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)
June 09, 2021
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