The Centre on Wednesday told the Supreme Court that two landmark rulings decriminalising adultery and same-sex consensual relationships were based on a subjective interpretation of "constitutional morality" and should not be treated as good law.
The submission was made before a nine-judge Constitution bench headed by Chief Justice of India Surya Kant, which is hearing petitions on discrimination against women at religious places, including the Sabarimala temple in Kerala, and examining the scope of religious freedom across faiths.
The court has framed seven key questions on religious freedom, including the scope and meaning of the term "morality" under Articles 25 and 26 of the Constitution, and whether it encompasses constitutional morality.
Advancing arguments on the second day, Solicitor General Tushar Mehta, appearing for the Centre, submitted that the concept of constitutional morality is a sentiment and not a doctrine on which legislation can be tested.
"In a country governed by democratic principles, it is always the majoritarian view that prevails, particularly when it comes to testing a law, because it is the majority that enacts the law. How do you then define morality on that basis? Thereafter, subsequently, there may be an evolution or change in understanding," Mehta said.
The bench, on Tuesday, clarified that the court will not tolerate being told the legislature has the “last word" in such matters and observed that courts cannot shy away from testing practices against constitutional principles, even if they are rooted in faith.
It, however, questioned how persons who are not devotees of Lord Ayyappa could challenge the temple custom invoking the PIL jurisdiction of the court.
The court while citing examples of other superstitious practices – witchcraft, cannibalism, and Sati – asked the Solicitor General (SG) Tushar Mehta, senior law officer for the Centre, if witchcraft is considered part of religious practice, would you or would you not consider it superstition?, to which the SG replied, yes and I will.
Rejecting the Centre's submission that the secular court cannot decide the issue with regard to superstitious practices, the Supreme Court on Tuesday -- while hearing a batch of review pleas challenging the Sabarimala judgement -- said that it has the authority to examine whether certain practices in a religion amount to superstition.
The court also observed that it was an issue of gender discrimination where equality in general has not been respected in the law, women has been deemed to be a property not being sui generis...this is the fundamental ratio as we read it.
Dealing with the scope of judicial review, Mehta referred to Supreme Court judgements decriminalising adultery (Joseph Shine) and same-sex consensual relationships (Navtej Singh Johar).
The top court, on a plea filed by NRI Joseph Shine, had in 2018 struck down Section 497 of the Indian Penal Code dealing with adultery, holding it unconstitutional. In the same year, a five-judge Constitution bench had decriminalised homosexuality by partially striking down the colonial-era provisions of Section 377 of the IPC on a plea filed by dancer Navtej Singh Johar.
Mehta said, "One of the questions is what is the extent of judicial review and what is constitutional morality. Whether social or constitutional morality, there is a judgment in the Joseph Shine case. This is a judgment, I am little concerned as a citizen, as a student of law and therefore, this was an adultery provision under challenge.
"Some 'Feminist Legal Methods' by Katharine T. Bartlett, Harvard Law Review, is quoted which is a law under Article 141 of the Constitution and binds 140 crore Indians," he said.
The Chief Justice observed that the Joseph Shine judgment cites Jeffrey A. Segal as a well-known American legal scholar. "Who is this Segal? He has almost been referred here as if he is the second Ambedkar?" the CJI said.
Mehta pointed out that paragraph 195 of the Joseph Shine judgment also cites a JNU professor. "I do not wish to trouble the learned professor. She is known for certain views, including that the Indian State is illegally occupying certain States, etc., etc. I am not going into that. But now, that view finds place in a Supreme Court judgment. It has the status of being part of the record," he said.
"The observations in the case of Navtej Singh Johar v. Union of India have elevated the concept of 'constitutional morality' to being a test for judicial review of legislation. It is submitted that the same is alien to the concept of separation of powers and the doctrine of checks and balances, and further militates against the mandate of Article 13," Mehta said.
The Solicitor General also criticised the use of foreign law and academic writings in the adultery judgement, saying courts should not base binding law on "individual and subjective views" drawn from selective sources.
He argued that treating constitutional morality as a standalone test for judicial review is "alien" to the doctrine of separation of powers and termed the concept "vague".
"The judgment in Joseph Shine proceeds on a premise which is not only against the society's morality but even against constitutional morality," Mehta told the bench, which 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 Centre had earlier filed written submissions urging the court to declare the law and reasoning in the Joseph Shine case as not a good law. "The law and the reasoning in Joseph Shine [Supra] be declared not to be a good law. No arguments are advanced on the validity of Section 497, which was declared unconstitutional in the said judgment, as they are not within the scope of reference," it said.
In September 2018, a five-judge Constitution bench, by a 4:1 majority, lifted the ban on entry of women between the ages of 10 and 50 into the Sabarimala Ayyappa temple in Kerala, holding the centuries-old practice unconstitutional.
Later, on November 14, 2019, another five-judge bench headed by then Chief Justice Ranjan Gogoi, by a 3:2 majority, referred the issue of discrimination against women at various places of worship to a larger bench.
The bench had framed broad issues on religious freedom, observing that such questions could not be decided without the facts of individual cases.
(With inputs from Suchitra Kalyan Mohanty, PTI)