for the dilution of queer and transgender rights (especially with the recent passing of the Transgender Persons (Protection of Rights) Amendment Act, 2026), which has been led to the forefront by the Supreme Court using the testament of constitutional morality. Accepting such a submission would not remove the Supreme Court’s competence to review restrictions on queer and transgender rights under Articles 14, 19 and 21, including those arising from the Transgender Persons (Protection of Rights) Amendment Act, 2026. It could, however, affect how the Court determines the permissible scope of those restrictions. Constitutional morality has operated not as the source of these rights, but as an interpretive framework requiring that restrictions be assessed against the Constitution’s commitments to liberty, equality, dignity and non-discrimination, rather than prevailing social or majoritarian morality. Reducing it to a mere “sentiment” may therefore weaken, though not eliminate, the constitutional scrutiny afforded to queer and transgender persons.
Constitutionalism espouses counter-majoritarianism
The idea has always been imbued in the Indian constitution that a constitution must stand the test of time, rather than bow to shifting public opinion. A foundational tenet of constitutionalism, it emphasises that fundamental principles, such as justice, liberty, and equality, should not be subject to the whims of majoritarian sentiment. The constitution and its principles are supposed to act as a counter-majoritarian measure designed to protect minorities and vulnerable groups from the tyranny of social morality. These judgments form the basis of a ‘transformative constitutionalism’, which actively seeks to reshape society in accordance with constitutional values, rather than merely mirror and perpetuate existing social norms.
A closer look at the histories on the ‘queer’ in India tell us that they predate constitutional recognition and have existed across multiple pre-colonial Indian traditions, cultures, and communities before Victorian morality under our colonial rule criminalised and pathologised them. Section 377 sought to impose colonial moral regulation, especially on indigenous understandings of sexuality and gender. When India became independent India, this law continued to exist.
To counter this, modern activism rooted in health movements, feminism, and civil society groups like the Naz Foundation led to litigation before the Delhi High Court, which in 2009 framed queer rights within the constitutional guarantees of equality and dignity. Although the Supreme Court temporarily reversed this progress in Suresh Kumar Koushal (2013), the eventual triumph in Navtej (2018) reflected the persistence of constitutional resistance against entrenched prejudice.
In Navtej, the Supreme Court, in its 493-page verdict, with four concurring judgments, decided that “Victorian morality must give way to constitutional morality” and that constitutional morality is the soul of the constitution, found in Part III of the constitution (Justice Rohinton Fali Nariman, Para 78) and that everyone is entitled to full constitutionally recognised freedoms, free from stigma and discrimination.
Earlier in Government of NCT of Delhi v. Union of India (2018), Chief Justice Deepak Misra described constitutional morality as “the morality that has inherent elements in the constitutional norms and the conscience of the constitution.” He relied on the principles of transformative constitutionalism and progressive realisation of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded, and that constitutional morality would prevail over social morality.
Constitutional morality, thus, helps ensure that the human rights of LGBTQ+ individuals are protected, regardless of whether such rights have the approval of the majority. The Court in Navtej Singh Johar struck down the colonial-era law and found section 377 of the Indian Penal Code (‘IPC’) to infringe upon LGBTQ+ persons’ right to dignity, equality, privacy and expression. However, ever since, there has been a more cautious judicial and political approach to these rights.
The refusal to recognise same-sex marriage, for instance, has been justified on grounds that range from legislative competence to concerns about social readiness. This, therefore, creates a constitutional paradox. It highlights the nature of ‘constitutional morality’, where on the one hand, queer identities are constitutionally protected; on the other, the relationships and familial structures that give meaning to those identities remain unrecognised. The underlying logic bears a striking resemblance to the current debate surrounding transgender rights, as these rights, even when they have been recognised by the Court and subsequent legislation, have been further diluted and constrained in practice under the garb of practicality, potential misuse, tradition, and social norms. While the 2014 judgment in NALSA recognised self-identification as central to dignity and autonomy, the recent developments have exposed the limitations of legal and social institutions built around heteronormative assumptions which are currently being undone by majoritarian views backed by legislation. The struggle for queer and transgender rights, therefore, is not merely about inclusion within existing structures, but also about reimagining those structures themselves.
Sabarimala does not stand on its own; it stands on the shoulders of precedents like Navtej, which in turn rests on Puttaswamy. While these form the foundations, these constitutional protections cannot rest solely on numerical strength or social acceptance, but should be extended to protect those historically pushed to the margins by dominant social structures. Puttaswamy laid the foundation for understanding privacy to include dignity, identity, bodily integrity, sexual autonomy, and self-determination, beyond secrecy and decisional autonomy, and served as an emancipatory constitutional doctrine that challenged the State’s intrusion into the intimate lives of individuals.
