As the Supreme Court hears the Sabarimala reference, an old idea has returned to centre stage: Constitutional morality, the conscience that allows courts to navigate difficult terrain. But, like all consciences, it speaks more loudly in some moments than others.

The Constitution permits restrictions on certain rights (including the freedom of religion) on grounds of morality. The immediate question is, whose morality? Constitutional morality answers that by pointing inward, requiring courts to draw upon the values embedded in the Constitution itself, such as equality, dignity, and liberty. It requires that fundamental rights do not rise and fall with political or majoritarian sentiment.

The force of this idea is seen in Kesavananda Bharati vs State of Kerala (1973) — Justices KS Hedge, JM Shehlat and AN Grover paid for their commitment to constitutional limits by being wrongfully superseded. Four years later, Justice HR Khanna received the same treatment for his refusal to dilute constitutional promises during the Emergency. More recently, delayed elevations and unexpected transfers have followed judges whose rulings defy........

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