"Professors Who Have Nothing To Do With Indian Society Have Occupied So Much Space": CJI's Reaction To Apex Court Relying On Nivedita Menon's Articles

While arguing against the doctrine of "Constitutional Morality" on behalf of the Union of India during the hearing of the Sabarimala reference, Solicitor General Tushar Mehta read the opinion authored by former Chief Justice DY Chandrachud in the Constitution Bench's Judgment in Joseph Shine v. Union of India (2018), whereby adultery was decriminalised. 

After arguing against the reliance placed by the Court on articles authored by little-known foreign professors and lawyers, Mehta referred to the reliance on articles authored by the former professor of JNU, Nivedita Menon. 

Tushar Mehta said, "I have a very serious objection. Nivedita Menon is quoted twice. The JNU Professor known for her views that 'India State' is illegally occupying two states etc. I am not going into it. But now it has a status of being a part of the Supreme Court's Judgment, which is a court of record!"

Chief Justice Surya Kant then replied, "Our professors who have nothing to do with Indian society have occupied so much space. What is wrong with an Indian professor.."

"Lordships are right. I respectfully bow down", said Mehta, smiling.

In his opinion, part of the 2018 Judgment, Justice DY Chandrachud quoted from two books/articles authored by Nivedita Menon. 

"Everyone knows that India is illegally occupying Kashmir. It is said the world over. Everybody accepts (it)," Nivedita Menon had told a gathering of JNU students in the year 2016.

Constitutional Morality in Joseph Shine's case

Tushar Mehta started reading from the Judgment by saying, "I am a little concerned as a citizen, a student of law and therefore, kindly read this a little carefully. This was a challenge to adultry provision (Section 497 of IPC).  Adultery provision was declared unconstitutional. I am not on the merits of the case, I am on the treatment of judicial review and constitutional morality, the questions which have directly arisen before a nine judge bench, and I request, urge and beseech your lordships to read this and examine whether this can be a statement of law in Indian jurisprudence." 

Tushar Mehta referred to the sentence from the Judgment- "Throughout history, the law has failed to ask the woman question." and the citation thereto- "The 'Woman Question' was one of the great issues that occupied the middle of the nineteenth century, namely the social purpose of women. It is used as a tool to enquire into the status of women in the law and how they interact with and are affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review (1990)" and read the statement of law based thereon in the Judgment- "It is not the "common morality" of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497."

Mehta submitted that the same principle has been applied in the Sabarimala case. 

He then quoted the following portion of Justice Chandrachud's opinion- "The decisions of the US Supreme Court bearing on the issue of privacy have been analysed in an incisive article, titled "For Better or for Worse: Adultery, Crime and The Constitution", by Martin Siegel. He presents three ways in which adultery implicates the right to privacy. The first is that adultery must be viewed as a constitutionally protected marital choice. Second, that certain adulterous relationships are protected by the freedom of association and finally, that adultery constitutes an action which is protected by sexual privacy."

Mehta then read the following part of the same opinion- "Siegel posits that a decision to commit adultery is a decision 'relating to marriage and family relationships' and therefore, falls within the domain of protected private choices. He observes that the essence of the offence is in fact the married status of one of the actors, and the mere fact that the commission of the act consisted of a mere sexual act or a series of them is legally irrelevant. If the argument that adultery, though unconventional, is an act related to marriage and therefore fundamentally private is accepted, then it deserves equal protection. Siegel cites Laurence Tribe, on accepting the 'unconventional variants' that also form a part of privacy". 

"I have seen Justice Douglas, Justice Frankfurter, Justice Denning being quoted. Article of some unknown.. would be very difficult, because that becoming part of the Judgment binds us. His views are now part of the judgment and his views are accepted and followed by your lordships on the ground of constitutional morality!", the Solicitor General submitted. 

"He is a practicing lawyer in America", Mehta said. 

Tushar Mehta further read from the Judgment- "The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an 'unpopular' choice" and said, explaining the statement, "In a marriage, I can have adulterous relation, because that is my private choice. It may be unpopular or unconventional."  

