The Constitution of India is among the world’s most detailed written constitutions, yet constitutional government has never depended on text alone. Constitutionalism—the idea that public power must be limited, justified and held to account—also depends on constitutional interpretation, institutional practices, conventions and political conduct. This article examines four forces that shape Indian constitutionalism beyond the bare wording of individual provisions: the basic structure doctrine, constitutional morality, conventions and the judicial development of rights. Each has helped the Constitution respond to challenges its framers could not fully anticipate; each also raises questions about legitimacy, institutional competence and democratic accountability.
1. The text as a beginning, not an end
The framers did not assume that a written document would implement itself. In the Constituent Assembly on 4 November 1948, B.R. Ambedkar drew on George Grote’s account of constitutional morality and stated that constitutional morality “is not a natural sentiment. It has to be cultivated”. He used the idea to stress that constitutional institutions require habits of restraint and respect, rather than merely formal rules.[1]
In his concluding speech on 25 November 1949, Ambedkar warned that political democracy could not endure without social democracy and described the prospect of entering a “life of contradictions” on 26 January 1950.[2] In his concluding address the following day, Rajendra Prasad likewise emphasised the importance of the people entrusted with administering the Constitution. The point is better understood as a warning about constitutional practice than as a claim that text is unimportant.[3]
Granville Austin interpreted the Constitution as a social document intended to advance social transformation,[4] while Madhav Khosla has examined the founders’ project of cultivating democratic self-government through constitutional practice.[5] These accounts suggest that the Constitution must be studied both as a legal text and as a framework operated by institutions and citizens.
2. The basic structure doctrine: a judicially developed limit
Article 368 empowers Parliament to amend the Constitution according to the procedure it prescribes. The text does not set out an express catalogue of features that Parliament may never amend. The Supreme Court’s basic structure doctrine supplies a judicially developed substantive limit. In I.C. Golak Nath v State of Punjab, the Court held that Parliament could not amend Fundamental Rights; that position was later displaced by the larger-bench ruling in Kesavananda Bharati v State of Kerala, which held that Parliament’s amending power does not extend to altering the Constitution’s basic structure.[6][7]
Kesavananda Bharati did not produce a single, exhaustive list of basic features. Subsequent decisions have identified or reaffirmed features including free and fair elections and the rule of law in Indira Nehru Gandhi v Raj Narain; the balance between Parts III and IV in Minerva Mills Ltd v Union of India; secularism and federalism in S.R. Bommai v Union of India; and judicial review in L. Chandra Kumar v Union of India. I.R. Coelho v State of Tamil Nadu held that laws placed in the Ninth Schedule after 24 April 1973 are open to review where they damage the basic structure through violation of Fundamental Rights.[8–12]
The doctrine addresses the risk that a temporary parliamentary majority could use the amendment power to undermine the constitutional order from which that power derives. Its defenders regard it as a safeguard for constitutional identity. Critics argue that its content is determined through judicial reasoning and that this gives unelected judges substantial authority over constitutional change. The doctrine’s legitimacy therefore depends in part on the quality, transparency and consistency of the Court’s reasoning.
3. Constitutional morality
Constitutional morality is used in Indian constitutional discourse in more than one sense. It can refer to the discipline required of public officials in observing constitutional limits, and it can also describe an interpretive commitment to constitutional values such as liberty, equality and dignity. These uses overlap, but they are not identical.
In Manoj Narula v Union of India, the Supreme Court declined to create a new disqualification for ministers facing criminal charges where the Constitution and statute did not provide one. It nevertheless emphasised the constitutional responsibility of the Prime Minister in selecting ministers.[13] The case illustrates the tension between judicially enforceable rules and constitutional expectations that may be difficult to translate into a legal test.
