Constitutional Morality Was Never Meant To Create Restriction To Dilute Articles 25 & 26: Mukul Rohatgi In Sabarimala Reference

Before the 9-judge Constitution Bench, Senior Advocate Mukul Rohatgi contended that the "morality" was never meant to create a restriction, because the moment it is an additional restriction via 'constitutional morality,' it will dilute the content of Articles 25 and 26. Therefore, constitutional morality has no place as a restriction in our Constitution."

He argued that religious morality is inherently diverse—citing traditions ranging from the unclothed Digambara monks to specific temple dress codes—and warned that allowing the State to regulate these practices based on "common" or modern moral standards would endanger thousands of years of tradition.

Rohatgi further asserted that "Constitutional Morality" was intended by Dr. Ambedkar to be the spirit of democratic governance rather than a restrictive tool for judicial review, and he called for a strict application of locus standi to prevent "interlopers" from challenging religious customs through PILs.

Senior Advocate Mukul Rohatgi, appearing for an association which is recognized by His Holiness, the Sayedna of the Dawoodi Bohra faith. He explained that the right to freedom of religion under Article 25(1) was already packed with many restrictions. He pointed out that this right was limited by public order, morality, health, and other fundamental rights. He argued that since "public order" and "health" have very high standards for government interference, the word "morality" should also be understood with the same high threshold.

Roahtgi said, "The scope and content of Article 25(1) is subject to a plethora of restrictions. First, it is subject to public health, morality, and public order. Second, it is subject to the other provisions of Part III. Third, it is also subject to Article 25(2), which provides that a law can be made to abridge those rights. So, 25(1) is the right to conscience and propagation, but it is hedged by several restrictions which I have outlined in...Now, regarding paragraph two, I want to say something on this issue of morality, public order, and health. We know public order as opposed to law and order, and we understand the threshold of health in the context of an epidemic. Therefore, the threshold of 'morality' must meet a similar threshold, applying the legal principle of noscitur a sociis. This means that morality must have the same threshold as its companions—public health and public order—and it must be viewed through the lens of religion. Why? Because what is moral for some may be immoral for others; what is obligatory for some may not be for others. Every religion has its own morals that have existed for thousands of years."

He stated that morality was not a single, fixed idea but varied from one religion to another. He gave examples like the Digambara monks who do not wear clothes, or different dietary rules regarding beef and pork, noting that society had accepted these diverse traditions for centuries. He warned that if the government was given the power to decide what is "moral" based on common or modern views, it would wrongly interfere with the thousands of years of traditions held by various sub-sects and denominations.

"Your Lordships heard the example from Dr. Singhvi regarding the Digambaras who do not wear clothes. Society has accepted this for thousands of years. We don't shut our eyes or worry if we see a holy man of the Digambaras walking naked on the streets. Their acceptance of morality may not be the same as someone else’s...Consider dietary habits: Hindus, by and large, will not eat beef; Muslims, by and large, will not eat pork. That is how it has grown. Nobody is right; nobody is wrong. There are various practices—in some temples, you must go bare-chested; in Gurdwaras, you must enter with a head covering. Someone might ask, 'What is the point? Why cover your head? Why go bare-chested? Why go without leather?' Some temples don’t allow leather at all; you must take off your watch if it has a leather strap or remove your belt. These are aspects of morality that vary by religion, sub-sect, and denomination. To give the government a handle to make laws based on 'morality' as it is commonly understood would not be appropriate in the case of Article 25 or 26", he said.

Regarding the concept of "constitutional morality," Rohatgi argued that it should not be used as an additional restriction to curb religious freedom. He mentioned that the Constitution-makers, including Dr. B.R. Ambedkar, meant for constitutional morality to be the "spirit" of the Constitution—used to protect democracy—not a tool to create new hurdles for believers. He believed that adding "constitutional" to morality either expanded an existing restriction or invented a new one, which would weaken the religious protections given in Articles 25 and 26.

"In paragraph four, I deal with 'constitutional morality.' I submit that constitutional morality has no place in creating a restriction. Morality is already a restriction in Articles 25 and 26. The moment you add 'constitutional' to it, you are either expanding the concept of morality—which the Constitution did not do—or you are adding another restriction...With great respect, the basic structure of our Constitution is democracy. When you examine Article 356 and the exercise of power under it, you keep the constitutional ethos in view: that we are a democratic country and we do not dismiss governments lightly. That power exists, but when you exercise it, you keep the spirit of the Constitution in mind. That is what Dr. Ambedkar meant by constitutional morality—applying the spirit of the Constitution. It was never meant to create a restriction, because the moment you create an additional restriction via 'constitutional morality,' you are diluting the content of Articles 25 and 26. You are already subjecting Article 25 to many restrictions; you would be adding one more. Therefore, constitutional morality has no place as a restriction in our Constitution." 

Finally, he spoke strongly about who has the right to come to court. He insisted that only a person with a direct connection or "locus standi"—such as a true devotee—should be allowed to challenge a religious practice. He referred to Justice Indu Malhotra's opinion in the Sabarimala case, arguing that "interlopers" or bystanders should not be allowed to file Public Interest Litigations (PILs) against traditions they are not part of.

He concluded by noting that in the past, simple and short judgments laid down the law effectively without the need for the long-winded arguments seen today.

Senior Advocate Rakesh Dwivedi emphasized that religion is inherently associational and existed long before the drafting of the Constitution. He argued that the framers recognized religious denominations not as creations of the State, but as vital entities that preserved the continuity of Indian civilization despite centuries of colonization and conflict.

Senior Advocate Gopal Sankaranarayanan argued that religious rights must be viewed through a "broad plane" of principle rather than the narrow facts of individual cases.