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On April 8, Solicitor General Tushar Mehta asked a nine-judge Constitution Bench to bury a doctrine. The doctrine is constitutional morality. B.R. Ambedkar commended it to the Constituent Assembly in his draft-Constitution speech of November 4, 1948, quoting at length the classicist George Grote. Seventy-eight years later, the government’s second senior-most law officer wants it declared no law at all.

The setting is the Sabarimala reference. A bench headed by Chief Justice Surya Kant is examining seven questions on religious freedom under Articles 25 and 26. The 2018 judgment in Indian Young Lawyers Association v State of Kerala had opened the Ayyappa shrine to women of all ages. That verdict rests, in part, on constitutional morality. Mehta wants the foundation pulled up, and with it a small but consequential line of progressive judgments from the past decade.

His three arguments, distilled from the Bar and Bench live record, are these. First, that constitutional morality is a “sentiment”, not a doctrine, and cannot serve as a test for the validity of a law. Second, that the concept is “vague” and “subjective”, varying from one judge to the next, and therefore fails the elementary requirement of legal certainty. Third, that in a democracy “it is always the majoritarian view which prevails”, because laws are enacted by elected majorities. He added that a former Attorney General, K.K. Venugopal, had called constitutional morality an unfortunate concept that should “die as soon as possible.”

Each limb of the argument collapses under scrutiny.

Begin with provenance. The phrase enters Indian constitutional discourse through Ambedkar’s draft-Constitution speech. He invoked Grote to explain why the Drafting Committee had included administrative detail in a document most constitutions leave to statute. The Indian people, he said, had yet to learn........

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