In Navtej Singh Johar v Union of India, the Court decriminalised consensual sexual conduct between adults of the same sex by reading down section 377 of the Indian Penal Code. The judgments invoked constitutional morality in explaining why constitutional guarantees cannot be made dependent solely on prevailing social attitudes; the discussion of constitutional morality is particularly developed in paragraphs 111–116 of Chandrachud J’s opinion.[14] In Indian Young Lawyers Association v State of Kerala, the majority relied on constitutional principles in assessing the exclusion of women of menstruating age from the Sabarimala temple; Justice Indu Malhotra’s dissent raised concerns about judicial intervention in matters of religious practice and community belief.[15] The decision remains an important example of the difficult interaction between equality, religious freedom and the judicial role.
Ambedkar’s use of constitutional morality placed particular emphasis on cultivating constitutional methods and restraint in political life.[1] Later judicial uses have sometimes been more substantive, invoking constitutional values to evaluate laws and practices. Commentators disagree about how far the concept should guide adjudication. Pratap Bhanu Mehta has questioned the work the concept is asked to perform, while Gautam Bhatia defends a transformative constitutional interpretation grounded in liberty, equality and dignity.[16][17] The term is most persuasive when courts explain its connection to constitutional text, structure, precedent and evidence, rather than using it as a substitute for legal reasoning.
4. Conventions and constitutional silences
India’s parliamentary system depends on conventions as well as written rules. Article 75(1) provides for the President to appoint the Prime Minister, but the Constitution does not spell out every political circumstance governing that choice. The convention that the Prime Minister must be able to command the confidence of the Lok Sabha is central to responsible government. In Shamsher Singh v State of Punjab, the Supreme Court explained that the President and Governors ordinarily act on the aid and advice of their respective Councils of Ministers, subject to constitutionally recognised exceptions.[18]
The Forty-fourth Amendment added a mechanism under which the President may require the Council of Ministers to reconsider its advice once and must act in accordance with the advice tendered after reconsideration.[19] This illustrates how constitutional practice and political experience can lead to a more explicit textual rule.
Judicial review has also constrained the exercise of powers that might otherwise be justified by broad claims of political discretion. S.R. Bommai v Union of India established that a proclamation under Article 356 is subject to judicial review. Rameshwar Prasad v Union of India held the dissolution of the Bihar Legislative Assembly in 2005 unconstitutional, and Nabam Rebia v Deputy Speaker addressed constitutional limits on a Governor’s role in the functioning of a state legislature.[10][20][21] These decisions do not turn every convention into a legal rule; rather, they show that constitutional structure can constrain the exercise of formally conferred powers.
In Government of NCT of Delhi v Union of India, the Court interpreted the relationship between the elected government and the Lieutenant-Governor through constitutional structure, representative government and principles of collaborative federalism.[22] Constitutional silence is therefore not necessarily an invitation to unfettered discretion. It may require interpretation in light of the Constitution as a whole, while leaving courts to explain the limits of their own role.
5. Rights beyond express enumeration
Part III enumerates Fundamental Rights, but constitutional adjudication has interpreted those guarantees in ways that address circumstances not expressly named in the text. During the Emergency, the majority in ADM Jabalpur v Shivkant Shukla held that a person could not seek judicial enforcement of the right to personal liberty under Article 21 while the relevant Presidential Order was in force.[23] That decision is now widely regarded as a profound failure of constitutional adjudication.
In Maneka Gandhi v Union of India, the Court held that a procedure depriving a person of personal liberty must be fair, just and reasonable, and read Articles 14, 19 and 21 together.[24] Later decisions recognised protections relating to livelihood, health, education and the environment through interpretation of constitutional guarantees and directives. In Vishaka v State of Rajasthan, the Court laid down workplace guidelines addressing sexual harassment until legislation was enacted.[25]
In Justice K.S. Puttaswamy (Retd) v Union of India, a nine-judge bench recognised privacy as a Fundamental Right. The judgments also rejected the reasoning of ADM Jabalpur on the relationship between liberty and constitutional rights.[26] These developments show the creative and protective potential of constitutional interpretation. They also raise a recurring question: how can courts develop rights while remaining accountable to text, precedent and the constitutional allocation of law-making authority?
