Indian Constitution: Evolution, Features and Basic Structure

Constitutional morality means fidelity to the values of the Constitution. Dr Ambedkar warned that it must be cultivated.

What the doctrine holds

The text is not enough: Institutions work only if those who run them respect its spirit.

It outranks popular sentiment: A majority view cannot decide the content of a right.

How the courts have used it

Naz Foundation, 2009: Popular morality cannot be a ground for restricting a right.

Manoj Narula, 2014: It was read as a duty on holders of constitutional office.

Navtej Singh Johar, 2018: Social morality gave way, and Section 377 was read down.

Sabarimala, 2018: A long standing custom was tested against equality, and failed.

The caution

The dissent has force: Justice Indu Malhotra warned it can become the judge's own view.

The content is not fixed: No provision defines it, so meaning shifts.

Constitutional morality stops a majority from reading the Constitution down to its own preference. Its strength depends on judges tying it to the text.

Decode

Explain, with decisions. The cases are not decoration here, they are the demand.

Implicit demand

The contrast with popular or social morality is what the doctrine actually means.

Architecture

The meaning → what it holds → the cases → the caution → verdict.

Articulation

Anchor: Dr Ambedkar in the Constituent Assembly, Naz Foundation, Navtej Johar and Sabarimala. Money line: it stops a majority from reading the Constitution down.

The origin of the phrase

Dr Ambedkar took the expression from the historian George Grote, writing on Athens.

Grote described it as a settled habit of obeying forms while criticising freely.

Dr Ambedkar quoted this in the Constituent Assembly on 4 November 1948.

He said constitutional morality is not a natural sentiment, and has to be cultivated.

His fear was that the form was democratic while the soil remained undemocratic.

He also warned against hero worship in politics, which belongs to the same argument.

What the doctrine actually asks for

Obedience to the text is the least of it. The spirit behind the text matters more.

It protects the person who is in a minority, whether of religion, gender or opinion.

An office holder should follow the purpose of a power, not only its words.

It tells a court to prefer the constitutional value over the prevailing social view.

It also supports conventions, which no court can enforce but which hold the system together.

Popular morality is what most people feel. Constitutional morality is what the document requires.

The decisions

Naz Foundation v. NCT of Delhi, 2009 is the first prominent use by an Indian court.

Manoj Narula v. Union of India, 2014 concerned ministers facing serious criminal charges.

Puttaswamy, 2017 located privacy in dignity, which is the same family of reasoning.

Joseph Shine, 2018 struck down the offence of adultery on similar grounds.

Indian Young Lawyers Association, 2018 is the Sabarimala case, decided four to one.

Government of NCT of Delhi v. Union of India, 2018 used it for the conduct of constitutional office.

Navtej Singh Johar, 2018 stated the contrast with social morality most clearly.

The criticism

Justice Indu Malhotra held that courts should not test religious practice by their own notions.

She warned that the doctrine could become a weapon in the hands of a judge.

The doctrine has no fixed content, so its meaning can change from bench to bench.

Critics say it lets a court read its own preferences into an open ended phrase.

The safeguard is to tie every use to a specific provision of the Constitution.

The review petitions arising from Sabarimala are still pending before a larger bench.

Migrant workers walking home in 2020, and the inner line permit extended to Manipur in 2019, show the same thing. The freedom is real and bounded.

The right and its purpose

What the Constitution gives: Article 19(1)(d) and (e) let a citizen move and settle anywhere in India, which makes the country one political community.

Where it is limited

Reasonable restrictions: Article 19(5) permits limits in the interest of the general public or for the protection of scheduled tribes.

Protected areas: The inner line permit controls entry into Arunachal Pradesh, Nagaland, Mizoram and Manipur.

Tribal land and autonomy: The Sixth Schedule and Articles 371A and 371G restrict transfer of land to outsiders in the north eastern states.

Public order and health: Externment under state police laws, and movement controls during the pandemic, were upheld as public interest limits.

These limits protect tribal identity and public order rather than the convenience of the state. Every restriction must still pass the test of reasonableness.

Decode

Comment on a statement with two halves, so both the freedom and its limits need treatment, with the limits carrying more weight.

Implicit demand

The examiner wants specific categories of restriction with a constitutional or statutory source, not a general remark about public order.

Architecture

A hook from two real limits → the right itself → five kinds of restriction → verdict on why they exist.

Articulation

Anchor: Article 19(1)(d) and (e), Article 19(5), the inner line permit, the Sixth Schedule, pandemic movement control. Money line: the right is bounded by design.

