Centre Challenges Constitutional Morality Doctrine in Supreme Court, Calls Adultery and Section 377 Rulings Not Good Law

The Central Government has mounted a direct challenge to the doctrine of "constitutional morality" before a nine-judge Constitution bench of the Supreme Court, headed by Chief Justice Surya Kant. Solicitor General Tushar Mehta, appearing for the Union of India, argued that constitutional morality is not a concrete doctrine but a vague sentiment capable of elastic interpretation, and that landmark judgments relying on it, including the decriminalisation of adultery in Joseph Shine v. Union of India (2018) and the reading down of Section 377 of the Indian Penal Code in Navtej Singh Johar v. Union of India (2018), are "not good law."

The Sabarimala Reference and the Nine-Judge Bench

The submissions arose during the hearing of review petitions in the Sabarimala temple entry case, in which a five-judge bench had in 2018 struck down the ban on women of menstruating age entering the Sabarimala temple in Kerala. In 2019, the review petitions were referred to a larger bench to examine the interplay between religious freedom and other fundamental rights. The nine-judge bench, which commenced a marathon hearing in April 2026, comprises Chief Justice Surya Kant, Justice B.V. Nagarathna, Justice M.M. Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B. Varale, Justice R. Mahadevan, and Justice Joymalya Bagchi.

What Is Constitutional Morality?

Constitutional morality, as a judicial concept, refers to the idea that constitutional provisions embody certain moral principles, including equality, non-discrimination, dignity, and liberty, that must guide the interpretation and application of laws. The concept has been invoked by the Supreme Court in several landmark decisions to test whether a law, though formally valid, violates the deeper moral commitments of the Constitution. In Navtej Singh Johar, the Court used constitutional morality to hold that Section 377, which criminalised consensual same-sex relations, violated the constitutional values of dignity and equality. In Joseph Shine, the concept was used to strike down Section 497 of the IPC (adultery), which treated a married woman as her husband's property.

The Centre's Arguments

Solicitor General Tushar Mehta advanced several arguments against the doctrine. First, he submitted that constitutional morality is inherently subjective and cannot serve as a valid ground for judicial review of legislation. Second, he argued that the Navtej Singh Johar ruling had "elevated the concept of constitutional morality to being a test for judicial review of legislation," which he called "alien to the concept of separation of powers and the doctrine of checks and balances." Third, Mehta contended that the Courts should never test a legislative enactment or an administrative act based on vague concepts capable of elastic interpretation. He called for the total abandonment of constitutional morality as a basis for judicial review and argued that "public morality" is a more appropriate and legally defined standard.

Impact on Adultery and Section 377 Rulings

The most significant aspect of the Centre's submission is its explicit characterisation of two landmark 2018 rulings as "not good law." Joseph Shine v. Union of India, decided by a five-judge bench, unanimously struck down Section 497 of the IPC, which made adultery a criminal offence but only punished the man involved, treating the married woman as her husband's property. Navtej Singh Johar v. Union of India, also decided by a five-judge bench, read down Section 377 of the IPC, decriminalising consensual sexual acts between adults of the same sex. Both decisions relied heavily on the concept of constitutional morality. If the nine-judge bench accepts the Centre's position, the doctrinal foundation of these rulings could be questioned, though the practical implications remain uncertain, as the Supreme Court's evolving views on social norms suggest that these rights are now deeply entrenched in the constitutional framework.

Separation of Powers and Judicial Review

At the heart of the Centre's challenge is a fundamental question about the limits of judicial power. If courts can use constitutional morality, a concept without a fixed textual anchor, to strike down legislation, does that amount to the judiciary substituting its own moral views for those of the elected legislature? The Centre argues that it does, and that this violates the separation of powers. On the other hand, proponents of the doctrine argue that constitutional morality is not a free-floating moral standard but is derived from the specific text, structure, and values of the Constitution itself, including equality (Article 14), non-discrimination (Article 15), freedom (Article 19), and dignity (Article 21). The Court's recent engagement with the Transgender Persons Amendment Act is another area where these questions intersect.

Public Morality vs. Constitutional Morality

The Centre's preferred alternative, "public morality," is a term that appears in the Constitution itself as a ground for reasonable restrictions on fundamental rights under Articles 19(2) through 19(6) and Article 25(1). Public morality refers to the prevailing moral standards of the community, as understood by the legislature. The critical difference is that public morality gives greater deference to the legislature's judgment of what is moral, while constitutional morality empowers courts to override legislative choices if they conflict with the deeper moral commitments of the Constitution. The debate between these two standards is ultimately a debate about who has the final say on moral questions in a constitutional democracy: the elected legislature or the judiciary.

Key Takeaways

1. The Centre has told the Supreme Court's nine-judge bench that constitutional morality is a vague and subjective concept that should not be used as a test for judicial review of legislation.

2. Solicitor General Tushar Mehta has explicitly characterised the Joseph Shine (adultery) and Navtej Singh Johar (Section 377) rulings as "not good law," arguing that they were decided on the basis of a flawed doctrine.

3. The nine-judge bench, headed by CJI Surya Kant, is hearing the Sabarimala review reference, which raises broader questions about the relationship between fundamental rights and religious autonomy.

4. The Centre prefers "public morality" as a legal standard, which gives greater deference to legislative judgment and appears in the Constitution as a ground for restricting fundamental rights under Articles 19 and 25.

5. If the nine-judge bench accepts the Centre's position, it could weaken the doctrinal foundation of several landmark progressive rulings, though the practical effect on rights already recognised remains uncertain.

6. The case raises a fundamental question about the limits of judicial power in a constitutional democracy: whether courts can use moral reasoning derived from constitutional values to override the choices of an elected legislature. The Court's ruling on the concept of moral turpitude in service law has already shown the Court's evolving approach to moral standards.

7. The verdict, when it comes, will have far-reaching implications for LGBTQ+ rights, women's rights, and the scope of judicial review in India, making it one of the most significant constitutional hearings in recent years. The question of how PILs can be filed to challenge laws on grounds of constitutional morality may also be affected.