Courts Are Concerned With Legality and Not Morality. They Should Refrain From Preaching.

Recent verdicts by the Punjab and Haryana high court on granting protections to couples in live-in relationships shows why courts should be guided by constitutional morality, not what is socially acceptable.

Two benches of the Punjab and Haryana high court recently refused to grant protection to a live-in couple who apprehended harassment by their families. Briefly, the court held that live-in relationships are not morally and socially acceptable and that granting of protection to such couples would disturb the entire social fabric of the nation.

In a significant development, just days later, another bench of the high court in the case of Pardeep Singh vs the State of Haryana took a completely different view while dealing with a similar case where a couple in a live-in relationship alleged that their families were threatening to cause them physical harm. The court rejected the contention of the state counsel that protection should not be granted to the couple since live-in relationships are not legal and are frowned upon by society.

The court noted the existence of live-in relationships in India and their increased social acceptance in Indian society, how they came to be, reaching from the metros to small towns and it credited increased education for this development. It also held that such relationships are not prohibited and do not constitute the commission of any offence; therefore live-in couples are entitled to equal protection of the laws like other citizens.

The bench emphasised that constitutional courts can grant protection to couples who marry against the wishes of their parents or families and are being threatened by them. Those in live-in relationships are also entitled to similar protection irrespective of the fact that their relationship is not universally accepted.

Accordingly, the court proceeded to direct the authorities to consider the representation of the couple for protection and grant it if found necessary and directed that no harm should come to the liberty of the couple, thus being in stark contrast to decisions refusing protection just days ago by other benches.

Punjab and Haryana high court. Photo: Sanyam Bahga/Wikimedia Commons, CC BY-SA 3.0

This article examines the extent of the fundamental right to life and personal liberty guaranteed to citizens by Article 21 of the constitution of India and the extent of the limitations to which the right can be subject. The article also questions whether it is in the remit of the court to preach what is morally and socially acceptable and what is not.

While each case has its specific set of facts and circumstances, the high court was exercising its criminal writ jurisdiction in which couples involved in live-in relationships sought protection from their families. Its observations made against live-in relationships though, are general in nature; these are written, not oral, observations forming a part of the official judicial record.

Live-in relationships exist in Indian society and have inevitably found their way to the courts. In the case of Indra Sarma vs V.K.V Sarma (2013) the Supreme Court dealt with the issue of whether a woman involved in a failed live-in relationship would be entitled to benefits as if it was a relationship akin to marriage. This was a case of a broken live-in relationship, while the cases before the Punjab and Haryana high court were not. In its judgment in Indra Sarma, the Supreme Court observes that while live-in relationships are not socially acceptable in India, they are neither a sin, nor a crime, thus affirming that there is no procedure established by law which bars relationships of this nature. The Supreme Court laid down the criterion for judging whether a live-in relationship would fall in a relationship similar to marriage or not.

The Supreme Court and liberal values

In the case of Deena vs Union of India (1983), the Supreme Court emphasised that the law is dynamic and its social utility consists in its ability to keep abreast of emerging trends in society and its willingness to readjust its postulates to accommodate those trends.

These observations are an important reiteration of the fact that the law changes with time, much like our constitution is a living and evolving document.

It is because of the above that courts are to be guided not simply by morality but constitutional morality.

The concept of constitutional morality was addressed by the Supreme Court in Manoj Narula vs Union of India (2014). Simply put, the principle of constitutional morality involves examining the norms or provisions of the constitution and acting in conformity with them, and not violating the rule of law or acting in an arbitrary manner. According to the court, the traditions and conventions have to grow to sustain the value of such morality and people at large and persons in charge of institutions must strictly be guided by it. The working of the constitution of India is made for a progressive society and its implementation and working will depend upon the prevailing atmosphere and conditions.

These observations necessitate an examination of the scope and extent of Article 21 of the constitution of India which guarantees to citizens the fundamental right to life and personal liberty.

The scope and extent of the Article have been dealt with in detail by a constitution bench of the Supreme Court in Maneka Gandhi vs Union of India (1978). According to the court, the purpose of fundamental rights is to help the individual find his own liability, to give expression to his creativity and to prevent governmental and other forces from alienating the individual from his creative impulses. The court observes that though Article 21 is couched in a negative language, it confers the fundamental right to life and personal liberty and which is ensured by providing that no one shall be deprived of it except according to a procedure prescribed by law.

There are no fundamental rights that are free from restrictions. In the case of Article 21, there has to be some procedure prescribed by law which impinges on their rights or on their choice to live life the way they want. For instance, committing heinous crimes simply because an individual wants to cannot be protected under Article 21, there have to be some checks and balances.

