What Centre calls judicial excess is actually the courts protecting those left behind
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Context
A nine-judge Constitution Bench of the Supreme Court is currently hearing arguments in the Sabarimala reference case, which will fundamentally determine the scope of judicial review over religious customs. The core debate pits 'constitutional morality'—the idea that constitutional values of equality and dignity must trump discriminatory practices—against 'societal morality', where the Centre argues courts should largely leave religious practices to community self-regulation.
UPSC Perspectives
Polity
The central tension in this debate revolves around the interpretation of Freedom of Religion under , which guarantees the right to practice religion but explicitly subjects it to 'public order, morality and health'. The Centre argues that 'morality' here implies the dominant conscience of the community, suggesting that reviewing uncodified religious customs constitutes judicial overreach. However, withdrawing the court's power of judicial review over religious practices fundamentally alters the separation of powers. Historically, the Supreme Court has utilized tools like Public Interest Litigation (PIL) to enforce fundamental rights for those unable to access justice directly. Landmark judgments like the on bonded labour and the on the rights of undertrials demonstrate how judicial intervention—often termed 'overreach' by the executive—has been vital in safeguarding the voiceless when the legislature fails to act.
Governance
The conceptual battle between Constitutional Morality and Societal Morality is a frequent theme in UPSC Mains. As envisioned by Dr. B.R. Ambedkar, constitutional morality requires citizens and institutions to bow to the democratic and egalitarian ideals of the Constitution, actively resisting the deep-rooted hierarchies of Indian society. Societal morality, on the other hand, merely reflects the majoritarian view at any given time, which can be oppressive to minorities and marginalized groups. The Supreme Court has increasingly used constitutional morality as a substantive standard to strike down discriminatory laws, most notably in the which decriminalized consensual same-sex relationships against the prevailing societal grain. If courts replace constitutional morality with societal morality in religious matters, as the government proposes, democratic majorities would be permitted to perpetuate traditional hierarchies without constitutional scrutiny.
Social
This legal debate has profound, immediate implications for gender justice and the rights of marginalized women within religious communities. The outcome of the nine-judge bench will directly impact several pending cases concerning essential religious practices and women's rights. These include the ban on Muslim women entering mosques, the excommunication of Parsi women from the agiary (fire temple) after marrying outside the faith, and the challenge to Female Genital Mutilation (FGM) among the Dawoodi Bohra community. Under the framework of societal morality, these practices might be upheld simply because the dominant religious community sincerely believes in them. By enforcing constitutional standards like the Right to Equality () and the Right to Life and Personal Liberty (), the judiciary acts as the ultimate guarantor of dignity against orthodox patriarchal traditions. For UPSC aspirants, understanding this interplay is crucial for essays and answers on uniform civil code, secularism, and women's empowerment.