What Happened
- Before a nine-judge Constitution Bench of the Supreme Court (hearing the Sabarimala reference), the Centre argued that the landmark rulings decriminalising adultery (Joseph Shine v. Union of India, 2018) and same-sex consensual relationships (Navtej Singh Johar v. Union of India, 2018) were based on "constitutional morality" and should be considered "not good law."
- Solicitor General Tushar Mehta submitted that "constitutional morality" is a vague, subjective concept that has no textual basis in the Constitution, and that using it as a standalone test for judicial review of legislation undermines the separation of powers and the mandate of Article 13.
- He argued that reliance on foreign law, academic writings, podcasts, and international judicial opinions to construct binding Indian constitutional doctrine is improper.
- The nine-judge bench, chaired by Chief Justice Surya Kant, is hearing a set of consolidated questions referred to it — including the scope of Articles 25 and 26 (religious freedom), the Essential Religious Practices (ERP) doctrine, and the role of constitutional morality in constitutional adjudication.
- The hearing arose from the review of the 2018 Sabarimala judgment, which permitted women of all ages to enter the Sabarimala temple.
Static Topic Bridges
Constitutional Morality — Concept and Controversy
"Constitutional morality" as a judicial doctrine refers to the idea that the Constitution embodies certain transformative moral values — such as equality, dignity, and non-discrimination — and that these values should guide the interpretation of rights even when they clash with prevailing social or popular morality. The concept was first articulated in Indian jurisprudence in Navtej Singh Johar (2018) and Indian Young Lawyers Association v. State of Kerala (the Sabarimala judgment, 2018).
- The term was borrowed from B.R. Ambedkar's Constituent Assembly speech (November 4, 1948), where he used it to mean adherence to constitutional procedures and norms by holders of public power — not as a substantive test for rights.
- In Navtej Singh Johar (2018), the Supreme Court used constitutional morality to hold that Section 377 IPC (to the extent it criminalised consensual same-sex acts between adults) was unconstitutional as it violated Articles 14, 15, 19, and 21.
- In Shayara Bano v. Union of India (2017), the court used the concept to strike down instant triple talaq.
- Critics (including the Centre's current position) argue that "constitutional morality" gives judges unchecked power to substitute their own values for those of elected legislatures, undermining Article 13's text-based approach to fundamental rights review.
Connection to this news: The Centre is urging the nine-judge bench to decline reliance on "constitutional morality" as a doctrine — which, if accepted, would significantly affect the legal basis of the 2018 adultery and same-sex judgments.
Article 13 and Judicial Review of Legislation
Article 13 of the Constitution is the cornerstone of judicial review in India. It declares that any law inconsistent with Fundamental Rights (Part III) shall, to the extent of the inconsistency, be void. It also prohibits the State from making any law that takes away or abridges Fundamental Rights.
- Article 13(1): Pre-constitutional laws inconsistent with Part III are void to the extent of inconsistency.
- Article 13(2): State shall not make any law that takes away or abridges Fundamental Rights — such laws are void.
- Article 13(3)(a): "Law" includes ordinances, orders, bye-laws, rules, regulations, notifications, and customs having the force of law.
- Kesavananda Bharati v. State of Kerala (1973): established that Parliament cannot amend the "basic structure" of the Constitution even under Article 368 — this is the most important limit on legislative power.
- The Solicitor General argued that judicial review under Article 13 must be grounded in the text of the Constitution, not in extra-textual doctrines like "constitutional morality."
Connection to this news: The Centre's argument challenges the doctrinal expansion of Article 13 review beyond textual Fundamental Rights into a judicially constructed "constitutional morality" standard.
Essential Religious Practices (ERP) Doctrine — Articles 25 and 26
The Essential Religious Practices (ERP) doctrine is a judicially created test under which the Supreme Court examines whether a challenged religious practice is "essential" or "integral" to a religion. Only those practices found to be essential receive the full protection of Articles 25 and 26.
- Article 25: Freedom of conscience and the right to freely profess, practise and propagate religion — subject to public order, morality, and health, and subject to State regulation of secular activities associated with religious practice (Article 25(2)(a)) and State laws providing for social welfare and reform (Article 25(2)(b)).
- Article 26: Every religious denomination has the right to manage its own affairs in matters of religion, subject to public order, morality, and health.
- ERP doctrine originated in Shirur Mutt case (1954): the Court held that what constitutes an essential part of a religion must be determined with reference to the doctrines of that religion itself.
- The Centre argued before the bench that the ERP doctrine should be abandoned and replaced with a standard based on sincere devotional belief — i.e., the test should be whether the devotees sincerely believe a practice is part of their religion, not whether the Court finds it "essential."
- Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thritha Swamiar (1954) — first significant application of ERP doctrine.
Connection to this news: The Centre's challenge to the ERP doctrine is directly relevant to the Sabarimala case, where the key question is whether the practice of restricting women of menstruating age from entering the temple is "essential" to the faith of Lord Ayyappa devotees.
Separation of Powers — Judicial vs. Legislative Function
The Constitution does not explicitly enshrine separation of powers but distributes powers across the Legislature, Executive, and Judiciary through Articles 79, 121, 122, 123, 132–136, 143, 245, and 246. The doctrine of separation of powers is recognised as part of the basic structure of the Constitution (Kesavananda Bharati, 1973; Indira Gandhi v. Raj Narain, 1975).
- Article 25(2)(b) explicitly assigns the function of religious reform to the Legislature (Parliament and State Legislatures can make laws for social welfare and reform or for throwing open Hindu religious institutions to all classes).
- The Solicitor General argued that reform of religious practices is a legislative function under Article 25(2)(b), and that courts should not substitute judicial value judgments for legislative action.
- The counter-position (reflected in the 2018 Sabarimala majority) is that constitutional rights are judicially enforceable regardless of whether the Legislature has acted.
Connection to this news: The Centre's argument draws a boundary between the court's role (applying the Constitution as written) and the legislature's role (reforming social/religious practices) — directly challenging the judicial activism embedded in the 2018 judgments.
Key Facts & Data
- Nine-judge Constitution Bench: Chief Justice Surya Kant + 8 judges (including Justice B.V. Nagarathna, Justice M.M. Sundresh)
- Navtej Singh Johar v. Union of India (2018): struck down Section 377 IPC (consensual same-sex acts between adults)
- Joseph Shine v. Union of India (2018): struck down Section 497 IPC (adultery as a criminal offence for men)
- Indian Young Lawyers Association v. State of Kerala (2018): Sabarimala judgment — allowed women of all ages entry (4:1 majority)
- Article 25(2)(b): State may legislate for social welfare and reform or for throwing open Hindu religious institutions to all Hindus
- Article 26: religious denominations' right to manage their own affairs in matters of religion
- ERP doctrine origin: Shirur Mutt case (1954)
- Current referral: originally referred to the larger bench by a 5-judge bench in the Sabarimala review, given significant constitutional questions