'Constitutional Morality' In Religious Matters Like A Bull In A China Shop : Singhvi Tells Supreme Court In Sabarimala Reference

Senior Advocate Dr Abhishek Manu Singhvi told the Supreme Court that the concept of 'constitutional morality' is fluid, warning that it is a dangerous proposition to rely on such a subjective standard to interpret religious freedoms under Articles 25 and 26 of the Constitution

He made this argument during the hearing of the Sabarimala reference before the nine-judge bench on April 15.

Singhvi stated that the Constitution framers consciously used the term 'morality' in Articles 25 and 26 and neither public nor constitutional morality. He added that it's a 'term of art' never envisaged to challenge legislation, and the Court can't rewrite it.

He referred to Kesavananda Bharati and SP Gupta judgments and pointed out that in these cases, the term constitutional morality was used, but not in terms of how it is interpreted today. He also referred to Dr Ambedkar's speech, where it was first used and clarified that it was used to have a detailed Constitution for a nascent republic of India at that time. Constitutional morality has been envisaged as a code for governance, and not to test religious rights, Singhvi argued.

At one point, Justice Nagarathna stated the Court can't completely throw away the concept and that in SP Gupta, it was rightly used as a constitutional convention binding constitutional functionaries. She said: "It's a very fluid test to apply to strike down legislation."

Singhvi said that in Manoj Narula(2014), constitutional morality was revived by Justice Dipak Mishra(now retired), which was then followed by Justice Chandrachud(now retired) in State(NCT of Delhi) v. UOI(2018). He submitted that religious practices are viewed through the prism of the adherent, which is largely subjective in terms of the beliefs of the individual. 

At this point, Justice Bagchi and Justice Nagarathna pointed out that constitutional morality has been invoked in the context of hate speech in Kaushal Kishore(2023) as to how the public functionaries and their acts are kept at a higher threshold. CJI also added that it is basically called constitutional dharma or a code of conduct which the constitutional functionaries are expected to observe.

"It can be retained provided it is limited to a concept of convention, spirit, and acting in the interstices of the silence of the Constitution. The moment it comes into conflict with anything and mylords start alleviating it as an overriding consideration, it is contrary to the Constitutional ethos...Today, we have a new word which does not have a legacy of jurisprudence...," Dr Singhvi submitted.

He added that its usage everywhere is "bad" and may cause "havoc" if applied loosely, but it will certainly have disasterous affect if used in Articles 25 and 26. 

"If you bring it, if I may use it in a lighter vein, it will be a bull in a China shop. The China shop being Articles 25 and 26, and the bull being constitutional morality. It will just not fit in, and it should not be allowed to enter," he concluded.

CJI responded that constitutional morality may create "unmanageable standards" as it's completely subjective. To this, Dr Singhvi responded that it's not even an unruly horse but a dinosaur, an unridable animal. 

The Central Government has also opposed the application of 'Constitutional morality' to test religious freedom, and has also questioned the verdicts which decriminalised homosexuality and adultery for applying this concept.

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