New Delhi, April 8 The Centre told the Supreme Court on Wednesday that the two landmark judgments decriminalizing adultery and same-sex consensual relationships were based on a subjective interpretation of "constitutional morality" and should be declared as "not a good law".
This submission was made during the hearing by a nine-judge Constitution bench, headed by Chief Justice of India Surya Kant, 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 various faiths.
The top court has framed seven questions regarding the scope of religious freedom. One of the questions was: "What is the scope and extent of the term 'morality' under Articles 25 and 26 of the Constitution, and does it include 'constitutional morality'?"
Advocating his arguments on the second day, Solicitor General Tushar Mehta, representing the Centre, argued that "constitutional morality" is a concept, not a doctrine, and cannot be used to test a law.
"In a country governed by democratic principles, the prevailing view always prevails, especially when a law is being tested, because the majority enacts the law."
"How can we define morality based on this? Subsequently, there may be an evolution or change in understanding," Mehta said.
Addressing the issue of judicial review, Mehta cited the top court judgments decriminalizing adultery (Joseph Shine) and same-sex consensual relationships (Navtej Singh Johar).
The top court, in a petition filed by NRI Joseph Shine, had in 2018 struck down Section 497 of the Indian Penal Code dealing with adultery, deeming it unconstitutional.
A five-judge Constitution bench in 2018 had decriminalized homosexuality by partially striking down Section 377 of the Indian Penal Code on a petition filed by dancer Navtej Singh Johar.
SG Mehta said, "One of the questions is: what is the extent of judicial review, and what is 'constitutional morality'? The Joseph Shine case provides a judgment on this. I am concerned as a citizen, a law student, and therefore this provision relating to adultery was being challenged."
Mehta cited Katharine T. Bartlett's "Feminist Legal Methods" from Harvard Law Review, which is a law under Article 141 of the Constitution and binds 140 crore Indians," he said.
CJI said that the Joseph Shine judgment cites Jeffrey A. Segal as a well-known American legal scholar. "Who is this Segal? He is almost being referred to as the second Ambedkar?" the CJI said.
Mehta said that in paragraph 195 of the Joseph Shine judgment, a JNU professor, Nivedita Menon, is quoted.
"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. 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 treated 'constitutional morality' as a test for judicial review of legislation."
"It is submitted that this concept is alien to the doctrine of separation of powers and the doctrine of checks and balances, and further, it goes against the mandate of Article 13," Mehta said, referring to the provision that ensures laws do not violate fundamental rights.
The Solicitor General criticized the foreign laws and journals cited in the Supreme Court judgment on adultery and said that courts should not base binding laws 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".
"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 earlier filed written submissions in the matter, urging the court to declare the law and the reasoning in the Joseph Shine case not to be 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,” the Centre said.
In September 2018, a five-judge Constitution 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 in Kerala, 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.
The bench had then framed broad issues on freedom across religions, saying they cannot be decided without any facts of the particular case.