The Centre informed the Supreme Court that the landmark rulings decriminalising adultery and consensual same-sex relationships were based on a subjective interpretation of “constitutional morality” and should now be declared “not a good law” by the Court.
The Centre told the Supreme Court that the two landmark rulings decriminalising adultery and consensual same-sex relationships rested on a subjective reading of “constitutional morality” and ought to be declared “not a good law.”
The submission came during hearings before a nine-judge Constitution Bench led by Chief Justice of India Surya Kant, which is considering petitions about discrimination against women at religious sites including the Sabarimala temple in Kerala and the breadth of religious freedom across faiths.
The court has posed seven questions about the reach of religious freedom. One asks how far the term ‘morality’ in Articles 25 and 26 extends, and whether it is intended to encompass Constitutional morality.
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On the second day of arguments, Solicitor General Tushar Mehta, representing the Centre, argued that constitutional morality is a sentiment rather than a legal doctrine by which legislation should be judged.
Mehta said,
“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,”
Adultery was earlier a criminal offence under Section 497 of the Indian Penal Code (IPC). It allowed a husband to file a criminal case against the man who had a relationship with his wife. The wife, however, could not be punished or file a complaint, making the law unequal.
In 2018, the Supreme Court of India struck down Section 497 IPC in the landmark judgment Joseph Shine v. Union of India.