Sabarimala Reference | Centre Questions Verdicts Decriminalising Adultery & Homosexuality For Applying 'Constitutional Morality'

Solicitor General Tushar Mehta, appearing for the Union of India in the Sabarimala review proceedings, has criticised the Supreme Court's 2018 judgment in Joseph Shine striking down the offence of adultery under Section 497 of the IPC, arguing that it reflects an impermissible expansion of judicial review through reliance on “constitutional morality”.He has said that constitutional morality has been erroneously used in some judgments to “exercise the power of judicial review when no other ground is found to invalidate a legislative or executive action.”“It is pertinent to note that 'constitutional morality' is not textually present in the Constitution, rather it is a judicially evolved, vague and indeterminate concept. Hence, the expansion of the term 'morality', which is explicitly referred to in the Constitution to mean and include 'constitutional morality', amounts to not only judicial overreach but an amendment of the Constitution”, he has further contended.The judgment, delivered in Joseph Shine v. Union of India, had declared Section 497 unconstitutional and decriminalised adultery on the ground that it violated constitutional guarantees of equality, dignity and personal liberty.While he does not object to the striking down of section 497 as unconstitutional on the ground of discrimination or arbitrariness under Article 14, he has objected to the court relying on the “vague and subjective” concept of constitutional morality in the case.The Centre has sought a declaration that the judgment decriminalising adultery is “not good law”. “The judgment in Joseph Shine proceeds on a premise which is not only against the society morality but even against constitutional morality [if Indian constitution is being considered]”, Mehta has argued.In his written submissions, Mehta submitted that the Joseph Shine ruling is part of a line of recent decisions where the Court has invoked concepts such as “constitutional morality”, “transformative constitutionalism” and the idea of a “living Constitution”. He argued that these concepts are not grounded in the constitutional text and cannot be used to test the validity of religious practices, such as bar on women entering the Sabarimala Temple, under Articles 25 and 26 of the Constitution.“It is submitted that the later judicial trend to read 'morality' in Articles 25 and 26 as 'constitutional morality' departs from both the text and precedent. Constitutional morality is a judicially evolved expression, the contours of which have remained uncertain, shifting from case to case according to the values emphasised in a particular context. At best, it makes it an aspirational interpretive ideal”, he contends.He submitted that the Constitution itself provides specific grounds on which the right to freedom of religion may be restricted, i.e., public order, morality and health, and these limitations cannot be expanded by judicial interpretation. According to him, the term “morality” in Articles 25 and 26 refers to “societal morality” or “public morality”, and not “constitutional morality” as developed in judgments such as Joseph Shine and Navtej Johar (judgment decriminalizing homosexuality).“The framers of the Constitution always intended the term “morality” as used in Article 25 as 'societal morality' or 'public morality'. All judgments which use the expression “morality” to mean “constitutional morality” are per incuriam and are required to be declared to be per incuriam”, he has contended.He has also criticised the Navtej Singh Johar v. Union of India judgment that decriminalised homosexuality, contending that it “demonised” the term 'morality' as mob morality or majoritarianism.“It is submitted that it is no one's case that in a democratic and secular country like ours, the mob or the majority shall prevail. It simply cannot, not because this concept of 'Constitutional Morality' coined in 2014 prevents it, but the Constitution and its provisions prevent it”, he added.Mehta has argued that these judgments used abstract principles to invalidate legal provisions without a clear textual basis. He has contended that extending this approach to religious practices would allow courts to enter areas involving faith, belief and modes of worship, which fall outside judicial competence.“There is an inherent risk in the court exercising its jurisdiction to interpret any religion. Apart from the fact that the court would not possess either expertise or scholarship on religious issues, holy books, scriptures, texts, etc., further in the context of India, which does not follow only one particular theistic religion but has a pluralistic society including Hindus, Muslims, Christians and other religions. Each religion has its different sections or denominations, and each denomination and section has their own faith, belief and expression for worship. The founding fathers were fully conscious of this pluralism of the country and the internal pluralism amongst each religion also”, he has...

Sabarimala Reference | Centre Questions Verdicts Decriminalising Adultery & Homosexuality For Applying 'Constitutional Morality'

Amisha Shrivastava

The concept of ‘Constitutional Morality’ is not rooted in Constitution, and cannot replace societal morality, the Centre argued.

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