Constitutional Law Club

National University of Study and Research in Law, Ranchi

Misuse of President's rule in India

Federalism is the key strength of constitution and government structure in India.While drafting the constitution the word “union” was chosen rather than the word “federation”just to show that the people may be divided into different states for convenience of administration but the country is one integral whole, its people a single people living under a single imperium derived from a single source.[1] But there are many ways of transforming a federal system into a unitary one, the simplest way is by proclaiming emergency. Even after including federalism in a part of basic structure[2], the central government by taking unfair benefit under part XVIII of the Indian Constitution has violated the basic structure of the government administration. One of the provisions included in this part is state emergency, Articles 356 and 357 of the Constitution offer certain measures for dealing with a condition that arises from a state's constitutional machinery failing.[3]

In this article we will discuss about the provisions of state emergency and instances of misuse and what is the Supreme Court’s perspective on this.

FAILURE OF CONSTITUTIONAL MACHINERY IN STATE

In the words of Dr. Bhim Rao Ambedkar “such articles will never be called into operation and that they would remain a dead letter.”[4]Even after the constitution makers declared it a dead letter, the central government has repeatedly used and abused it in their own favor. Article 356 provides for proclamation of state emergency on the satisfaction of president on the drastic situation of state where it can be functioned according to law.

CONTROVERSY OVER INCLUSION OF “OTHERWISE”

Article 356 includes proclamation on the basis of “governor’s report”on failure of state administration to the president’s or “otherwise”.[5] H.V. Kamath, an Indian Politician has criticized the word ‘otherwise’ and said only god knows what this ‘otherwise’ means.[6]

What happens, however, if the Governor declines to recommend initiative under Article 356? Because of these circumstances, the framers of the constitution added the words “or otherwise” to Article 356(1). As also stated by Dr. B.R. Ambedkar that:

“We must give liberty to the President to act even when there is no report by the Governor and when the President has got certain facts within his knowledge on which he thinks fit to act in the fulfilment of his duty”.[7]

As also stated by Supreme Court that “whenever the said satisfaction is required of the President or the Governor, it should be in the constitutional sense and not otherwise”.[8]

So, from the above discussion, it can be concluded that the inclusion of “otherwise” is necessary but due to inclusion of this particular word it is on the sole discretion of the president who,under article 74 of Indian Constitution, act on the advice of the council of ministers to impose state emergency under article 356 or not.

NO DEFINITE BOUNDARIES

As discussed in the previous topic, it is on the sole discretion of the government to invoke article 356 in a state or not. It has no definite boundaries like mentioned in Article 352 other than moral conscience of the bench.

While Article 352 can only be invoked in three cases of war, external aggression, or armed rebellion, Article 356 applies at any time when constitutional machinery collapses in a state in number of ways, including political breakdown in the state, the inability of a stable ministry to hold public office, the breakdown of law and order, corruption or misuse of its authority,subversion of constitution or of the democratic social fabric, etc.[9]

D.D. Basu made the distinction as one being the response to the existence of state and other being response to the dissolution of constitutional machinery in a state.[10]

Article 356 has given wide scope in order to maintain law and order situation in a state but the central government has molded it to take advantage and remove the rule of opposite party government sometimes in some states.

INSTANCES OF USE AND MISUSE

Article 356 has been misused several of times like in 2002 the president’s rule imposed in the state of Uttar Pradesh on the report of the governor, who didn’t even pay heed to the actual situation going in UP. Other similar instances arisein 1953 in Pepsu, in 1954 in Andhra,in 1951 in Punjab, in 1956 in Travancore-Cochin and in 1961 in Orissa, in all these situations Governor of the respective state on unreliable sources and without taking into consideration the actual situation of state made its report and the president based on that report, imposed state emergency.[11]

Another dramatic instance happened in 1977, after the 1975 emergency people’s anger came out and congress lost the general election and overtaken by the Janata Party, which later dissolved all congress ruled state at that time under President’s rule. History repeated itself in 1980 where congress again emerged as the majority and dismissed the Janata government from 9 states under article 356. These proclamations were highly questioned as they were not based on any Governor’s report as also observed by Sarkaria commission that -

“these all cases are typical instances of wholesale misuse of article 356 for political purposes, extraneous to the one for which the power has been conferred by the constitution”[12]

Wade and Forsyth[13] also criticizes the political nature of the decision making where courts are incapable of taking any cognizance of misuse of power.

