Supreme Court’s second day of hearing on Sabarimala case was dominated by Solicitor General Tushar Mehta’s arguments. Addressing the nine-judge bench led by Chief Justice of India Surya Kant, Mehta said the court has very limited powers to examine religious practices and cannot change them on the basis of “constitutional morality.”
Respect For women Is Very Important: Centre
Mehta said the Constitution invalidates religious practices that fail the test of morality, but in this context, morality refers to social morality, not constitutional morality. He argued that in the Sabarimala judgment, morality was interpreted as constitutional morality, while social morality was treated as little more than the view of a crowd. He said respect for women is extremely important, but it was wrong to link it to fundamental rights in the way it was done in the Sabarimala case.
He further said that the conclusions reached by the Supreme Court in cases related to homosexuality and adultery may be correct, but the way the Constitution was interpreted in those judgments was such that even Dr BR Ambedkar or KM Munshi would have been surprised.
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Definition Of Morality Changes With Time: SC
Justice Nagarathna, a member of the bench, said that the definition of morality in society changes over time. She observed that what may not have been socially acceptable in the 1950s may not necessarily remain unacceptable today. Responding to this, Mehta said that this does not mean the interpretation of the Constitution should also change over time.
Appearing for the Centre, Mehta drew the bench’s attention to the fact that the Constitution treats social order, morality, and health as exceptions to the right to religious freedom. He said courts can intervene on these grounds, but evaluating religious practices and striking them down is not the role of the judiciary. He added that Article 25(2)(b) gives the legislature the power to make laws for the removal of wrongful practices.
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‘Court, Govt Both Have Limits In Religious Matters’
Justice Ahsanuddin Amanullah, another member of the nine-judge bench, said Mehta’s interpretation was too simple and by that logic it would leave the court with no authority at all. He said the court can determine what amounts to superstition, based on which the legislature can frame laws. Mehta responded that judges are not experts in such matters and that what is considered a religious tradition in one part of the country may be seen as superstition in another.
Mehta also said that not only courts, but even the government has a limited scope to interfere in religious matters. He argued that if a religious denomination follows a system where the role of priest passes from one generation of a family to the next, the government cannot change it in the name of social reform. Justice Nagarathna agreed, saying that the identity of a religion cannot be taken away in the name of reform.