Hence, the implications of the present review extend far beyond the question of women’s entry into the Sabarimala temple; rather, they question the legitimacy of ‘transformative constitutionalism’ and whether the Constitution can still act as a counter-majoritarian document standing for the socio-economic society and the changing society of the time.
If the argument that constitutional morality is a ‘sentiment’ is accepted, the constitutional protections granted thus far might be reduced to a vague sentiment, reverberating and threatening multiple rights-based jurisprudential developments over the last two decades. Characterising constitutional morality as a mere “sentiment” would not unsettle the independent foundations of dignity, privacy and decisional autonomy recognised in Puttaswamy, on which significant parts of the reasoning in Sabarimala and subsequent rights jurisprudence rest. Its consequence would instead arise at the stage of constitutional balancing: when individual liberty and equality conflict with claims grounded in religious autonomy, tradition, or collective morality. Constitutional morality requires courts to resolve such conflicts by reference to the Constitution’s anti-majoritarian commitments rather than prevailing social morality. Weakening that framework may therefore encourage greater judicial deference to exclusionary traditions, even where the underlying rights remain independently protected under Articles 14, 19 and 21.
Eight years after Navtej promised that constitutional morality would prevail over majoritarian impulses, Sabarimala provides not merely a platform for the Supreme Court to stand by its past precedents but also to further advance substantive rights, especially of women and the LGBTQIA+ community, grounded in the justice of dignity, equality, and freedom.
It may also raise questions about the sanctity and importance of the Supreme Court’s role in dismantling structures of exclusion, or whether it retreats into deference to majoritarian traditions and social morality.
Constitutional morality has always been embedded within the architecture of the Constitution itself, in the aftermath of deeply entrenched social hierarchies which are rooted in caste, patriarchy, religion, gender, and exclusion. The debates in the Constituent Assembly reflect an understanding of a constitutional democracy not only as preserving existing social relationships but also as actively reforming them and imbuing them with the emancipatory vision of social revolution, alongside the core principle of individual sovereignty. This vision has been realised through the guarantees of equality, liberty, fraternity, dignity, and non-discrimination, and has been accommodated by the Supreme Court over the decades. Given the intersectionality within Indian society, the logic of exclusions of queer people has mirrored the subordination of women, Dalits, Adivasis, religious minorities, socio-economically disadvantaged sections, and now, even transgender people. Constitutional morality, therefore, cannot be selectively invoked for some forms of discrimination while ignored for others and has to accommodate intersectionality to dismantle layered forms of marginalisation that operate simultaneously through caste, gender, sexuality, religion, and class.
Much like Sabarimala, where formal access has not translated into uncontroversial acceptance, and has required the re-opening of the case before a larger bench, trans and queer rights remain caught between principle and practice. Sabarimala, therefore, must be understood as a constitutional litmus test and as a confrontation with our commitment to the scope of ‘equality’ under Article 14, especially in light of the intersectional issues that plague our society. Are we willing to uphold constitutional values even when they challenge deeply ingrained beliefs? Or will we retreat in the face of resistance and be subsumed by collective norms?
In this sense, the Constitution, through judicial interpretations that reflect current realities and allow for social emancipation, is what constitutional morality stands for. A constitutional democracy cannot be reduced to electoral majoritarianism or cultural conformity; rather, it requires institutions such as the Supreme Court to protect individual autonomy, dignity, and identity, even when they are disruptive of dominant norms. The Court’s answer to the issues in Sabarimala Reference would weigh on whether the Constitution remains a transformative instrument capable of confronting exclusion in all its forms or whether constitutional rights themselves become contingent upon social acceptance and political convenience.
Even if the judiciary has to lead the charge to ensure equality amongst equals, it cannot be subservient to legislative or societal backlash. From the issues of self-identification of transgendered persons and sexual autonomy, amongst others, crystallised as fundamental rights by the Supreme Court under the garb of ‘constitutional morality’, only one conclusion becomes obvious. To further these rights not under the mandate of constitutionalism and principles, but rather be furthered by also ensuring substantive rights, even in the face of difficulties within the different strata of society and the administrative framework.
Eight years after Navtej promised that constitutional morality would prevail over majoritarian impulses, Sabarimala provides not merely a platform for the Supreme Court to stand by its past precedents but also to further advance substantive rights, especially of women and the LGBTQIA+ community, grounded in the justice of dignity, equality, and freedom. It must remain steadfast in its approach, especially if constitutional morality is to retain its meaning and must be applied with consistency and conviction, even and especially when it is difficult — as it has been asked to do, once again, eight years to the day since that promise was first made.