Sabarimala Reference | Day 2: “Constitutional morality not a ground of judicial review,” argues Union

Is superstition for courts or Parliament to decide?

Mehta argued that determining whether a religious practice is “superstitious” is in the legislative domain, and that the courts ought not to determine such questions. Referring to statutes dealing with black magic, Mehta stated that Article 25(2)(b) empowers the legislative branch to enact a reform law.

Reiterating his arguments from yesterday, Mehta stated that precedents like Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), Ratilal Panachand Gandhi v State of Bombay (1954) and Sri Venkataramana Devaru v State of Mysore (1957), did not authorise courts to apply the essential religious practices test in an expansive manner. He reiterated that  Durgah Committee v Syed Hussain Ali (1961), marked a departure by introducing a test that allows courts to exclude practices as “superstitious” or non-essential.

The Bench appeared doubtful. Justice Ahsanuddin Amanullah observed, “The Court has the right and the jurisdiction to hold whether it is superstitious.” Justice Joymalya Bagchi asked whether practices such as witchcraft could escape scrutiny if claimed as an essential religious practice. Mehta responded that such practices could still be examined on the touchstone of public order, morality and health, but not by labelling them as superstition.

On the ERP doctrine, Mehta argued that courts are compelled to enter theological territory by examining scriptures. Justice M.M. Sundresh responded that courts cannot be divested of jurisdiction, noting that even in the absence of legislation, intervention may be warranted in cases involving practices akin to sati. CJI Surya Kant added that practices which “shock the conscience” of the Court, such as human sacrifice, may be tested against public order, morality and health without further doctrinal inquiry.

Justice B.V. Nagarathna observed that essential religious practices must be examined from the standpoint of the religion itself, adding, “You cannot apply some other religion and say it is not an essential religious practice.” The CJI also noted that the expression “essential” does not find place in Article 25 and has been judicially evolved.

Who controls temples: the State or the faith?

Turning to temple administration, Mehta relied on the Archaka appointment cases, including Seshammal v State of Tamil Nadu (1972), to argue that the mode of appointment of priests, including hereditary succession governed by the Agamas, forms part of religious practice and cannot be treated as a purely secular employee. He submitted, “A government of non-believers, or even of believers, cannot substitute this.”

Relying on Sardar Syedna Taher Saifuddin Saheb v State of Bombay (1962), Mehta submitted that Article 26(b) grants denominational autonomy in matters of religion, including excommunication. Justice Nagarathna pointed out that the legislation in that case had been struck down. Mehta maintained that such matters must remain within the denomination, warning that State interference could extend even to removal of religious heads such as Shankaracharyas or Archbishops.

He further argued that Article 26(b) must be read harmoniously with Articles 14, 15 and 17 to avoid exclusionary outcomes. At the same time, relying on Seshammal, he submitted, “The State cannot reform a religion out of existence.”

‘Constitutional morality’ not a matter of judicial review

In a substantial part of his submissions, largely reiterating his arguments from Day 1, Mehta submitted: “Constitutional morality is not a matter of judicial review.” He described it as a doctrine relating to constitutional governance and conventions.

Referring to Dr B.R. Ambedkar’s speech in the Constituent Assembly on 4 November 1948, Mehta argued that constitutional morality was used in the context of how constitutional functionaries behave.

Justice Bagchi drew a distinction between secular and religious domains, observing that constitutional morality may govern secular life, but religious practices are shaped by the morality understood within that faith. Justice Sundresh added that public order, health and morality may form the basis of constitutional morality but cannot be equated with it.

The shift in understanding of “constitutional morality”

At this juncture, the argument shifted from constitutional morality and became a full blown critique of how decisions cite foreign scholarships, how the concept of “transformative constitutionalism” is beyond his understanding, and how they incorrectly influenced the 2018 Sabarimala decision. 

Mehta argued that the doctrinal shift began with Naz Foundation v Government of NCT of Delhi (2009), and was expanded in Navtej Singh Johar v Union of India (2018) and Joseph Shine v Union of India (2018). Referring to Justice D.Y. Chandrachud’s opinion in Joseph Shine, he submitted that public morality had been equated with constitutional morality. He argued, “Social morality was replaced by a vague term called ‘constitutional morality’,” and criticised the reasoning in Sabarimala for treating societal morality as “mob morality.”

While clarifying that he was not disputing the outcome of striking down adultery, Mehta launched a critique of the line of reasoning adopted in Joseph Shine—particularly the reliance on foreign academic material and minority opinions.

He referred to Katherine T. Bartlett’s article Feminist Legal Methods published in the Harvard Law Review, which was cited in the Judgement. He questioned whether such writing could constitute binding law under Article 141. CJI Surya Kant too expressed reservations about such citations, remarking on the reference to American political scientist Jeffrey A. Segal, “Who is this Segal? He has almost been referred here as if he is the second Ambedkar?” Mehta argued that such foreign material has been elevated into binding principle and has influenced decisions including Sabarimala.

He further submitted that the reasoning in Joseph Shine treats even “unpopular” personal choices, including adultery, as protected privacy, and questioned whether fidelity in marriage could be characterised as a patriarchal concept, stating that fidelity applies equally to both spouses.

The Bench clarified the scope of this critique. CJI Surya Kant observed that such writings represent viewpoints and not binding law. Justice Bagchi observed that the ratio of Joseph Shine lay in gender discrimination, noting that Section 497 of the Indian Penal Code, 1860, treated women as lacking agency. Mehta questioned the idea of transformative constitutionalism in the course of his attack, submitting, “I have been hearing this for some years, but in my limited understanding, I could not understand it.”

Justice Nagarathna responded that the Court was not examining that doctrine in the present reference, while adding that morality in society is not static and that standards have evolved over time

Who brought the Sabarimala case to court?

Towards the end of the hearing, the Bench raised concerns regarding the maintainability of the Sabarimala petitions. Justice Nagarathna repeatedly questioned whether the petitioners were devotees, noting that the original petitioner was the Indian Young Lawyers Association. She asked, in substance, whether a non-devotee could maintain a challenge to a religious practice at all, and observed that in a trial court, such a plaint would be rejected at the threshold under Order VII Rule 11 of the Civil Procedure Code for lack of cause of action. The Bench also pressed on who the “real” aggrieved party was. Justice Nagarathna asked whether any devotee had approached the Court challenging the practice, and if not, who was seeking to enforce the right.

Mehta supported this line of argument, describing the case as a conflict between a “silent majority” and a “vocal minority.” He referred to Bandhua Mukti Morcha v Union of India (1983) to argue that the original rationale for PIL jurisdiction has weakened in light of improved access to justice, including legal services authorities and e-filing.

CJI Surya Kant, however, indicated that the Court has, over time, evolved safeguards in PIL jurisdiction. He noted that the Court now examines the bona fides of petitions and issues notice only where there is substance, adding that the approach to PILs has become more cautious.

The Bench will continue to hear arguments tomorrow.