CONSTITUTIONAL MORALITY AND DHARMA-NYAYA: COLONIAL LEGACIES, JUDICIAL POSITIVISM AND DIALOGIC FUTURES

The paper examines how Ambedkar's construction of Constitutional Morality connects back to India's old and deep moral traditions of Dharma-Nyaya, and how they interact with one another throughout history. In the assembly, he characterized it to be the most critical moral principle to develop the Republic of India, establishing new social values of liberty, equality, fraternity, and protection against majority tyranny while also improving citizens and institution’s ability to develop by providing a moral compass and a way for India to overcome its historic and entrenched social inequalities. In relation to the Dharma-Nyaya traditions, which originated from the Manusmriti, the Yanjnavalkya Smriti, and Kautilya's Arthasastra, all of which have a more flexible, situationally-based view of justice. Nyaya is a relational construct, connected to personal responsibility, cosmic balance, and the common good. These earlier systems of justice also place greater emphasis on context and reciprocal obligations, along with restoring balance in society, than they do on strict egalitarianism.

The tension between these systems of justice is illustrated by the Supreme Court's application of constitutional morality in cases such as Shayara Bano (2017),Navtej Singh Johar (2018) and Sabarimala (2018). All of these decisions have disregarded longstanding religious-customary practices. In many instances, what the Supreme Court is doing is applying a form of legal positivism, which has treated the fluidity and openness of Dharma normative systems as being nothing more than "customary laws” and has subordinated those normative systems to the rigid, state-imposed definition of what constitutes "justice, equity, and good conscience." In some instances, rather than fully separating from that legacy, the post-independence courts have continued to treat some of those indigenous normative systems as being secondary or obsolete, unless they are congruent with contemporary liberal values. Whether this judicial approach really represents a decolonization of judicial processes or whether it is another form of Colonial Positivism needs to be assessed. This article contends that there is an inclination toward the extension of existing patterns, whereby constitutional morality acts as a filtering mechanism such that traditional Dharma based legal orders are not deeply engaged with and instead only used as an override.

In light of these observations, these questions have become more pressing in recent years. For example, the Bharatiya Nyaya Sanhita presented the potential return to “Dharma”, thus reaffirming and reintroducing concepts of justice based around community service and rehabilitation. The normative framework that supports this reinstatement remains largely grounded in the same Positivist framework as before. Similarly, in Ram Charan v. Sukhram (July 2025), the Supreme Court determined that tribal women's ancestral inheritance rights must be the same as those of men. In making this ruling, the court relied upon Article 14 of the Constitution as well as “justice, equity and good conscience”. In making this ruling, the court has advanced gender justice, while at the same time demonstrating how constitutional default provisions displace indigenous moral orders and traditions within tribal communities. At the same time that these cases are being adjudicated, the Uniform Civil Code of Uttarakhand was enacted in January 2025 and subsequently amended in 2026, supports the establishment of unified rules and principles related to marriage, divorce, and inheritance across religions. This legislative enactment has been the basis for substantial debate under Article 44 of the Constitution of India concerning uniform rules; however, there is significant concern regarding the effects of such legislation upon religious freedom (Articles 25-26) and cultural pluralism.

The article hopes to introduce a concept referred to as dialogical constitutionalism to take shape moving forward. The incorporation of Indigenous-oriented concepts such as duty-based ethics, rta and lokasamgraha could serve to enhance the constitutional morality with an added relational dimension particularly related to environmental legislation, public interest litigation or ethical political processes but without displacing fundamental rights such as equality and dignity. Therefore, true decolonization would require a transition away from unilateral imposition to meaningful dialogue, making use of the wisdom of Dharma - Nyaya in defining and developing constitutional morality as an evolving, living tradition that respects the immense diversity of Indian heritage and ultimately provides justice for all persons in India.

Key Words: Constitutional Morality, Dharma-Nyaya, Duty based ethics, Uniform Civil Code, Dialogical constitutionalism