SG Challenges Constitutional Morality in Sabarimala Reference

NEW DELHI – On the second day of hearings before a nine-judge Constitution Bench of the Supreme Court of India, Solicitor General Tushar Mehta launched a forceful critique of "constitutional morality" and "transformative constitutionalism," arguing they lack coherence as grounds for judicial review under Article 25 (freedom of religion). Mehta contended that the 2018 Sabarimala judgment, which permitted women of all ages to enter the Sabarimala temple, erroneously substituted vague judicial notions of morality for entrenched social and religious practices. While the bench, led by Chief Justice Surya Kant, emphasized it is addressing only seven broader constitutional questions—not re-examining the Sabarimala merits—Mehta's submissions highlighted deepening fault lines between religious autonomy and progressive constitutional mandates.

The hearings, unfolding over a pre-fixed schedule from April 7 to 22, revisit the contentious 2018 ruling amid review petitions and references on essential religious practices. Mehta's arguments underscore the Union's position that the verdict was "wrongly decided," urging deference to denominational faiths over imposed equality norms.

The Sabarimala Saga: From 2018 Verdict to Reference

The dispute traces back to a 2006 public interest litigation (PIL) filed by the Indian Young Lawyers Association challenging Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965. This rule barred women aged 10-50—deemed menstruating—from entering the Sabarimala temple, dedicated to Lord Ayyappa as a celibate deity.

In September 2018, a five-judge bench ruled 4:1 in favor of entry, holding the exclusion violative of Articles 14 (equality), 15 (non-discrimination), and 25. The majority invoked constitutional morality to override the practice, deeming it discriminatory and rejecting Ayyappa devotees as a distinct denomination under Article 26. Justices Dipak Misra, R.F. Nariman, A.M. Khanwilkar, and D.Y. Chandrachud formed the majority; Justice Indu Malhotra dissented, cautioning: "issues of deep religious sentiments should not be ordinarily interfered [with] by the court... Notions of rationality cannot be invoked in matters of religion."

Review petitions followed, complicated by retirements and a majority shift (3:2 decision in 2019 to refer larger questions). Citing conflicts like Shirur Mutt (1954, denominations self-determine essentials) versus Dargah Committee, Ajmer (courts exclude secular/superstitious elements), the court framed seven questions for a larger bench. A 2020 nine-judge bench upheld the reference, expanding to issues like mosque entry for Muslim women, Parsi fire temples, Dawoodi Bohra excommunication, and female genital mutilation (FGM).

The 9-Judge Bench and Seven Constitutional Questions

Comprising Chief Justice Surya Kant, Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B. Varale, R. Mahadevan, and Joymalya Bagchi, the bench is not revisiting Sabarimala 's ratio. Key questions include: 1. Scope of Article 25. 2. Interplay between Articles 25 and 26. 3. Article 26 subjection to Part III beyond public order, morality, health. 4. 'Morality' in Articles 25/26—includes constitutional morality? 5. Judicial review over Article 25 religious practices. 6. "Sections of Hindus" in Article 25(2)(b). 7. PIL standing for non-members against denominational practices.

Parties supporting review (April 7-9) precede opponents (April 14-16), with rejoinders by April 22. The Centre backs review, arguing judicial overreach into faith.

Day 1: Setting the Stage

Hearings commenced April 7 with Mehta clarifying the Union's view: Sabarimala misread "equally entitled" in Article 25 as mandating gender parity (covered by Articles 14/15). He invoked Constituent Assembly debates amid Partition-era violence, stressing India's religious plurality and sub-denominations. Mehta rejected Article 17 (untouchability) extension to menstruating women exclusions, asserting: "India is not that patriarchal or gender-stereotyped society as the West understand." He defended Article 26's "sections thereof" for smaller groups, critiquing Sabarimala 's non-denominational finding for Ayyappa worship.

Justice Nagarathna queried untouchability analogies, while Justice Bagchi emphasized conscience in Article 25(1), allowing coexisting moralities. The bench reiterated: no merits review.

Day 2 Focus: Assault on 'Constitutional Morality' and 'Transformative Constitutionalism'

Mehta escalated, declaring: "I am before a nine-judge bench, so I will say constitutional morality is never a ground of judicial review." He argued 'morality' in Article 25 means societal conscience, not judge-varying constitutional variants: "Something which is constitutional morality for one judge can't be for another." Citing framers' intent for public functionaries, he lambasted Sabarimala : "Sabarimala continuously proceeds on the ground that morality means constitutional morality and social morality is only mob, and therefore what is necessary is constitutional morality."

On transformative constitutionalism, Mehta professed ignorance: "Transformative constitutionalism, I have not been able to understand it. I have been hearing this for some years, but in my limited understanding, I couldn't understand." Justice Nagarathna clarified no direct engagement but noted morality's dynamism, echoing Mehta's Day 1 public morality point.

Scrutiny of Joseph Shine and Gender Narratives

Mehta questioned Joseph Shine (striking S.497 IPC adultery law), critiquing observations on sexual autonomy "shackled by marriage" as alien jurisprudence: "Is fidelity a patriarchal conception? Fidelity applies to husband and wife equally." He linked it to Sabarimala 's foundation, rejecting American jurist quotes.

CJI Surya Kant countered: Joseph Shine 's ratio (gender discrimination in S.497) unchallenged. Justice Bagchi reinforced: invalidation on agency denial to women.

Mehta rebutted patriarchy imports: "India has always treated women equally; we have always treated them at a higher pedestal... We are the only society, we worship ladies."

Bench Responses and Nuanced Interventions

Justice Nagarathna flagged subjectivity: "Because sometimes it is very subjective." Justice Bagchi stressed plural consciences: "it is the conscience of a particular section of citizens to be governed by constitutional morality, so be it. But that doesn't mean that that section will have imprint over the conscience of another groups." Justice Sundresh separated Articles 25/26 applications.

The bench affirmed holistic Part III reading, rejecting Article 26 isolation.

Legal Analysis: Doctrinal Fault Lines

Mehta's salvo exposes tensions: Shirur Mutt 's deference vs. post- Sabarimala judicial activism. Constitutional morality—elevated in Sabarimala , Navtej Singh Johar (S.377)—risks subjectivity, undermining predictability. Transformative constitutionalism (South African import) urges evolution but invites accusations of imposition. Social morality aligns with framers' societal focus, potentially restoring ERP balance where courts defer absent clear public order breaches.

PIL standing (Question 7) implicates Shri Krishna Singh limits; Article 26 "sections thereof" protects micro-denominations like Sabarimala.

Implications for Religious Freedom and Equality Jurisprudence

A ruling favoring Mehta could curtail judicial intervention, bolstering Article 26 over Article 14/15 in faith realms—impacting dargah/mosque entries, Parsi agyaris, Bohra FGM. Conversely, affirming constitutional morality entrenches equality, but risks eroding denominational autonomy.

For practitioners: Expect refined ERP tests (expert evidence per Justice Bagchi); cautious transformative rhetoric; locus standi bars for outsiders. Constitution benches' outputs shape federalism-religion intersections, influencing state worship laws.

Looking Ahead

With opponents' arguments next, the bench's verdict—likely months away—promises landmark clarity on faith-equality equilibrium. As India navigates pluralism, this reference tests constitutionalism's transformative potential without "mob" dismissal of traditions.