Untilthe year 2000, article 356 has been invoked as many as 100 times. In present day, it seems difficult to use the power under article 356 as the NDA government enjoys majority in the LokSabha but lacks the majority in Rajya Sabha.

JUSTICIABILITY OF THE PROCLAMATION UNDER ARTICLE 356

Judicial review under article 356 was first came up under consideration in KK Aboo v. UOI, where thewrit petition challenging the center's proclamation was dismissed by the Kerala High Court.[14]Again, in Rao Birinder Singh v. The Union of India, the court ruled that it has no jurisdiction to question president’s satisfaction and don’t even have authority to make him disclose the material on which he formed his satisfaction.[15] In Jyotirmoy Bose v Union of India, the Calcutta High Court rejected writ petition challenging president’s proclamation issued under article 356. The court also rejected the contention of petitioner that president should act on his own discretion and not on the advice of council of ministers while proclamation of emergency.[16]

Bijayananda Patnaik v President of India[17] is anextremely informative decision on article 356 given by Orissa High Court, where the court ruled that the governor must act independently, not with the assistance and advice of the ministers, when sending his report to the president.  And that report cannot be challenged in a court of law, whether it is false or based on fictitious evidence.Because of the governor's immunity under Article 361(1) of the Constitution, it is not justiciable.[18]

The court also recommended that, upon the collapse of the ministry, the governor should ask the opposition leader to form the government. also, the governor should not be concerned with whether or not the opposition government will be stable in the future.[19]

The Andhra Pradesh High Court also asserted that the satisfaction of the presidentwas not a justiciable matter.[20] (Para 15).

The matter of doubt was cleared by the Constitution (thirty-eighth Amendment) Act, 1975, which declared that the ‘satisfaction’ of president “shall be final and conclusive and shall not be questioned in any court on any ground”.[21]However, the constitution's Forty-fourth Amendment later repealed this provision.

RAJASTHAN V. INDIA[22]

The matter was heard by a seven-judge constitutional bench after the State of Rajasthan (along with several other states) filed an original suit under Article 131 challenging the Union of India's invocation of Article 356 in these states. The court's general stance is that it will not intervene with the center's exercise of power under article 356 solely because it encompasses "political and executive policy and expediency unless any constitutional provision was being violated."[23]

And, under article 356(5), the court cannot investigate or challenge the president's satisfaction on any basis unless and until it is shown that the president used "patent abuse of this clause or an excess of authority on admitted facts" on grossly perverse and irrational grounds.[24]

Bhagwati J, emphasizedthat –

“The satisfaction of President under article 356 is ‘subjective and cannot be tested by reference to any objective test’ or by ‘judicial review’. But if it can be shown that there is no satisfaction of the president at all, the exercise of the power under article 356(1) would be constitutionally invalid”.[25]

Most of the justices said that if the satisfaction is not genuine or is based on completely irrelevant and superfluous grounds, the court has authority to investigate it because there would be no satisfaction of the president in the matter in which he is expected to be satisfied.

SR BOMMAI[26]

The great significance of this case can be gauged from the fact that the Supreme Court had to decide the validity of six promulgation issued in six different state arising due different scenario’s ranging from ram janmbhoomi-babri demolition to defection of ministers.

Seven opinions were rendered by a nine-judge bench that considered the different issues raised in these cases. On the basis of the judges' consensus, the following key propositions can be stated:

The majority of chief minister in the house will be determined on the floor of the house, not in governor’s chamber overruling the Karnataka High Court’s order in the Bommai case.[27]

Rather than blatantly writing the letter to the president, the governor should first try to explore the possibility of establishing an alternative ministry.[28]

The president should declare a state of emergency based on some material evidence that the state government cannot function in accordance with the law. The validity of content can also be challenged in court.[29]

The satisfaction cannot be challenged if based on such valid material.

The legislative assembly's dissolution is not an inevitable or mandatory result of the proclamation's issuance. It can only be used when it is absolutely necessary to accomplish the proclamation's goal. Article 356(3) makes it illegal to dissolve the assembly until the parliament approves the proclamation.[30]

If the proclamation is declared unconstitutional by the court notwithstanding the parliament's approval, the president's decision is rendered null and void.[31]

In Bommai, the Supreme Court, by showing its judicial creativity, aims to promote a set of fundamental constitutional principles like parliamentary system, secularism, federalism and control over the executive.

