A central concept in the Navtej Singh Johar judgement of the Supreme Court is that of ‘constitutional morality’. Through its framing of ‘constitutional morality’ juxtaposed with and pitted against ‘societal morality’, the judgement sought to bring about a transformation within the realm of ‘the social’. While the term and content of ‘constitutional morality’ have been the subject of intense legal discourse, emanating from Navtej Johar and in jurisprudence thereafter, the ramifications of the term ‘social morality’ and its relationship with the law have been inadequately addressed in public discourse. It, therefore, becomes important to examine what the courts imagine when they talk of ‘the social’ to fully understand the extent to which they can bring about such transformations. In this article, we examine if the separation between constitutional morality and societal morality, as advocated in Navtej Johar, is philosophically and practically tenable and desirable. To do this, the article engages with the assumptions made by the courts in their framing of ‘constitutional morality’ and examines the validity of these assumptions.  

The questions raised and addressed in this article include the following – is societal morality qualitatively different and distinct from constitutional morality? If constitutional morality comprises of those principles of justice that the society envisions, are the two intrinsically not linked to each other, and feed into and reinforce each other? Consequently, is there a false dichotomy created between constitutional and social/societal morality? Additionally, is it desirable for and realistic to envision law – in its formulation, implementation and interpretation – to be devoid of societal morality? Navtej Johar presents constitutional morality to be progressive, liberating, counter-majoritarian and transformative and views societal morality to be majoritarian, restrictive, status-quoist and repressive. The article analyses this conception through not only a legal but also a social science perspective.