The Centre has 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.
Section 497 of the IPC made adultery a penal crime for a man who engaged in a sexual relationship with a married woman. The Supreme Court, in its 2018 Joseph Shine judgment, struck down this provision as unconstitutional and discriminatory. The Centre has now made a pointed plea: the reasoning in Joseph Shine should be set aside.
“The law and the reasoning in Joseph Shine [Supra] be declared not to be a good law. No arguments are advanced on the validity of Section 497, which was declared unconstitutional in the said judgment, as they are not within the scope of reference,” the Centre has prayed in the top court.
It clarified that, given the scope of the Sabarimala case, it is only challenging the broader legal principles laid down in the adultery verdict—particularly the reliance on “constitutional morality” as a test for judicial review.
The Centre contended that the two landmark rulings on decriminalising adultery (Joseph Shine) and same-sex consensual relationships (Navtej Singh Johar) rest on an overbroad and subjective application of “constitutional morality”, which it termed “a judicially evolved, vague and indeterminate concept.”
Criticising the foreign law and journals cited in the Supreme Court ruling on adultery, the Centre said courts should not base binding law on “individual and subjective views” drawn from selective academic writings, podcasts or foreign opinions.
What's Centre's Problem With Constitutional Morality?
A key target of the Centre's argument is the concept of constitutional morality, which played a central role not only in Joseph Shine but also in Navtej Singh Johar v. Union of India.
The government argued that treating constitutional morality as a standalone test for judicial review is “alien” to the doctrine of separation of powers.
It called the concept “vague”, noting that its meaning has shifted from case to case.
“The judgment in Joseph Shine proceeds on a premise which is not only against the society morality but even against constitutional morality [if Indian Constitution is being considered],” the Centre told the top court.
According to the government, courts have incorrectly contrasted it with “societal morality”, portraying the latter as majoritarian or mob-driven.
“It is noticed that the said judgment, in light of their enthusiastic adherence to inherently vague and individually subjective notions of ‘transformative constitutionalism' and ‘constitutional morality' and incorporating the same in the exercise of judicial review of legislation, has upset the delicate balance of ‘separation of powers' and ‘checks and balances', both principles being a part of the basic structure,” the Centre's submissions read.
Citing foreign articles quoted in the Supreme Court judgments decriminalising adultery and consensual same-sex relationships, the Centre said that “blanket reliance on international judgments is impermissible.”
The submission also criticised the Joseph Shine ruling for relying on academic writings, including those of a US-based professor and a minority opinion in the American case Bowers v. Hardwick.
“The question as to whether religious freedom should be tested on the anvil of society's morality of the nation or based upon a vague and subjective notion of constitutional morality is also a question arising which would be answered by this Hon'ble Court and the judgment in Joseph Shine [supra] therefore, falls for consideration of this Hon'ble Court,” the Centre argued.
“It is submitted that overreliance on vague and subjective notions for conducting judicial review may result in thrusting constitutional courts into enquiries which are beyond the realms of judicial comprehension.”
Link To Sabarimala Debate
The Centre's arguments are made in the context of broader questions before the court in the Sabarimala matter, including: what is the scope and extent of the word ‘morality' under Articles 25 and 26 of the Constitution of India, and whether it is meant to include constitutional morality?
The government contends that recent judgments, including Joseph Shine and Navtej Johar, have expanded judicial review by relying on “transformative constitutionalism” without clearly defining its limits.
It submitted that the later judicial trend to read ‘morality' in Articles 25 and 26 as ‘constitutional morality' departs from both the text and precedent.
“Constitutional morality is a judicially evolved expression, the contours of which have remained uncertain, shifting from case to case according to the values emphasised in a particular context. At best, it makes it an aspirational interpretive ideal.”
The Centre said the Court has erroneously equated ‘morality' with the morality of the mob or majoritarian morality and then contrasted it with ‘constitutional morality', holding that the latter will prevail.
“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,” the Centre asserted.
Larger Constitutional Questions
At its core, the Centre's submission raises larger concerns:
- Has the Supreme Court expanded its role beyond constitutional boundaries?
- Should evolving moral philosophies shape judicial outcomes?
- Or should courts remain anchored strictly to constitutional text and precedent?
The Supreme Court's eventual ruling on the Sabarimala issue could have far-reaching implications—not just for the adultery law, but for how courts interpret rights, morality, and the Constitution itself.
