'Constitutional Morality Is In The Realm Of Constitutional Governance': SC Judge In Sabarimala Case

New Delhi: Supreme Court Justice B.V. Nagarathna on Wednesday orally observed that constitutional morality belongs to the domain of constitutional governance, as the Centre forcefully argued that two landmark rulings — striking down adultery and upholding same-sex consensual relationships — rested on a subjective invocation of "constitutional morality" and ought to be treated as "not good law."

A Constitution bench led by Chief Justice of India Surya Kant was hearing petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of religious freedom practised by multiple faiths.

During the second day of the hearing, Solicitor General Tushar Mehta, representing the Centre, questioned using concepts like transformative constitutionalism and constitutional morality as standards to adjudicate claims under Article 25 of the Constitution.

The top court has framed seven questions on the scope of religious freedom. One of the questions was as to what is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution, and whether it is meant to include Constitutional morality?

In 2018, the top court, on a plea filed by NRI Joseph Shine, struck down Section 497 of the Indian Penal Code dealing with the offence of adultery, holding it unconstitutional. Mehta submitted that the concept of constitutional morality is a sentiment and it is not a doctrine upon which a legislation can be tested.

The bench also comprised Justices B V Nagarathna, M M Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

The bench said the judgment in adultery is not under question, and it was an issue of gender discrimination, where equality has not been respected in the law.

Mehta said Article 497 could have been declared unconstitutional on the grounds of Article 14, as it is arbitrary and discriminatory.

Justice Nagarathna said, "You can say for the enforcement of a fundamental right, it need not be on the touchstone of constitutional morality. Constitutional morality is in the realm of constitutional governance….It may not be palatable to you, but that is not the subject matter as such here…morality under Articles 25 and 26."

Mehta said every law, whether on morality or not, will have to pass constitutional muster, and for that there is no need of a judgment.

Justice Nagarathna observed, "With the passage of time in Indian society, what was considered to be immoral or obscene is no longer considered immoral or obscene. That is the problem of India now. Problem in India. See the standards which were there in the 50s are not the standard there…it is said standards of 1950s is narrow mindedness. Narrow-mindedness cannot be a criticism for what was (in the 1950s)… Criticism now is narrow-mindedness, myopic, old-fashioned etc. This is the problem of Indian society today." The CJI observed, "the struggle of an evolving society."

Mehta said that transformative constitutionalism, which he have not been able to understand what it means but he have been hearing this for the last few years.

"No, no, we are not on transformative constitutionalism; that is a good thing for the Constitution….we are on the fact that you said public morality. Public morality is also not static, that is what I tried to say," said Justice Nagarathna.

On the aspect of constitutional morality, Mehta said this view is the foundation of the Sabarimala 2018 judgment and stressed that constitutional morality is not a ground for judicial review.

He said our former Attorney General stated that it is an unfortunate concept and must die as soon as possible. Mehta argued that constitutional morality cannot serve as an independent ground to test the validity of religious practices under Article 25.

SC asks how non-devotees of Lord Ayyappa can challenge the Sabarimala custom?

Justice Nagarathna observed that the original writ petitioners are not devotees and no devotee has approached this court challenging this, and asked then who are the writ petitioners who are assailing this? Who is the original petitioner?

Mehta said the original petitioner is the Indian Young Lawyers Association. Justice Nagarthna asked, "They are not devotees. Let us be clear, can any devotees of Lord Ayyappa file a writ petition challenging it? A non-devotee, a person who is not concerned with the temple, challenges it. Can this court entertain the writ petition?"

She orally observed that if such an organisation had filed a civil suit challenging the custom, it would have been rejected under Order VII Rule 11 CPC on the ground of having no cause of action. CJI observed that if the locus was an issue, then the writ petition should have been dismissed in 2006 itself, when it was filed.

SC says it can hold what superstition in a religion is, Centre opposes

The apex court observed that it has the right and jurisdiction to determine what is a superstitious practice in a religion. Mehta asked how the court decides what a superstitious practice is. "Even assuming that there is a superstitious practice," he said, adding, "It is not for the court to determine that it is superstition. Under Article 25(2)(b) of the Constitution, it is for the legislature to step in and enact a reform law."

Justice Amanullah said the court has the right and jurisdiction in judicial review to hold what is superstition, and what follows is for the legislature to deal with. Mehta argued that courts and judges, especially in a secular society, cannot decide what constitutes a religious practice, considering that judges are experts in law and not in religion.

Justice Bagchi asked if witchcraft is considered as a part of religious practice, would you or would you not describe it as superstitious?" Mehta agreed that he would.

Justice Sundresh observed that judicial self-restraint in matters of religious practise cannot be confused with a complete exclusion of the court's power to adjudicate. The hearing in the matter will continue tomorrow.

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