The court discusses the meaning of ‘procedure established by law’ and holds that this procedure must be a reasonable procedure and reflect the rule of law. The court indicates that procedure means standard measures regulating criminal or like procedure in the country. The procedure is often a legislative act, but it must be functional, not silly and pointless. The court emphasises that the procedural machinery must not be allowed to destroy the substantive right, there have to be procedural safeguards in place to secure the liberty of individuals

Also Read: Punjab and Haryana HC’s Dismissal of Live-in Couple’s Plea for Protection Goes Against SC Ruling

The case of K.S. Puttaswamy vs Union of India (2017) provided the Supreme Court with a good opportunity to add to our constitutional jurisprudence. It observed that the best decision on how life should be lived is best left to individuals because they are continuously shaped by the social milieu that they live in. According to the court, the state is duty-bound to protect this individual autonomy rather than dictate how individuals should live their lives. The court observes that privacy is an essential facet of dignity and holds that privacy ensures that a human being can live a life of dignity by securing the inner recesses of the human personality from unnecessary intrusion. According to the court, privacy refers to the autonomy of the individual and the right of every person to make essential choices which affect the course of life; therefore, privacy recognises that living a life with dignity is essential for a human being to fulfil the right to liberties and freedoms which are the cornerstone of the constitution.

In Shafin Jahan vs Ashokan, K.M. (2018), the Supreme Court dealt with a conflict between two sections of society, on the one side was the father, and on the other side the daughter and her husband. The father could not accept Hadiya’s (his daughter) choice of partner. In that context, the court emphasised the importance of the expression of choice and ruled that curtailing the expression of choice would destroy the individualistic entity of a person. Most crucially, the court observed that while social values and morals have their space, they cannot be above constitutionally guaranteed freedoms. The court observed that the duty of the court is to uphold fundamental rights and not to abridge the sphere of the right unless there is a valid authority of law.

Justice D.Y. Chandrachud’s observations in his separate but concurring judgment are also important. He observes that the differences between Hadiya and her father may be unfortunate, but it was not for the high court to decide what is considered to be a ‘just’ way of life or ‘correct course’ of living for Hadiya and that she has complete autonomy over her person.

Justice D.Y. Chandrachud. Photo: PTI

Right to live with privacy and personal dignity

In the 21st century, adult citizens should be able to live their lives with privacy and personal dignity. They should be able to live with who they want and how they want unless they are contravening a law put in place by the legislature. There is no law brought into force by the legislature in India which explicitly bars live-in relationships. Therefore, if individuals want to live with partners of their choice with consent, without formally entering into marriage, that is a conscious choice that they exercise and the two benches of the Punjab and Haryana high court should have refrained from passing judgment on whether this choice is morally or socially acceptable or unacceptable and how individuals should live their life.

Life, like law, is not static and with the advent of globalisation, societal change is inevitable. The views of society will depend and differ on the basis of various factors such as age, demographics and region. Live-in relationships are becoming increasingly prevalent in India among young people. Resistance to this change by the institution of marriage must be dealt with in a measured manner without traversing into the arena of perceived morality or immorality.

What the Supreme Court held to be socially unacceptable in India in 2013 may no longer be socially unacceptable in 2021. It is the duty of courts to keep pace with the times and implement the provisions of a liberal constitution.

The two orders passed by different benches of the high court are short orders which refuse protection to live-in couples from their families on the ground that such relationships are ‘immoral and against the social fabric of the nation’. These decisions are ex-facie violative of Article 21 of the constitution of India and have shown complete disregard for the individual’s right of choice and the right to decide how to live their lives. It is also needless to emphasise that there is a difference between morality and legality and courts should be concerned with legality rather than morality. They must examine whether a practice is illegal or not ‒ if the practice is not illegal, then morality will be an irrelevant consideration for adjudicating the case.

Interestingly the same high court has spoken in different voices, while two benches have found the practice of live-in relationships to be morally and socially unacceptable, another bench has recognised their prevalence in Indian society and directed consideration of the representation for the protection. In doing so, the other bench placed reliance on the provisions of the constitution of India and was guided by constitutional morality, holding that the right to life and liberty includes the right to choose a partner of his or her choice and decide whether they want to formalise the relationship or continue to be in a live-in relationship. Thus, the court was guided by constitutional morality rather than its own notions.

There is yet another angle to this controversy, i.e., the refusal of two benches of the high court to curb the private vengeance of families on such couples. The approach of the judges while refusing protection is flawed insofar as they refuse to protect the couples from private vengeance because they find fault with the nature of their relationship. The Supreme Court in the case of Shakti Vahini vs Union of India (2018), while dealing with the menace of khap panchayats and ‘honour killings’, emphasised the importance of choice in choosing a partner and held that courts must protect young couples and families trying to escape such violence.

Different judges of the Punjab and Haryana high court have chosen to speak in different voices. While the first two benches have failed to afford protection to such couples under the garb of morality, another has chosen to rely on the constitution of India to direct the authorities to consider the couple’s representation for protection from their families. It would be desirable for there to be some consistency in the application of the law to parties who are before the court in similar fact situations.

In conclusion, ideas such as morality and what is socially acceptable or unacceptable are largely subjective in nature. The conception of what is moral and immoral and what is socially acceptable and unacceptable can vary from person to person and from judge to judge (as we have seen in the case of the Punjab and Haryana high court). This is why judges should be guided by constitutional morality and examine constitutional provisions rather than the ideas of morality in the abstract or preach what they consider to be socially acceptable or unacceptable. The courts should safeguard the citizens right to choose how to live life on their own terms without unwarranted interference and should afford them protection against those who threaten them with violence.