After a brief discussion among the Judges, the CJI said, "Viewpoint of some professor, some writer, some author, whosoever he may be, we do not know, we have no clear idea about his eminence. His view has been followed. But, ultimately, the Judgment (Joseph Shine's case) as such is not under question". 

Justice Joymalya Bagchi then said that what was read by Mehta are only some observations in the Judgment and that the ratio is based on gender discrimination. 

"Allow me to read it, I am saying with a sense of responsibility... Why should we not?", Mehta persisted that he wants to continue reading the Judgment authored by Justice Chandrachud. 

Justice B. V. Nagarathna also dissuaded Mehta from reading the Judgment further since it is not the subject matter in reference. 

"I want nine honourable judges to read. Whether this part that binds me is the correct statement of law or not...", Mehta said, adding that the same has been applied in the Sabarimal case, continuing to read the opinion. 

He further read, "Reflecting on the relationship between marital privacy and associational freedom, Spiegel remarks the "heterogeneity of experience", resulting in a variety of choices, necessarily include the adulterous union which must be protected since it is unrealistic to expect all individuals to conform to society's idea of sexuality.... Catherine Mackinnon implores us to look more critically at the reality of this family sphere, termed "personal," and view the family as a "crucible of women's unequal status and subordinate treatment sexually, physically, economically, and civilly."

He further read, "Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity," and said, "This is followed in Sabarimala, the liberty and dignity of women". 

Tushar Mehta then said I have a very serious objection, Nivedita Menon is quoted, twice. The JNU Professor known for her views that 'India State' is illegally occupying two states etc. I am not going into it. But now it has a status of being a part of the Supreme Court's Judgment, which is a court of record. 

The CJI then replied, "Our professors who have nothing to do with Indian society have occupied so much space. What is wrong with an Indian professor.."

"Lordships are right. I respectfully bow down", said Mehta, smiling. 

Mehta then clarified by answering a query by Justice Nagarathna that he is not on the validity of the Adultery provision and said, "but this view is the view which is the foundation of Sabarimala".

Mehta further read from the Judgment, "This Court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality".

Mehta said, "Fidelity, is it a patriarchal construction? It applies to me also; it applies to men also. Fidelity is not expected only from women!"

Mehta further read, "Infidelity was born on the day that natural flows of sexual desire were bound into the legal and formal permanence of marriage; in the process of ensuring male control over progeny and property, women were chained within the fetters of fidelity".

"Fidelity expected out of marriage is termed by this Hon'ble Court, which is a court of record, as shackles on sexuality!", Mehta submitted. 

"I am arguing societal morality versus constitutional morality. Is this societal morality? This is not the jurisprudence of our country. It is not the jurisprudence of my country, and I dont think there will be any dispute on that", the Solicitor General said.   

Mehta further read from the Judgment, "Constitutional protections and freedoms permeate every aspect of a citizen's life-the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality."

"This is the right, which is the foundation of Sabarimala (Judgment), right to dignity and equality", Mehta said. 

Judges react to reasoning for decriminalising adultery 

Justice Nagaratha then said, "Concept of marriage in India is based not only by the fidelity of the wife, but the husband also". The Judge also said, "The institution of marriage and monogamy is precisely for the reason that there should not be multiple partners".  

Justice M. M. Sundresh then said, "If you go by this, the presumption of paternity will also go". Justice Sundresh also asked how a divorce can be filed on the ground of adultery if it is a part of liberty. The CJI and the Solicitor General agreed. 

Justice Aravind Kumar then asked, "In the entire Judgment is no Indian philosopher quoted?" "Except Nivedita Menon", Mehta said, sarcastically. 

"Yes, and you say it is patriarchal? It applies to men equally... You take an oath to remain faithful to each other. When I marry, I do not mortgage my choice of having sexual relations with someone else? The society norms, cultural ethos, expect that fidelity from me. Otherwise, I dont marry and do whatever I do", Mehta said during his forceful argument against the doctrine of constitutional morality. 

The report on the full arguments of the Solicitor General on the doctorine of constitutional morality can be read here.