If Sabarimala Falls, It Will Not Fall Alone: Eight Years After Navtej, the Fight Over Constitutional Morality Continues

“VICTORIAN MORALITY must give way to constitutional morality.” Eight years ago today, on September 6, 2018, the Supreme Court used these words in Navtej Singh Johar v. Union of India to decriminalise consensual same-sex relations, grounding queer rights in the Constitution’s promise of dignity and equality. Eight years on, as the Supreme Court’s judgment in the Sabarimala Reference remains reserved, we find ourselves still debating the very foundation on which that promise was built: is constitutional morality a binding doctrine, or merely a “sentiment”? 

The issue of constitutional morality affects the sexual subalterns

Constitutional morality has undergone a transient shift as the judicial understanding of how these enduring commitments apply to previously unrecognised or inadequately addressed forms of exclusion. Constitutional morality is not an extraneous moral standard created by judges or altered according to changing judicial preferences. However, over the past few decades, it has been seen as an ‘important tool’ for keeping up with the changing socio-economic fabric of the country. While constitutional values are inherent and enduring, their interpretation and application have been evolutionary. Entry of women in the Sabarimala temple, right to choose your partner for marriage, decriminalisation of Section 377 of the Indian Penal Code, 1860 (consensual sexual autonomy), decriminalising adultery, amongst others.

The recent arguments advanced in the Sabarimala Reference, for which the final judgement has been reserved by the Supreme Court, also challenged the premise of constitutional morality in light of the Solicitor General’s submissions. In light of the cases pertaining to decriminalisation of adultery and Section 377, the SG stated that constitutional morality is merely a “sentiment” and not a doctrine on which legislation can be tested on the premise of judicial review while stating that such ‘constitutional morality’ is an alien concept of separation of powers and judicial review doctrines, and legislation cannot be tested on such vague premises.