Sabarimala Reference : Live Updates From Supreme Court 9-Judge Bench [Day 2]

J Nagarathna: you said that the standards of 1950s is narrow-mindedness, its not. narrow mindedness can't be criticism for what was in the [inaudible]. the criticism is that its narrow mindnesses or myopic old fashioned, this is the problem of the indian society today

Mehta: that is transformative constitutionalism which i have not been able to understand. i have been listening this for some years but in my limited understanding, i couldn't understand

J Nagarathna; we are not on transformative constitutionalism, its good for the constitution, you said public morality is also not stastic- that is what i tried to say

J Nagarathna: with the passage of time in indian society, what was considered to be immoral or obsence is no longer considered immoral or obscene. that is the problem of india now. see the standards that were there in the 1950s are not the standards now

Mehta: sabarimala says individual freedom, dignity, will take precedence over social interest because what is societal morality is merely mob morality

Mehta: refers to keshvananda bharati on definition of morality under article 19

foreign judgments can never influence our adjudication and relying on minority view of a foregn judgment is frowned upon

Mehta: sabrimala continously proceeds on the ground that morality means constitutional morality and social morality is only mob and therefore what is necessary is constitutional morality-therefore i am saying that as understood by constitutional framers, it is societal morality

Mehta: [referring to the constitutent assembly debates] this is the meaning of constitutional morality how constitutional functionaries deal with other constitutional functionaries

Mehta: the detailed discussion suggested that constitutional morality meant constitutional conventions as to how the functionaries would behave

Mehta: on questions

1. what is the scope of morality under articles 25 and 26 and whether it is meant to include constitutional morality?

there is intrinsic guidelines how the framers framed this

J Nagarathna: because sometimes its very subjective, that's why

Mehta: something which is constitutional morality for one judge can't be for another

J Bagchi- the word of article 25(1) is conscience so it is the conscience of a particular section of citizen to be governed by constitutional morality so be it but that doesn't mean that that section will have imprint over the conscience of another groups or sections whose morality would be different standards but within the expansive elastic idea of the society

Mehta: I am before a nine judge bench so i will say constitutional morality is never a ground of judicial review and i can quote our former solicitor who delivered a lecture that constitutional morality is an unfortunate thing better dies sooner