Adultery, same sex relationship judgments, based on constitutional morality concept: Centre tells Supreme Court

New Delhi: The Centre on Wednesday told the Supreme Court two landmark rulings, striking down adultery provision and upholding same-sex consensual relationships, rested on a subjective invocation of "constitutional morality" and ought to be treated as "not good law".

In his arguments before a nine-judge bench in Sabarimala review matter, Solicitor General Tushar Mehta submitted that 'constitutional morality' is not textually present in the Constitution, rather it is a judicially evolved, vague and indeterminate concept.

Maintaining that he would not object to the striking down of adultery revision under section 497 of the IPC as unconstitutional on the ground of discrimination or arbitrariness under Article 14, he was opposed to the court relying on the “vague and subjective” concept of constitutional morality in the case.

He submitted the Navtej Singh Johar Vs Union of India judgment, which decriminalised homosexuality, demonised the term 'morality' as mob morality or majoritarianism.

“In a democratic and secular country like ours, the mob or the majority shall prevail. It simply cannot, not because this concept of 'constitutional morality' coined in 2014 prevents it, but the Constitution and its provisions prevent it,” he said.

Mehta contended these judgments used abstract principles to invalidate legal provisions without a clear textual basis. Extending this approach to religious practices would allow courts to enter areas involving faith, belief and modes of worship, which fall outside judicial competence, he said.

The bench, however, said the judgment in adultery is not under question, and it was an issue of gender discrimination, where equality has not been respected in the law.

Mehta reiterated Section 497 could have been declared unconstitutional on the grounds of Article 14, as it is arbitrary and discriminatory.

The bench also said, "You can say for the enforcement of a fundamental right, it need not be on the touchstone of constitutional morality. Constitutional morality is in the realm of constitutional governance. It may not be palatable to you, but that is not the subject matter as such here…morality under Articles 25 and 26."

Mehta said every law, whether on morality or not, will have to pass constitutional muster, and for that there is no need of a judgment.