The court stated that power conferred under article 356 is not an absolute power but a conditioned power. The court went on to say that a state government may enjoy a majority in the assembly, but if it subverts the basic value of secularism, it can be dismissed under Article 356(1).[32]

(Vishal Singh is 2nd year student of Rajiv Gandhi National University of law, Patiala)

[3]Shetty, President’s Power under Article 356 of the Constitution-Theory and Practice, in ILI, Constitutional Developments Since Independence, 335 (1975), ILI, President’s Rule in the States; Report of the Sarkaria Commission.

[4]Constitutional Assembly Debates, India, available at: http://loksabhaph.nic.in/writereaddata/cadebatefiles/C04081949.html. (Visited on April 28, 2021).

[5]The Constitution of India, art. 356.

[9]M.P. Jain, Indian Constitutional Law 742 (LexisNexis, Haryana, 8th edn., 2020).

[10]DD Basu, Commentary on the Constitution of India, (LexisNexis, 8th edn., 2011).

[11]Supra Note 9.

[12]Report, 175, pg. 18.

[13]Wade William and Christopher Forsyth, Administrative Law, 420-421, (Oxford University Press, England, 9th ed.).

[14]KK Aboo v. UOI, AIR 1965 Ker 229.

[15]Rao Birinder Singh v. The Union of India and Ors., AIR 1968 P&H 441.

[16]Jyotirmoy Bose v Union of India, AIR 1971 Cal 122.

[17]Bijayanand v President of India,AIR 1974 Ori 52.

[18]Ibid, at 15.

[19]Ibid, at 25.

[21]the Constitution (thirty-eighth Amendment) Act, 1975.

[23]Ibid, at 28.

[24]Ibid, at 7.

[25]Ibid, at 10-11.

[27]Ibid, at 127-128.

[28]Ibid, at 277.

[29]Ibid, at 2.

[30]Ibid, at 48.

[31]Ibid, at 124.

[32]Ibid, at 219. 

Codification of the Basic Structure Doctrine: Its implications, costs and better alternatives.

 

The “Basic Structure Doctrine” is the most potent tool in the hands of the judiciary to maintain and check the balance of power that is required for the smooth functioning of the Indian Democracy. Legal systems always have a hierarchical normative order (1-wh). Each system in such an order always derives it authority from a system above it in hierarchy. A constitution whether written or unwritten, contains the norm of exalted authority and hence, is of the highest importance in any legal system. The constitution lives the closest to the “basic” norm of the legal system and derives its nature and character from it. (7-wh) This “basic” structure is the identity of a legal system and it is not desirable for elapses of time to sweep away its essential features. Recent literature calls for the codification of the basic structure doctrine, in an attempt to define its limits and effectively try to reduce the lack of judicial accountability that lies with its use.

The objective of this paper is to argue against its codification and propose some better alternatives. I will show how a codified doctrine has a theoretically unjustifiable form and would bring along numerous adjudicatory pitfalls. 

Every single feature of this doctrine was developed to address a situation that arose before the court in a particular case. Keshavnanda[i] never provided any affirmative theory about how the basic structure doctrine is to be discerned beyond a Potter Steward-esque view.[ii] Justice Chandrachud, in Indira Gandhi v Raj Narain[iii], promulgated the non-exhaustive nature of the doctrine in saying that "the theory of Basic Structure has to be considered in each individual case, not in the abstract, but in the context of the concrete problem.” Codification of the basic structure doctrine would be a potential threat to its legitimacy. This would be caused by a lack of conceptual crystallization of the doctrine’s elements and its potentially arbitrary use by the judiciary. I will also highlight a theoretical limitation of codifying the doctrine through legislative amendment.

I argue that firstly, it is not possible for the judiciary or parliament to predict all possible situations that would arise and must be protected by the doctrine. We still do not know if all what is considered to be basic today is conceptually crystallised.

