Judgements on adultery, same-sex relationship ‘not a good law’: Centre in SC

The Centre on Wednesday told the Supreme Court that the two landmark judgements on decriminalising adultery and same-sex consensual relationships were based on the subjective application of “constitutional morality” and should be declared as “not a good law”.

The submission was made during the hearing by a nine-judge Constitution bench headed by Chief Justice of India Surya Kant on the petitions related to discrimination against women at religious places, including the Sabarimala temple in Kerala, and on the ambit and scope of religious freedom practised by multiple faiths.

The top court has framed seven questions on the scope of religious freedom. One of the questions was as to what is the scope and extent of the word ‘morality’ is under Articles 25 and 26 of the Constitution, and whether it is meant to include 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 it is not a doctrine upon which a legislation can be tested.

“In a country governed by democratic principles, it is always the majoritarian view which prevails, particularly when it comes to testing a law, because it is the majority which 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.

Dealing with the issue of the scope of judicial review, Mehta referred to top 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 the offence of adultery, holding it unconstitutional.

A five-judge Constitution bench in 2018 had decriminalised homosexuality by partially striking down the colonial-era provisions of Section 377 of the Indian Penal Code on a plea 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. Whether social or constitutional morality, there is a judgment in the Joseph Shine case. This is a judgment, I am a 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,” Mehta said.

The CJI said 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 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., 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 alleviated 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, referring to the provision that ensures that laws do not violate fundamental rights.

The Solicitor General criticised the foreign law and journals cited in the Supreme Court judgement on adultery and said the 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.”

“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.