Sabarimala Reference: Decoding the debate on ‘Morality’ | Key Takeaways from Union and Review Petitioner arguments

To read what the Union and Review Petitioners argued on the interplay of Articles 25 and 26, read our detailed report here.

“MY LORD, if these judgments – Navtej Singh Johar, Joseph Shine – were to be read by Dr. Ambedkar, or K.M. Munshi or Alladi Krishnaswami Ayyar, I do not know whether they would be surprised, shocked, or they would say that is what they wanted,” Solicitor General Tushar Mehta, for the Union government, argued last Wednesday, “I believe they did not want this to happen.”

Mehta was not arguing a review of the Navtej Johar (that decriminalised same sex relationships in 2018), or Joseph Shine (that decriminalised adultery) decisions, but answering a two-pronged bone of contention in the Sabarimala reference – what is ‘morality’ under Articles 25 and 26, and whether constitutional morality be the basis for judicial review? This question is so relevant that it ties the current review hearings before this nine-judge Bench to a majority of the landmark rulings of the last decade which have been rooted in constitutional morality with a domino effect. 

Last week, the Solicitor General and the Review Petitioners noted that the ‘morality’ restriction under Article 25 referred to ‘public morality’, that ‘constitutional morality’, as the framers meant it, was simply about constitutional conventions to be followed by government functionaries, and that a series of judgments had got it all wrong.

‘Morality is Public Morality’

Both Article 25(1) which recognises the freedom of conscience and the right to freely profess, practice and propagate religion, and Article 26 which recognises the freedom to manage religious affairs, apply subject to ‘public order, morality and health’. In the 2018 Sabarimala verdict, and really a host of decisions prior to that, the majority had interpreted ‘morality’, not as majoritarian, societal morality but as ‘constitutional morality’. One of the issues framed by the February 2020 reference order intends defining the ‘morality’ restriction under Article 25(1). Last Wednesday, the Solicitor General referred to Constituent Assembly debates to argue that it meant public or societal morality and that constitutional morality meant something very different. He first referred to a Constituent Assembly speech by Z.H. Lari, who, while criticising the enacting of Safety Acts for denying people the right to move before the High Court, observed that constitutional morality was not a natural sentiment; it had to be cultivated.

Contrary to this, the ‘morality’ in Article 25 was of a different flavour. He referred to a speech by K. Santhanam, another member of the Constituent Assembly, on draft Article 19 (present day Article 25), where he had argued that the provision was “really not so much an article on religious freedom, but…on what I may call ‘religious toleration’.” Santhanam explained that while before the Constitution there had been “unrestricted practice and propaganda” in the name of Hindu religion, the new Constitution was only restricted to rights consistent with public order, morality and health. But ‘morality’ here, Mehta said, meant something that grew with the social and moral conscience of the people. “Morality is understood in the context of societal morality, that society will evolve and the concepts of morality will change with evolution of each generation,” he noted, “That is the expectation.”

He also referred to the decision of Justice D.G. Palekar in Kesavananda Bharati v. State of Kerala (1973), where he noted: “Even the rights conferred are not in absolute terms. They are hedged in and restricted in the interest of the general public, public order, public morality, security of the State and the like which shows that social and political considerations are more important in our organized society.”This, he noted as evidence, meant that ‘morality’ in draft Article 19 was construed as ‘public morality’.