The exact contents of this doctrine are not yet laid out conclusively. The way it has evolved has upset some major philosophical assumptions about legislative sovereignty and the boundaries of constitutional authority.[iv] The foundations of this doctrine have been built upon profound deliberation over multiple cases before attaining crystallization. It is likely that certain elements are still in this process and will move towards finality as individual cases would require its use over time. If at a certain instance, the doctrine is codified, it is possible that firstly, some elements would be left out and secondly, some that have not fully developed, be included. Let’s take the example of Judicial Review. If codification occurred immediately after Indira Gandhi, then Judicial review would not have been a part of the doctrine. The situation then created in Minerva Mills[v] would face great difficulty. Either the court would have to invoke it as an unwritten principle, making the initial process of codification futile, or have the legislature add it to the code, which would be impossible given the political situation. The unwritten nature provided the Supreme court with room for a “self-styled benchmark of structural essentialism” [vi] that helped judicial review become a part of the basic structure when required. This power has been the centre of much debate and the proponents of codification seek to define its limits. Codification, however, will lead to more problems. It will cause the arbitrary use of the basic structure doctrine. A misguided illusion of clarity, generally associated with codification principles, will only amplify these issues.

Courts bind themselves by precedent so as to prevent arbitrary and inconsistent decision making. A written doctrine will allow a court to depart from judicial precedent by invoking the written text as a generically valid reason and hence, weaken the “judicial commitment to stare decisis.”[vii] Two features of a codified doctrine could be the reason for this claim. Firstly, the existence of an authoritative code would give definitive answers to questions of constitutionality. This would be explicitly expressed by the codified doctrine. Now, the second feature – the doctrine’s status as essential unamendable law would give possibly baseless interpretations by the judiciary, ratification. The court can insist that it is merely executing what the code dictates. Of course, the degree of this insulation would depend on the abstraction and generality of the codified doctrine. The constitution of Honduras has a highly specific eternity clause that dictates the character of the government.[viii] The 2009 Honduran Constitutional Crisis can be thought of as a direct result of the presence of such a specific dicta that blurred boundaries between rules and principles.[ix]The avenue to depart from precedent and such judicial insulation may not just encourage arbitrary behaviour, but also intellectual sloppiness and an opportunity for judges to pursue personal political agendas.[x]

Proponents believe that codification will provide clarity about the limits on legislative action.[xi] However we must understand that the meaning of many substantive principles, when formulated in a normative context- are inherently unclear. The political concepts associated with words such as “equality” and “liberty” are highly contested.[xii] Codification will present such contested concepts as clear and indisputable. This would only create and illusion of clarity and solidify the aura of judicial opinion that tries to define it, having negative consequences on any judicial or even societal debate over the content of such principles.[xiii]

One of the biggest problems faced by any legal system is to balance itself between maintaining stability and continuity on one hand, and flexible and responsiveness on the other. The form of the constitution, and more remarkably, of the basic norm that sustains it, plays a deterministic role in its position between these two extremes. The form of a codified foundation fails to strike the right balance mentioned above. An unwritten basic structure doctrine will find a better balance between this much required stability, and the need for some malleability to adapt to the changing needs of society. It does this as the uncodified elements respond to “policies and concerns of a society in an organic, diffuse manner without any compromise of stability.”[xiv]

Although not directly related to adjudication, I want to address the theoretical baselessness of having the legislature codify the basic features of a constitution. The 15th Amendment Act[xv] in Bangladesh, constitutionalized the essential features of their constitution and explicitly confirmed the limited amending power of the legislature. According to the ‘delegation theory’, “limitations upon the delegated secondary constituent power can solely be imposed by the higher authority from which it is derived – the primary constituent power.”[xvi] The validity of an unamendable doctrine codified by the legislature would be threatened when faced by a conflicting norm created by the same authority. Such codification, therefore, would be administered by the maxim – “lex posterior derogat priori”. The Bangladeshi Amendment was criticized by constitutional theorists who founded their claim on this maxim, arguing that a constitutional amendment cannot establish its own unamendibility. An implicit or unwritten doctrine would naturally come into existence for maintaining the legitimacy of such aamendment, making the initial process of codification theoretically futile. A national referendum could help in legitimizing such a code without an unwritten interpretation but conducting a fair referendum to know the true ‘will’ of the people would face some serious practical problems in the context of India.[xvii]

Many misjudgements have been woven into the unwritten doctrine that have caused critics to advocate for its explication. The doctrine has often been invoked in situations when the meaning of the subject constitutional norm has several reasonable interpretations. It is possible that judges link their own cores of jurisprudential understandings on questions of basic structure, even when reasonable minds might differ in opinion.[xviii] The lack of constitutional accountability and restraint has cause people to advocate for its codification and consequently, the explication of its limitations.

