94. Recent Constitutional Developments, Judicial Pronouncements, Constitutional Morality, Transformative Constitutionalism

CORE Key Points at a Glance

1. 1

   Constitutional Morality

   • Term used by Dr. Ambedkar in the Constituent Assembly
   • Refers to adherence to constitutional values (democratic process, individual rights, institutional procedures) over popular morality (majoritarian social norms)
   • Supreme Court invoked it in Navtej Singh Johar (2018) and Sabarimala (2018) to protect minority rights against popular opposition
2. 2

   Transformative Constitutionalism

   • Idea that a constitution is not merely a static legal document but a transformative instrument for social change
   • Indian Constitution — embracing equality, dignity, and fraternity — was designed to transform a hierarchical society
   • Justice D.Y. Chandrachud has been its foremost judicial proponent in India
3. 3

   Navtej Singh Johar v. Union of India (2018)

   • Supreme Court (5-judge bench, unanimous) struck down Section 377 IPC (consensual homosexual acts between adults)
   • Violated Articles 14, 15, 19, and 21
   • Held that sexual orientation is a protected ground under Article 15 (analogous to "sex")
   • Affirmed the right to sexual autonomy under Article 21
4. 4

   Joseph Shine v. Union of India (2018)

   • Supreme Court (5-judge bench, unanimous) struck down Section 497 IPC (adultery law)
   • Violated Articles 14, 15, and 21 — provision treated women as property of husbands
   • Held that marital choices belong to individual autonomy
   • Eliminated a colonial-era law treating wives as subordinate
5. 5

   Shayara Bano v. Union of India (2017)

   • Supreme Court by 3:2 majority struck down instant triple talaq (talaq-e-biddat) as manifestly arbitrary — violating Article 14
   • Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act 2019
   • Instant triple talaq made a criminal offence punishable with up to 3 years imprisonment
6. 6

   K.S. Puttaswamy v. Union of India (2017)

   • Landmark 9-judge bench (unanimous) held Right to Privacy is a Fundamental Right under Article 21
   • Overruled M.P. Sharma (1954) and Kharak Singh (1963)
   • Far-reaching implications for data protection, Aadhaar, surveillance, and individual autonomy
7. 7

   Indian Young Lawyers Association v. State of Kerala (Sabarimala, 2018)

   • 4:1 majority held exclusion of women aged 10–50 from Sabarimala temple violated Articles 14, 15, 17, and 25
   • Justice Indu Malhotra dissented
   • Court invoked constitutional morality over popular/religious morality
   • Referred to a 9-judge bench in 2019 for broader questions on religion vs gender rights
8. 8

   Janhit Abhiyan v. Union of India (2022)

   • Supreme Court by 3:2 majority upheld the 103rd Constitutional Amendment providing 10% EWS reservation
   • Held it does not violate the Basic Structure; economic criterion is a valid classification
   • Two dissenters (Justices Ravindra Bhat and Sudhanshu Dhulia) held it breaches the 50% ceiling and violates equality
9. 9

   In Re: Article 370 (2023)

   • Constitutional Bench (5 judges, unanimous) upheld the Presidential Order of August 2019 abrogating J&K's special status
   • Article 370 was a temporary provision; J&K's sovereignty had completely merged with India
   • President's Rule under Article 356 allowed Parliament to exercise J&K Constituent Assembly functions
   • Directed elections by September 2024
10. 10

    Rohith Vemula (2016) and Constitutional Identity

    • Debate following Rohith Vemula's institutional suicide intensified discussions on caste-based discrimination in educational institutions
    • Highlighted the gap between constitutional ideals (Articles 15, 17, 21) and lived reality
    • Illustrates the tension between constitutional text and transformative social achievement
11. 11

    Citizenship Amendment Act 2019 (CAA)

    • Provided expedited citizenship to persecuted non-Muslim minorities (Hindus, Sikhs, Buddhists, Jains, Parsis, Christians) from Afghanistan, Bangladesh, and Pakistan who arrived before 31 December 2014
    • Rules notified in March 2024
    • Petitions challenging CAA as violating Article 14 (discriminating on religion) are pending before the Supreme Court
12. 12

    New Criminal Law Trilogy (2023)

    • Bharatiya Nyaya Sanhita (BNS) 2023 replaced IPC 1860
    • Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 replaced CrPC 1973
    • Bharatiya Sakshya Adhiniyam (BSA) 2023 replaced Indian Evidence Act 1872
    • All came into force 1 July 2024; emphasises "Justice first, punishment second"