- DY Chandrachud's adultery decriminalisation ruling cited foreign scholars, sparking Centre's objection
- Centre opposed reliance on international judgments and constitutional morality concept in landmark rulings
- Centre challenged reasoning on constitutional morality and women's dignity basis in Sabarimala judgment
The view taken by former Chief Justice of India DY Chandrachud in a landmark ruling decriminalising adultery became a point of contention in the ongoing Sabarimala reference hearing on Wednesday, as the Centre objected to quotes taken from American scholar Jeffrey A Segal and Jawaharlal Nehru University (JNU) professor Nivedita Menon.
Citing foreign articles and judgments quoted by Chief Justice Chandrachud in his verdict decriminalising adultery, the Centre said that "blanket reliance on international judgments is impermissible."
Solicitor General Tushar Mehta, appearing for the Centre, criticised the concept of "constitutional morality" adopted by two landmark rulings of the Supreme Court which decriminalised adultery and homosexuality.
Mehta said if these two judgments (Navtej Singh Johar and Joseph Shine) were to be read by BR Ambedkar or Kanaiya Lal Munshi or Aladi Krisnan, he wouldn't be sure whether they would be surprised, shocked or they would say this was what they wanted, adding he believes they wouldn't want this to happen.
Mehta criticised the judgment in the Navtej Singh Johar v. Union of India case that decriminalised homosexuality, contending that it "demonised" the term morality as mob morality or majoritarianism.
"It is submitted that it is no one's case that in a democratic and secular country like ours, the mob or the majority shall prevail. It simply cannot, not because this concept of constitutional morality coined in 2014 prevents it, but the Constitution and its provisions prevent it," he said.
What Supreme Court Said
When Mehta read the opinion authored by former Chief Justice Chandrachud in an open court, Chief Justice of India Surya Kant asked, "Who is this Segal? He has almost been referred to here as if he was Ambedkar?"
Chief Justice Kant, however, observed that the quotes in the opinion authored by former Chief Justice Chandrachud are subjective viewpoints of some professors and writers, and that the striking down of adultery is not under question in the present reference.
"These are subjective viewpoints of some professors, some writers, some authors, whosoever it may be, we do not know. We have no clear idea about the eminence of the author whose view has been followed. But, ultimately, the judgment on adultery as such is not under question here," Chief Justice Kant said.
Mehta then clarified he was not challenging the striking down of the law criminalising adultery, but he was pointing out a problem with the observations made about constitutional morality and dignity of women in the verdict, which has formed the basis of views taken in the 2018 Sabarimala judgment that allowed entry of women of menstruating age into the Sabarimala temple.
Justice BV Nagarathna told Mehta that constitutional morality is in the realm of constitutional governance. "It may not be palatable to you but that is not the scope here," she said.
Justice Joyamala Bagchi also told Mehta that the quotes relied upon in Chief Justice Chandrachud's concurring opinion were just the viewpoint of one of the judges on the bench. The judgment that ultimately struck down the adultery law was based on gender discrimination, he added.
Mehta said he was referring to paragraph 195 of the Joseph Shine judgment, where JNU professor Nivedita Menon is quoted.
"I do not wish to trouble the learned professor. She is known for certain views, including that the Indian State is illegally occupying certain states... I am not going into that. But now, her view on fidelity finds place in a Supreme Court judgment. It has the status of being part of the record," Mehta said, seeking its removal.
Chief Justice Kant then asked in a lighter vein that if so many foreign authors can be cited, then why some Indian professors can't be cited?
Mehta, however, insisted that it was not fine to quote foreign authors in Indian judgments. Calling the current nine judge-bench more representative, he said, "None of you all are from Harvard and Yale. This reflects those who have risen from the ranks and played on the streets. So we know what social morality is."
The very next moment, while making his arguments on dissenting opinions by judges, Mehta said dissent is a call to the brooding spirit of future generations.
Justice Bagchi pointed out that Mehta is also quoting former American judge Charles Evans Hughes. "We should look for the best from everywhere and not be a slave to any," Justice Bagchi said.
Mehta replied, "My Lords, we should expect light from every quarter of the world, provided we are in darkness. But let us not reverentially follow something coming from the West and selectively introduce it into our jurisprudence."
Justice Nagarathna pointed out that Mehta is now citing US Chief Justice John Roberts while making his point.
What Former Chief Justice Chandrachud Wrote
In the Joseph Shine v. Union of India judgment, which decriminalised adultery, American legal scholar Jeffrey A Segal has been quoted in the former Chief Justice's concurring opinion. His opinion quoted Segel in saying that throughout history, the law has failed to ask the woman question.
"In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497," the opinion by the former Chief Justice noted.
It went on to say: "A woman's 'purity' and a man's marital 'entitlement' to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be public morality and societal morality being different from constitutional recognised as being so today."
He also noted that the book Seeing Like a Feminist by Nivedita Menon recognised the patriarchal family as the "basis for the secondary status of women in society".
"Menon notes that 'the personal is political'... Her scholarly work implores us to recognise spaces which may be considered personal such as the bedroom and kitchen. These spaces are immersed in power relations, but with ramifications for the public sphere," the former Chief Justice's opinion read. "This court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is a denial of this right."
Section 497 denounces a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality. "Infidelity was born on the day that natural flows of sexual desire were bound into the legal and formal permanence of marriage; in the process of ensuring male control over progeny and property, women were chained within the fetters of fidelity" [Nivedita Menon, Seeing Like a Feminist, Zubaan Books, 2012].
The Centre has now urged the Supreme Court to declare its landmark ruling decriminalising adultery in the Joseph Shine v. Union of India as "not good law", raising fundamental questions about how courts interpret morality and exercise judicial review under the Constitution.
In written submissions filed in the ongoing Sabarimala case proceedings, the Centre argued that while it does not contest the striking down of Section 497 of the IPC as violative of Article 14, it strongly disagrees with the reasoning adopted in the 2018 judgment.
Questioning Menon's statements, Mehta asked, "Fidelity, is it a patriarchal construction? It applies to me also; it applies to men also. Fidelity is not expected only from women."
Chief Justice Kant then remarked, "The provision (Section 497 of IPC), on the face of it, was unconstitutional. It should have been struck down in four lines."
Mehta further read Menon's quote and asked: "Fidelity expected out of marriage is termed by this Hon'ble court, which is a court of record, as shackles on sexuality... I am arguing societal morality versus constitutional morality. Is this societal morality? This is not the jurisprudence of our country. It is not the jurisprudence of my country, and I don't think there will be any dispute on that."
Mehta further read from the judgment: "Constitutional protections and freedoms permeate every aspect of a citizen's life - the delineation of private or public spheres becomes irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality."
Mehta then remarked, "This is the right, which is the foundation of the Sabarimala (judgment), right to dignity and equality."
Justice Nagaratha said the concept of marriage in India is based not only by the fidelity of the wife, but the husband also. "The institution of marriage and monogamy is precisely for the reason that there should not be multiple partners," the judge said.
Justice MM Sundresh said, "If you go by this, the presumption of paternity will also go." he also asked how a divorce can be filed on the ground of adultery if it is a part of liberty. Both Chief Justice Kant and Mehta agreed.
Justice Aravind Kumar asked: "In the entire Judgment, is no Indian philosopher quoted?"
"Except Nivedita Menon," Mehta replied in what was seen as a swipe.