It is well received that its reins cannot be let loose without any accountability. However, for striking the right balance between restraining ‘constitutional’ procedures used to achieve unconstitutional ends and the unnecessary, baseless or overt use of this doctrine, codification is not the answer. Maybe two possible solutions exist.

Instead of codifying the doctrine and limiting its resilience against the unpredictable challenges posed by the various routes of action that can be adopted by anti-democratic actors, an approach where courts are influenced by democratic principles rooted in constitutional systems beyond the borders of its own jurisdiction, can be considered. The expansion of this idea would go beyond the scope of this paper.

The reformation of judicial review can also be explored. The doctrine was created in special circumstances to protect the fundamental structure of the constitution.  However, today, the unnecessary and excessive use of the doctrine is a reality that threatens its very special character.  It has been “extensively invoked to affect policy decisions”[xix] and its indifferent evocation has been the root cause of resentment against it. Explication or codification of the doctrine is, again, not the answer to limit such use. Rather, the process of judicial review needs to be restructured in a way that protects the basic features of the constitution against infringing laws without the actual invocation of the doctrine itself. This argument derives its strength from the understanding that any law which violates the basic nature of the constitution, would also, in most likelihood, be inconsistent with some other part of the constitution. This particular law could breach some fundamental right or some other constitutional provision which does not necessarily mean that the law is violative of the basic structure. In such a scenario, the judiciary must use the lower principle to invalidate the law. In other words, a law that is expected to infringe the basic structure, should not pass the judicial scrutiny of an applicable constitutional provision. The repeated use of the doctrine will not just impair it but also motivate institutions to bypass its moral authority.[xx]The restructured judicial review process can prevent this, without the need for codification and its associated issues. 

It must be noted that the core of both these opinions revolve around the willingness to trust the judiciary and the application of their discretion in protecting the Constitution of India. It would be a stretch of our imagination to believe that the decisions of a court fall neither towards the constitution not towards the ‘consent of the governed’.[xxi]The case against the doctrines codification far outweighs its benefits, especially in the light potential solutions for the shortcomings of an uncodified basic structure doctrine.

[i] AIR 1973 SC 1461

[ii]Jacobellis V. Ohio, 378 U.S. 184, 197 (1964) (Stewart J., Concurring).

[iii]1975 AIR 1590

[iv]Satya Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’,

Constitutional Transformations and The Future of Political Progress In India, 1 NUJS L. Rev. 417 (2008)

[v]1980 AIR 1789

[vi]Supra 3

[vii]Pek, Jane. (2008). Things Better Left Unwritten? Constitutional Text and The Rule of Law. New York University Law Review (1950). 83.

[viii]Honduras Const. Article 374

[ix]Friedman, A. (2011). Dead Hand Constitutionalism: The Danger of Eternity Clauses in New Democracies.

[x]Richard A. Posner, The Problematics of Moral and Legal Theory 264 (1999).

[xi]William E. Nelson, Americanization Of the Common Law 90 (1975)

[xii]Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 800 (1989)

[xiii]F.A. Hayek, Law, Legislation and Liberty: Rules and Order 86 (1983). 107

[xiv]Supra 7

[xv]Bangladesh Const. (Fifteenth Amend.) Act, 2011.

[xvi]Roznai, Y. (2013). Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea. The American Journal of Comparative Law, 61(3), 657-719. Retrieved from Http://Www.Jstor.Org/Stable/43668170

[xvii]Excerpt from Y. Roznai, Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, Oxford, Oxford University Press, 2017 (Part Ii, Ch. 4, 5).

[xviii]Rosalind Dixon, David Landau, Transnational Constitutionalism and A Limited Doctrine of Unconstitutional Constitutional Amendment, International Journal of Constitutional Law, Volume 13, Issue 3, July 2015, Pages 606–638

[xix]Supra 3

[xx]Supra 3

[xxi]Levinson, S. (1995). Responding To Imperfection: The Theory And Practice Of Constitutional Amendment. (Course Book Ed.). Princeton: Princeton University Press. 


