Centre questions adultery, Section 377 rulings in Supreme Court

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New Delhi, April 8

The Centre has told the Supreme Court that landmark rulings decriminalising adultery and same-sex consensual relationships were based on what it called a subjective use of “constitutional morality”, arguing that such judgments should not be treated as sound legal precedent.

The submission was made on Wednesday before a nine-judge Constitution bench headed by Chief Justice of India Surya Kant, which is hearing a batch of petitions on women’s access to religious places — including the Sabarimala temple in Kerala — and the broader limits of religious freedom under the Constitution.

At the heart of the hearing is a key constitutional question: what does the word “morality” mean under Articles 25 and 26, which deal with religious freedom? The bench has framed seven questions, including whether that term can extend beyond public morality to include “constitutional morality”.

Appearing for the Centre, Solicitor General Tushar Mehta argued that constitutional morality is more a matter of interpretation than a settled legal doctrine, and should not be used as a standalone test to strike down laws.

He told the court that in a democratic system, laws are framed through elected majorities, and said the idea of morality can shift over time as society evolves. On that basis, he questioned whether courts should rely on constitutional morality while reviewing legislation.