6. The costs and limits of going beyond the text
Constitutional interpretation beyond the literal wording of a provision can protect the constitutional order, but it carries risks. First, it concentrates considerable interpretive authority in the judiciary. In Supreme Court Advocates-on-Record Association v Union of India, the Court’s majority invalidated the Ninety-ninth Constitutional Amendment and the National Judicial Appointments Commission framework, holding that the scheme impaired judicial independence, a feature of the basic structure.[27] Supporters regard the decision as protection against political control of judicial appointments; critics question whether the judiciary should have the final word on a system that determines its own composition. Justice J. Chelameswar dissented. The institutional concern deserves engagement even where one agrees with the result.
Second, constitutional norms depend on institutions that are willing to honour them. The Emergency and the decision in ADM Jabalpur demonstrate that courts themselves can fail to protect liberty under political pressure. Third, conventions can erode when political actors treat them as optional, particularly where legal rules do not provide a clear remedy.
Finally, there is a democratic objection to limits on constitutional amendment that are not expressly enumerated. The basic structure doctrine’s answer is that the amendment power exists within, rather than above, the Constitution. That response is significant but contested. Its legitimacy is strongest when courts reason transparently from constitutional text, history, structure and precedent, and when they acknowledge the institutional consequences of their decisions.[28]
Conclusion
Indian constitutionalism is sustained by more than the words of the Constitution, but it cannot be detached from them. The basic structure doctrine, constitutional morality, conventions and the judicial development of rights have helped the constitutional system respond to challenges and protect democratic government. At the same time, these mechanisms place substantial responsibility on judges and political institutions to exercise power with restraint. Constitutionalism is therefore neither simply textual nor an unrestricted licence for judicial creativity. Its continuing legitimacy depends on principled interpretation, institutional accountability and a political culture that treats constitutional limits as obligations rather than obstacles.
Notes and references
[1] Constituent Assembly Debates, vol VII, 4 November 1948, speech of Dr B.R. Ambedkar on the Draft Constitution (discussion of constitutional morality; the phrase “It has to be cultivated” is Ambedkar’s formulation).
[2] Constituent Assembly Debates, vol XI, 25 November 1949, speech of Dr B.R. Ambedkar.
[3] Constituent Assembly Debates, vol XI, 26 November 1949, concluding address of Dr Rajendra Prasad.
[4] Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966).
[5] Madhav Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press 2020).
[6] I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643.
[7] Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.
[8] Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1, para 198 (Khanna J, on free and fair elections and democracy).
[9] Minerva Mills Ltd v Union of India, (1980) 3 SCC 625.
[10] S.R. Bommai v Union of India, (1994) 3 SCC 1.
[11] L. Chandra Kumar v Union of India, (1997) 3 SCC 261.
[12] I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1, para 151(iii)–(v).
[13] Manoj Narula v Union of India, (2014) 9 SCC 1, paras 64, 81.
[14] Navtej Singh Johar v Union of India, (2018) 10 SCC 1, paras 111–116, especially paras 115–116.
[15] Indian Young Lawyers Association v State of Kerala, (2019) 11 SCC 1.
[16] Pratap Bhanu Mehta, ‘What Is Constitutional Morality?’, Seminar, no 615 (November 2010), available at: https://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm.
[17] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins India 2019).
[18] Shamsher Singh v State of Punjab, (1974) 2 SCC 831; Constitution of India, arts 74–75.
[19] Constitution (Forty-fourth Amendment) Act 1978, s 11, amending art 74(1) of the Constitution.
[20] Rameshwar Prasad v Union of India, (2006) 2 SCC 1.
[21] Nabam Rebia and Bamang Felix v Deputy Speaker, (2016) 8 SCC 1.
[22] Government of NCT of Delhi v Union of India, (2018) 8 SCC 501.
[23] ADM Jabalpur v Shivkant Shukla, (1976) 2 SCC 521.
[24] Maneka Gandhi v Union of India, (1978) 1 SCC 248.
[25] Vishaka v State of Rajasthan, (1997) 6 SCC 241.
[26] Justice K.S. Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1.
[27] Supreme Court Advocates-on-Record Association v Union of India, (2016) 5 SCC 1, paras 392–394, 569 (Khehar J).
[28] Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press 2009).