 (Avantika Rai is a student of OP Jindal Global Law University)

Taking Live-In Relationships Seriously: Courts Must Defend Liberties Rather Than Adjudging Morality

 


In the words of Granville Austin, the Constituent Assembly envisaged the Indian Judiciary as a bastion of rights and justice. However, recent string of orders from the Punjab and Haryana High Court reflectthe court’s tendency to relinquish their constitutionally mandated role, in favor of acting as a guardian of ‘public morality’ and ‘social fabric’ of society. The court on May 18, 2021, in a rather injudicious order, declined to grant protection to a couple who were apprehending danger from their parents. To add insult to injury, the court further went ahead to comment that the couple, under the garb of this protection petition, are seeking seal of approval on their live-in relationship which is morally and socially not acceptable. The court, in assuming that it is them who possess this imaginary authority to grant approval of relationships, has committed two blatant blunders: Firstly, it places social and moral acceptance of a practice over Article 21 protection of right to life and personal liberty that encompasses the right to live with a partner of one’s choice as a necessary coincident of liberty guaranteed under this article of the Indian Constitution. Secondly, the high court, exceeded its authority by exhibiting flagrant disregard to the Supreme Court of India as the apex court has, on numerous occasions, held the practice of live-in relationships to be within the bounds of law of this land, irrespective of how immoral the society may consider it to be. Nevertheless, even if the Supreme Court had not adjudged the issue, the fact that live-in relationships are not legislatively illegal, makes this absurd preference by the court of social and moral acceptance of live-in relationships over the constitutionally granted fundamental right of life and liberty, a mammoth infelicitous debacle. Having said this, it is not intended to state that had there been a legislation prohibiting live-in relationships, the orders of the court could have been tenable because in that eventuality, the constitutionality of that specific legislation would itself have been under the scanner by the Supreme Court as it would violate multiple facets of the Article 21 right viz. right to privacy, bodily autonomy, cohabitation, life and personal liberty.
 
As regrettable as it may appear, this order is not a one-off incident as the Punjab and Haryana High Court itself on May 12, 2021, passed another order wherein the court similarly declined to grant protection to a live-in couple stating that if such protection is granted, the entire social fabric of the society would get disturbed. The court rooted it’s reasoning for declining protection to the couple in the fact that the first petitioner was barely 18 and the other was only 21. If this order is indeed rightly reasoned, the court must go ahead and register a sou motu case against all the constitutional law professors of this country, for being so negligent in executing their duties that they forgot to teach us that our fundamental rights granted by the constitution are dependent upon the age or employability of a petitioner.Nevertheless, from what the Supreme Court of India has held, it can be authoritatively stated that Article 21 protection of right to life and personal liberty is not dependent upon any parameter (not even citizenship) or contingent upon any other right, leave alone public morality, social acceptance or social fabric of society. Notably, no other fundamental right, other than Article 25 and 26 (right to freedom of religion, which is subject to public order, morality, health and other fundamental rights) is dependent upon any moral or social acceptance requirement. People derive their right to equality and right to life and liberty from the constitution and it is the mandatory job of the courts to protect these rights from violation and not to impute intentions to petitioners or pass diktats perpetuating a view that smacks of antediluvian Victorian morality.
 
It is indeed despicable that a discussion on dispensation of legal rights of citizens, has such an inflated rate of bombardment of phrases like ‘public morality’ and ‘social acceptance’. As unfortunate as it may be, this begs the question that should judges be influenced by something as fluid and subjective as popular morality? The courts cannot hold an otherwise unconstitutional act to be constitutional because it is in consonance with the morality of the public.Consequently, the Punjab and Haryana High Court has erred in these orders by giving weightage to an abstract and unnecessary parameter of “public morality” in a proceeding that should have only considered the fact that the petitioners have a certain right to protection and no amount of public outrage should be able to jeopardize this constitutional right. If the court must worry about morality, it is Constitutional Morality that they should concern themselves with rather than public morality. Hon’ble Justice Chandrachud, in his Section 377 judgement, held that constitutional morality requires that the “right of an individual ought not to be prejudiced by popular notions of society”. He further stated that constitutional morality “reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance”. Chief Justice Dipak Misra (as he then was) along with Justice Khanwilkar and Justice Chandrachud held that the goal of the court is to “transform society”, or, in other words,“convert public morality into constitutional morality”. However, what the Punjab and Haryana High Court has done is that, in stark contrast to Supreme Court’s judgement, it has converted constitutional morality into public morality and this, in the words of Hon’ble Justice Nariman“is not open for a constitutional court to substitute societal morality with constitutional morality”. The Supreme Court, in the Sabarimala Judgment, has even held that the word “morality” contained in the restrictions of Article 25 and 26 mean constitutional morality and not public morality. It is evident that even when the constitution subjects a right to “morality”, it refers to constitutional morality and not the morality of the specific judge or public at large.  Therefore, in such cases that have no restriction of “morality” mentioned in the constitution, it is injudicious of the courts to start reading in the requirements of public morality and social acceptance into the rights-based framework of the Indian Republic.
 
