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 constitutional morality. Democracy was “only a top-dressing on an Indian soil which is essentially undemocratic.” The phrase was not ornament. It was the explanatory key to why the Constitution looked the way it did.Grote, whose History of Greece Ambedkar was quoting, defined constitutional morality as “a paramount reverence for the forms of the constitution.” He coupled that with the habit of open speech and unrestrained censure of authority. It was the settled disposition that allows a plural society to contest bitterly without tearing up the rules. The Solicitor General’s claim that this is a political-science notion fit only for deciding whether a minister should resign misreads both Grote and Ambedkar. The doctrine was, from the start, about the constitutional text’s survival against the passions of any given majority.Next, the vagueness objection. Mehta complains that constitutional morality varies from judge to judge. The point would carry force were constitutional adjudication an exercise in dictionary-reading. It is not. Arbitrariness under Article 14 varies from judge to judge. So does reasonableness under Article 19, procedure established by law under Article 21, and the basic-structure doctrine itself. Every workable constitutional concept travels with interpretive discretion. To retire constitutional morality on this ground is to indict the entire enterprise of judicial review. The argument proves too much.The third claim is the most revealing. Mehta said that in a democracy “it is always the majoritarian view which prevails, particularly when it comes to testing a law.” Justice Ahsanuddin Amanullah interjected immediately: “Just because a law is passed by majority does not make it majoritarian.” The distinction is elementary and decisive. A law reflects a numerical majority in the legislature. A majoritarian law encodes the settled preferences of a dominant group and treats dissenters or minorities as outside its protection. The Constitution anticipates both outcomes. It contemplates that elected majorities will sometimes legislate badly. Part III, the Directive Principles and the basic-structure doctrine exist precisely to restrain those moments.This is where the Solicitor General’s real project emerges. Dismantling constitutional morality is not an isolated intervention. The Centre’s written submissions ask the court to declare the reasoning in Joseph Shine v Union of India “not good law”. That 2018 judgment struck down Section 497 of the Indian Penal Code. Mehta questioned Navtej Singh Johar v Union of India, which read down Section 377, on the same ground. He singled out a Delhi High Court judgment, Naz Foundation v Government of NCT of Delhi, as the genealogical origin of a “new trend”. These are the cases that used constitutional morality to end three inherited exclusions. Two were colonial criminal prohibitions, on adultery and consensual homosexual intimacy. The third was a rule barring women of menstruating age from Sabarimala. Retiring the doctrine would not merely limit future judicial review. It would reopen the validity of judgments already decided, and invite fresh legislative reversal.Is there nothing at all to Mehta’s complaint? There is something. The Sabarimala majority’s use of the phrase was thin. It described social opinion as “mob morality” and did little to develop the doctrine. It did not address what Pratap Bhanu Mehta has called the tension between constitutional and distributive justice. Constitutional morality, deployed casually, can become a judicial stamp of approval for outcomes the bench already prefers. That objection, however, is an argument for disciplined use of the doctrine. It is not an argument for its interment. The remedy for imprecise invocation is better reasoning, not abandonment.There is a question the Solicitor General declines to ask. If constitutional morality goes, what replaces it as the test for when a religious practice collides with fundamental rights? Mehta’s answer, that the legislature will decide, works only if the legislature is reliably attentive to those who have historically been kept out. The record suggests otherwise. The Sabarimala restriction was codified by rule under a state statute. It was the court, not the assembly, that lifted it.Justice Joymalya Bagchi put the point differently from the bench. Article 25(1), he observed, uses the word “conscience”. The conscience of one section of society may be governed by constitutional morality. The conscience of another may not be. Neither, he said, can impose its morality on the other within the expansive, elastic idea of society. Justice B.V. Nagarathna had earlier warned that constitutional interpretation must recognise the dynamic nature of morality in society.Those interventions matter. They indicate that at least two members of the bench are disinclined to accept the Solicitor General’s framing. That framing holds that a single societal morality defines the outer limits of religious freedom. Whichever social majority happens to occupy the microphone would then set the test.What is at stake, finally, is small only if one ignores the cases. Strike down constitutional morality as a ground of review, and the court loses a vocabulary. It is the most coherent vocabulary available for protecting those the majority is willing to leave out. Ambedkar saw the difficulty. He warned in the same speech that India’s soil was not yet congenial to democratic habits. His solution was to write the details into the Constitution and to cultivate the morality that would guard them. Mehta asks the court to abandon the cultivation and leave the soil to its own devices. His argument, in the end, asks the Constitution to make its peace with the prejudices it was written to contain.