The second day of the Supreme Court’s hearing on the constitutional questions arising from the demand for reconsideration of the Sabarimala temple decision was also in the name of Solicitor General Tushar Mehta. Addressing a bench of nine judges headed by Chief Justice Surya Kant, Mehta said that the power of the court to evaluate religious practices is very limited. He cannot change them on the basis of ‘constitutional morality’.
Respect for women is very important: Tushar Mehta
Mehta said that the Constitution invalidates those religious practices which are wrong on the basis of morality, but here the meaning is social morality, not constitutional morality. In the Sabarimala decision, morality was assumed to mean constitutional morality and social morality was seen as just a crowd talk. Respect for women is very important. But the way it was linked to fundamental rights in the Sabarimala case is wrong.
He said that the conclusions of the Supreme Court’s decisions regarding homosexuality or adultery may be correct, but seeing the way the Constitution has been interpreted in those decisions, Dr. Ambedkar or KM Munshi would have been surprised. He would never have imagined such an explanation.
Definition of morality changes with time: SC
Justice Nagarathna, a member of the bench, said, “The definition of morality changes with time in the society. What was not socially acceptable in the 1950s, it is not necessary that the same situation remains today.” Responding to this, Mehta said, “But this cannot mean that the interpretation of the Constitution should be changed with time.”
Mehta, appearing for the Central Government, drew the attention of the judges that the Constitution makes exceptions to the right to religious freedom for social order, morality and health. The court can intervene regarding these things. But it is not the job of the court to evaluate religious practices and cancel them. Article 25(2)(b) empowers the legislature to make laws for the abolition of unfair practices.
‘There is a limit to the interference of not only the court but also the government in religious matters’
Justice Ahsanuddin Amanullah, a member of the 9-judge bench, said in this argument, “You are giving a very simple explanation. According to this, the court has no right at all. We understand that the court can decide what is superstition. On the basis of that, the legislature can make a law.” Mehta said that the judge is not an expert in this matter. What may be a religious tradition in one part of the country may be a superstition in other parts.
Tushar Mehta said that there is a limit to the interference of not only the court but also the government in religious matters. If in any religious sect there is a system of giving the post of priest to a family from generation to generation, then the government cannot change it in the name of social reform. Justice Nagarathna agreed with this and said that the identity of any religion cannot be snatched away in the name of social reform.