A parallel can be drawn between the handling of these cases by the High Court and the Supreme Court’s Ayodhya Verdict which received scathing criticism from eminent constitutional scholars for prioritizing “public peace and tranquility” rather than dispensing justice. By extension, it would mean that the court’s decision in the Ayodhya matter could have been different if they were of the opinion that a different decision would bring more public peace and tranquility in the society. Justice, seems to take the back seat in such calculations. The High Court’s handling of the present issues seems to be suffering from the same misplaced priority conundrum wherein it has prioritized public morality and social fabric of society over the constitutional rights that the people have. By extrapolation, one is tempted to think that would the decision of the court have been different if the practice of live-in relationships were socially acceptable in our society? At this juncture, it must be reiterated that the duty of the courts is to protect the rights of individuals from being violated rather than focus on maintaining peace or protecting the supposed social fabric of the society.Moreover, the link between a live-in relationship and the moral fabric of society is itself non-existent and if, in the esteemed opinion of the ever-righteous court, the moral fabric of our society does get disturbed by two heterosexual consenting individuals living together in their own private space, one needs to re-evaluate the utility of having such puritanical social fabric in our livesto begin with.
 
The process of adjudication of cases, is mostly an exercise in balancing out contested rights of opposing parties. In a conflict of rights, the court examines the contestations between the parties and favors the more legitimate right. In the present cases, the rights in conflict are the constitutional right to life and personal liberty of the couples versus the imaginary non-existent right of the Indian parents to control the lives of their children. Evidently, there is no precedent required to adjudicate this conflict of rights but if the Punjab and Haryana High Court wanted so, it need not go far as a bench of this very court, headed by Justice Sarin, in December, 2020 had ruled that even if the petitioner is not of marriable age, the live-in couple has a right to live together if they are major and that parents cannot force a child to live life on their terms. Justice Sarin held, and rightly so, that the live-in couple will not be declined protection of this court as the court cannot deny enforcement of the couple’s Article 21 fundamental right on the whims of their parents. In a more recent development, just two days after the May 18 order, Justice Sudhir Mittal of the Punjab and Haryana High Court itself, has, in a judicious, wise and concretely reasoned judgement, granted protection to a live-in couple stating that such a relationship is neither prohibited nor does it amount to commission of any offence and therefore the couple is entitled to equal protection of laws. Moreover,he held that social acceptance for live-in relations are on the increase. However, what is truly remarkable about this order is that although Justice Mittal held that there is increasing social acceptance of the concept of live-in relationship, he did not root his decision of granting protection to the couple in this social acceptance.Had he granted the couple protection on the basis of the increasing social acceptance, he would have committed the same mistake that the previous judges did, but would have just happened to come to a different conclusion by applying the same flawed reasoning. Instead, Justice Mittal turned to the constitution and held that there is no difference between couple who gets married against the wishes of their parents and couples who live together without a formal marriage and that the law should protect them both equally.
 
Such prudent reasoning of Justice Sarin and Justice Mittal is also in congruence with the thoughts of libertarian scholars like John Stuart Mill who argue that the only component of an individual’s behavior that can be the concern of state or society is that which effects other individuals directly and that the individual must be sovereign over his body and mind in all matters except this.In this case, no other right of anyone is being affected directly or indirectly other than the already stated imaginary right of the Indian parents to control the lives of their children. The rhetoric of social fabric and public morality are just windows through which the biases of the society and the judges themselves protrude.
 
Lastly, if the court is indeed turning to history, it is suggested, that they do so,not to refer to primitive Victorian morality, but to refer to the historical 1988 judgement of the European Court of Human Rights in Norris vs Republic of Ireland wherein it was held, in the context of homosexuality but it can be transposed to our present factual matrix as well, that “although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved”. Perhaps it is time that the Indian courts realize that just because the enforcement of a constitutional right may offend, shock or disturb the public, this per se, does not make the right non-enforceable in any way whatsoever.

(Ayush Mishra is a practicing Advocate at the Hon’ble Allahabad High Court and a graduate of the NALSAR University of Law, Hyderabad)

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