The constitutional scheme

Both rights belong only to citizens and are suspended along with other Article 19 freedoms during a national emergency declared on grounds of war or external aggression.

Article 19(5) allows restriction in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

The two rights connect with Article 15, Article 16(3) on residence requirements for employment, and Article 21.

Ebrahim Vazir Mavat (1954) struck down a law allowing removal of citizens from India, and N.B. Khare (1950) upheld externment with safeguards.

Kharak Singh (1962) struck down domiciliary visits by police as an unreasonable restriction on movement.

Live disputes

Domicile based reservation in jobs, as in the Haryana law reserving private sector jobs for locals, which the High Court struck down in 2023.

Domicile requirements in state medical and engineering admissions, which courts have partly allowed.

The repeal of Article 35A in 2019 opened land purchase and residence in Jammu and Kashmir to citizens from other states.

Land laws in Himachal Pradesh and Uttarakhand restrict purchase by outsiders on agricultural land.

Internal migrants face practical barriers through ration portability, school admission and tenancy, which portability under one ration card has eased.

The larger point

Free internal movement is what makes a single market and a single citizenship real.

Roughly 45 crore internal migrants were recorded in the 2011 census, and the figure will be updated only after the 2027 census.

Restrictions on entry into tribal areas exist to prevent land alienation and demographic change, which the Constitution treats as a protective purpose.

Any restriction must satisfy the test of reasonableness and proportionality, which the courts apply case by case.

Article 368 gives Parliament the power to amend. There is no separate constituent assembly, and the hurdles are modest.

Procedural limitations

Only Parliament may begin: A bill can be introduced in either House, but not in a state legislature.

Special majority: A majority of the total membership, and two thirds of those present and voting.

Each House separately: There is no joint sitting to resolve a disagreement on an amendment.

State ratification for some: Half the states must agree where federal provisions are touched.

Which provisions: Election of the President, the High Courts and the Seventh Schedule.

Assent is not discretionary: The 24th Amendment made presidential assent obligatory.

Some changes need no amendment: Articles 4 and 169 allow certain changes by simple majority.

The substantive limitation

The basic structure: Kesavananda Bharati, 1973 held that the essential framework cannot be destroyed.

How the doctrine arrived: Shankari Prasad and Sajjan Singh allowed everything. Golaknath, 1967 turned the other way.

It has been used: Indira Nehru Gandhi, 1975 struck down a clause shielding an election from review.

And again: Minerva Mills, 1980 held that limited amending power is itself part of the structure.

Even the Ninth Schedule: I. R. Coelho, 2007 opened later insertions to review.

What has been included: Judicial review, federalism, secularism, free elections and judicial independence.

What this means in practice

The procedure rarely stops anything: More than a hundred amendments have passed.

The doctrine does: It has struck down parts of amendments passed by large majorities.

The procedural hurdles are low, so a determined majority clears them. The real limit is substantive, and the Court supplied it.

Decode

The stem gives a claim. Examine both kinds of limitation against it.

Implicit demand

The comparison is the answer. Procedure is weak, and the substantive limit does the work.

Architecture

Article 368 → procedural limits → the basic structure → the comparison → verdict.

Articulation

Anchor: Article 368, the special majority and ratification rule, Kesavananda, Minerva Mills and Coelho. Money line: the real limit was supplied by the Court.

Procedural limitations

The proviso to Article 368(2) lists the provisions needing state ratification.

These include the representation of states in Parliament and the extent of executive power.

Ratification requires only a simple majority in half the state legislatures.

There is no time limit within which the states must ratify.

Article 4 covers changes to state boundaries and names, by simple majority.

Article 169 allows abolition or creation of a legislative council in the same way.

The substantive limitation

Kesavananda Bharati v. State of Kerala, 1973 was decided by thirteen judges, seven to six.

Indira Nehru Gandhi v. Raj Narain, 1975 applied the doctrine to an amendment for the first time.

Minerva Mills, 1980 struck down clauses of the 42nd Amendment.

Waman Rao, 1981 fixed 24 April 1973 as the date for reviewing Ninth Schedule laws.

S. R. Bommai, 1994 treated secularism and federalism as part of the structure.

NJAC judgment, 2015 added judicial independence in appointments.

The debate around it

The doctrine has no textual basis, which is the standing criticism against it.

There is no closed list of basic features, so each case decides afresh.

Supporters point to the 42nd Amendment as proof that a limit was needed.

The 44th Amendment, 1978 undid much of it and restored judicial review of emergency.

Germany has an eternity clause in its Basic Law. That is the textual version of the idea.