NEW DELHI: The Centre on Wednesday told the Supreme Court that landmark rulings decriminalising adultery and same-sex consensual relationships were based on a “subjective” interpretation of constitutional morality and should be considered “not a good law.“The submissions were made before a nine-judge Constitution bench led by Chief Justice of India Surya Kant during hearings on petitions related to religious freedoms, including the Sabarimala temple issue, news agency PTI reported..Appearing for the Centre, Solicitor General Tushar Mehta argued that “constitutional morality” is a vague concept and cannot serve as a standalone test for judicial review of laws. He said in a democracy, laws reflect the will of the majority, raising questions about how morality should be defined in that context.Referring to the 2018 judgments in the Joseph Shine case (which struck down the adultery law) and Navtej Singh Johar case (which decriminalised homosexuality), Mehta expressed concern over reliance on foreign legal writings and academic opinions in court rulings.He argued that elevating constitutional morality as a legal standard runs contrary to the principle of separation of powers and the system of checks and balances, and may conflict with Article 13 of the Constitution.
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The Centre has also urged the court to declare the reasoning in the Joseph Shine judgment as “not a good law,” while clarifying it is not challenging the striking down of Section 497 itself.The bench is currently examining key questions around the scope of religious freedom and the interpretation of morality under Articles 25 and 26 of the Constitution, in a batch of cases including those linked to the Sabarimala issue.
