Drawing a distinction between religion & law
India, April 9 -- There are two aspects of note in the Centre's submission to the Supreme Court, which has set up a nine-judge bench to hear pleas asking for a review of a landmark 2018 verdict that allowed women of all ages to enter the Sabarimala shrine in Kerala. One, the Centre has argued that questions of who may enter a place of worship are not facets of gender discrimination but are rooted in religious practice, belief and the specific character of the deity. The submissions caution the bench against adopting standards of review that assess religious practices on grounds such as "rationality," "modernity," or "scientific defensibility". The fact is many discriminatory practices - notoriously those related to caste bias and untouchability - emanate from a warped reading of scriptures. The court will have to be cautious in allowing leeway to religious practices that threaten to breach legal guidelines.
Two, the government has urged the bench to declare that the law and reasoning in the 2018 Joseph Shine judgment, which struck down the offence of adultery, are not good law. Worryingly, the Centre has contended that the 2018 ruling rested on an overbroad and subjective application of "constitutional morality". The 2018 judgment was significant because it drew clear boundaries around a private act that had been criminalised owing to an overhang of colonial morality from the Victorian era. Flowing from the landmark verdict in 2017 that upheld the constitutional right to privacy, the decriminalisation of adultery removed the government from the bedroom and drew a distinction between social and constitutional morality.
The concept of constitutional morality underpins not just the Joseph Shine judgment but also a whole host of other milestone verdicts, including the 2018 decriminalisation of homosexuality. In pushing to overturn this judgment and assail against constitutional morality, the government is unfortunately exhibiting the same instincts as India's formerly colonial masters - instincts that have no place in a mature republic....
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