Decriminalising Adultery, Same-Sex Relations Not Good Law: Centre to SC

The apex court framed seven questions regarding the scope of religious freedom. “One of the questions was what the scope and scope of the word ‘morality’ in Articles 25 and 26 of the Constitution was and whether it covered the morality of the Constitution.”

Speaking on behalf of the Center on the second day, Solicitor General Tushar Mehta stated that the concept of constitutional morality is a feeling and not a doctrine on which legislation can be tested.

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

“So how do you define morality on that basis? Then there may be an evolution or change in understanding,” Mehta said.

Addressing the issue of the scope of judicial review, Mehta cited apex court orders decriminalizing adultery (Joseph Shine) and consensual same-sex relations (Navtej Singh Johar).

Following a plea filed by NRI Joseph Shine, the high court had annulled Section 497 of the Indian Penal Code, which regulates the crime of adultery, in 2018, finding it unconstitutional.

In 2018, a five-judge Constitution bench had decriminalized homosexuality by partially striking down the colonial-era provisions of Section 377 of the Indian Penal Code, following a plea filed by dancer Navtej Singh Johar.

SG Mehta said: “One of the questions is the scope of judicial review and what is constitutional morality. There is a verdict in the Joseph Shine case, be it social or constitutional morality. It is a verdict; as a citizen, as a law student, I am not very interested and hence it was an impugned adultery verdict.”

“Some ‘Feminist Legal Methods’ by Katharine T. Bartlett of Harvard Law Review are cited, which is a law under Article 141 of the Constitution and binds 140 crore Indians,” Mehta said.

The CJI said the Joseph Shine decision cited Jeffrey A. Segal as a prominent American legal expert. “Who is this Segal? He is mentioned here almost as if he were the second Ambedkar?” The CJI said.

Mehta said JNU professor Nivedita Menon was quoted in paragraph 195 of the Joseph Shine judgment.

“I do not want to disturb the learned professor. He is known for certain views, including that the Indian State is illegally occupying certain states, etc. I will not go into that. But now this view has been embodied in a Supreme Court judgment. It has the status of being part of the record,” he said.

“The observations in Navtej Singh Johar v. Union of India have made the concept of ‘constitutional morality’ 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 separation of powers and is also contrary to the mandate of Article 13,” Mehta said, referring to the provision ensuring that laws do not violate fundamental rights. he said.

The attorney general criticized foreign law and journals cited in the Supreme Court’s adultery decision and said courts should not base binding laws on “individual and subjective opinions” drawn from selective academic papers, podcasts or foreign opinions.

He argued that treating constitutional morality as an independent test for judicial review was “alien” to the separation of powers doctrine, calling the concept “vague.”

“The judgment in the Joseph Shine case proceeds on a proposition that is not only against the morality of the society but also against the constitutional morality,” Mehta told the bench comprising Justices BV Nagarathna, MM Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi.

The Center had earlier submitted a written opinion on the matter, urging the court to declare that the law and the reasoning in the Joseph Shine case was not a good law.

“Law and logic in Joseph Shine [Supra] It is not that it is not a good law. “Since Article 497, which is stated to be unconstitutional in the decision in question, is not within the scope of reference, no claim can be made regarding its validity,” the Center said.

In September 2018, a five-judge Constitution bench, in a 4-1 majority verdict, struck down the ban preventing women between the ages of 10 and 50 from entering the Sabarimala Ayyappa temple in Kerala, ruling that age-old Hindu religious practices were illegal and unconstitutional.

Later, on November 14, 2019, another five-judge bench headed by the then CJI Ranjan Gogoi, by a 3:2 majority, referred the issue of discrimination against women in various places of worship to a larger bench.

The panel then outlined broad issues regarding interfaith freedoms and said these issues could not be decided without any facts about the specific situation.