Constitutional Morality: A tale of 3 verdicts

French philosopher and thinker, Simone Weil, said, “Liberty, taking the word in its concrete sense consists in the ability to choose.” These are the opening lines from the landmark decision of Shakti Vahini v. Union of India, wherein the Supreme Court of India has held it absolutely “illegal” for any assembly to scuttle or prevent two consenting adults from marrying. The court has also laid down preventive, punitive and remedial measures in this regard, recognizing the right to choose a partner as a fundamental right under Articles 19 and 21 of the Constitution.

Recently the tale of three separate orders of Punjab & Haryana High Court with similar facts and prayers, offer us a clear understanding as to how difficult it is to realize this basic civil liberty, even with the aid of a constitutional court.

Orders of the Punjab & Haryana High Court

On 11th May 2021, the High Court delivered a surprising order in Gulza Kumari v. State of Punjab where the petitioners, who were living together with an intent to marry soon, were denied any protection to their life. This was so because the court was of the view that “the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable.”

In a similar case on the very next day, (delivered on 12 May 2021) namely, Ujjawal v. State of Haryana, a different bench of the same Court declined to grant protection to the petitioners not only qualifying the legal age of consensual relationships but also legal age of consent of a valid marriage i.e. 18 years for the girl & 21 years for the boy. The reasoning provided was that “if such protection as claimed is granted, the entire social fabric of the society would get disturbed.” It is worth noticing that the court introduced the first petitioner (girl) as “barely 18”.

Analysis of the Two Orders

The language and reasoning of the two orders leans horizontally towards the Victorian or mob notions of morality rather than the touchstones of constitutional morality. The Supreme court of India in the case of the Government of NCT of Delhi while dealing with constitutive elements of constitutional morality which are – Liberty, Equality and Fraternity, made it clear on a number of occasions that the constitutional courts stand only for constitutional morality which acts as a check “against the tyranny of the majority” and as a “threshold against an upsurge in mob rule”. Moreover, this judgment also goes against the string of judgments by the Supreme Court in Khushbu v. Kanniammal, Indira Sharma v. V.K.V. Sarma and Kopisetti Subbharao v. State of Andhra Pradesh, which have gradually recognized live-in relationships in various facets of law. 

There can be no better eye-opener towards the legal error committed by the High Court in the above cases, than the third order of the same Punjab & Haryana High Court in Pradeep Singh v. State of Punjab,  delivered on 18 May 2021 by another co-ordinate bench. The facts were similar to the judgments discussed above, namely adult live-in couples apprehending a threat to their life approaching the court after no other assistance given to them. This judgment offers a correct position of law, which may itself be presented as a critique of the above two orders.

The Third Order

Firstly, the court reiterated the well-established principle of ‘individual liberty’ to choose a partner whether within or outside the marriage (live-in relationships) and also ascribed itself the responsibility to protect it against the contemporary moral notions of the society. Secondly, from a different line of reasoning, the Court upheld that in a manner similar to the one where individuals marrying against the wishes of parents are entitled to protection for their life, the live-in relationships are also entitled to such protection, leaving no scope for the society to take the law into their hands.

The court affirmed that acceptance to live-in relationships in society depends on the level of education. A similar judgment was passed by the same High Court in Soniya & Anr. v. State of Haryana & Anr, wherein the Court, after taking note of different judgments of Punjab & Haryana High Court, on 18th May 2021, along with the Supreme Courts, gave a direction to the State to decide on the representation of a live-in couple for grant of protection. The Court, on May 21, 2021, sent this issue for a full-court reference.

It is true that the development and acceptance of liberal individual rights in society has been the factor of its educational and economic progress. There is no denying that such progress in our country has been highly uneven. In such a scenario, it is expected and needed that if any individual from a society that is yet to absorb the ideals of individual liberty strides to bypass the constraints it offers, constitutional courts should come to her rescue. This sets the example for the society which will gradually come out from the fissures of caste and religious equations, the major reasons why young individuals are not allowed to choose their life partners.

Agency and Violence

As per the latest report of the National Crime Records Bureau released in 2020 titled “Crime in India 2019” Punjab & Haryana together accounts for 9 (Haryana -3 & Punjab -6) out of a total of 24 reported honour killings. In such circumstances, two orders of the Punjab & Haryana High Court, declining to protect the life and personal liberty of the Individuals whose actions are parallel to the ideals of our constitution is really disappointing. In both cases, the court gave preference to societal norms over constitutional ideals and individual liberty, opening the floodgates of moral policing over rule of law. It is well established that women are more vulnerable to such restrictions over their power of agency & choice. Their emancipation will suffer disproportionately, ultimately denying gender justice.

The Ministry of Home Affairs has recognised the problem of honour killing and pursuant to the Supreme Court’s decision in Shakti Vahini v. Union of India, has issued an advisory to the State Governments. The State Governments have been mandated to create District level Special Cells to hear complaints of harassment of and threat to couples of inter caste marriage with a Helpline to receive and register such complaints. However, from the spate of cases filed before the Courts, it does not seem that such cells are effective, in any way. It is, thus, the need of the hour to strengthen this mechanism. The courts should nudge the executive towards execution of guidelines which ensure the safety and personal liberty of the individual, rather than enforcing the collective public norms of the society.

Conclusion

The societal notions of morality do not necessarily conform to constitutional ideals of morality. It is the duty of the Court to rely on the Constitutional, rather than societal notions of justice as constitutional morality is the sole compass for the courts. In a nutshell, attempt should be made that the society gets affected and improved by the judgements of constitutional courts rather that constitutional courts being affected by the societal norms and subverting the rights this Constitution guarantees.

Submitted by Apoorv Kumar Chaudhury and Anurag Singh

Apoorv Kumar Chaudhury is a Research Fellow at Centre for Innovation, Intellectual Property and Competition Law, NLU Delhi. He is an alumnus of National University of Advanced Legal Studies, Kochi and CUSAT. He is also the recipient of the very prestigious Junior Research Fellowship. He is also a prodigious reader of an eclectic collection of books and an animal lover.
Anurag Singh is a final semester LL.B. student at Lucknow University. Presently he is working on two books based on constitutional morality – Fundamentals of Constitutional Moral Science (Children’s book) and Introduction to Constitutional Moral Science (Young Readers’ book).

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