New Delhi, April 8 The Indian Constitution does not allow judicial review based on "constitutional morality" to decide essential religious practices and beliefs, the Centre told the Supreme Court on Wednesday. The Centre emphasized that previous verdicts on decriminalizing consensual gay sex and adultery, based on this principle, were "not a good law."
A nine-judge constitutional bench, headed by Chief Justice Surya Kant, was informed by Solicitor General Tushar Mehta that "constitutional morality" is a "vague and subjective doctrine." The judgments based on it, along with the views of foreign legal experts and precedents, cannot be used to test the correctness of religious beliefs in the country.
Mehta argued before the bench that the wrongly applied concept of constitutional morality in some court judgments later became the basis for the 2018 Sabarimala case, allowing women of all ages to enter the hilltop shrine in Kerala, despite the presiding deity, Lord Ayappa, being a perpetual celibate.
This argument was made before the bench, which also included Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B. Varale, R. Mahadevan, and Joymalya Bagchi, during the hearing on petitions related to discrimination against women in religious places, including the Sabarimala temple in Kerala, and on the scope of religious freedom practiced by different faiths.
"Constitutional morality is a concept from political science about how government officials should function, whether a person facing serious criminal charges should step down or not – these are constitutional conventions, but it is not a basis for judicial review. Judicial review must be exercised according to the Constitution," the Solicitor General told the court.
He said that if a religious practice relates to public order, morality, and health, then the court can examine it. However, he stated that the 2018 Sabarimala verdict said that the court would not rely on "societal morality," which is based on public opinion, but on "constitutional morality."
Justice Nagarathna stated that "public morality is from the point of view of the followers, while constitutional morality, which is very subjective, is a constitutional principle."
The top court also questioned how individuals who are not devotees of Lord Ayyappa can challenge the customs of the Sabarimala temple in Kerala.
The top court framed seven questions on the scope of religious freedom. One of the questions was "What is the scope and extent of the word 'morality' under Articles 25 and 26 of the Constitution, and does it include 'constitutional morality'?"
Mehta submitted that the concept of "constitutional morality" is a sentiment and not a doctrine that can be used to test a law or religious practice.
"In a country governed by democratic principles, the prevailing view is always the majority view, especially when it comes to testing a law, because the majority enacts the law. How do you define morality based on this? Subsequently, there may be an evolution or change in understanding," Mehta said.
Referring to the top court's judgements of 2018 in decriminalizing adultery (Joseph Shine) and same-sex consensual relationships (Navtej Singh Johar), Mehta discussed the issue of judicial review.
CJI Kant said that the offence of adultery was rightly held unconstitutional, being one-sided and discriminatory, as only men were to be penalised while women indulging in the act were not.
Justice Nagarathna stated that the court did not need to consider "constitutional morality" or the views of Western experts, and the provision of adultery could have been struck down for being violative of Article 14 of the Constitution.
"Some 'Feminist Legal Methods' by Katharine T. Bartlett, Harvard Law Review, is quoted in the adultery judgement, which is a law under Article 141 of the Constitution and binds 140 crore Indians," Mehta said, adding that the court does not need to rely on Western legal experts and all it needs to refer to is Indian jurisprudence.
CJI Kant said that the Joseph Shine judgement cites Jeffrey A. Segal as a well-known American legal scholar. "Who is this Segal? He has almost been referred to here as if he is the second Dr BR Ambedkar?" the CJI said.
The SG criticised the foreign law and journals cited in the apex court judgement on adultery and said that courts should not base binding law on "individual and subjective views" drawn from selective academic writings, podcasts, or foreign opinions.
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 as "vague".
At the outset, the bench observed that it has the right and jurisdiction to hold what is a superstitious practice in a religion after the Centre submitted that a secular court cannot decide the issue as judges are experts in the field of law, not religion.
In September 2018, a five-judge bench, by a 4:1 majority verdict, had lifted the ban that prevented women between the ages of 10 and 50 from entering the Sabarimala Ayyappa temple and held that the centuries-old Hindu religious practice was illegal and unconstitutional.
Later, on November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a majority of 3:2, referred the issue of discrimination against women at various places of worship to a larger bench.